Flt. Lt. FARRUKH RASHID vs SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD

' CH. MUHAMMAD ILYAS (MEMBER).--- The services of the appellant were terminated vide the impugned order, dated 31-3-2005. He filed a departmental appeal on 13-4-2005 which was not responded to within the statutory period. Hence, the instant appeal was filed on 9-7-2005.

2. The permission for amendment was accorded to the appellant on 22-5-2005 to implead the Federal Public Service Commission (F.P.S.C.) as respondent No,2-A and exclude Mr. Omar Hamid Khan, Deputy Secretary, Establishment Division, Islamabad from the list of respondents. The amended appeal was filed on 6-12-2005.

3. Briefly stated the background of the case is that;

(1) The scope and criteria for induction of officers of the Armed Forces in civil service as contained in paras.(b), (c) and (g) of the D.O. No,10(1)/91-CP-1 of the Cabinet Secretariat, Establishment Division, Government of Pakistan, Islamabad, dated 8-9-1991 and issued with the approval of the Prime Minister of Pakistan was as reproduced below:-- "(b) Induction will be allowed only in the following occupational group:--

(i) District Management Group (D.M.G.), (ii) Foreign Services of Pakistan (F.S.P.), (iii) Police Service of Pakistan (P.S.P.).

(c) Induction will be 10% of annual vacancies in each of these groups with a minimum of 2 vacancies in each group.

(g) The F.P.S.C. Will select officers and allocate them occupational group on the basis of psychological test, viva-voce/regional and provincial quota."

(2) In implementation of the above criteria, the following decisions were taken by the F.P.S.C. In its meeting held on 10-9-1991: (emphasis added)

"(5) As regards observance of Regional/Provincial quota, one view was that these vacancies be filled on merit, while the majority view was that quota should be observed in the best manner feasible, if the quotas were to be determined out of six expected vacancies, 3 may be allocated to Punjab, one to Sindh, one to N.-W.F.P. And one to the best officers from amongst those belonging to Balochistan, A.J.K. And N.A./FATA group altogether. As regards the Sindh vacancy, it could be allocated to Sindh (R) and Sindh (U) in alternate years so that balance was maintained over a period of time.

(6) The Representative of Ministry of Defence pointed out that previously out of 10 vacancies, one each used to be allocated to the Navy and the Air Force. He suggested that this pattern of sub- allocation amongst the three services may be adopted while making selection through F.P.S.C. As well. He further proposed that out of 6 vacancies, one each may be allocated to the officers belonging to Navy and the Air Force and rest may go to the Army. This was agreed to in principle by the meeting subject to confirmation of Establishment Secretary in consultation with Ministry of Defence."

(3) The appellant had also competed for induction in 2001 against the vacancies earmarked for Armed Forces Officers and was placed at serial No,6 in the overall merit whereas in the inter se merit of the Pakistan Air Force (P.A.F.) Officers, he stood at Serial No,2. Since the other officer from P.A.F. With merit position No,.4, namely Flt. Lt. Faraz Zaidi hailing from the Punjab statedly refused to join P.S.P. Vide his letter dated 6-11-2002, the appellant stood virtually at .The top of the list of the P.A.F. Officers who qualified. The appellant accordingly staked a claim against the P.A.F. Seat both on the basis of merit and Punjab domicile.

(4) After adjustment/deduction of two seats excluded owing to the decision for no induction/recruitment to be made in the D.M.G. The F.P.S.C. Made the following allocations on 29- 10-2002 against the remaining four seats of Defence Forces on the basis of Provincial/Regional quota and its service-wise sub-allocation as decided in such para.(2) above: {{TABLE}} S. No, Merit No, Name and Designation Department Domicile . Allocated Group service 1 1 Capt. M. Usman lqbal Pak Army N.-W.F.P. F.S.P.

2 2 Capt. Sulman Babar Pak Army Punjab F.S.P.

3 12 Lt. Muquddus Haider Pak Navy Sindh (U) P.S.P.

4 26 Flt. Lt. Muhammad Arif Pak Air Force AJK P.S.P. {{TABLE}}

(5) As his name had not been recommended by the F.P.S.C., the appellant filed a representation on 30-10-2002 to the F.P.S.C., followed by another to the Establishment Division on 31-10-2002. In response to the latter, the Establishment Division wrote to the F.P.S.C. On 11-11-2002 for a correct implementation of the quota policy by giving 50% share to Punjab out of 4 seats as under: (emphasis added)

"Government of Pakistan Cabinet Secretariat Establishment Division No,3/1/2002/CP7 Islamabad the 11th November, 2002.

' Mr. Zafarullah Khan, ' Secretary, Federal Public Service Commission, Islamabad.

' Subject: Induction of armed forces officers into civil services. Dear Sir, ' I am directed to refer to the F.P.S.C's letter No,2/24/2002-CSS, dated 29-10-2002 on the above subject and to say that Provincial/Regional break up of 4 vacancies as per prescribed Provincial/Regional quota works out as under:-- {{TABLE}} Province/Region Quota No, of vacancies to be allocated Share Merit 10% 0.40./4 0.0 Punjab 50% 2.00/4 2.00 Sindh (U) 7.6% 0.30/4 0.0 N.-W.F.P.

11.5% 0.46/4 1.0 A.J.K. 2% 0.08/4 0.0 S in& (R) 11.4% 0.46/4 1.0 Balochistan 3.5% C1.14/4 0.0 N.A./FATA 4% 0.16/4 0.0 Total 100% 4.00% 4.0 {{TABLE}}

(2) According to above calculation one more vacancy is required to be allocated for Punjab Province and the officer at S.No,6 of the F.P.S.C.'s merit list (Farrukh Rashid, Flg. Off.) from the Punjab Province is required to be adjusted againstP.S.P. Vacancy in place of officer at S.No,27 (Muhammad Arif Flt. Lt.) who .Has A.J.K. Domicile. F.P.S.C. Is requested to reconsider the allocation/distribution of officers of Armed Forces for induction in the P.S.P. As per prescribed Provincial/Regional quota/allocation and advice the Establishment Division accordingly.

(3) This issues with the approval of the competent authority. Yours faithfully, (Sd.) Muhammad Abdul Bari Deputy Secretary (C.P.-I)."

(6) As advised by the Prime Minister who was approached to overrule the F.P.S.C. Nomination and approve the Establishment Division proposal, a joint meeting of Chairman, F.P.S.C. And Secretary Establishment Division was later held on 13-1-2003 but no consensus could be reached as recorded in the minutes as following:-- "Federal Service Commission ' Subject: Provincial/Regional allocation of seats earmarked for induction of officers of the Armed Forces in the P.S.P. Anti F.S.P.

A meeting was held in the office of the Chairman, F.P.S.C. On 13-1-2002 in pursuance of Establishment Division letter No,3/1/2002'-CP-7, dated 11th November, 2002 read with letter of even number dated 11th January, 2002 addressed to Chairman F.P.S.C. To discuss the revised arrangements regarding Provincial/regional allocation of the seats to the officers of Armed Forces Foreign service of Pakistan and Police Service of Pakistan when no scat in the District Management Group had been made available by the Establishment Division in the C.E.

2001.

2. .

3. .... The Secretary Establishment Division was of the view that in the instant case of Induction of Armed Forces Officers into Civil Services in competitive Examination, 2001 F.P.S.C. Had not adhered to the instructions issued by the Establishment Division vide their letter No,10(1)/91/CP.1, dated 8, 1991 and there was need to readjust their recommendations accordingly. A post of P.S.P. Recommended by F.P.S.C. To A.J.K. Was required to be allocated to Punjab. Moreover, as the existing system of allocation of seats was unfavourable to certain Federating Units thus, for future induction of Armed Forces Officers into the civil services we night approach the Prime Minister to doing away the quota system in favour of merit.

4. The Chairman, F.P.S.C. Clarified that allocations had been made according to the policy parameters approved by the Government and this criteria of allocation of posts had been in vogue since 1991 as contained in the approved minutes signed by the Deputy Secretary Establishment Division and countersigned by Chairman, F. P . S.0 .

5. It was pointed out that before conducting the Competitive Examination 2001 of the Armed Forces Officers, F. P. S . C . Vide their letter No,F.2/24/2002-CSS, dated 2-5-2002 conveyed to Establishment Division the modalities of Induction of Armed Forces Officers into civil services and at that time the Establishment Division did not point out any discrepancy. The F.P.S.C. Had now completed the examination and drawn up the merit list, and that at this belated stage of questions were raised which should have been addressed earlier, it would undermine the credibility of F.P.S.C. the Chairman, F.P.S.C. Suggested that if five (5) vacancies are allocated instead of four (4) the additional seat could be allocated to the Punjab as a possible solution.

6. It was also clarified by the Chairman, F.P.S.C. That in case any fresh formula had to be followed in future then Ministry of Defence should also be consulted to avoid any unanticipated repercussion.

7. As both sides maintained their stated view-point, consensus therefore, could not be reached."

(7) A Writ Petition No,1034 of 2003 was thereafter tiled by the appellant impleading F.P.S.C. For not recommending him and Government of Pakistan through Secretary Establishment Division in the Lahore High Court, Rawalpindi Bench for not offering him an appointment in the police service which was finally decided in his favour by the Honourable Lahore High Court, Rawalpindi Bench. The relevant para. Of the judgment dated 18-6-2003 is as follows: (emphasis added)

"13 In view of the above this writ petition is allowed and the respondents are directed to apply the principles of para.10 of the summary referred to hereinbefore uniformly to the case of induction of the officers of the Armed Forces of Pakistan to the available two posts of F.S.P. And two posts of P.S.P. For the year 2001 in supersession of the recommendation made by the F.P.S.C. Through its Memorandum No,2/24/2002-CSS dated 29-10-2002. While so doing, the F.P.S.C. Shall also keep in mind the provisions of para.6 of the minutes of the meeting dated 10th September, 1991 referred to above as if will apply to the allocation of vacancies in the instant case. As the matter has already been protracted, the process shall be expedited."

8. The above decision was not challenged by the respondents and the Establishment Division made appointments based on merit alone, as follows:-- {{TABLE}} SI. No, Merit No, Name Department - Domicile 1 M. Usman Iqbal Capt. Pak Army N.-W.F.P.

2 Sulman Babar Capt. Pak Army Punjab 6 Farrukh Rashid Flt. Lt. 1-.A.F. Punjab 8 Muhammad Hilal Navy N.-W.F.P. {{TABLE}}

9. The offer of appointment given to the appellant by the Establishment Division vide their letter No,2(2)/2003-E3(Police), dated 11-7-2003, is reproduced below: (emphasis added)

"Government of Pakistan Cabinet Secretariat Establishment Division ' F.No,2(2)/2003-E-3(Police) Islamabad the 11th July, 2003 ' To ' Flying Officer Farrukh Rashid ' Subject Offer of appointment to defence forces officer inducted in the police service of Pakistan BS-17) for year 2001 (30th C . T. P. ) .

On the recommendations of the Federal Public Service Commission, the Competent Authority has been pleased to approve your induction in the Police Service'of Pakistan along with the selected successful candidates of Competitive Examination, 2001. You are, therefore, offered appointment in the Police Service Pakistan under the Federal Government in the Basic Pay Scale 17 on the following terms and conditions:--

(i) You will be on probation for a period of two years or for such extended period as the Government may decide. The probationary period shall not be terminated until you have completed your initial as well as Specialized Training and have passed the prescribed Examinations, including the Final Passing Out Examination which will be conducted by the F.P.S.C.

After the conclusion of Specialized Training.

(ii) You will undergo training separately or collectively, as the case may be in such training institutions and at such places and for such periods as the Government may specify. You are required to qualify every examination to the satisfaction of the head of the training institution where you will also undergo training. You will also be required to qualify the Final Passing Out Examination in the subjects approved by the Government.

(iii) You shall be governed by the provisions of the Occupational Groups and Service (Probation Training and Seniority) Rules, 1990.

(iv) If you fail to obey any orders which you may receive from the head of a training institution or.

From any faculty member of a training institution or an officer under whom you may receive field training or if you neglect your probationary studies, or you are found guilty of conduct unbecoming of an officer, you shall be liable for removal from service or to such disciplinary action as the Government may direct.

(v) ............................................................................................

(vi) ....................................................................................................

(vii)

(viii)

(ix) On appointment to the civil post, you will sever your connection with the Armed Forces."

He accepted this offer of appointment and reported for Common Training Programme (C.T.P.) on 28-7-2003 at the Civil Service Academy, Walton, Lahore.

(10) Lt. Muquddus Haider of Pak Navy who had been recommended by the F.P.S.C. Against the Sindh (Urban) quota, was, on the other hand, not issued an offer of appointment. He, therefore, filed I.C.A.

No,135 of 2003 against the judgment of the Lahore High Court in Writ Petition No,1034 of 2003 with the appellant included as one of the respondents. That was dismissed in limine on 17-9-2003 whereupon he filed C.P.L.A. No,2016 of 2003 in the Supreme Court which was allowed vide order, dated 20-10-2004 reasserting the principle of Provincial/Regional quota instead of the merit alone and with the following direction:-- "In view of the above reasoning we find that the impugned judgment of the High Court cannot be sustained in law which is consequently set aside and the petition is converted into appeal and allowed. Petitioner Muquddus Haider son of Sajjad Haider shall be. Adjusted in P.S.P. Cadre in 2001 Batch and he shall be sent for relevant training accordingly in the concerned Academy."

' He was accordingly adjusted in P.S.P. Cadre in the 2001 Batch vide offer of appointment issued on 12-2-2005.

4. Synopsis of the ensuing numerous developments with a bearing on the arguments/discussion of the parties in the subsequent paras. Of the judgment are enumerated below chronologically with a full/partial reproduction of the correspondence/documents and emphasis added where necessary:--

(1) 6-1-2005 The appellant assumed the charge of the post of Assistant Superintendent Police (training) B-17 on 12-3-2004 in the Capital Territory Police, Islamabad after completion of the C.T.P.

And Initial Command Course at the National Police Academy, Islamabad and also stood formally struck off duty/retired from P.A.F., filed a Review Petition No,263 of 2004 statedly to forestall any adverse fallout for his appointment made in pursuance of the merit policy which had earlier been upheld by the Honourable High Court but reversed in the apex Court judgment.

(2) 10-1-2005 Establishment Division wrote to P.A.F. And Pakistan Navy for repatriation of appellant and Lt. M. Hilal.

(3) 11-1-2005 As had been apprehended by the appellant, a show-cause notice was issued to the appellant on 11-1-2005 by the Secretary, Establishment Division as to why his appointment having become irregular in view of the decision, dated 20-10-2004 of the apex Court not be terminated.

(4) 24-1-2005 Interim reply was given to the show-cause notice stating that the matter was subjudice in the Honourable Supreme Court through a Review Petition No,236 of 2004 and that the detailed parawise comments on the show-cause notice would be furnished on the final decision thereon and it was also maintained that the matter also involved principles of estoppel and locus poenitentiae that "if the Government Department takes any action, that cannot be withdrawn or taken back, the right thus, accrued becomes the personal property of the individual and cannot be taken back."

(5) 26-1-2005 Lt. Muhammad Hilal from the Pakistan Navy with merit position No,8, who had also been appointed, on the basis of merit rather than in accordance with the quota policy, along with the appellant, was also issued an identical show cause on 11-1-2005 against which, he filed a writ petition in the Honourable Peshawar High Court with a prayer that the impugned show-cause notices be set aside being illegal, ab initio void and of no legal consequence.

(6) 31-1-2005 The Honourable Peshawar High Court issued orders dated 31-1-2005 that "not in the interim relief should also be issued for the date to be fixed by the office. Till then, show-cause notices issued by Establishment Division, Cabinet Secretariat, Government of Pakistan, Islamabad dated 11-1-2005 against the officials shall remain suspended".

(7) 12-2-2005 Appointment offer was issued to Lt. Muquddus Haider in pursuance of the Honourable Supreme Court's judgment dated 20-10-2004.

(8) 8-3-2005 Ministry of Defence wrote to the Establishment Division in response to their letter of 10-1-2005 (Serial No,2 above) for adjustment by repatriation of Lt. Muhammad Hilal and the appellant stating that "while N.A.H.Q. Have conveyed their no objection to the adjustment of Lt. M.

Hilal (P.N.O.5665) against anticipated billets of Pakistan Navy for the next yen, A.H.Q. Have opined that P.A.F. Would not be able to allocate any of the anticipated vacancy to adjust Flt. Lt. Farrukh Rashid as process of selection for future induction of Air Forces Officers into civil services has already been finalized. Moreover, said arrangement will deprive new incumbents of their legitimate right". It was stated that he could nevertheless seek his revision under the Air Force Instruction 26/77.

(9) 15-3-2005 Law Division's advice was accorded to Establishment Division on the Writ Petition No,94 of 2005 filed by Lt. (P.N.) Muhammad Hilal on 26-1-2005 as follows:- "Advice/opinion of Law Division dated 15-3-2005 ' The Establishment Division did not expose the whole facts of the case in the present reference.

Earlier the Establishment Division without awaiting the finality of the matter implemented the decision of the High Court dated 18-6-2003 passed in Writ Petition No,1034 of 2003, and allowed the petitioner Mr. Farrukh Rashid to attend the training in Civil Services Academy and National Police Academy for two years. The Establishment Division vide the appointment letter, dated 11-7-2003 issued to the petitioners did not mention/indicate that the appointmeht is being made in pursuance of the High Court order and the same will be subjected to the finality of the case.

Accordingly the petitioner was relieved from his previous job from Pakistan Air Force and joined the above-mentioned institutions. The appointment letters issued by the Establishment Division had taken legal effects in favour of the petitioners. The Supreme Court has admitted in its judgment, dated 20-10-2004 that two posts shall be allocated to Punjab, and one of the petitioner (Farrukh Rashid) is already working against .One of the allocated seats to Punjab. The Supreme Court in its reported judgment in 2005 SCM R 57 and 1996 SCM R 413 has held that once order is, rightly or wrongly passed the same cannot be recalled by the Department. Further as rightly opined by the referring division in para.4/N that Mr. Muquddus Haider has got a decision in his favour from the Supreme Court of Pakistan, and has already been adjusted without affecting the status of the two officers who have already been inducted into civil services, and show-cause notices issued to the two officers 'will create unsolvable administrative problems, and that due to action already taken by the department in favour of the two officers created a vested right in favour of these two officers. Prima facie the officers have the benefit of principle of locus poenitentiae for rendering the services as such.

"In view of the above facts, Establishment Division noting in para.4/N and citation of the Supreme Court judgments, the Establishment Division apparently has no case to defend the instant appellant Writ Petition 94 of 2004 filed by one Muhammad Hilal before the Peshawar High Court. It will be appropriate that they may withdraw the show-cause notices issued to the two officers, dated 11-1-2003 and inform the Peshawar High Court and get the petition dismissed having been infructuous "

(10) 31-3-2005 The services of the appellant were however, terminated by the Establishment Division on 31-3-2005. The appellant filed a Writ Petition No,1002 of 2005 in the Honourable Lahore High Court, Multan Bench impugning the show-cause notice, dated 11-1-2005 and termination order dated 31-3-2005 on the plea that the Honourable Supreme Court had not directed the respondent-Establishment Division to terminate his services and had instead only directed that Lt. Muquddus, the petitioner in writ petition before the Supreme Court be accommodated.

(11) 13-4-2005 The appellant submitted a representation to the Prime Minister of Pakistan which was forwarded to the Establishment Division on 21-4-2005.

(12) 21-6-2005 Appellant's Writ Petition No,1002 of 2005 (Serial No,10 above) was dismissed as under:-- "(9) On the other hand, learned Standing Counsel for Federation along with Muhammad Naseem S.O. Establishment Division, have vehemently opposed the arguments of learned counsel for the petitioner, contending that the merit list was prepared by the RP.S.C. And the petitioner had not been recommended by the P.S.P.; that the petitioner had obtained the appointment under the direction of the High Court through its judgment which had been set aside by the Honourable Supreme Court of Pakistan and that order of the apex Court is final, hence, the matter cannot be reopened.

(10) I have heard the learned counsel for the parties and gone through the record with their kind assistance.

(11) Since the matter has already been dealt with by the Honourable Supreme Court of Pakistan and the judgment of this Court had been set aside, therefore, the criteria determined by the High Court is no more in the field. The present petitioner was respondent before the Honourable Supreme Court of Pakistan in Civil Petition No,2016 of 2003 and after considering the contentions of the parties the Full Bench of Honourable Judges of apex Court gave its verdict against the petitioner. The judgment of the Supreme Court is binding on all Courts of the country as provided in Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, and it is the judicial dignity to abide by the dictum laid down by the Highest forum of the country.

(12) The another aspect of the case is that the controversy involved in the matter pertains to the terms and conditions of a civil servant and in view of the bar contained in Article 212 of the Constitution, this Court lacks the jurisdiction to entertain this petition.

(13) In view of the judgment of the Honourable apex Court, I need not comment upon the merits of the case as the controversy raised by the petitioner has already been settled by the Honourable Supreme Court of Pakistan. Further the contention raised by the learned counsel for the petitioner before this Court were available to the petitioner at the time of decision of review petition by the apex Court. Honourable Supreme Court of Pakistan had not directed the petitioner to approach the High Court afresh for the determination of his right.

(14) For the foregoing reasons, this writ petition having no force is dismissed. However, the petitioner may, if so advised, avail of the alternate remedy under the law."

(13) 9-7-2005 Appellant filed the instant appeal in the F.S.T. On the plea that the Honourable Supreme Court had not directed the respondent-Establishment Division to terminate his services and the direction was only issued to the extent of accommodation of Lt. Muquddus Haider, the petitioner before the Supreme Court of Pakistan.

(14) 147-2005 M.P. "No,699 of 2005 praying that the operation of the impugned order, dated 31-3- 2005 be suspended till the final disposal of the appeal was sent to the respondents vide Tribunal's order, dated 14-7-2005 whereby the appeal was admitted with a notice to the respondents to file parawise comments. Establishment Division filed their comments and were asked on 5-9-2005 to respond to the position taken by the appellant that as per applicable policy for 2001 inductions, 50% of the total seats allocated to go to Punjab (two seats), one was to be filled up by P.A.F. Officer whereas the situation on the ground on the day was that neither two seats had been given to the Province of Punjab nor the one seat to P.A.F. With the result that there was no officer belonging to P.A.F. In the 2001 Batch whereas two seats stood occupied by Pak Navy Officers by Lt. Muquddus Haider and Lt. M. Hilal of Pak Navy against their quota of one seat.

(15) 15-8-2005 Law and Justice Division tendered advice on the appellant's representation:-- "(11) The Minister has seen. It is observed that the Law, Justice and Human Rights Division reiterates its previous advice on this subject dated 15-3-2005. Copy is enclosed for a ready reference. This advice of Law & Justice and Human Rights Division is binding upon the establishment Division under Rule 14 of Rules of Business.

(12) Appointment of Mr. Muquddus Haider has no affect to the status of the two officers who have already been inducted into civil services, and show-cause notices issued to the two officers will create unsolvable administrative problems, and the action taken by the department in favour of the two officers created a vested right in, favour of these two officers.for rendering the service as such. The Supreme Court in its reported judgments in 2005 SCM R 57 and 1996 SCM R 413 has held that once order is, rightly or wrongly passed the same cannot be recalled.

(13) Earlier, the division has already opined that the termination of Flt. Lt. (R) Farrukh Rashid was illegal and without any justification. Dragging this issue time and again will not serve any fruitful purpose and would cause unnecessary delay to meet both the ends of justice. Pursuant to the Honourable Supreme Court order Lt. Muquddus Haider has already been adjusted against a P.S.P.

Vacancy of 2001 reserved for Pakistan Navy which already stood implemented by Establishment Division on 12 February, 2005 on an additional vacancy.

(14) Adjustment of Lt. Muquddus Haider of Navy was done against a Naval officer and not against Flt. Lt. (R) Farrukh Rashid who belonged to Pakistan Air Force. "Principle of locus poenitentiae" has created a vested right for Flt. Lt. (R) Farrukh Rashid to serve in P.S.P. In this regard Law and Justice Division already referred to the Honourable Supreme Court decisions in 2005 SCM R 57 and 1996 SCM R 413.

(15) Keeping in view the aforesaid, it is advised that the appointment of Flt. Lt. (R) Earrukh Rashid in P.S.P. Cadre is justified on the basis of the Recruitment Policy of 1991 approved by the Prime Minister of Pakistan and upheld by the Honourable Supreme Court of Pakistan in judgment dated 20-10- 2004 on the seat reserved for Pakistan Air Force on the basis of quota and merit and since the show-cause notices issued to the Flt. Lt. (R) Farrukh Rashid and Lt. Muhammad Hilal have already been suspended vide Writ Petition 94 of 2005 filed in the Peshawar High Court, hence further proceedings towards the termination of the services of Flt. Lt. (R) Farrukh Rashid are illegal, unjustified and could not take place. Thus, it is proposed that the termination of service of Flt. Lt. (R)

Farrukh Rashid be recalled.

(16) The appeal of Flt. Lt. (R) Farrukh Rashid cannot be withheld and it must be forwarded to the appellate authority. But it will be more appropriate if the competent authority himself withdraw the termination notification, dated 31-3-2005 issued to Flt. Lt. (R) Farrukh Rashid to close the issue. .(Sd.) Ms. Samina Alim, P.S.O.

Secretary (signed).

(16) 5-9-2005 The -Department Representative submitted comments on the M.P. As well as on the main appeal and requested that both the M.P. And appeal be heard together.

(17) 8-9-2005 Lt. (P.N.) M. Hilal whose services were not terminated took his Petition No,94 of 2005 (Serial No,5) back with a proviso that if the expected positive development in regard to his repatriation or adjustment in the Navy did not materialize, he would have a right to approach the Court again.

(18) 17-9-2005 Secretary, Establishment Division submitted a summary for the Prime Minister on the appellant's representation (Serial.No,11 above) with a recommendation to reject it, notwithstanding the advice of the Law Division (Serial No,15 above) on the ground that his Writ Petition No,1002 of 2005 (Serial No,12 above) had been dismissed.

(19) 7-11-2005 Review Petition No,263 of 2004 of the appellant was dismissed as it did not fall within the review jurisdiction.

(20) 11-11-2005 In reference to the appellant's representation and Establishment Division's comments thereon, (Serial No,18 above) Prime Minister's Secretariat wrote to the Establishment Division that "it has been observed that the Law and Justice Division has given substantive and categorical opinion in the matter, Establishment Division may, therefore, re-examine their opinion in the light of the opinion of the Law and Justice Division to ensure that justice should be done."

(21) 16-3-2006 C.P. Wing of the Establishment Division informed the Litigation Wing that in response to the advice of the Prime Minister's Secretariat vide their U.O. Dated 11-11-2005 to reexamine the appellant's case in the light of the opinion of the Law and Justice Division, the Establishment Division after reexamining the matter reiterated its earlier opinion whereupon the Prime Minister's Secretariat vide their U.O. Dated 16-2-2006 further advised that "since there was divergence between the Establishment Division and the Law and Justice Division, the opinion of the Attorney- General of Pakistan be obtained through the Law and Justice Division and, as such, the matter was being referred to the Attorney-General of Pakistan for his opinion."

(22) 27-3-2006 Establishment Division referred the matter for Attorney-General's advice.

(23) 20-4-2006 the Attorney-General of Pakistan gave his opinion .Which is reproduced below:-- "Office of the Attorney-General for Pakistan Supreme Court Building, Islamabad ' Subject Presentation of Flt. Lt. (R) Farrukh Rashid, Former A.S.P. Against Termination of his service.

' Reference Ministry of Law and Justice U.O. No,338 of 2006- Soli, dated 28-2-2006.

2. In response to the show-cause notice issued by the Establishment Division, Lt. (Retd.)

Muhammad Hilal invoked the constitutional jurisdiction of the Peshawar High Court and the learned Judges were pleased to suspend the operation of the said show-cause notice. He continued to serve as an A.S.P. The said petition was later on withdrawn by the petitioner. The Establishment Division took no action after the said withdrawal. Flt. Lt. (Retd.) Farrukh Rashid was also issued an identical show-cause notice as reflected in the memo. Of the petition of Hilal.

3. In spite of the fact that the cases are identical Hilal, remains in service and the services of Rashid have been dispensed with.

4. It is not necessary to go into the facts or history of the case or the merits of the views expressed by the Establishment and Law and Justice Divisions as it is clear that Rashid has been discriminated against. Further on the legitimate expectation of continuing in Police Service he gave up his Air Force Service. He deserves reinstatement both on the grounds of legitimate expectation and the constitutional right of equality.

5. In view of the above, I support the views of the Ministry of Law and Justice and am not in agreement with the views expressed by the Establishment Division.

(Sd.) Makhdoom Ali Khan Attorney-General for Pakistan ' Mr. Justice Mansoor Ahmed, Secretary, Ministry of Law, Justice and Human Rights, Islamabad.

' A.G.P. Office U.O. No,(1)/2006-AGP dated 20-4-2006."

(24) 22-5-2006 The services of Lt. Muhammad Hilal, A.S.P. Were also terminated vide notification reproduced below:-- Notification ' No,4/4/2005-CP-4. Whereas Lt. (R) Muhammad Hilal, A.S.P. Was issued show-cause notice to explain why his services should not be terminated, in pursuance of Supreme Court's orders in Civil Petition No,2016 of 2003 which declared that the Lahore High Court's judgment, dated 18-6-2003 in Writ Petition No,1034 of 2003 on the basis of which he was inducted in Police Service of Pakistan, cannot be sustained under the law and was set aside.

(2) Whereas the Competent Authority after perusal of the reply of Lt. (R) Muhammad Hilal, A.S.P. Is not satisfied that any grounds for changing the rules/instructions, to allow him to continue in the Police Service of Pakistan exist.

(3) Therefore, the competent authority in exercise of powers vested in him has terminated the services of Lt. (R) Muhammad Hilal, A.S.P. (P.S.P) from Police Services of Pakistan, with immediate effect."

(25) 3-6-2006 Secretary, Establishment Division wrote to the Vice Chief of Air Staff with reference to their reply (Serial No,8 above) that the appellant's termination had been ordered and that "Establishment Division is of the view that Flt. Lt. Farrukh Rashid (the appellant) may be taken back on the roll of Pak Air Force in the light of the aforesaid instruction (Air Force Instruction 26/77). In case there are any valid and legal grounds for not doing so, these may kindly be brought to the notice of the Establishment Division".

(26) 4-6-2006 The appellant sent another representation to the Prime Minister against his termination notified on 31-3-2005 invoking the appellate authority's orders dated 11-11-2005 (Serial No,20 above) by which the Establishment Division had been required to re-examine his case in view of the opinion of the Law and Justice Division rendered on 15-8-2005 (Serial No,15 above) as well as the opinion of the Attorney-General of Pakistan (Serial No,23 above) sought from him on the directive issued by the Prime Minister's Secretariat dated 16-2-2006. He maintained therein that "since the matter involved interpretation of Court judgment and under rule 14 of Rules of Business, Law and Justice Division and Attorney-General of Pakistan are only competent to interpret the Court judgment. Even otherwise the appellate authority (i,e, Prime Minister's Secretariat) has already upheld the evaluation of Law and Justice Division which proposed that the termination of the appellant be recalled but still no action has been taken by the Establishment Division".

(27) 10-6-2006 Prime Minister's Secretariat (Public) sent, in continuation of earlier correspondence on the appellants representation, a copy of the above petition dated 4-6-2006 for comments.

(28) 12-6-2006 Establishment Division wrote to navy for repatriation of Lt. M. Hilal (whose services had also been terminated on 22-5-2005 as at Serial No,23).

(29) 13-7-2006 N.H.Q. Conveyed approval of the competent authority to the repatriation of Lt. M.

Hilal to Pak Navy.

(30) 31-7-2006 P.A.F. Wrote back in reply to Secretary, Establishment Division's D.O. Of 3-6-2006.

"Air Headquarters, Islamabad (Personnel Branch)

' Adjustment of Flt. Lt. (R) Farrukh Rashid Pak/12449, LOG

(1) Kindly refer your D.O. No,4/4/2005-CP.4 (dated 3 June, 2006), addressed to Air Marshal Rashid Kalim Vice Chief of the Air Staff.

(2) The revision of above named officer to P.A.F. Was deliberated upon at Air Headquarters. As per AFI26/77, P.A.F. Was obliged to accept the officer, if the revision was necessitated within the probationary period. In this case the officer's reversion is being sought after he had been retired from P.A.F. w,e,f, 20th July, 2003 and inducted into Civil Service. As such P.A.F. Is under no legal obligation to accept the officer's version.

(3) Flt. Lt. (R) Farrukh Rashid was inducted into P.A.F.Through Special Purposes Short Service Commission (S.P.S.S.C.) on 31 July, 2000 initially for a period of five years. His period of engagements with the P.A.F. Has already expired on 31 July, 2005. The Air Staff has into approved further extension in service limit of the subject officer. Since his services have been terminated by the competent authority with immediate effect vide Notification No,8/3/2003-CP-4,dated 31 March, 2005, the Establishment Division may feel it convenient to terminate the services of the officer w,e,f, 1, August, 2005 for regularization purposes.

(4) The services of Flt. Lt. (R) Farrukh Rashid Pak/12449 Log are -not more required in the P.A.F., and he stands retired from the service.

(5) Kindly inform the officer accordingly.

(Sd.) Shamim Akhtar Group Captain Director Career management (Per Branch)

Air Head Quarters, Islamabad.

' Syed Tariq Ali Bokhari, ' Secretary, Cabinet Secretariat, ' Establishment Division, ' Government of Pakistan, Islamabad.

(31) 26-9-2006 Secretary_ Establishment sent the following summary to the Prime Minister, which recapitulates the respondents' position on appellant's representation against his termination.

"(7) Flt. Lt. (R) Farrukh Rashid submitted a representation dated 13-4-2005 (Annexure III) to the Prime Minister which was forwarded to the Establishment Division vide U.O. No,2(57) Estb. 2005 dated 21-4-2005. It was examined in this Division in consultation with Law and Justice Division. The advice of the Law and Justice Division (Annexure IV) is summarized below:--

(a) Appointment of Mr. Muquddus Haider has no affect to the status of the two officers who have already been inducted into civil services; prima facie the officers have the benefit of principle of locus poenitentiae for rendering the services as such. The Supreme Court in its reported judgments in 2005 SCM R 57 and 1996 SCM R 413 has held that once an order is rightly or wrongly passed the same cannot be recalled.

(b) Appointment of Flt. Lt. (R) Farrukh Rashid in P.S.P. Cadre is justified on the basis of the Recruitment Policy (induction) of 1991 approved by the Prime Minister of Pakistan and upheld by the Honourable Supreme Court of Pakistan in its judgment dated 20-10-2004 on the seat reserved for .Pakistan Air Force on the basis of quota and merit. Proceedings towards the termination of his services are illegal, unjustified and could not take place. It has been proposed that his termination be recalled.

(8) The Establishment Division was, however, of the view that the Supreme Court of Pakistan vide judgment, dated 20-10-2004 had set aside the order, dated 18-6-2003 of the Lahore High Court Rawalpindi Bench, through which Flt. Lt. (R.) Farrukh Rashid and Lt. (R.) Muhammad Hilal were inducted in P.S.P. Declaring it not sustainable under the law. Further continuation of Flt. Lt. (R)

Farrukh Rashid in service was not covered under any rule as the judgment of the Supreme Court is binding on all concerned. This view point is further supported from another order of the Lahore High Court dated 21-6-2005 (Annexure V) given on the writ petition of Flt. Lt. (R.) Farrukh Rashid against termination of his services. The Honourable Court observed that "the matter has already been dealt by the Supreme Court of Pakistan and the judgment of this Court has been set aside in Civil Petition No,2016 of 2003 after considering the contention of the parties. The judgment of the Supreme Court is binding on all Courts of the country as provided in Article 189 of the constitution. The Court further observed that the controversy raised by the petitioner had already been settled by the Honourable Supreme Court of Pakistan by deciding the main petition as well as review petition by the petitioner". The Lahore High Court, therefore, dismissed the petitioner having no force.

(9) Given the divergence of views between Establishment Division and Law Division the matter was referred to the Attorney-General of Pakistan for advice (Annexure VI).

(10) The learned Attorney-General for Pakistan is of the view (Annexure VII) that the case of Flt. Lt.

(R) Farrukh Rashid was identical to the case of Lt. (R) Muhammad Hilal, who withdrew his petition from the Peshawar High Court, but his services had not been terminated. While on the other hand the services of Flt. Lt. (R) Farrukh Rashid had been terminated which is discrimination and hence he deserves reinstatement on the grounds of legitimate expectation and the constitutional right of equality. No opinion has been given on the law points mentioned at para.9 above. However, the Attorney-General supported the views of M/O Law and Justice.

(11) As stated at para.7 above Ltd. (R) Muhammad Hilal filed an appeal before the Peshawar High Court and the Court 'vide order dated 31-1-2005 directed not to take any action on the show-cause notice. Subsequently, on request of Lt. (R) Muhammad Hilal the Peshawar High Court vide order, dated 6-9-2005 had allowed withdrawal of his petition. On disposal of his case as withdrawn, the case was lined with the case of Flt. Lt. (R) Farrukh Rashid, who had submitted as appeal to the Prime Minister. This linkage caused delay on final disposal of the case of Lt. (R) Muhammad Hilal.

However, in consideration of the advice of learned Attorney-General for Pakistan, services of Lt. (R)

Muhammad Hilal were terminated on 22-5-2006 (Annexure VIII). Thus the element of discrimination, if any, no longer exists. It is also stated that the Supreme Court of Pakistan has held that it is not a principle of law that order once passed becomes in evocable and it is past and closed transaction. If the order is illegal then perpetual right cannot be claimed on the basis of an illegal order (PLD 1992 SC 207).

(12) Establishment Division is, therefore, of the view that principle of locus poenitentiae is not attracted in this case to a vested right accrued in favour of Flt. Lt. (R) Farrukh Rashid and Lt. (R)

Muhammad Hilal, on the basis of wrong orders of their appointment in the Police Service of Pakistan. Hence their services have rightly be terminated.

(13) After termination of the services of Lt. (R) Muhammad Hilal, the Establishment Division asked the Naval Headquarters and the Pak. Air Force, demi officially, to readjust Messrs Muhammad Hilal and Farrukh Rashid in their respective forces (Annexures IX and XI) Air Headquarters Islamabad have stated that Flt. Lt. (R) Farrukh Rashid was inducted in to P.A.F. Through Special Purposes Short Services Commission (S.P.S.S.C.) in July, 2000 initially for a period of five years. His period of engagement with the P.A.F. Has already expired on 31 July, 2005; The Air staff has not approved further extension in service limit of the said officer. So there is no legal obligation to accept the officer's reversion (Annexure IV). The competent authority of Pakistan Navy has approved the repatriation of Lt. (R) Muhammad Hilal to Pakistan Navy and the officer has been directed to report to P.N.S. Zafar (Annexure XII).

(14) Flt. Lt. (R) Farrukh Rashid filed another representation dated 4-6-2006 against non- acceptance of the views of Law Division and Attorney-General of Pakistan. Prime Minister's Secretariat vide U.O. Dated 10-6-2006 (Annexure VIII) and another U.O. Dated 19-6-2006 (Annexure XIV) desired views comments from this Division on the representation dated 4-6-2006. The requisite comments were submitted to the Prime Minister Secretariat vide U.O. No,4/4/2005 C.P.4 dated 13-7-2006 (Annexure XV). The said comments, inter alia, contain the views of the Establishment Division that appeal of Flt. Lt. (R) Farrukh Rashid may be rejected not only on merits but in order to uphold and implement the judgment dated 20-10-2004 of the Supreme Court as well as to maintain the sanctity of the Provincial/regional quota prescribed in terms of Article 29(1) of the Constitution of the Islamic Republic of Pakistan.

(15) Accordingly, it is posed that both the representations dated 13-4-2005 and 4-6-2006 of Flt. Lt.

(R) Farrukh Rashid mentioned in paras.8 and 15 respectively be rejected.

(16) Approval of the Appellate Authority i,e, the Prime Minister is solicited to the proposal made at para.15 above.

(17) This also dispose off the Prime Minister's Secretariat U.O. No,38/Appeal/Estab./2005 dated 16-2- 006 recorded on Establishment Division summary bearing No,4/4/2005-CPA dated 17-9-2005."

(32) 5-10-2006 Prime Minister was pleased to agree with the recommendations of the Establishment Division at para.15 of the summary which proposed rejection of both the representations dated 13-4-2005 and 4-6-2005 of the appellant.

(33) 18-11-2006 The appellant was informed that the competent authority had rejected his representations against his termination on 31-3-2005.

5. The learned counsel for the appellant argued;

(1) that the appellant at merit No,6 of .52 officers who qualified the F.P.S.C. Exam. Had acquired a vested right to be included in the P.S.P. Cadre against the P.A.F. Seat whether it was done on the basis of open merit policy in terms of Articles 4 and 25 of the Constitution or on the basis of quota policy dated 8-9-1991 approved by the Prime Minister of Pakistan in terms of Article 27 of the Constitution. With open merit in view, 2 of the 4 seats went to the Army nominees who were at Serial Nos.1 and 2 whereas P.A.F. Seat which would otherwise have gone to Flt. Lt. Faraz Zaidi at Serial No,4 of the merit list fell vacant due to voluntary withdrawal of Flt. Lt. Faraz Zaidi vide his letter, dated 6-11-2002 and the next person on merit was the appellant. On the other hand, if the matter was to be decided on the basis of quota policy, 2 seats reserved for Army having gone to candidates at Serial Nos.1 and 2, one from Punjab and the other from N.-W.F., of the 2 remaining seats, one was to be allocated to Punjab and the other one to Sindh which by rotation was to go to a candidate with Urban Sindh Domicile. One seat reserved for P.A.F. Originally going to Flt. Lt. Faraz Zaidi at Serial No,4 of the merit should have in any case been given to the appellant next on the merit list at Serial No,6 and having domicile of Punjab and belonging to P.A.F. While the 4th seat should have gone for Navy Sindh Urban quota to Lt. Muquddus Haider at Serial No,12..Hence appellant's representation to the Chairman, F.P.S.C. On 28-10-2002 stressing therein that with 50% of the total seats, as such, out of 4 seats available for the year 2001 at least, 2 were to be allocated to the Punjab, F.P.S.C., however, recommended 2 candidates from Army at Serial Nos.1' and 2 hailing from N.-W.F.P. And Punjab and Lt. Muquddus Haider of the Pakistan Navy against the Sindh Urban quota whereas Flt. Lt. Muhammad Arif at Serial No,27 with A.J.K. Domicile was accommodated against the seat reserved for the Pakistan Air Force;

(2) that F.P.S.C. 's recommendation was in violation of the decision taken in the meeting held on 10- 9-1991, in particular paras.5 and 6 thereof (reproduced in para.3(2) above). The appellant filed a representation to the Chairman F.P.S.C. On 30-10-2002, and another one dated 31-10-2002 to the Establishment Division as the matter exclusively fell in the latter's domain, against the wrongful allocation made by the F.P.S.C. Pointing out that out of 4 vacancies, 2 vacancies were to be given to Punjab and against one of the 2 vacancies so allocated, it was right of the appellant being at Serial No,6 of the merit list and from Punjab to be adjusted against that;

(3) that having failed to receive the desired relief from the Establishment Division and the F.P.S.C., the appellant approached the Honourable Lahore High Court which decided vide its judgment dated 18-6-2003 in Writ Petition No,1004 of 2003 in favour of the appellant by superseding the recommendations made by the F.P.S.C. Through its memorandum dated 29-10-2002. F.P.S.C. Was directed by the Court that the principle of para.10 of the summary (as reproduced above in sub- para.(2) be applied in the allocation of the seat for the year 2001 also;

(4) that both the F.P.S.C. And Establishment Division did not file any C.P.L.A. Against the judgment which, therefore, attained finality in law and the respondents were therefore, bound to issue offer of appointment to the appellant as the Establishment Division, in fact, did by appointing the appellant;

(5) that the appellant successfully completed training and then passed the Final Passing Out Examination (F.P.O.E.) conducted by the F.P.S.C. He was regularly appointed as A.S.P. And gave his arrival report to the I.G.P., Islamabad on. 13-12-2004 and. Remained posted at Islamabad thereafter.

He continued to serve from 14-7-2003 to 31-3-2005 when he was terminated regardless of the principle of locus poenitentiae and due to none of his fault;

(6) that the appellant's appointment was of the nature of permanent induction of the officers of the Defence Forces whereafter the appellant was retired from P.A.F. Vide order dated 16-4-2004 and order of his premature retirement was passed by the P.A.F.. As per conditions mentioned in his appointment letter (para.3(9) above), he was now governed by the Civil Servant Act, 1973 and the rules made thereunder and that his appointment was not provisional and it did not depend on any subsequent eventuality. The respondents were, therefore, estopped to withdraw that appointment under the settled principle of locus poenitentiae as consistently held by the superior judiciary of Pakistan as reported vide 2005 SCM R 57, 2003 SCM R 1128, 1999 SCM R 1004, 1997 SCM R 15,, 1996 SCMR 1413 and 1990 SCMR 414;

(7) that it was Lt. Muquddus Haider of Pakistan Navy hailing from Sindh (Urban) filed I.C.A. No,135 of 2003 in regard to the judgment of the Lahore High Court in Writ Petition No,1034 of 2003 which was dismissed; he filed Civil Petition No,2016 of 2003 in the Supreme Court of Pakistan whereby a relief was granted to him by passing a direction to the respondents that he should be adjusted in the P.S.P. Cadre in the 2001 Batch which was duly implemented through his appointment against the seat of Navy; in any case he had no concern with the appellant being an officer of P.A.F. And appointed against the seat of Punjab quota against which there was no other contender froM the P.A.F.;

(8) that the show-cause issued to the appellant on 11-1-2005 and the impugned order of termination dated 31-3-2005 were illegal, void ab initio, coram non judice and nullity in the eye of law as not involve any violation of service discipline or inefficiency in terms of E&D Rules/R.S.O. 2000 and in the absence of such grounds, no show-cause notice thereunder could be issued to the appellant;

(9) that order in regard to Lt. Muquddus Haider passed by the apex Court was for his adjustment which in such a situation is met against supernumerary post and, as such, there was no occasion for issuing the impugned show-cause notice against the officers already encadred;

(10) that the impugned order was issued against the advice given by Law Division (para.4(9) above) to withdraw the show-cause notices issued to both the appellants and Lt. Muhammad Hilal, Pakistan Navy who had been posted based on merit as direct beneficiaries of the Honourable Lahore High Court's decision dated 18-6-2003 in appellant's Writ Petition No,1034 of 2003 with the latter having been appointed against the seat of Navy instead of F.P.S.C.'s nominee Lt. (PN)

Muquddus Haider;

(11) that the Establishment Division was required to withdraw notices issued to both Lt. Muhammad Hilal and the appellant after the Court had suspended the show-cause notices dated 11-1-2005 in view of the prayer made in Writ Petition No,94 of 2005 that "impugned show-cause notices may please be set aside and discharged being illegal ab initio void and of no legal consequence". The order issued on the basis of a show-cause notice during the period that the show-cause notice had been suspended by the Peshawar High Court, was, therefore, illegal;

(12) the impugned order was passed without due application of mind and the competent authority acted in a mechanical way and was influenced by extraneous considerations rendering the impugned order, therefore, violative of section 24-A of General Clauses Act, 1897 which required reasons to be recorded as to why the advice of the Law, Justice and H.R. Division was not implemented;

(13) the impugned order was void as having been passed in violation of rule of audi alteram partem as no opportunity was ever provided to the appellant for personal hearing. He placed reliance in this regard on the case-law reported vide 1994 SCM R 2232;

(14) that in the judgment, dated 20-10-2004 of the apex Court, it has been mentioned that there was 2 posts of Punjab on the basis of provisional/regional quota and 1 seat was for P.A.F. And the appellant fulfilled both the conditions of appointment that he hailed from Punjab and P.A.F. As nobody else did;

(15) that the plea of the Establishment Division that at the time of induction of the appellant, recommendation was not sent by the F.P.S.C. Is belied by the very first sentence of offer of appointment issued on 11-7-2003 (para.3(9) above) wherein it has been, very clearly mentioned that it was being issued on the recommendation of the F.P.S.C. The appellant's induction was not subsequently questioned at the time of F.P.O.E. Conducted by the F.P.S.C. And passed by the appellant which amounted to an endorsement of his appointment by the F.P.S.C.

6. The respondents/Establishment Division in their preliminary objections raised the issue of non- joinder of necessary party i,e, F.P.S.C. And impleading Mr. Omer Hamid Khan, Deputy Secretary, Establishment Division as respondent in the case which was rectified by amending the appeal.

F.P.S.C., on the other hand, also raised preliminary objections on the maintainability of the appeal in view of non-impleading of Ministry of Defence and Lt. Muquddus Haider who got relief from the Supreme Court through Civil Petition No,2016 of 2003 in which the appellant who had earlier got appointment on the basis of verdict by the High Court in Writ Petition No,1034 of 2003 was a respondent. The appellant's contention was that impleading Lt. Muquddus Haider was not necessary-as his appeal was not against Lt. Muqudas's appointment. It was, on the contrary, based on the premise that he deserved to be appointed against the Punjab and P.A.F. Quota. It was further argued that the appeal was hit by the principle of res judicata in view of the Honourable Supreme Court judgment of 20-10-2004 and the Honourable Lahore High Court's judgment dated 21-6-2005 (para.4(12) above).

7. Establishment Division's version as recapitulated in Establishment Secretary's summary dated 26-9-2006 sent to the Prime Minister as reproduced in para.4(31) above was reiterated by the Defence that the appellant was inducted in P.S.P. Cadre as per orders of the Lahore High Court and 18-6-2003 in Writ Petition No,1004 of 2003 which was challenged before the Supreme Court vide Civil Petition No,2016 of 2003 by Lt. Muquddus Haider, a nominee of the F.P.S.C.; since the order had been set aside by the apex Court, his appointment in P.S.P. Became irregular which was consequently terminated by the competent authority in the Establishment Division under the prescribed procedure rule.

8. F.P.S.C. -position was that quota is a concession and not a right and that the allocation of seats is made on Provincial/Regional basis and its further distribution among the officers of the 3 Armed Forces, according to the induction policy enforced since 1991, remained the responsibility of F.P.S.C.

And not the Establishment Division. The F.P.S.C. Had accordingly recommended for induction of the 4 officers vide their letter dated 29-10-2002. As the Establishment Division had intimated 4 vacancies for induction of Armed Forces Officers, 2 each in P.S.P. And F.S.P. There was no option but to allocate at least 1 vacancy to each regional group of Punjab, Sindh, N.-W.F.P. And Balochistan/ AJK/NA/FATA. If that was not done, the fourth regional group whose turn it was to be given a seat in 2001 would have been denied its due share. The appellant, was, therefore, not recommended. It was also contended that withdrawal of Flt. Lt. Faraz Zaidi was not voluntary as he was never recommended in the Commission's letter, dated 29-10-2002 and, as such, the withdrawal by Flt. Lt. Faraz Zaidi was of no consequence. In regard to the finality of the judgment of the High Court in Writ Petition No,1034 of 2003 for non-filing C.P.L.A., it was pointed out that permission was not accorded to the F.P.S.C. By the Law, Justice and H.R. Division as the judgment had already been implemented by the Establishment Division. In regard to the conducting of F.P.O.E. After completion of C.T.P., it was held to have been done as respondent No,1 had reported the appellant as a probationer.

9. We have heard the parties and perused the record carefully. In our view major issues involved in this case are whether the proceedings are hit by the principle of res judicata in view of the apex Court's judgment of 20-10-2004 and specially after dismissal of Review Petition No,263 of 2004 filed by the appellant and, as such, the judgment of the Supreme Court dated 20-10-2004 is a bar on the adjudication of the instant appeal and whether any order as to the appellant's termination is envisaged within the scope of the aforesaid judgment; whether the judgment of the Lahore High Court in Writ Petition No,1002 of 2005 dated 12-6-2005 constitutes a bar for proceedings to be entertained by the Tribunal; ,whether the appointment of the appellant as A.S.P. Was conditional or contingent upon any future development; whether it is essentially an issue of the correct allocation of quota with sub-allocation amongst the three Defence services; whether the principle of locus poenitentiae is applicable to the appellant after almost two years of his appointment/actual service; whether the legal opinions rendered by Law and Justice Division on 15-3-2005 and 15-8- 2005 coupled with the opinion rendered by the Attorney-General of Pakistan could be ignored while interpreting the judgment of the Court.

10. Having perused the judgment of the Honourable Supreme Court, we agree with the argument of the learned counsel for the appellant that it basically decided the principle in favour, of the quota policy against the policy of open merit and held that Lt. Muquddus Haider was entitled to be adjusted against the seat allocated to Sindh (Urban) and it was ordered by the Honourable Supreme Court that he be adjusted accordingly. It nowhere said as to how this adjustment was to be carried out and certainly there were no orders that this was to be done through the termination of the services of one officer or the other. This view is strengthened. From the verdict given on the Review Petition No,263 of 2004'filed by the appellant on the basis of following pleas:- "(i) Appointment of the petitioner was based on Policy dated 9-9-1991.

(ii) Petitioner had no clash of interest with Lt. Muqaddus Haider or said seat.

(iii) In the writ petition, the petitioner never challenged selection and appointment of Muqaddas Haider.

(iv) Apex Court concluded in the judgment, dated 20-10-2004 passed in C.P. No,2016 of 2003 that 2 seats were admittedly reserved for Punjab Province on the basis of declared regional/provincial quota police.

(v) Petitioner was rightfully appointed against 1 out of the 2 seats of Punjab, which were acknowledged in judgment of the apex Court.

(vi) Petitioner was not at all usurping any right of Muqaddas Haider who was petitioner in the Supreme Court of Pakistan as he belongs to Pakistan Navy and Sindh (U).

(vii) Muqaddas Haider could not be termed as aggrieved from the relief provided to the petitioner by the High Court.

(viii) Petitioner was entitled to appointment in P.S.P. Cadre, both on the basis of quota as well as inter se merit of armed forces seats." ' which was dismissed vide para.3 of the Honourable Supreme Court order, dated 7-4-2005 which is reproduced below: (emphasis added).

"(3) We have every sympathy for the young petitioner, but we find that the submissions made do not fall within the ambit of review jurisdiction, where under the order could be reviewed only when there could be an error apparent on the face of record but no such error much less error of law or fact has been pointed out warranting our interference in the review jurisdiction under Article 188 of the Constitution of the Islamic Republic of ' Pakistan, 1973; read with Order XXVI of the Supreme Court Rules, 1980. Accordingly this review petition is dismissed having no merit.'"

' It was argued by the appellant's learned counsel that the civil review Petition was dismissed due to lack of jurisdiction as the pleas made by him constituted causes falling within the ambit of terms and conditions rather than the policy issues of recruitment to be made on the basis of quota or open merit which had been the subject of the constitutional petitions in the Honourable High Court and Honourable Supreme Court. It was, therefore, rightly argued by the learned counsel for the appellant that the review petition was dismissed as the points raised therein did not fall within the ambit of reviewing jurisdiction. The appellant's contention in Writ Petition No,1002 of 2005 in the Honourable Lahore High Court challenging the show cause notice dated 11-1-2005 as well as order of termination, dated 31-3-2005 with' the plea that the Honourable Supreme Court had not directed the Establishment Division to terminate the services of the appellant and that the directions were issued only to accommodate Lt. Muquddus Haider fell in the category of implementation of the apex Court's judgment of 20-10-2004, with its collateral implications in reference to the terms and conditions of service of those who fell aggrieved. As per decision of the F.P.S.C. In the meeting held on 10-1-1999, (para.3(2) above) Provincial/Regional quota for Punjab was 50% of the seats and Inter Services quota required one seat for P.A.F., one 'for Navy and rest for the Army which, translated practically, required one more seat to be allocated to Punjab and one of the two allocated allocated seats was to go to the Air Force. The position on ground however, was that there existed a vacancy for Air Force as Flt Lt. M. Arif belonging to Pak Air Force with AJ&K domicile and recommended by the F.P.S.C. Was probably not offered the appointment after the .Decision of the Lahore High Court to make appointments on the basis of merit alone and consequently there was no representation of the Air Force in the 2001 induction. The appellant rather than being terminated was, therefore, entitled to continue in service as a nominee of the P.A.F. With Punjab domicile against the seat supposedly misallocated to A.J.K. As' was also the Egtablishment Division's position and more so in the circumstances that he had got an accrued right thereto after rendering service for about two years. That plea was held to be excluded from the ambit of review jurisdiction by the. Honourable Supreme Court and, being related to terms and conditions of the service of the appellant, it had also been held to be outside the jurisdiction of the Lahore High Court vide para.12 of its judgment dated 21-6-2005 in Writ Petition No,1002 of 2005 with an option to the appellant in para.14 thereof to avail the alternate remedy under the law if so advised, as reproduced at para.4(12) above. We agree with the learned counsel that notwithstanding the observations in para.13 thereof, the alternate remedy in this case, involving terms and conditions of service, is the Tribunal, to the exclusion of any other forum, which the appellant has chosen to avail.

We simultaneously hasten to respectfully add that we whole heartedly endorse the view that it remains always a legal and moral obligation of all to abide by and to maintain the sanctity and dignity of the judicial pronouncements of the superior judiciary that we faithfully hold in the highest esteem. Being guided in that spirit and appreciation of the case, we have, nevertheless, to take note of the argument of the learned counsel that not to speak of its being a subject of the writ petition in the Honourable Supreme Court, the controversy of misallocation of quota as contended by the appellant in the instant appeal has neither been settled in any of the judgments delivered in this case so far nor the said judgment dated 21-6-2005 of the Honourable Lahore High Court categorically ruled out the scope of its further examination in terms of its para.12 read with the option allowed in para.14 thereof. In this scenario, we agree that the appellant's contention relates to implementation of the judgments rather than policy aspects of the quota allocation. This view is amply supported by the legal opinion of the Law Division and the attorney-General of Pakistan rendered on 15-8-2005 and 20-4-2006 after the judgments delivered on 20-10-2004 and 21-6- 2005. We accordingly agree with the arguments of the learned counsel for the appellant that the matter is not hit by the principle of res judicata.

11. In regard to the appellant's claim that his case falls within the quota for Punjab in conjunction with the policy for sub-allocation amongst the three services, we note his-inference from the observation of their Lordships in para.10 of their judgment dated 20-10-2004 that "Province of Punjab was given due share by allocating two-seats in the Civil Services when one was given to the Province of Sindh and one to A.J.K" that the Supreme Court had admitted the position that Punjab gets 50% of the vacancies as against one seat having actually been allocated by F.P.S.C.. To Punjab which amounts to 25%. It was also so held in the legal opinion tendered by Law and Justice Division and final opinion rendered by the Attorney-General of Pakistan intimating that the Supreme Court had affirmed in its judgment dated 20-10-2004 that two posts were allocated to Punjab Province and the appellant was already working on the second seat of Punjab. Both the opinions of Law and Justice Division dated 15-3-2005 and 18-5-2005 having been rendered under Rule 14 of Rules of Business and being thus, binding, go in favour of the appellant as does the final opinion of the Attorney-General. We also agree to the view that the Honourable Supreme Court in its judgment had, on the other hand, simply restored the quota policy and required the adjustment of Lt. Muquddus Haider who hailed from Sindh (Urban) and had been recommended against the seat of Navy in the F.P.S.C. Recommendations as reproduced in para.3(4) above. Hence the adjustment of Lt. Muquddus Haider of Pak navy as per judgment of the Supreme Court could only be done against the naval Officer i,e, Lt. M. Hilal who had been given the single seat accorded to Navy on the basis of open merit which otherwise did not fall within the original prescribed Provincial quota of N.-W.F,P. As the Army candidate at merit No, I, had already been accommodated against the N.-W.F.P. Seat. Appointments based on merit reproduced in para.3(8) show that two of the four seats have gone to N.-W.F.P., against their legitimate quota of one seat. Lt. M. Hilal was thus, the direct beneficiary of the Lahore High Court judgment as he himself had never asked or agitated for being accommodated. So in, implementation of the adjustment of Lt. Muquddus Haider hailing from Sindh (Urban) and Navy, the person who would have lost his seat on the restoration of quota policy should have, in final analysis, been Lt. M. Hilal. On the other hand, there is a substance in the claim of the appellant that even after reversal of 'the policy of merit and restoration of quota policy as envisaged in the Honourable Supreme Court judgment, he was still entitled to a vacancy of Punjab going to P.A.F. On the basis of inter services merit after withdrawal of the other competitor with merit at Serial No,4. Let us have a close comparative look at the following tables of appointments:-- Table 1 (F.P.S.C. Nomination) para 3(4) {{TABLE}} S. No, Merit No, Name and Designation Department Domicile Allocated Group service 1 1 Capt. M. Usman lqbal I Pak Army N .-W . F. P. \ F.S. P.

2 2 Capt. Sulrnan Babar Pak Army Punjab F.S.P.

3 . 12 U. Muquddus Haider Pak Navy Sindh (U) P.S.P.

26 Flt. L. Muhammad Arif. Pak Air Force AJK P.S.P.

Table-II (Appointments made by Estt. Divn. Against available four vacancies on the basis of merit in pursuance of Honourable Lahore High Court's judgment. Merit No, Name and Designation Department Domicile Allocated Capt. Usman Jadoon Pak Army N.-W.F.P. F.S.P.

Capt. Salman Babar Pak Army Punjab F.S.P.

6. Flt, Lt. Farrukh Rashid Pak Air Force Punjab PSI'.

8. Lt.-M. Hilal Pak Navy N.-W.F.P. P.S.P.

Table III . (Available four vacancies as per Regional/Provincial quota as claimed by the appellant in case Punjab was allowed its due share @ 50% of the available seats)

Merit No, Name and Designation Department Domicile Allocated I. Capt. Usman Jadoon Pak Army N.-W.F.P. F.S.P. . Capt. Salman Babar Pak Army .. Punjab F.S.P.

6. Flt. U. Farrukh Rashid Pak Air Force Punjab P.S.P.

12. Lt. Muquddus Haider Pak Navy Sindh (U) P.S.P.

Table-IV (As it stands after termination of the appellant and repatriation of Lt. M. Hilal)

Merit No, Name and Designation Department , Domicile A II ocated I. Capt. Usman Jadoon Pak Army N.-W.F.P. F.S.P.

2. Capt. Salman Babar Pak Army Punjab F.S.P.

12. Lt. Muquddus Haider Pak Navy Sindh (U) P.S.P. {{TABLE}} ' It is evident that the substitution of Lt. M. Hilal with Lt. Muquddus Haider fits in the pattern of Provincial quota as well as Inter services allocation criteria as laid down in the 1991 Policy thereby completely removing the distortion that had been caused owing to allocating only one seat against two seats calculated at 50% of the seats for Punjab. That course, however, was not adopted by the F.P.S.C. Despite the fact that the Establishment Division had, before making the appointments, themselves detected the distortion in the breakup of four vacancies as reflected in the allocation by the F.P.S.C. Vide their letter, dated 29-10-2002 and tried to have it rectified through their letter, dated 11-11-2002 as reproduced in para.3(5), proposing therein that the officer at Serial No,6 of the merit i,e, the appellant from Punjab Province was required to be adjusted in P.S.P. Cadre in place of the officer at Serial No,27 Flt. Lt. M. Arif who had A.J.K. Domicile. The F.P.S.C.'s stand as reflected in para.3(6) above, was that the modalities of induction had been conveyed to the Establishment Division on 2-5-2002, well in advance of the allocation subsequently made, but no discrepancy was pointed out by the Establishment Division and that after the F.P.S.C. Had completed the examination and drawn up the merit list and also made allocation in view of the seats allocated to the Provinces and Services, any change therein would undermine the credibility of F.P.S.C. That does not amount to saying that the proposal of the Establishment Division was not legally in order. In fact the convenience factor stood in the way of rectification. The chairman, F.P.S.C., however, suggested an alternative, that an additional seat be allocated to Punjab which was not preferred by the Establishment Division, probably because it would have created further distortion and administrative problems. While no consensus could be reached in the joint meeting of the Establishment Division and the F.P.S.C., the tangle happened to be subsequently resolved with the judgment of the Lahore High Court delivered on 18-6-2003 in Writ Petition No, 1034 of 2003 of the appellant whereby the parameters of the policy were changed in favour of open merit rather than quota with apparently an active support of the Establishment Division as has been alluded to by the appellant's learned counsel and indicted by the stance taken by the Government before the Lahore High Court, Rawalpindi Bench to the effect that Government preferred open merit rather than observance of regional quota as reflected in para.10 of the Lahore High Court's judgment reproduced below:- "(10) The learned Standing Counsel has frankly conceded that applying the principles contained in para.10 of the summary to the case in hand which pertains to the year 2001 shall be to ensure the uniformity of law and shall eliminate discrimination."

' He argued that the writ petition was, therefore, actually allowed on the statement of the Federal Government rather than on the cause of the appellant as contained in his prayer to appoint him against the second vacancy of Punjab to be provided in order to make good .Its share of 50%.

Consequently, besides the appellant who was agitating against his exclusion from the nomination, the next person on merit at Serial No,8 from Pak Navy Lt. M. Hilal also got a berth on the list of appointees based on merit with apparently a neat allocation of the four seats amongst the three services with one seat each going to P.A.F. And Pak Navy and also 50% of the seats going to Punjab.

This was done in implementation of a judicial verdict resulting, on the other hand, in another distortion of the allocation in terms of quota for the other Provinces, in particular Sindh was ignored, legality whereof was challenged in the Supreme Court and Lt. Muquddus Haider from Navy with Sindh (Urban) domicile got his right of adjustment restored on the basis of the restoration of the quota policy in supersession of the merit policy. He further argued that the Honourable Supreme Court had though set aside the open merit policy previously upheld by the Lahore High Court, yet the right of the appellant on the basis of quota policy of 1991 still remained in tact. His assertion is corroborated by the fact that thee candidates at merit 1, 2 and 6 are common in Tables Nos.II and III whereas after exclusion of the appellant and Lt. M, Hilal, there is no one from the P.A.F. On board.

12. F.P.S.C. Was asked by the Establishment Division to rectify the mistake committed by the 'former in allocating the seat of Punjab to A.J.K. As pointed out vide Establishment Division's letter 11-11-2002 (para.3(5) above). If the F.P.S.C.'s misplaced view on the fall-out of the acceptance of the proposal on its credibility had not stood in the way, the legal recourse to restoration of the Punjab's due share would have prevented the litigation that followed. It is that context that the appellant considered his appointment not only valid on the basis of merit alone but also in terms of the quota and its application to the Provinces and sub-allocation amongst the three Services. He pursued his perceived right passionately both before getting the appointment and after his termination. After termination, he naturally sounded bitter and desperate in his representations and submissions as he happened to be suspended in the midair having lost his job both in the P.S.P. And P.A.F. Be that as it may, the fact remains that in the wake of F.P.S.C.'s refusal to allocate the second seat to Punjab and the Honourable Supreme Court orders in favour of reversal of quota policy, the factual position is that he was not recommended by the F.P.S.C. And, as such, his appointment cannot be held to have been made based on the policy dated 9-9-1991 and, it cannot also be automatically claimed, as done by him that his appointment was factually against/one of the two seats of Punjab unless the F.P.S.C. Had formally agreed to the Establishment Division's proposal of amending its recommendation to reallocate to Punjab the seat allocated to A.J.K. And recommended him against that which was only within its competence. The endeavour of the Establishment Division to obtain Prime Minister's approval for merit based appointments in future, in amendment of the 1991 induction policy sought vide its summary sent on 25-10-2003 was also rejected on 19-1-2004. That does not, however, repudiate the appellant's contention that though he was given the job on merit-based policy yet he was also entitled to it on the quota- based policy if it had been worked out correctly. The question arises should an officer suffer even after rendering service for two years after being otherwise legitimately appointed in compliance with the judicial orders as his appointment was made in pursuance of the Honourable High Court's judgment. It was not the result of an administrative order and, therefore, the dictum laid down vide PLD 1992 SC 207 as cited by the Secretary Establishment Division in his summary of 26-9-2006 that "perpetual right cannot be claimed on the basis of an illegal order" is not attracted in this case. A wrong had been done to him in misapplication of quota which F.P.S.C. Refused to rectify. He thus, stand fortified under his right of loam poenitentiae as upheld in his case by both the Law Division and the Attorney-General of Pakistan.

13. We are convinced that F.P.S.C. Erred in calculating the quota of seats for Punjab. They were asked to clarify their position on the argument that:- "their refusal to accept the E.D.'s proposal for allocation of another seat to Punjab to provide for its quota of 50% of the 4 vacancies or diverting the vacancy caused by non-joining of F.P.S.C.

Recommendee Flt. Lt. Muhammad Arif against the one vacancy allocated to A.J.K. Vide F.P.S.C.

Letter No,2/24/2002- CSS dated 29-10-2002 practically translated into 25% of seats to Punjab against their due share of 50% besides the compulsion of withdrawing the offers of appointment made to Lt. Muhammad Mal and the appellant both of whom were not recommended but needed be adjusted through the proposed reallocation. Was it only to avoid the consequential adverse impact on the F.P.S.C.'s credibility or there was no legal basis or precedent for the proposed adjustment."

' Their reply was simply based on the minutes of the joint meeting held between the Chairman, F.P.S.C. And Secretary, Establishment Division held on 13-1-2002 that:--

(i) The question of credibility did figure in the discussion.

(ii) A solution to resolve the issue by assigning an additional vacancy was however, suggested by F.P.S.C.

(iii) There is no precedent to make adjustment subsequent to finalization of the nomination by the F.P.S.C.

(iv) F.P.S.C. Is of the view that instead of termination of services of Flt. Lt. Farrukh Rashid, the Estt.

Division would have repatriated his service to his parent Ministry/Services under section 11 of Civil Servants Act, 1973."

' Similarly F.P.S.C.'s response to the query as to what are the rules on unutilized quota allocation in a particular year was equally evasive that "the Establishment Division D.O. Dated 8-9-1991 regulated the induction". It was F.P.S.C.'s intransigent stand that lied to a non-consensus on the Establishment Division's proposal of 11-11-2002.

14. We also find a great force in the argument of the appellant that his appointment as A.S.P. Was neither challenged nor made contingent upon any future development. The appointment letter issued to him as reproduced in para.3(9) above is indicative of the fact that there was no protest from any official quarter including F.P.S.C. Against his appointment and he was allowed to complete his training, qualify F.P.O.E. Conducted by the F.P.S.C. And join his duties in the I.C.T.

Nobody challenged his appointment including Lt. Muquddus Haider who filed I.C.A and writ petition in the Supreme Court wherein he contested for his own right of appointment based on the principle of quota policy whereas the appellant was made a respondent as he was the petitioner before the Honourable Lahore High Court whose judgment was, in fact, assailed by him. Thus, his invoking the principle of locus poenitentiae and having got a vested right in continuing with the job on the strength B of the established law and in terms of the dictum laid down vide 2003 SCM R 1128 that "authority having power to make an order has also the power to undo the same - exception - order having taken legal effect arid created certain rights in favour of any individual cannot be withdrawn or rescinded to the detriment of those rights General. Clauses Act" is perfectly in order and has been so declared and endorsed emphatically by both the Law Division and the Attorney- General.

15. As borne out from the chronology of events, (para.4) there happened a change in the approach of the Establishment Division whose sympathy with the appellant persisted till the judgment of the Honourable Supreme Court was delivered on 20-10-2004. There occurred, however, a marked indifference towards the appellant's predicament after he filed a review petition and it hardened further after the dismissal of his Writ Petition No,1002 of 2005 by the Honourable Lahore High Court.

It was visible in the way his representations against show-cause notice of 11-1-2005 and termination of 31-3-2005 were processed. The stance taken by the Establishment Division boiling down to the hard logic that the basis on which he had been appointed having been knocked out, there appeared no justification to let him continue in service was completely oblivious of the fact that he had been offered the job apo under a judicial verdict which held the ground at that time and that he had burnt his boats and meanwhile, been struck off duty and retired from service with effect from 28-7-2003 within a fortnight after his appointment in P.S.P. On 11-7-2003. The Establishment Division, in fact, faced a dilemma in view of the opinion of the Law and Justice Division further strengthened by that of the Attorney-General of Pakistan which pointed out the legal and administrative lacunae left by the Establishment Division in view whereof appellant's reinstatement was recommended and there were even observations. (para.4(20) above) made from the prime Minister's Secretariat in favour of accommodating the appellant which, in turn, led them to further explore the alterative of repatriation. They secured repatriation of Lt. M. Hilal but their efforts to seek the appellant's repatriation did not bear fruit. There hardly appeared to be any justification to ignore the opinion of the Law and Justice Division that principle of locus poenitentiae was pertinently involved in favour of his retention in service and the opinion of the Attorney- General of Pakistan was not only supportive of the views of Law and Justice Division but also contained an emphatic observation that the appellant deserved reinstatement both on the ground of legitimate expectation and constitutional right of equality. Rather than reinstating the appellant, the Establishment Division still resorted to terminating the services of Lt. M. Hilal for removing the discrimination pointed out by the Attorney-General that the appellant's services had been terminated while Lt. M. Hilal who had also been appointed as a direct beneficiary of the merit policy still enjoyed continuing being in service. It forced him once again to approach the Peshawar High Court in exercise of his right provided to him in the order of the Court allowing him to withdraw his original petition against the show cause. The Establishment Division secured his repatriation to avoid making the situation messier. They, however, insisted on clinging to their hardened position in the appellant's termination being legally right while simultaneously making efforts to secure his repatriation as an alternative route to termination which was tantamount to an implicit acceptance of the principle of locus poenitentiae. It was nevertheless overlooked that there was a clear-cut vacancy of Flt. Lt. M. Arif who had not agitated the matter in any Court of Law and the option of utilizing that vacancy rightfully for letting the appellant to continue in service was clearly available. It had, in fact, been originally also pleaded by the Establishment Division themselves in their communications of 11-11-2002 and 13-1-2003 as reproduced in para.3(5) and (6). That sort of a sympathetic approach was, however, not adopted in the summaries submitted to the P.M. On his representations to the effect that the appellant could be adjusted against the said vacancy if the 50% quota of Punjab was restored for the 2001 induction. Instead the Establishment Division took a harsh stand in their summaries in favour of rejecting the appellant's representations which was done through a non-speaking order by the appellate authority, apparently in a mechanical way without affording the appellant any personal hearing at any level in violation of the established law audi alteram partem".

16. In view of the foregoing, the appellant's termination was ab initio illegal and devoid of justice in violation of the principle of locus poenitentiae. We, therefore, accept the appeal, set aside the termination orders and direct the respondents to reinstate him with effect from the date of the impugned order with all consequential benefits subject to an affidavit by the appellant and its administrative processing under law to the effect that he was not gainfully employed during the intervening period.

17, No order as to costs. Parties be informed accordingly.