EXECUTIVE DISTRICT OFFICER (EDUCATION), RAWALPINDI Versus MUHAMMAD YOUNAS

CH. IJAZ AHMED; J.--- Petitioners have sought leave to appeal against the judgment of the Punjab Service Tribunal dated 13-4-2005 wherein appeal filed by the respondent against the order of the petitioners dated 26-8-2004 was accepted and the order of the petitioners was set aside and quashed.

2. Brief facts out of which the present petition arises are that respondent was appointed as P.T.C. Teacher by the petitioners on 5-10-1985. Petitioners came to know that respondent concealed material facts from the petitioners while accepting his application for appointment as P.T.C. Teacher in Education Department. Respondent was ex-employee of Pakistan Army. Respondent was dismissed from Army service on 1-12-1982 under Pakistan Army Act and was rendered unfit for civil service and awarded unsatisfactory character. Petitioners after securing the aforesaid information verified the same from A.S.C. Centre, (Record Wing) Naushera Cantt. That respondent secured the appointment on 5-10-1985 through .fraud and misrepresentation on the production of his forged discharged certificate. The petitioners initiated proceedings against the respondent under Efficiency and Discipline Rules, 1999 and issued show-cause noticed, dated 4-8-2000. Respondent being aggrieved filed Service Appeal No.738 of 2001 before the Punjab Service Tribunal. Petitioners filed report and parawise comments before the Service Tribunal wherein the petitioners had taken a stand in para.5 that respondent was removed from service vide order, dated 9-2-2001 after completing all the legal formalities in terms and said show-cause notice. The respondent did not challenge the order, dated 9-2-2001 before the Service Tribunal by, filing application for amendment of his appeal before the Service Tribunal in view of subsequent events of his removal. The learned- Service Tribunal accepted the appeal of the respondent vide judgment, dated 21-3-2002 with -the following observation:--

"If the department desires to proceed against the appellant, they are at liberty to do so through a regular inquiry ending with a speaking order, the matter shall be disposed of."

3. The respondent was awarded EST Grade on 28-5-2003 by the District Education Officer (MEE) Rawalpindi after the aforesaid judgment of the PST which was subsequently withdrawn by the petitioners vide order, dated 6-6-2003. Respondent being aggrieved filed Constitutional Petition No.1678 of 2003 which was dismissed by the learned High Court after filing report and parawise comments by the petitioners vide order, dated 10-6-2004 which clearly shows that services of the respondent were terminated on 9-2-2001. Copy, of the said order has been placed on record as evident from para. 1 of the said order, dated 10-6-2004. After .the dismissal of the constitutional petition of the respondent, District Education Officer (MEE) Rawalpindi dispensed with the services of the respondent vide order, dated 26-8-2004. Respondent being aggrieved filed representation before the Executive District Officer, Rawalpindi on 28-8-2004 who had not decided the same within the stipulated period. Respondent being aggrieved filed Appeal No.2707 of 2004 before the Service Tribunal which was accepted vide impugned judgment, dated 13-4-2005. Hence, the present petition.

4. The learned counsel for the petitioners submits that learned Service Tribunal accepted the appeal without adverting to the fact that the services of respondent had already been dispensed with by the petitioners on account of concealment of order of dismissal from the Pakistan Army. He further maintains that respondent had not challenged the same and this fact was not considered by the learned Service Tribunal in its true perspective. He further maintains that respondent had concealed the material fact of his dismissal from Pakistan Army at the time of submitting application before the petitioners wherein he was rendered unfit for civil service and awarded unsatisfactory character.

5. Learned counsel for the respondent supported the impugned judgment and submits that the matter has been finalized in the earlier round of litigation between the parties vide judgment of the Service Tribunal dated 21-3-2002 in Appeal No.738 of 2001 as the petitioners had failed to place copy of order of his removal before the Service Tribunal and this fact was duly borne out from the contents of the judgment of Service Tribunal. Petitioners were allowed to proceed under Efficiency and Discipline Rules but the petitioners had not initiated proceedings against the respondent in term of judgment of Service Tribunal, dated 21-3-2002. This fact was also considered by the learned Service Tribunal in its true perspective at the time of deciding the appeal of the respondent in the second round of litigation vide its judgment, dated 8-4-2005. The learned counsel for the petitioners has failed to point out any infirmity or illegality in the impugned judgment of the Service Tribunal.

6. We have considered the submissions made by the learned counsel for the parties and perused the record. It is better and proper to reproduce basic facts in chronological order to resolve the controversy between the parties:---

(i) Respondent secured service in Pakistan Army.

(ii) He was dismissed from service on 1-12-1982 wherein he was declared unfit for civil service and awarded unsatisfactory character.

(iii) Respondent submitted application for appointment as P.T.C. Teacher in obedience of the advertisement of the petitioner.

(iv) Respondent was appointed as P.T.C. Teacher by the petitioners vide order, dated 5-10-1985.

(v) The fact of dismissal of the respondent from Pak Army came in the notice of appointing authority.

(vi) The appointing authority verified the aforesaid facts by A.S.C. Centre (Record Wing) Naushera Cantt.

(vii) The petitioners issued show-cause notice to the respondent under Efficiency and Discipline Rules on 4-8-2000.

(viii) Respondent being aggrieved filed Service Appeal 738 of 2001 before the Punjab Service Tribunal in which petitioners filed report and parawise comments and specifically mentioned in para.5 that services of the respondent were terminated by the petitioners vide order, dated 9-2-2001.

(ix) Respondent did not file any application before the Punjab Service Tribunal for amendment of his appeal. Respondent did not challenge the order of his removal dated 9-2-2001 by filing fresh appeal before the Service Tribunal.

(x) The learned Service Tribunal accepted his appeal vide judgment, dated 21-3-2002 wherein show-cause notice was set aside with the observation that the petitioners are at liberty to proceed against the respondent through a regular inquiry. Petitioners did not initiate any proceedings against the respondent.

(xi) District Education Officer, Rawalpindi awarded him EST Grade on 28-5-2003 which was subsequently, withdrawn on 6-6-2003.

(xii) Respondent being aggrieved filed Constitutional Petition No.1678 of 2003 in the Lahore High Court which was dismissed vide order, dated 10-6-2004 by observing in para. 2 as follows:--

"It was stated that the services of the respondent were terminated on 9-2-2001. EST Grade was withdrawn on his termination. Copy of order dated 9-2-2001 has been placed on record."

(xiii) As the order of the removal/termination of respondent was placed on record before the High Court in the said writ petition. Respondent did not challenge the same before any forum till date. District Education Officer, Rawalpindi dispensed with the services of the respondent vide order, dated 26-8-2004. Respondent being aggrieved filed representation before the Executive District Officer on 28-8-2004 who did not decide the same. Respondent being aggrieved filed Appeal No.2707 of 2004 before the Service Tribunal which was accepted vide impugned judgment.

7. In case aforesaid facts are put in a juxtaposition, then it is crystal clear that services of the respondent were terminated by the-petitioners vide order dated 9-2-2001 before the final judgment passed by the Service Tribunal in Appeal No.738 of 2001 filed by the respondent against the show-cause notice, dated 4-8-2000 in spite of the fact that respondent had taken specific plea in para. 5 of report and parawise comments that services of the respondent had been terminated/removed after completing the legal formalities. Respondent had not challenged the same as mentioned above till date. The petitioners had reagitated this fact before the learned High Court in constitutional petition filed by the respondent as well before the Service Tribunal in the second round of litigation. This fact brings the case in the area that judgment of the Service Tribunal dated 21-3-2002 is a result of misreading the record and is not sustainable in the eyes of law. It is a settled law that when the basic order is without lawful authority then the superstructure shall have to fall on the ground automatically as law laid down by this Court in Yousaf Ali's case PLD 1958 SC 104. It is also a settled law that where the order of appointment was secured by fraud and misrepresentation than principle of locus poenitentiae is not attracted as law laid down by this Court in Jalal-ud-Din's case PLD 1992 SC 207. It is pertinent to mention here that respondent has not challenged the authenticity of his dismissal from Pak Army on 1-12-1982 wherein he was also declared unfit for civil service and awarded unsatisfactory character. This fact alone is sufficient that respondent secured appointment as P.T.C. Teacher on 5-10-1985 by fraud and misrepresentation. It is also a settled law that tentative appointment is always subject to verification of character and antecedents. The petitioners were still within their. right after securing verification qua the dismissal of respondent from Pak Army on 1-12-1982 that the aforesaid observation to terminate the services of the respondent which is in consonance with the law laid down by this Court in Raja Muhammad Afzal Khan's case PLD 1958 SC Pak.) 258. The learned Service Tribunal has decided the case in violation of the dictum laid down by this Court and without adverting to the fact as mentioned above that respondent secured the appointment from petitioners by fraud and misrepresentation.

8. In view of what has been discussed above, petition is converted into appeal and is allowed. The impugned judgment of the Service Tribunal, dated 13-4-2005 is set aside. In the peculiar circumstances of this case, in the interest of justice and fairplay, petitioners are not allowed to recover the salary from the respondent received during the period from the petitioners as the respondent worked and performed duties as law laid down by this Court in Jalalud Din's case (supra). No order as to costs.

S.A.K./E-3/SC Appeal accepted.