' MUHAMMAD AFZAL (MEMBER).---Appellant challenges the orders dated 9-12-2004 vide which he was removed from service on the allegations that his appointment as PTC teacher was bogus, he prepared bogus appointment orders dated 12-8-1993 under the signatures of Deputy District Education Officer and that he committed fraud with the department. Appellant filed departmental appeal dated 24-12-2004 and as the same was not decided within the statutory period, he has come up with present appeal in this Tribunal.
2. Appellant states in his appeal that he was appointed as PTC teacher through orders dated 12-8- 1993 by the competent authority and that he was subsequently transferred to another school in 1997. It is also stated that the appellant kept working to the satisfaction of his superiors when he suddenly received intimation about disciplinary proceedings. It is also stated that his case was scrutinized by Army Survey Team and he was cleared by the Army.
3. Learned counsel for the appellant has argued the case at length. It is contended that appointment of the appellant was genuine and that the appellant had been appointed in the Markaz on the recommendations of the Recruitment Committee. It is also argued that when the appellant had been cleared by the Army Survey Team, his case could not have been subjected to further scrutiny. It is further pointed out that disciplinary proceedings on the same allegations, i,e, bogus appointment, were initiated against the appellant in 1998-1999 under Punjab Civil Servants (E&D) Rules 1975, but the same were subsequently dropped and fresh proceedings could not have been held, once those proceedings had been dropped. It is next maintained that the notice served to the appellant for submission of reply at final stage did not give the appellant sufficient time as per law for submission of reply, but even then the appellant submitted reply in time. It is also pointed out that the audit of the accounts of the concerned office relating to appointments of PTC teachers for the period 1993, had been undertaken and the name of the appellant was not mentioned in the audit objections which related to such bogus appointments. It is next maintained that in some similar cases, appeals challenging the orders of termination of services had been accepted by the Tribunal. It is finally pointed out that under the principle of locus poenitentiae, appellant could not be removed from service when he had rendered about 10-11 years service, without any complaint.
4. Appeal has been opposed by the respondents. It is stated that disciplinary proceedings were started against the appellant in 1998 when doubts were raised regarding appointment of the appellant and some other PTC teachers. The disciplinary proceedings remained frozen for some reasons, but never dropped as claimed by the appellant. It is maintained that final proceedings were initiated under the Punjab Removal from service (Special Powers) Ordinance, 2000 and that the appellant had accepted the show-cause notice in which he was given short period for submission of reply and he did submit reply and, therefore, the appellant could not raise any such objection now. It is also maintained on behalf of the respondents that scrutiny of record was properly carried out and it was found that as per record i,e, merit list and dispatch register, the appellant had never been appointed under the orders of competent authority and that he had himself managed the appointment orders in connivance with some dishonest elements in the department. It is further maintained that when the appointment of the appellant was proved to be bogus and fictitious in the light of record and when inquiry was also conducted into the facts of the case, the appellant could not claim to continue with appointment in the light of principle of locus poenitentiae. It is finally maintained that in countless similar cases of bogus appointments, this Tribunal had dismissed those appeals in which orders of termination of services (bogus appointments) were challenged.
5. I have considered contentions from both sides and also carefully gone through the relevant record including the merit list of Markaz Shah Saddar-ud-Din, the record of dispatch of appointment orders and such other relevant record. I repel the contention that disciplinary proceedings against the appellant got vitiated because of some technicalities. Appellant has not been able to prove from record that disciplinary proceedings initiated against him were dropped at any stage. I, therefore, find that law was correctly applied when the disciplinary proceedings were concluded against the appellant. Appellant himself accepted the show-cause notice in which he was given only three days to submit reply and he submitted reply. In certain cases, this Tribunal may have accepted appeals keeping in view the individual facts, but I find that in large number of cases, appeals challenging the orders of termination of services on account of bogus appointments, were dismissed by the Tribunal. I have gone through the dispatch register containing record of dispatch of the appointment orders made in the year 1993. The orders of appointment of the appellant are shown to have been issued against No,2031-2032. As per record seen by me (which was also shown to the learned counsel for the appellant in the course of hearing of the case), against this No, the orders of one Kaleem Ullah son of Muhammad Abdullah were issued for appointment as PTC teacher. It is quite evident, therefore, that the appellant committed fraud as he prepared appointment orders against the same number in his favour, whereas those orders-Nos. Were in respect of another candidate selected on merits. Similarly, the merit list of candidates in Markaz, Shah Saddar-ud-Din, was also examined in the course of hearing of the case. The name of the appellant did not figure in the merit list of selected candidates, the verification of appointment of the appellant on the basis of record showed that the appellant was not even posted in the school and he had not drawn any salary at the place of his first posting in 1993. When the appellant had not drawn any salary in 1993 even for a long time, therefore it is proved beyond any doubt that the appellant had prepared antedated bogus appointment orders and similarly managed to get his transfer to another school. In the verification of service record of the appellant dated 21-10-1998 by Deputy District Education Officer (M-EE) D.G.
Khan, the finding is given as under: "The appointment orders of above named teacher (appellant) are bogus. According to the records of the undersigned, AEO Halqa Shah Saddar-ud-Din, he was not posted by any orders and no salary was drawn in Primary School, Naseerwala (at his first place of posting shown in service book), in order, No,2032/Admn, dated 12-8-1993. His orders No,2032/Admn. Dated 12:8-1993 are, therefore, bogus." I also do not agree with learned counsel for the appellant that under the principle of locus poenitentiae the appellant could not have been removed from service after period of 10 years. As held by the Hon'ble Supreme Court of Pakistan in many judgments, particularly, in PLD 1992 SC 207, 2000 SCMR 907 and PLD 1998 SC (Pak.) 104, when the very orders are based on fraud and illegality, the concerned civil servant could not claim any right to continue on the basis of such illegal orders.
6. For the reasons given above, appeal is found without any substance and legal footing and the same is accordingly dismissed.
Appeal dismissed.
2006 PLC (C.S.) 693 [Lahore High Court] Before Syed Zahid Hussain, J Chaudhry AZHAR HUSSAIN versus SECRETARY, LOCAL GOVERNEMNT AND RURAL DEVELOPMENT DEPARTMENT, GOVERNMENT OF THE PUNJAB, LAHORE and 2 others Writ Petition No,3673 of 2006, heard on 25th May, 2006.
(a) Punjab Local Governments District Service (Tehsil/Town Municipal Administration Cadre) Rules, 2005--- ----R.3---Constitution of Pakistan (1973), Arts. 199 & 212---Employee of Local Government--- Grievance of employee relating to terms and conditions of service---Such employee being not a civil servant---Provision of Art.212 of the Constitution was not applicable to his case--- Constitutional petition was maintainable. [p. 695] A
(b) Punjab Local Governments District Service (Tehsil/Town Municipal Administration Cadre) Rules, 2005- ----Rr.2(1)(e) & 20---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Alternate remedy---Employee of Local Government---Impugned order passed by Government of Punjab being a final authority under R.20 of Punjab Local Governments District Service (Tehsil/Town Municipal Administration Cadre) Rules, 2005---No higher authority was provided under the said Rules, where such employee could seek his remedy---Remedy of appeal under R. 20 of the Rules thus, had become merely illusory---Constitutional petition was maintainable. [p. 695] B Muhammad Khalid Mirza and 3 others v. Lahore Development Authority and 12 others 2004 PLC (C.S.) 800 rel.
(c) Punjab Local Governments District Service (Tehsil/Town Municipal Administration Cadre) Rules, 2005--- ----Rr.3, 7 & 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Town Municipal Officer (TMO)---Appointment of deputationist from NTC (National Telecommunication Company) as Town Municipal Officer in place of petitioner being a member of Local Council Service---Validity---Such deputationist could neither be posted nor hold such post under the Rules---After posting such deputationist in place of petitioner, consequential order of transfer of petitioner would not deprive him of his right to challenge impugned order---High Court accepted constitutional petition and declared impugned order to be illegal and of no legal effect. [p. 696] C Muhammad Asadullah Siddiqui for Petitioner.
Ch. Aamer Rehman. Addl. A.-G. For Respondent.
Asmat Kamal Khan for Respondent No,3. Date of hearing: 25th May, 2006.
' SYED ZAHID HUSSAIN, J.---The petitioner who claims to be a member of Punjab Local Council Service (BS-17) was posted as Town Municipal Officer (T.M.O.), Ferozewala, District Sheikhupura on 26-11-2005. On a reference made by Tehsil Nazim, Ferozewala that he may be allowed to continue as such, it was ordered by the Chief Minister Secretariat on 31-3-2006 that he may continue "in his present place of posting till his retirement i,e, upto 14-12-2007." However, order dated 17-4-2006 was issued by respondent No,1 posting respondent No,3 at TMO, TMA, Ferozewala in place of the petitioner. This order has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. It is contended by the learned counsel that respondent No,3 who is a deputationist from NTC (National Telecommunication Company Ltd.) cannot be posted as TMO (Town Municipal Officer) whose appointment is violative of Rule 3(3) and Rule 7 of Punjab Local Governments District Service (Tehsil/Town Municipal Administration Cadre) Rules, 2005. It is contended that the petitioner has been displaced merely to accommodate respondent No,3 contrary to law and the rules on the subject.
3. The learned Additional Advocate-General Punjab as also the learned counsel for respondent No,3 invoke Rule 20 of the same Rules to contend that alternate remedy of departmental appeal being available to the petitioner the petition is not competent. In addition the learned Additional Advocate-General Punjab has placed on record written instruction to him on the subject that "the petitioner Ch. Azhar Hussain being a member of Local Councils Service is not a Civil Servant for the purposes of Punjab Service Tribunal Act, 1974." In response to the objection as to the maintainability of the petition, the learned counsel for the petitioner contends that since order dated 17-4-2006 has been passed by the Government i,e, Secretary, Local Government and Rural Development Department, Government of the Punjab, such a remedy cannot be availed by the petitioner there being no higher authority mentioned in the Rules.
4. Since there is a clear stance of the petitioner as also of the Government of Punjab that he belongs to Local Council Service and is not a civil servant the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 do not get attracted to such a case.
5. Insofar as the adequacy of remedy of departmental appeal is concerned the order having been passed by the Government of Punjab itself, it is not shown as to where the remedy for the petitioner lies. Rule 20 of the Rules (ibid) which is relied upon by the respondent side reads as follows:-- "20.Right of appeal or representation.---A member of the Service aggrieved by an order passed against him under the rules, shall have a right to file an appeal within sixty days of the passing of the order, to the authority next above the authority passing the order and to the Government where the order is passed by the Department: ' Provided that no appeal shall lie on matters relating to the determination of fitness of a person to hold a particular post or -to be promoted to a higher or Basic Scale."
' The perusal of the above rules would show that "Government" is considered to be the ultimate authority where an order is passed by a departmental authority. Since in the instant case the order has been passed by the Government of Punjab (as defined in Rule 2 (1) (e) of the Rules) itself, there is no higher authority provided or indicated by the Rules where the petitioner could seek the remedy. The remedy of appeal thus for him has become merely illusory. The reliance of the learned counsel for respondent No,3 in such context upon Muhammad Khalid Mirza and 3 others v. Lahore Development Authority and 12 others (2004 PLC (C.S.) 800), is thus inapt as in that case the representation was competent before the higher departmental authority.
6. The admitted position as per the comments filed by the Government is that rules framed under section 140-A read with section 191 of the Punjab, Local Government Ordinance 2001, called. "The Punjab Local Governments District Service (Tehsil/Town Municipal Administration Cadre) Rules, 2005" are applicable. Establishment and Composition of "Service" is taken care of by Rule 3 of these Rules. The Service consists of four functional units known as:-- "(i) The Administrative Functional Unit. (ii) The Finance/Accounts Functional Unit.
(iii) The Engineering Functional Unit.
(iv) The Planning Functional Unit."
' As per sub-rule (3) the members of the Local Council Service, employees of Local Government and Rural Development Department and Housing, Urban Development and Public Health Engineering Departments are eligible for posting and transfer in the Service in accordance with the share to be determined by the Government. There is a restrictive clause also in the form of sub-rule
(4) that "Officers and Officials of one Functional Unit shall not be eligible for appointment to a post in any other Functional Unit. Rule 4 envisages the appointment to the Service through Initial Recruitment, promotion and transfers whereas preconditions for appointment by transfer and posting are laid down in Rule 7. According to this rule, "Appointments by transfer/posting may be made from amongst persons holding appointments in the Government in Provincial Management Service, APUG service, departments and services mentioned in rule 3(3), in the same grade as that of the post to which appointment is to be made, subject to the persons fulfilling the conditions of appointment to the Post concerned and the share of above Service in the Functional Units as may be determined by the government, from time to time." It is noticeable that respondent No,3 being a deputations from NTC is neither member of the service nor employee of Local Government and Rural Development Department or of Housing, Urban Development and Public Health Engineering Department nor he belongs to Provincial Management Service or APUG Service, his appointment to the specified post was thus not permissible under the rules. The contention of the learned counsel for respondents that posting and transfer is prerogative of the Government and since every member of the Service is liable to serve anywhere in the Province, he has no locus standi to assail the impugned order before the Court, is untenable. Rule 11 of the Rules obligates any member of the "Service' to serve anywhere in the Province, but as respondent No,3 has firstly been posted in place of the petitioner, the consequential order of transfer of petitioner cannot be made a ground to challenge his locus standi to maintain the petition for seeking declaration about validity of order impugned. Since it has been found on consideration of the relevant rules that respondent No,3 cannot be posted nor can he hold the post of TMO under the rules, order impugned is liable to be declared as of no legal effect.
' As a result, this petition is accepted declaring the order dated 17-4-2006 as illegal and of no legal effect. No order as to costs.