' MUHAMMAD HASHIM KHAN KAKAR (CHAIRMAN).---This appeal under section 4 of the Balochistan Service Tribunals Act, 1974 has been preferred by the appellant against the order dated 15-1-2004 whereby he was terminated from service.
2. The relevant facts in small compass are that the appellant joined the Education Department Government of Balochistan as Lecturer in Balochi Language in the year 1993 and was posted in Government Degree College Quetta. In May, 1999, he was transferred and posted in Degree College Panjgur. While posted as Lecturer in Balochi Language Government Degree College, Panjgur, he was placed under suspension vide Notification dated 13-10-1999 on the basis of being found guilty of the offence of Sodomy committed before joining the Government Service. Thereafter, on 13-4- 2000, an Inquiry Officer was appointed in terms of Rule 5(1) of the Balochistan Civil Servants (Efficiency and Discipline) Rules, 1922 and charge sheet was issued to the appellant. After holding formal inquiry, the Governor of Balochistan issued a Show-cause notice under the capacity of Authority on 4-12-2001 which was cluly responded by the applicant, nonetheless, he was terminated from service by means of impugned order dated 15-1-2004.
3. The appellant being aggrieved of the order dated 15-1-2004 impugned herein preferred representation/review to the honourable Chief Minister of Balochistan under section 9 of the Balochistan Province Removal From Service Ordinance 2000 (hereinafter referred as Ordinance 2000) which remained unturned, lastly while finding no other way out, he approached this Tribunal by filing the instant appeal.
4. On the other hand the respondents contested the appeal on legal and factual aspects by means of filing their formal reply.
5. We have considered the contentions raised by the learned counsel for the parties in the light of relevant provisions of concerned laws and also gone through the available record.
6. The record indicates that in the year 1981 appellant was convicted by the then Military Court and sentenced to suffer 5' years' rigorous imprisonment, whipping by fifteen times and fine of Rs,20,000.
After serving the said sentence, he passed his matriculation from Government High School Chitkan Panjgur in 1980, then he passed his F.A. Examination during pendency of the case. After that he passed his B.A. During detention in the year 1984, then he did his M.A. In Political Science as a private candidate in the year 1988 and M.A. Balochi as a regular student in the year 1992 from University of Balochistan.
7. The appellant then appeared before the Balochistan Public Service Commission and was appointed in Education Department as Lecturer of Balochi, Language in the year 1993 and posted in Government Degree :College, Quetta. Then in May 1999, he was transferred and posted in Degree College Panjgur.
8. The record also indicates that an incident of gang rape sodomy took place on 5-9-1999 at Panjgur. The victim of 'the said offence Siraj Ahmed son of Muhammad Akber, 16 years old submitted an application before the honourable High Court of Balochistan. While, giving details of the incident stated therein that Muhammad Ismail (appellant) was previously convicted by the Military Court in 1981 for an offence of sodomy. The said application was converted into Constitutional Petition and on 7-10-1999 the following observations were passed:- "It is stated that in the petition that he (Muhammad Ismail) committed same crime and was jailed for five years and was also whipped by fifteen times and fine of Rs,30,000. And now the same person is trying to obstruct in completion of investigation of the case with his influence and he is also absent from his duty for a week and is busy to help these criminals.
' Accordingly notice was also issued to S.S.P. Turbat, to enquire about the progress of case and also to produce said Lecturer Degree College Panjgoor before this Court. Latter appeared in person and admitted that in 1980, he was sentenced to five years R.I. And whipping and fine.
' We enquired from him, that how after having committing such a heinous offences, he is entitled to remain in Government job, because he was found to be the accused of an offence, involving moral turpitude? He could not answer satisfactorily. However, he stated that some time be given to him so he may engaged counsel.
' Today Mr. W.N. Kohli learned counsel appeared on his behalf along with him and filed Counter Affidavit. Learned counsel also admitted that Muhammad Ismail was convicted/sentenced by the Military Court.
' In our opinion, it is a case, where it is essential to examine, as to whether after having been found guilty for the offence, involving moral turpitude under section 377, P.P.C. Etc., the accused can be appointed in the Government jpb, particularly Lecturer in the Educational Institution, therefore, to examine this aspect of the case, we admit this petition to regular hearing.
' However, in the meanwhile, we direct to Secretary Education Department, Government of Balochistan, Quetta to issue Notification, suspending his services and also simultaneously conduct enquiry that, how this person was appointed in the Government job, when he was found guilty of offence of sodomy. The Secretary should submit report before us within fifteen days positively after receipt of this order."
Thereafter he was suspended immediately by the Secretary Education and after holding an inquiry under the provisions of Efficiency and Discipline Rules, 1992 was terminated from service by means of impugned order dated 15-1-2004.
' The learned counsel for appellant Mr. Muhammad Aslam Chishti senior Advocate Supreme Court at the very outset, has raised objection of applicant's removal from service under the provision of Ordinance 2000 and stated that the inquiry was initiated under the Balochistan Civil Servant (Efficiency and Discipline) Rules 1992 and consequently he was removed from service under the provisions of Ordinance 2000, as such, the proceedings were invalid. The contention of the learned counsel is devoid of force, for the reasons that the disciplinary proceedings were initiated against the appellant prior to coming into force of Ordinance 2000 and it was to be completed under Balochistan Civil Servants (Efficiency and Discipline) Rules 1992 and not under Ordinance. When the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begum unless the new statute shows a clear intention to vary such rights. Even otherwise nobody could claim a vested right in procedure. The impugned order is indicative of the fact that the departmental proceedings were initiated against the appellant under the provisions of E&D Rules, 1992 and subsequently his services were also terminated under the Rules 4(1)b (iv) of the Balochistan Civil Servants (E&D) Rules, 1992. Merely mentioning the words read with Balochistan Removal from Service (Special Powers) Ordinance, 2000 has not caused any defect in the proceedings as no prejudice has been caused to appellant on merits and notwithstanding the technical objections.
10. The learned counsel for appellant further contended that there is no Law and Rule in force in the Province of Balochistan which debars any person previously convicted of any offence from seeking employment in Government Service and all the laws and rules are made applicable to the civil servant with prospective effect and no law or rule can be given retrospective effect, he further contended that the Ordinance, 2000 as well as the E&D Rules, 1992 are also silent about the past conviction. The authority was not justified while terminating the services of appellant specially when the appellant came out as a reformed gentlemen.
11. We are not in agreement with the learned counsel for appellant, for the reasons that although the Ordinance, 2000, as well as E&D Rules, 1992, are silent in respect of previous conviction but there are certain laws wherein the convicted persons have been debarred from holding public office in future as provided under section 2 of the Qualification of Holding Public Office Ordinance, 2002 and Articles 62 and 63 of the Constitution of Islamic Republic of Pakistan (1973) which read as under:-- ' Article 62 "A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless--
(g) he has not been convicted for a crime involving moral turpitude or for giving false evidence.
' Article 63 "A person shall be disqualified from being elected or chosen as and from being, a Member of Majlis-e-Shoora (Parliament) if-
(h) he has been, on conviction for any offence in the opinion of the Chief Election Commission involves moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release".
12. It manifests from bare reading of the above Articles of the Constitution that previously convicted person have not only been debarred from holding public office in future but on the principle of expectancy; an opportunity of reform is also provided in order to reforms themselves in a specific time.
13. Keeping in view the principle enunciated in the above constitutional provisions we are of considered view that the appellant inspite of availing a long period has not changed his life style and remained involved in notorious kind of activities for the following reasons:--
(1) It is evident from record that in the year of 1981, the appellant was convicted and sentenced to suffer 5 years' rigorous imprisonment, whipping by fifteen times with a fine of Rs,20,000 by the Military Court for an heinous offence of Sodomy and the said conviction got finality being upheld by the then appellate Court.
(2) It is also evident from record that in the year 1986 the appellant, applied for the post of Lecturer in Education Department and annexed a character certificate bearing No, 247 with application forms which speaks as under: "It is certified that Muhammad Isma il S/o Mehr Dil resident of village Chitkan, Tehsil and District Panjgur, bears a good moral character. He has not been convicted in any offence."
14. It is crystal clear from bare reading of contents of aforementioned character certificate that while applying for the post of Lecturer the appellant had concealed that fact of previous conviction.
Although he was not author of the said certificate but being custodian of the said certificate he must have gone through the contents of the aforesaid certificate, and knowingly placed a false certificate before the Balochistan Public Service Commission.
15. The record also shows and suggests to believe that in the year of 1999 an incident of sodomy took place at Panjgur where reportedly a young scholar of Balochsitan who is permanent author of articles in the daily National News Paper "Dawn" was subjected to sodomy and the appellant being teacher instead of helping the victim Siraj Ahmed tried to save the gang of culprits from clutches of law. As such, on the direction of High Court he was suspended and subsequently was terminated from service.
16. We are conscious of the fact that Judges are not supposed to be social reformers and are required to follow and strictly and adhere to the relevant provisions of law but keeping in view the peculiar circumstances of the case and above discussion we are of considered view that the appellant has rightly been terminated from service by the authority on account of his previous conviction, concealment of facts and his involvement in Notorious kind of activities.
17. For the discussion made here-in-above we see not merit and substance in appeal, which is dismissed with no order as to costs.