Vide order dated 29.8.1989 appellant was appointed as SV/OT Teacher in BS-9 and was posted at Govt. Girls Middle School Rind Jada, Tehsil Kehror Pacca, District Lodhran. After expiry of near about 14 years of offer of appointment appellant received show-cause stating therein as the appellant did not fulfill the requisite professional qualification for the post of OT, therefore award of Selection Grade on the basis of Shahadat-ul-Aliya certificate by the then Executive District Officer (Edu), Lodhran was irregular and against the rules. Appellant submitted reply to the show-cause, however, the competent authority not satisfied with the explanation and on the basis of inquiry report vide order dated 9.7.2003 imposed penalty of reduction to the initial stage in the relevant pay scale prescribed for the post of OT on the appellant. Appellant filed departmental appeal but the same was dismissed on 12.6.2009.
2. It is submitted on behalf of the appellant that grant of Grade to the appellant was not irregular or illegal and in case if there was any illegality or irregularity, the same was not due to the fault of appellant because the said Grade was granted to her by the competent authority after fully satisfying itself about the educational qualification of the appellant and further no action was taken for more than 10 years from the date of grant of such Grade. The competent authority or appellate authority never challenged the competence of the then District Education Officer, Lodhran who granted the selection grade to the appellant nor the competent authority declared that either the certificate of Shahadat-ul-Aliya submitted by the appellant was not genuine or said grade could not be granted to her on the basis of such certificate. However, during inquiry the genuineness of said certificate was established and got verified by the Executive District Officer (Edu), Lodhran. It is further argued that appellant had been performing her duties quite satisfactorily and further was holding genuine and lawful certificate of Shahadat-ul-Aliya, hence there was no justification either for initiation of departmental proceedings against the appellant or imposing harsh penalty of reduction to the initial stage which was even not permissible under the law as contained in Rule 4.12 of CSR which provides that reduction in pay scale cannot be for an indefinite period but for a specified period. Lastly it is submitted that without further challenging validity of the proceedings appellant would be satisfied if this Tribunal being a Court of ultimate jurisdiction shows some leniency in the matter of punishment by proportionately reducing such reduction in pay as well as fixation of time during which the said penalty is to remain operative.
3. On the other hand learned Assistant District Attorney as well as Departmental Representative have opposed this appeal by arguing that as the appellant was not holding prescribed/requisite qualification, therefore she was rightly dealt with and the punishment was rightly imposed, hence appellant is not entitled to any further concession.
4. Arguments considered, record perused.
5. Admittedly appellant was appointed on 29.8.1989 as SV/OT after completion of codal formalities and was later on granted Selection Grade on 13.12.1999 whereas the present proceedings were initiated against her sometime in the year 2003. There is no allegation against the appellant nor evidence .on record that the appellant committed any fraud or was guilty of concealment of facts in procuring either the appointment or Selection Grade, hence initiation of disciplinary proceedings against her after a lapse of near about 14 years were not justified at all and if there was any defect in her appointment or grant of said grade, the same was fully protected by the principle of locus penitentiae as laid down by the apex Court in PLD 1969 SCM R 76, 407 and followed in Jalal Din case reported as PLD 1992 SC 207 and several other cases like 2004 SCMR 1161. Moreover the record indicates that appellant's appeal against order of competent authority dated 9.7.2003 remained pending before the Executive District Officer (Edu), Lodhran and was ultimately decided on the direction of Hon'ble High Court passed in Writ Petition No. 1035/09 dated 13.2.2009 keeping the sword of Damocles hanging on her head during this period which also amounts to giving punishment to the appellant. Appellant also complained that on the basis of impugned orders recovery of arrears has been ordered against her which again is an illegal act in view of the law declared by the appellant in Jalal Din case i.e. PLD 1992 SC 207 noted above. It was held by the apex Court in the aforesaid judgment that unless the beneficiary has been proved to have taken financial benefit from the public exchequer either by playing fraud or through concealment of facts, such person cannot be compelled or directed to return whatever benefit he had received.
Even if it was found after lapse of more than 13 years that there was some defect in the appointment or grant of selection grade, the appellant could not be punished unless the person responsible for such appointment or granting grade was also taken to task as held by the apex Court in series of judgments especially in 2009 SCM R 663, 1996 SCM R 413 & 1350 etc. In all these Authorities the apex Court held "Appointment made in violation of rules if candidate otherwise found qualified could not be terminated to conceal the lapse of authority." This is therefore a fit case where appellant could alone not be held guilty of the charge if even proved, therefore for that reason also maximum reduction of salary to the initial stage was neither warranted nor justified at all rather in the facts and circumstances of the case it would have been more appropriate if instead of imposing such extreme penalty some leniency should have been shown to the appellant. Therefore while accepting this appeal partly, I convert the penalty of reduction to the initial stage of pay into penalty of reduction of pay by five (5) stages for a period of three (3) years as provided under Rule 4.12 of CSR noted above as well as the law declared by the apex Court in PLJ 2009 SC 85. Further the demand for recovery of arrears is also set aside being without lawful authority.