1. ' SYED AKHLAQ AHMAD, J.--- Petitioners through this writ, have prayed that show-cause notices issued to them by the District Police Officer Khanewal/respondent be declared illegal, ultra vires, void ab initio and be also cancelled.
2. Contents of the writ petition show that the petitioners were educated and recruited as constables in the Police Department District Khanewal as under:-- Name Education Date of Recruitment Muhammad Azeem M.Com 10-1-2008 Muhammad AamirF.A. 27-12-2007 Muhammad WaryamF.A. 27-12-2007 Ikram Ashraf Matric 10-1-2008 Naveed Akhtar ShakirMatric 10-1-2008 Muhammad RamzanDriver Middle10-1-2008 ' It is stated that the Petitioners' fathers are working in the Police Department. They applied to the Inspector-General of Police Punjab for recruitment of the petitioners in the rank of Constables. The Additional Inspector-General of Police Punjab, Lahore directed the District Police Officer Khanewal as under:-- "His son be recruited as constable, if he is otherwise eligible".
2. ' After necessary process, the petitioners were found fit for appointment in the rank of constables by the District Police Officer Khanewal. They were accordingly sent to Medical Superintendent DHQ Hospital, Khanewal for their medical checkup. After medical fitness, they were appointed as constables on the dates mentioned above. On 14-7-2008 the petitioners were relieved from the Police Lines Khanewal and sent to the Police Training School Multan for Basic Recruitment Training Course. On 14-7-2008, the petitioners reported their attendance at the Police Training School, Multan vide D.D. Entry No,13. After successfully completing the training course, the petitioners reported back in Khanewal District vide Entry No,7 dated 15-2-2009. Since their appointment and completion of training course, the petitioners are serving at various police stations. The District Police Officer Khanewal issued show-cause notices dated 30-1-2010 to the petitioners that their services, being illegal and against the Rules, are required to be terminated. Hence this writ.
3. 3, The District Police Officer Khanewal/respondent contested this writ in the parawise comments submitted by him with the averment that the fathers of the petitioners serving in the Police Department, presented applications to the Inspector-General of Police Punjab ' Lahore for recruitment of their sons as constables. On their applications, the Additional Inspector-General of Police Punjab Lahore issued the following directions to the D.P.O., Khanewal in the year 2007 and 2008:--- "Applications of Muhammad Waryam, Naveed Akhtar, Muhammad Aamir, Ikram Ashraf and Muhammad Azeem.
(1) Family Claim Basis.
(2) His son be recruited as constable if he is otherwise eligible. Application of Muhammad Ramzan.
(1) Family Claim Basis.
(2) Consider for recruitment for any posting in basic scale Nos.1 to 5 for which he is otherwise eligible".
4. ' On receipt of said applications the then D.P.O. Khanewal recruited the petitioners Muhammad Waryam, Muhammad Aamir as constables on 27-12-2007. Naveed Akhtar, Ikram Ashraf, Muhammad Azeem as constables and Muhammad Ramzan as driver constable on 10-1-2008.
5. ' 52 similar applications of other serving police constables bearing the same orders received from the office of Additional Inspector-General of Police, Lahore are also pending in the office.
6. ' Later on, Najam-ul-Hassan constable of this District also presented a similar application for recruitment of his son Zia-ulHassan on Family Claim Basis. The case of his son was considered and he was not found entitled for recruitment as constable as the son of police officer/official can claim his appointment on Family Claim Basis only when his father dies or declared invalidated/ incapacitated for posting or martyred. In no other case, the son of police officer/official can claim his appointment in Police Department on Family Claim Basis whereas the father of Zia-ul-Hassan namely Najamul-Hassan was in service, therefore, his son was not recruited on Family Claim Basis.
7. ' The said Zia-ul-Hassan filed Writ Petition No,2726 of 2008 in the Lahore High Court, Multan Bench contending therein that he may be recruited as constable on Family Claim Basis and took the plea that 5 other constables including the petitioners were recruited as constable while their fathers were also serving in the Police Department. The comments were submitted in the High Court in the said writ petition. Mr. Justice Muhammad Khalid Alvi, the then Judge of Lahore High Court Multan Bench, Multan passed the following order in the said writ petition in Criminal Original No,233-W of 2008 on 6-11-2008:-- "Through this petition, petitioner wants initiation of contempt proceedings against the respondent on ground that a statement was made by respondents Nos.5 and 6 before this court on 10-9-2008 that case of the petitioner for recruitment on the basis of Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 will be finalized within three weeks but the same has not yet been finalized.
8. ' Respondent No,5 although did not disclose on. 19-9-2008 that petitioner's father is still a serving constable nor the fact was brought to the notice of the court that five other constables have been recruited under Rule 17-A while their fathers are also in -service, such recruitment is prima facie against the spirit of the said Rule. Learned counsel for the petitioner, however, maintains that five such constables are already in service. Therefore, petitioner cannot be discriminated. On the same principle he is also entitled to appointment.
9. ' I have considered the arguments advanced on behalf of parties and examined the record.
10. ' There is no denying the fact that prima facie recruitment of those five constables is not in consonance with the spirit of Rule 17-A, therefore, on the basis of one wrong another wrong cannot be done because two wrongs cannot make one right. The officer, present in court, states that case of five constables has been recommended for their regularization through proper channel. If they are found eligible on merits, they will be retained in service, otherwise their service will be terminated. In this view of the matter, no further proceedings are called for in this petition. Disposed of".
11. ' It was requested vide this office Memo No,27586 dated 29-9-2008 to RPO Multan that the matter regarding the petitioners may be sent up to the Inspector-General of Police, Punjab, Lahore and their appointments may either be declared as illegal or one time waiver be obtained otherwise this recruitment will set a bad precedent using which the sons of thousands of the police officials will be entitled to be recruited in the Police Department and the department will become police inheritance /a family institution. Therefore, it will be in the fitness of things that the case of the petitioners may be brought in the notice of the Inspector-General of Police Punjab, Lahore and thereafter the decision be taken accordingly.
12. ' R.P.O Multan vide his Office Memo No,39363/Legal dated 23-7-008 moved the Inspector-General of Police, Punjab Lahore for guidance in the matter.
13. ' Inspector-General of police Lahore vide his office Endst. No,5165/Legal dated 24-10-2008 observed that Standing Order No,5 of 2001 followed by the Standing Order No,1 of,2008 for the recruitment of constables has been issued by the Inspector-General of Police, Punjab Lahore in which the procedure for recruitment of constables have been given. The recruitment is made by advertising the posts in the newspaper on the basis of suitability, fitness and qualification. For Family Claim, 5 and 7 additional marks respectively for real sons of serving/retired/ deceased police employees against ordinary candidates are awarded. The petitioners recruited earlier in pursuance of the order of the Additional Inspector-General of Police, Punjab, Lahore was in deviation of the Standing Order and following the precedent the recruitment of other employee's sons on the similar ground would also be against the rules. The matter of appointment of the constables recruited earlier is being looked into whether they should be removed from service or their services be regularized by asking them to undergo the procedure for recruitment.
14. ' This recruitment of constables in such manner would create bad precedent and there would be no end of it as so many employees' sons waiting for recruitment had not been recruited as they could not come on merit.
15. ' Aforesaid Zia-ul-Hassan filed I.C.A. No,154 of 2008 in Criminal Original No,233 of 2008 in Writ Petition No,2826 of 2008. The said I.C.A. Was fixed for hearing on 13-4-2009 before the D.B. Of Lahore High Court, Multan Bench. On the said date Mr. Justice Ch. Naeem Masood and Mr. Justice Syed Shaheen Masood Rizvi_ the then Honourable Judges of Lahore High Court Multan Bench, Multan dismissed the I.C.A. And observed that:-- "As far appointment of other constables (petitioners) referred to above is concerned, therefore, the matter is under scrutiny before the Inspector-General of Police, Punjab Lahore as to whether they should be removed from service or their service be regularized by asking them to undergo the regular procedure of recruitment".
16. ' Later on, the Inspector-General of Police Punjab, Lahore decided the case of the petitioners and observed in his own handwriting that:-- "Neither Zia-ul-Hassain nor those being quoted as precedent by Zia-ul-Hassain are entitled to recruitment under Family Claim Basis. Further action may be taken in the light of these observations/directions."
17. ' In compliance of the aforesaid observations/directions of the Inspector-General of Police, Punjab, Lahore show-cause notices have been rightly issued by the respondent. There is no substance in the writ petition which merits rejection.
4. Learned counsel for the petitioners contends that petitioner No,1 is M.Com, while 2 and 3 are F.A.
18. And the remaining are Matric and qualify the requisite standard of education for appointment of constables, while petitioner No,6 possesses valid driving licence and he also fulfils the requisite qualification for appointment as constable driver. The Additional Inspector-General of Police while directing the District Police Officer Khanewal to consider the appointment of the petitioners in the rank of constables categorically made it clear as under:--- "that petitioners can only be appointed is constable if otherwise eligible"
19. The petitioners after undergoing process of eligibility were found fit for recruitment as constable and accordingly, they were appointed as constables. They successfully qualified "Recruit Training Course" at Police Training School Multan and were thereafter attached to the rank and the file.
20. Since their appointments, the petitioners are performing their duties to the entire satisfaction of their seniors. After observing all necessary process i.e, educational qualification, measurement and medical fitness, appointment orders of the petitioners were passed by the competent authority. As such their appointments were quite in accordance with law. The orders implemented in letter and spirit and are in force for the last more than two years. As such vested rights have been created in favour of the petitioners. As per Rule of locus poenitentiae, when orders issued by the competent authority are implemented it cannot be withdrawn or rescinded. Any irregularity whatsoever, if committed by the appointing department itself, the appointee could not be harmed, damaged or condemned subsequently when it occurred to the department. It is prayed that the writ petition may be accepted and the show-cause notices issued by the District Police Officer Khanewal may be cancelled.
5. 1 have heard the arguments of the learned counsel for the petitioners and A.A.-G. On behalf of the respondent and have also gone through the record.
6. Admittedly the petitioners' fathers working in the Police Department applied to the Inspector- General of Police Punjab for recruitment of the petitioners as constables upon which the Additional Inspector-General of Police Punjab Lahore directed the District Police Officer Khanewal in the year 2007 and 2008 as under:--- Applications of Muhammad Waryam, Naveed Akhtar, Muhammad Aamir, Ikram Ashraf and Muhammad Azeem.
(1) Family Claim Basis.
(2) His son be recruited as constable if he is otherwise eligible. Application of Muhammad Ramzan.
(1) Family Claim Basis.
(2) Consider for recruitment for any posting in Basic Scale Nos.1 to 5 for which he is otherwise eligible."
21. ' After completing codal formalities, the petitioners were recruited on Family Claim Basis against the rules mentioned in Standing Order No,1 of 2008 and Letter No,126-260, dated 5-1-2009 issued by the Inspector-General of Police Punjab, Lahore, in this regard. According to which the son of the Police Officer/police official can claim his appointment on Family Claim Basis only "when his father dies or declared invalidated/incapacitated for posting or martyred", In no other case the son of the Police Officer/official can claim his appointment in Police Department on Family Claim Basis whereas in the case in hand, the fathers of the petitioners are alive and serving in the Police Department. In spite of the aforesaid legal position/recruitment policy, appointment orders of the petitioners were issued and implemented in letter and spirit by the competent authority of the Police Department which are enforced for the last more than two years. It has created vested rights in favour of the petitioners.
7. As per rule of locus poenitentiae when orders issued by the competent authority are implemented, it cannot be withdrawn or rescinded.
22. In this regard I rely upon 1997 SCMR 15 (Supreme Court of Pakistan) in case Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another which reads as under:--- "----It is well-settled that once a right is created in favour of a litigant, in due course of time, it cannot at all be taken arbitrarily. In the case in hand, admission was given to respondent No,1 by accepting his credentials and in the result necessary dues were accepted by the concerned authorities. The learned High Court was eminently justified in accepting the plea of respondent No,1 to meet the ends of justice. The petitioners cannot be allowed to approbate and reprobate in the same breath. To begin with, they accepted respondent No,1 to be entitled to get admission and at the belated stage, they took a turn by stating that respondent No,2 had been accommodated by giving admission instead of respondent No, 1 . This was not possible for the petitioners to do so under the settled law. If this was so, it surely occurred because of their gross negligence for which the respondent could not be held responsible. The decision of the petitioners to give admission to the respondent No,1 was implemented in letter and spirit. He, therefore, cannot be deprived of his vested right which he had earned on the basis of act of the petitioners. See Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973 wherein it was observed:-- "It is quite apparent that restrictions imposed in para.4 of the Revenue Department's Notification mentioned above pertain to the appointment as Mukhtiarkar and in the cases under consideration will have no bearing for the reason that respondents were granted exemptions in accordance with circulars, requirements of which were duly fulfilled by them and not only that but exemptions were implemented and they received necessary training, as such valuable rights had accrued to them which could not be interfered with. In this context, reference can be made to section 20 of General Clauses Act and guidelines laid down in the case of Pakistan v. Muhammad Himayatullah Farukh PLD 1969 SC 407, in which it is held that principle of locus poenitentiae is available to the Government or relevant authorities and further authority which is competent to make order has power to undo it, but such order cannot be withdrawn or rescinded once it has taken legal effect and created certain rights in favour of any individual. It appears that Service Tribunal has allowed appeals of the respondents mainly on this ground with cogent reasons in support thereof. View taken by the Service Tribunal is correct and we find no reason whatsoever to interfere with the impugned judgment, which is hereby upheld and leave is refused. In the circumstances, petitions are dismissed."
23. ' It has been held in 2004 SCMR 1864 (Supreme Court of Pakistan) in case Bashir Ahmad Solangi v.
24. Chief Secretary Government of Sindh Karachi and others that:--- "There can be no dispute to the general rule that an incumbent of a post of a line cannot change his line without the permission of the competent authority in the Government of Sindh and similarly, it is not permissible to place a person on the strength of a line other than his own line to his disadvantage or without his consent."
25. "The rule of locus poenitentiae is that the power of rescinding is available to the Government or the relevant authorities to retrace and undo the wrong order till a decisive step is taken and there is hardly any dispute that an authority which has power to make an order has also the power to undo it but this is subject to the exception that if an order has taken effect and certain rights have been created in favour of an individual, such an order cannot be rescinded or withdrawn to the detriment of the such rights. The provisions of section 21 of the General Clauses Act, 1956, envisages that the power to issue an order includes the power to rescind or vary such an order which co- relates with the authority to competently pass an order and also recall, rescind or cancel such an order but this is not an unfettered power to be used at any stage in any manner for undoing an order which having already taken effect, has created vested rights. The spirit of rule is that once an order is given effect and in consequence thereto certain rights are created in favour of a person, such rights cannot be subsequently taken away."
26. ' According to 2009 SCMR 412 (Supreme Court of Pakistan) in case Fuad Asadullah Khan v.
27. Federation of Pakistan through Secretary, Establishment and others that:--- ' On numerous occasions this Court has held that for the irregularities committed by the department itself qua the appointments of the candidates, the appointees cannot be condemned subsequently with the change of Heads of the Department or at other level. Government is an institution in perpetuity and its orders cannot be reversed simply because the Heads have changed. Such act of the departmental authority is all the more unjustified when the candidate is otherwise fully eligible and qualified to hold the job. Abdul Salim v. Government of N.-W.F.P. Through Secretary, Department of Education, Secondary, N.-W.F.P. Peshawar and others 2007 PLC (C.S.) 179.
28. Again it has been held in 2009 SCMR 663 (Supreme Court of Pakistan) in case District Coordination Officer, District Dir Lower and others v. Rozi Khan and others that "any irregularity, whatsoever, if committed by the appointing department itself, the appointee could not be harmed, damaged or condemned subsequently when it occurred to the department that it had itself committed some irregularities qua any appointment---Petition for leave to appeal by the department was dismissed by the Supreme Court, in circumstances."
8. The principle laid down by the Supreme Court of Pakistan in the cases cited above is applicable to the facts and circumstances of this case. Vested rights of remaining in service have accrued in favour of the petitioners due to the irregularity/illegality committed by the Police Department itself due to which appointment orders of the petitioners as constable in the service of the Police Department cannot be withdrawn or rescinded to the detriment of the petitioners. I, therefore, accept this writ petition and set aside the show-cause notices issued by the District Police Officer, Khanewal/respondent in the names of the petitioners being illegal, ultra vires and void ab initio.