M.A., ZAFAR, J. --- Mst. Naveed Khanum, Mst. Farhat Jabeen, Mst. Munaza Munir and Mst. Rehana Kausar, the present petitioners were appointed as P.T.C., Teachers in the year 1993 and at the time of the filing of the writ petition in the year 2001 they were posted in different Government Primary Girls Schools of District Chakwal.
2. That according to the averments of the writ petition they were appointed on merit after completing all the legal requirement and since their appointment, they were performing their duties as teacher with all honesty, devotion and dedication. Being aggrieved from the act, of the respondents not paying the monthly pay from August, 1999 onwards and issuance of show-cause notices dated 17.2.2001 describing their appointment letters as bogus they filed the present writ petition with the following prayer:- it is therefore, respectfully prayed that directions may kindly issued to respondents for the payment of their monthly pay from August, 1999 till today which have been with-held quite illegally and without lawful authority."
3. In the show-cause notices dated 17.2.2001 issued to them by District Education Officer (Women)
Elementary, Chakwal it was stated that their appointment orders have been declared to be bogus and they could not continue their service. They were required to show cause and file reply in their defence. This Court vide order defence. This Court vide order dated '26.2.2001 suspended the impugned notices on the ground as the petitioners have performed their duties for seven years as PTC, Teachers under the respondent-Government, prima facie there appears no ground for finding fault with their appointments at such a belated stage.
5. That on 28.3.2002 learned A.A.G. Appeared on behalf of respondents and stated that as per instructions given to him, the impugned show-cause notice for termination of service is being withdrawn by the respondents, who do not intend to take any further action on - the said notices. In view of the said statement the present petition filed by the petitioner was disposed of as having fructified.
6. That against the aforesaid order dated 28.3.2002 the respondents filed review application No. 6 of 2003 asserting that on the said dated number of writ petitions were fixed and not such statement was intended to be made by the learned A.A.G. In the present writ petition, he made statement regarding employees of the District Rawalpindi whose services were terminated on the ground that their appointments were made during the continuation of ban on recruitments while in the present case the show-cause notices were issued to the present petitioners that they had procured the appointments. On the basis of bogus appointment orders. A learned Division Bench vide orders dated 16.4.2008 allowed the review application and the order dated 28.3.2002 was set aside with the direction that the present writ petition shall be deemed to be pending and will be decided on its merits by the learned Single Judge.
7. Learned counsel for the petitioners submits that petitioners performed their duties uptill September, 2006 but thereafter they were not allowed to work and similarly they have not been paid any salary right from August, 1999 onwards on the ground that their appointment letters were bogus.
8. On the other hand, learned A.A.G. Submits that the petitioners procured their appointments on a bogus appointment letters and thus they are not entitled to any salary even during the period in which they worked and performed their duties. However, he admits on instructions from the officials present in Court that petitioners had been performing their duty up till September, 2006.
9. After hearing the learned counsel for the parties and perusing the documents I am of the considered view that salaries of the petitioners cannot be with-held on the ground that their appointments were illegal or same were procured on the basis of bogus appointment letters.
Instead of with-holding the, salaries of the petitioners, actions should have been taken against those who allowed the petitioners to work for six years right from 1993 to 1999 when the salaries were with-held on the pretext that their appointment letters are bogus. Throughout this period no exception was taken to the appointment of the petitioners as such. They have been drawing their pay and allowances ever since and the Government is not possessed of any locus poenitentiae to question the appointment of the petitioners or to find fault with it on any account. There was hardly any ground for finding fault with the appointment of the petitioners at a belated stage and then to with-hold their salaries in August, 1999 and even thereafter despite taking work from them till September, 2006. The action/direction to with-hold their salaries in fact suffered from inherent vice, it is void ab initio and cannot be given effect. Reliance is placed on Administrator District Council, Larkana and another v. Ghulab Khan and 5 others (2001 SCM R 1320).
10. That the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 contemplate an action against an employee who is guilty for the breach of good service order, indiscipline, misconduct etc. But it does not contain any provision on the basis of which appointment of an employee can be cancelled on the ground that it has been made illegally. In other words in such like situation instead oftaking action against an appointee it is appropriate if an action is taken against the Appointing. Authority who apparently committed a misconduct by making such appointment, as observed by the Hon'ble Supreme Court of Pakistan in the case of Province of Punjab v. Zafar Ali (2006 SCM R 678).
11. That it is an admitted position between the parties that after the appointment of the petitioners in the year 1993 they had been working up till September, 2006 and their (sic)
They have not been paid any salary from August, 1999 onwards up-till September, 2006 and during this period of seven years they had been working/performing their duties without getting any pay from the Department.
12. Resultantly, this petition is allowed and the respondents are directed to make payment of the salaries to the petitioners from August, 1999 to September, 2006 within a period of two months.
Compliance report be submitted through. D.R. (Judi.) of this Bench. There will be no order as to costs. .