ABDUL SALIM vs GOVERNMENT OF N.-W.F.P. through Secretary, Department
This matter concerns a petition for leave to appeal against a judgment of the N.-W.F.P. Service Tribunal, which upheld the termination of the petitioner from his position as a C.T. Teacher. The core legal question was whether the department could summarily terminate an employee on the vague grounds that his appointment was illegal and void ab initio without providing specific reasons or a show-cause notice, particularly when the employee was qualified and the department itself was responsible for any alleged procedural irregularities. The Supreme Court held that the termination order was void in law, noting the absence of specific reasons for the termination and the failure to provide the petitioner an opportunity to defend himself. The Court set aside the termination and ordered the petitioner's reinstatement. The key principle laid down is that the government is an institution in perpetuity, and an appointee cannot be penalized or condemned for irregularities committed by the department itself during the recruitment process, especially when the candidate is otherwise fully qualified for the position.
- Can a government department terminate an employee for alleged procedural irregularities in his appointment without providing specific reasons or a show-cause notice?
- Is an employee liable to suffer the consequences of irregularities committed by the department itself during the recruitment process?
- Does the change of departmental heads justify the reversal of previous valid appointment orders?
' SARDAR MUHAMMAD RAZA KHAN, J.--- Abdus Salim son of Kamal Din, former C.T. Teacher at Government Middle School, Sherdara, seeks leave to appeal against the judgment, dated 27-8- 2001 of N.-W.F.P. Service Tribunal which had dismissed his appeal against removal from service vide departmental order, dated 13-2-1997.
2. The petitioner was appointed as C.T. Teacher (BPS-9) and posted at Government Middle School, Sherdara, Swabi vide order, dated 25-4-1995. His service book was prepared and he was paid monthly salaries regularly when on 13-2-1997, Divisional Director of Education (Male) Secondary, Mardan Division, Mardan dispensed with his services. His departmental representation having not been responded to, he resorted to the Service Tribunal.
3. The advertisement for the post in question having been published in Daily Mashriq, Peshawar is at page 30 against which the petitioner got interviewed in Government High School No,1, Mardan.
His appointment order as C.T. Teacher is not disputed. The order of removal from service (page 26) reveals the grounds of his termination to the effect that his "appointment was found illegal, ab initio void and against the prescribed rules."
4. So far as the details thereof are concerned, it is nowhere mentioned as to how the appointment was illegal, as to how was it void ab initio and what were the prescribed rules violated in case of his appointment. The absence of such reasons by itself are sufficient to dub the removal as mala fide.
Had there been any specific reason and had such reason been intimated to the petitioner through a show-cause notice, he might have been able to defend himself, but for the shortcomings of his own and not those of the department.
5. So far as the qualifications of the petitioner are concerned, at the time of his appointment/interview on 10-8-1995, he was graduate since April, 1985, B.Ed. Since 1993, M.A. Pushto since 1989 and M.A. Urdu since April, 1992, had a certificate in basic education for Afghan Refugees since August, 1984 and had remained S.V. Teacher in the Organization of Afghan Refugees from November, 1993 to April, 1995. One cannot imagine how was he not qualified for a post of C.T.
Teacher in BPS-9.
6. For any irregularity whatsoever, if committed by the department itself, the appointee cannot be harmed, damaged or condemned subsequently when it occurs to the department that it had itself committed some irregularities qua any appointment. This Court has on numerous occasions held that for the irregularities committed by the department at itself qua the appointment of a candidate, the appointees cannot be condemned subsequently with the change of the heads in the department or on the . Upper level. Government is an institution in perpetuity and its orders cannot be reversed simply because the heads have changed. Such act of departmental authorities is all the more unjustified when the candidate is otherwise fully qualify to hold the job.
7. In the circumstances, the petition after conversion into appeal is hereby accepted. The impugned judgment, dated 27-8-2001 is set aside and the order of termination from service, dated 13-2-1997 is set aside being void in law and petitioner is hereby reinstated in service. In the circumstances of the case, he shall not be given the back-benefits but his pay fixation shall be done with reference to and in continuation of the date of his initial appointment.
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