' JUSTICE (R.) MUHAMMAD JAHANGIR ARSHAD, (CHAIRMAN)--- Since common questions of law and facts are involved in all the five appeals mentioned below, hence the same are being disposed of through this single order.
(i) Muhammad Sharif v. Executive District Officer (Education), Bahawalnagar and others (Service Appeal No,1275 of 2008);
(ii) Muhammad Aslam v. Executive District Officer (Education), Bahawalnagar etc, (Service Appeal No,1276 of 2008);
(iii) Khalid Mahmood v. Executive District Officer (Education), Bahawalnagar and others (Service Appeal No,1326 of 2008);
(iv) Muhammad Rafique Anjum v. Executive District Officer (Education), Bahawalnagar and others (Service Appeal No,1352 of 2008);
(v) Ghulam Shabbir v. Executive District Officer (Education), Bahawalnagar and others (Service Appeal No,138 of 2009).
2. The facts in brief are that all the appellants were appointed as EST teachers vide order dated 4- 2-1997 by the District Education Officer(M,EE) Bahawalnagar. However, the said appointment orders were cancelled by the District Education Officer(SE), Bahawalnagar on 17-2-1997. The above noted cancellation orders were challenged by the appellants before this Tribunal and this Tribunal vide judgment dated 18-9-2001 and after setting aside order dated 17-2-1997 remanded the matter to the Secretary Education, Government of the Punjab to ensure that proceedings against the appellants were taken strictly in accordance with law with further direction to decide the nature of intervening period in his discretion at the conclusion of de novo proceedings. The above noted judgment of this Tribunal was further challenged by the appellants and others before the apex Court and the apex Court vide order dated 5-7-2002 directed "cases of all the appellants shall be sent to the District Education Officer, Bahawalnagar within three days without fail, who shall look into the facts of each case by applying his own independent mind without any extraneous consideration and local influence to arrive at a fair and just conclusion. The needful shall be done within sixty days and final report shall be transmitted to the Registrar of the Supreme Court at Islamabad". According to the appellants after the above noted order of the apex Court a fresh show-cause notice was issued to all appellants and fresh order dated 16-9-2002 was passed by the District Education Officer (M.EE), Bahawalnagar whereby the appointment order dated 4-2-1997 issued by the District Education Officer, Bahawalnagar was deemed to have been withdrawn from the date of issue and the appellants were not allowed to join on the basis of said order. After the above noted order of the District Education Officer, Bahawalnagar appellants filed appeals before this Tribunal. All the said appeals were heard by a Full Bench of this Tribunal consisting of Honourable Chairman, Mr. Muhammad Afzal, learned Member-I and Mr. Muhammad Sarfraz Khan Jhawari, learned Member-II and finally decided on 6-11-2003 through a consolidated judgment in the following terms:- "For the reasons given, impugned orders are set aside and status of the appellants immediately before passing of the impugned orders dated 16-9-2002 is restored. The concerned authority is directed to hold a regular inquiry into each case and also to take into account whatever collateral evidence was available, giving a fair chance of rebuttal to each appellant. It is also ordered that fresh speaking orders shall be passed in individual cases".
3. As the judgment of this Tribunal was not being implemented therefore C.M. Nos.900 to 910 of 2004 seeking implementation of the above noted judgment of this Tribunal were filed which were disposed of by this Tribunal on 29-1-2004 with the direction to the concerned official to join the appellants in service and thereafter hold regular inquiry as earlier directed. After the above noted order of this Tribunal dated 29-1-2004 the appellants were reinstated in service and posted at different places. Subsequently a regular inquiry was conducted and again vide order dated 20-6- 2005 appellants were removed from service. The matter was again brought to this Tribunal by all the appellants through Service Appeal No,1813 of 2005 (Muhammad Sharif v. EDO (Edu.), Bahawalnagar and others), Service Appeal No,1872 of 2005 (Muhammad Aslam v. EDO (Edu.)
Bahawalnagar and others), Service Appeal No,2489 of 2005 (Khalid Mehmood v. EDO (Edu.), Bahawalnagar and others) Service Appeal No,15 of 2006 (Muhammad Rafique Anjum v. EDO (Edu), Bahawalnagar and others) and Service Appeal No,1761 of 2003 (Ghulam Shabbir v. EDO (Edu), Bahawalnagar and others) and this Tribunal vide judgment dated 14-6-2007, this time consisting of learned Chairman as well as learned Member-IV after setting aside the above noted order, accepted all the above mentioned Appeals, reinstated the present appellants in service, however, left the decision of question of payment of arrears of pay for the intervening period at the discretion of competent authority as per applicable law and rules.
4. In the light of above noted judgment of this Tribunal, the District Education Officer, Bahawalnagar issued reinstatement orders of the appellant dated 8-10-2007 with disputed Conditions Nos.III and VII which were as follow:
(III) His reinstatement shall be treated as fresh for all purposes.
(VII) The appointment is made purely on temporary basis and is liable to termination at any time without any notice.
5. Feeling aggrieved by the above noted conditions, the appellants filed C.M before this Tribunal seeking deletion of Conditions No,III and VII and during the pendency of the said CM, the competent authority vide order dated 10-3-2008 rendered Condition No,III noted above as ineffective but said nothing about Condition No,VII for seeking deletion of Condition No,VII. The appellants filed present appeals and when these appeals were still pending the competent authority again vide order dated 17-11-2008 though withdrew the said condition but refused to allow back-benefits/arrears of salary to the appellants during the intervening period by treating the same as extraordinary leave without pay under Revised Leave Rules, 1981. In view of the above noted order dated 17-11-2008 the appellants after permission suitably amended the memo of appeal.
6. Report and parawise comments were called for which were filed by the respondents denying the entitlement of the appellants for claiming back-benefits and also pleading estoppel on the ground that as the above noted Condition No,III was deleted by the competent authority on 10-3-2008 and the appellant was satisfied therefore was estopped from seeking the relief of back-benefits etc. Through these appeals especially when the question of payment of pay was decided on 10-3-2008 and his seniority was further considered w.e.f, 4-2-1997 through a subsequent order dated 17-11- 2008.
7. The learned counsel for the appellants in the wake of above noted facts and circumstances submitted that as the appellants' colleagues whose orders of removal from service were set aside and they were granted back-benefits by the Honourable Supreme Court of Pakistan and Punjab Service Tribunal, detail of which is given below, therefore the appellants being placed in the similar facts and circumstances could not be discriminated in the matter of payment of back-benefits as held by the Honourable Supreme Court of Pakistan in 1996 SCMR 1185, 1998 SCMR 2268 and 2009 SCMR 1:--- {{TABLE}} Appeal Nos. Decided By Remarks 459/98 Ex-Chairman, PST (Mr. With all back-benefits.
Abdul Hafeez Cheema)
904/98 Ex-Chairman, PST (Mr. With all back-benefits.
Abdul Hafeez Cheema)
903/98 Ex-Chairman, PST (Mr. With all back-benefits.
Abdul Hafeez Cheema)
2826/98 Ex-Member, PST (Mr. With all back-benefits.
Jawad Ahmad Mufti)
2827/98 Ex-Member, PST (Mr. With all back-benefits.
Jawad Ahmad Mufti)
799/99 Ex-Member, PST (Ch. With all back-benefits.
Akhtar Hussain)
374/2000 Ex-Member, PST (Mr. With all back-benefits.
Latif Qureshi)
375/2000 Ex-Member, PST ((Mr. With all back-benefits.
Latif Qureshi))
609/2001 Ex-Chairman, PST (Mr. With all back-benefits.
Justice Riaz Kayani)
2222/98 Ex-Chairman, PST (Mr. With all back-benefits.
Jus Lice Riaz Kayani)
3455/99 Ex-Chairman, PST (Mr. With all back-benefits.
Justice Riaz Kayani)
C.P.L.A. No,473-L of 1999 Honourable Supreme Court of Pakistan With all back-benefits, C.P.L.A.
No865-L Honourable Supreme With all back-benefits. Of 1999 Court of Pakistan LoC.P.L.A. No,864-L of 1999 Honourable Supreme Court of Pakistan With all back-benefits {{TABLE}}
8. It is further argued that there is no force in the contention of the respondents that through order dated 10-3-2008 or 17-11-2008 noted above as the grievance of the appellants stood redressed and they were satisfied, hence they were estopped from pressing these appeals especially when the question of payment of their salary as well as determination of seniority stood resolved. The contention is that in fact through orders dated 10-3-2008 and 17-11-2008 Conditions Nos.III and VII respectively which were incorporated in the reinstatement order of the appellants illegally and without lawful authority were withdrawn but the same had no effect on the question of payment of back-benefits to the appellants for the intervening period which was wrongly determined as extraordinary leave in terms of Revised Leave Rules, 1981 because the alleged non-performance of duties by the appellants during the intervening period was not due to any fault of the appelants but was in fact due to the fault of the respondents by which performance of duty by the appellants was made impossible for one reason or the other which reason was subsequently set aside by the Service Tribunal being illegal and without lawful authority.
9. On the other hand these appeals have been opposed by the learned Deputy District Attorney as well as respondent on the ground that in view of orders dated 10-3-2008 and 17-11-2008 the appellants had no more grievance to be redressed by this Tribunal and the grant of back-benefits was within the discretion of the competent authority and the appellants could not voice any alleged discrimination having been met to them by the Department.
10. Arguments considered, record perused.
11. There is a considerable force in the contention of the appellants that in the matter of payment of back-benefits all the appellants have been extended discrimination by the authorities while determining the question of intervening period. The judgments noted above and relied upon by the learned counsel for the appellants have been examined minutely. Most of the above noted cases revolve around similar controversy as involved in the present appeals. In all the above noted judgments either the date of original order of appointment or cancellation is the same as that of in the present case and in all these cases the appellants were reinstated in service with all back- benefits. The dictum laid down by this Tribunal in the above noted judgments was further maintained by the apex Court, meaning thereby that grant of back-benefits to the affected civil servants was upheld by the apex Court and this Tribunal has no option but to follow the above noted judgments of the apex Court in terms of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. Even otherwise in 2005 SCMR 1032, 2007 PLC (C.S.) 560, it was held by the apex Court "where a civil servant had suffered a lot without any fault on his part to the blunder committed by the Department, it is settled law that back-benefits in such situation cannot be withheld either by the respondents or by the Service Tribunal and that the grant of back-benefits to an employee who had been illegally kept away from employment was the rule and denial of such benefits to such a reinstated employee was an exception on the proof of such a person having remained gainfully employed during such a period". Since in the similarly placed facts and circumstances of the case as that of the appellants the civil servants were not only reinstated in service but also granted back-benefits and extension of such relief to all the affected civil servants was a mandate of law whether they have come to the Court or not as held by the Honourable Supreme Court of Pakistan in 1996 SCMR 1185 and 2009 SCMR 1. I am bound to accept the prayer of the appellants and while allowing all these appeals direct the respondents to pay all the back-benefits to the appellants which they were entitled during the intervening period.