' CH. SHAHID SAEED, J.--- Through the instant Intra-Court Appeal, the appellant assails the order dated 21-9-2011 passed by learned- Single Judge in Chamber in Writ Petition No,14544 of 2011,
2. Facts, in brief, are that in response to an advertisement appeared in a newspaper in March 1999, the appellant applied for the post of Progressive Officer (BPS-17) in Children Hospital, Health Department, Government of Punjab, Lahore. He qualified in the test and interview but instead of appointing him against the post applied for, the appellant was offered a lower grade post of Additional Admin. Officer (BS-16) on contract basis which was accepted by the appellant.
Accordingly, he was appointed vide letter dated 7-5-1999 as Additional Admin. Officer (BS-16).
Later on, his contract was extended from time to time till 28-3-2011. The Government of Punjab vide letter dated 14-11-2010 introduced a policy for regularization of service of contract employees. The contract employees of BS-16 and 17, including the petitioner's name, of the department were forwarded to respondent No,1 who recommended the name of others for regularization but refused to recommend the name of the petitioner merely on the ground that no rules existed for the post occupied by the petitioner. In the meanwhile, the petitioner's services were terminated vide letter dated 28-3-2011. The Writ Petition No,14544 of 2011 was filed which could not succeed and was dismissed vide order dated 21-9-2011 by the learned Single Judge in Chambers, hence this I.C.A.
Has been instituted.
3. Learned counsel for the appellant inter alia contends that the appellant was appointed after adopting due course of law and procedure. He argues that a candidate when applies or is appointed against a post, he does not know as to whether the post or rules for the same are in existence because it is not the employee but the department who has to look into such matters while employing somebody. If the vacancy against whom the appellant was appointed does not exist at all or no rules have been framed for the same, it is the fault of the department and for the wrong act of the department, the employee should not suffer. The appellant has performed his duties for about than 12 years and also drew salaries for the same, therefore, he cannot be ousted on lame excuses. Learned counsel maintains that since other employees have been confirmed by the department and only the appellant has been singled out, therefore, this is also a matter of discrimination which cannot be allowed under the law. Learned counsel prays that the instant I.C.A.
Be allowed and the impugned order be set aside.
4. On the other hand, learned Additional Advocate-General opposes the contentions of learned counsel for the appellant vigorously. He argues that though the appellant has served in the department for 12 years but his appointment was not made in accordance with law as he was not appointed on the recommendations of Selection Committee, rather his appointment was made merely at sweet will of the then Project Director. He alleges that the appellant in connivance with the Project Director of Children Hospital/competent authority had obtained the job fraudulently. He further submits that there exists no post of Additional Admin. Officer (BS-16) in the hospital and the appellant had been receiving his salaries against the post of ERVC Medical Visual Technologist BS- 16 for which the rules and regulations do not permit. Learned Law Officer further submits that there is no malice on the part of the authority and only reason for not forwarding his name for confirmation is that the appointment of the appellant is fraudulent and there neither exists any post of Additional Admin. Neither officer nor rules are present for the same. He prays that the appeal in hand having no force be dismissed.
5. We have heard the arguments advanced by both sides and perused the record made available before us.
6. There is no denial that a post of Progressive Officer (BS-17) was advertised by the Children Hospital in March, 1999. The appellant had appeared for test/interview before the Selection Committee; however, he could not succeed to get the job applied for. Nevertheless, keeping in view his qualification, he was offered a post of BS-16 (Additional Admn. Officer) on contract basis, instead of the post applied for. According to the appellant, since he was unemployed at that time, he could not refuse and accepted the same. This is also undisputed that the appellant had been serving in the Children Hospital against the post of Additional Admn. Officer (BS-16) from 7-5-1999 to 28-3-2011 for about 12 years on contract basis and had also been drawing his salaries regularly.
7. The Government of the Punjab vide notification dated 10-11-2010 introduced a policy that services of all the contract employees in service will be regularized. The name of the appellant among others was recommended by the Children Hospital to the Secretary Health, Government of the Punjab for regularization of their services. It was reported by the department that there was no inquiry pending against them. The department has frankly admitted that the appellant had been performing his duties efficiently and devotedly and for the same reason, his contract kept on extending for a long period of 12 yeaRs, The Secretary Health called for rules of the post of the appellant, however, the same were, not available with the department and on the sole ground, the appellant was singled out and his services were not regularized, rather terminated wide letter dated 28-3-2011.
8. Learned Law Officer has emphasized more on the grounds that the appellant has obtained the job in connivance with the competent authority fraudulently; that the post against which the appellant was appointed does not exist and that no rules have been framed for that post till date as the same is not in existence. Suffice to say that the appellant was in search of a job when the advertisement for recruitment appeared in the newspaper, he applied for the post of Progressive Officer (BS-17). He appeared for test/interview before the Interview Committee, however, he was offered the post of Additional Admin. Officer (BS-16) which was lesser in grade than the post applied for This makes the things clear that the appellant possessed the qualification of the post applied for which was even with better pay scale than the post offered. Since he could not get the post of Progressive Officer, he was offered the post of Additional Admin.' Officer. The appellant accepted the offer and worked for about12 years and also drew his salaries for the said period.
There is no stigma on his service and even the department has recommended his name for regularization of his service. It is apparent from the fact of extension of his service from time to time i,e, 28-3-2011 (for about 12 years) that the appellant had been performing his services efficiently and without any blemished record which fact has also been admitted by the department in its parawise comments. The question arises if there is any irregularity in the appointment of an employee whether the. Employer or the employee should be penalized. It is settled law that if any such irregularity is found at a later stage, the employee should not suffer in any manner. Even if someone is appointed against a vacancy which is not in existence, the fault cannot be attributed to the employee, rather the fault will be on the part of the department or' the competent authority.
9. Beneficiary of illegal appointment cannot be blamed alone because primarily the authority, who had actually wrongfully exercised its powers, was bound to be held responsible for the same.
Instead of penalizing the employees who had to earn livelihood to support their families and if after, having served for a long period they were removed from service discriminately, such action would not set good example rather it would, give rise to a number of problems. Instead of removing the employees from service, action should have been taken against the authority who wrongly exercised its poweRs, Admittedly, no solid action has yet been taken by the government against the authority who employed the appellant against a vacancy which does not even exist and action has only been, taken by the department against the appellant resulting into removal of his service which is against the principles of natural justice. Once an appointee is qualified to be appointed, his service could not subsequently be terminated on the basis of lapses and irregularities committed by the department itself. Such irregularities committed by the department could be ignored only when the appointee lacks basic eligibilities. However, in the instant case, the appellant is M.A. And was duly qualified by virtue of his educational qualification for appointment against the post of Progressive Officer (BS-17), however, he, after taking into consideration his qualification and eligibility, was appointed against a lower grade post of Additional Admin. Officer (BS-16). As such, the appellant neither lacks the basic qualification nor eligibility nor requirements of the post.
Reliance is placed on the dictums laid down in cases Muhammad Akhtar Shiani v. Punjab Text Book Board (2004 SCMR 1077), Tanveer Ahmad v. Roshan Din and others (1999 PLC (C.S.) 938) and Muhammad Zahid Iqbal and others v. DEO Mardan and others (2006 PLC (C.S.) 12161).
10. For about 12 years, the department kept mum and paid the salaries for the duty performed and suddenly, when the matter of regularization of his services came before, he was removed from service on the allegations of non-existence of post or its rules and obtaining job through fraud which are untenable, whereas under the principle of locus poenitentiae, the appellant's services were required to be regularized. Even if all these things were there at the time when the appellant was put into service, the appellant cannot be penalized for the same. The courts are meant for to facilitate and protect the rights of the masses and not to create frustration in the society. Provided there existed no vacancy, the department might have approached the concerned department for creation of the post and after its creation, the rules could also be framed by the department in a long period of about 12 years but no such effort for the same was made which shows lethargic attitude of the department itself.
11. Though it has been alleged by the department that the appellant did not appear before the Selection Committee but record shows that the appellant was called for to appear before the Interview Committee on 19-4-1999 vide letter dated 10-4-1999. The presumption would be that the appellant had appeared before the Selection Committee who instead of offering the post applied for, offered him a post of lower grade which was accepted, so no illegality, irregularity or fraud on the part of the appellant is established from the record. If it is, it is on the department, so he cannot be penalized for the same. In the circumstances, the department must have sent the name of the appellant for regularization of his service to the Punjab Public Service Commission and acted upon further in the matter in light of the recommendation of the Commission. Learned Judge in Chamber has fallen in error while passing the impugned judgment, which cannot sustain in the eye of law.
12. For the aforementioned reasons, this appeal is allowed, the impugned order is set aside and the respondents are directed to reinstate the appellant into service from the date he was removed, i,e, 28-3-2011 on contract basis and also forward his name for regularization of his service to the Punjab Public Service Commission expeditiously but not exceeding two months. The department shall also initiate process for creation of post of Additional Admin. Officer (BS-16) in due course of time for adjustment of the appellant thereagainst. Till such time the post is created, the appellant shall continue to draw his salary from the same head as he was drawing prior to his termination from the service. However, the appellant will not be entitled to draw his salary for the interregnum, i,e, 28-3-2011 to the date of his reinstatement, which period shall be treated as leave without pay.