This order Will dispose of Writ Petition No, 1850/2011, Writ Petition No, 1483/2011, Writ Petition No, 1678/2011, Writ Petition No, 1781/2011, Writ Petitions No, 1791/2011 and 697 of 2011, as the similar facts and questions of law are involved in all these petitions.
2. In the captioned petition, the petitioners responding to an advertisement meant to fill in vacancies for the posts of Sanitary Worker, Cook, Gardener, Water Carrier and Daftri etc. applied.
The petitioners in W.P. No, 1781 of 2011, W.P. No, 1791 of 2011 and W.P.No, 1678 of 2011, applied for the posts of Nail) Qasids and Dhobis (washermen). The petitioners in Writ Petition No, 1483/2011 and 697/2011 were appointed as Constables in BPS--S. All the petitioners in the aforementioned petitions fulfilled the requisite qualifications. They were appointed by the competent authority on contract basis. The petitioners joined and performed their duties till the issuance of the impugned orders dated 20.06.2011 and 07.02.2011 terminating their service on the ground that they were not domiciled in the Province of the Punjab rather they hailed from capital territory Islamabad and other Provinces.
3. It is contended by learned counsel for the petitioners in all these petitions that the advertisement issued by the concerned department in case of the petitioners, required the production of the CNIC, the domicile certificate and testimonials regarding their experience, etc. The same were submitted. On the basis of those documents, the petitioners were found eligible for being appointed- on contract basis. There is no allegation that the petitioners in order to obtain the appointments had made any false statement in their applications or had appended such domicile certificate that would have misled the authority to ascertain the place of their abode or would have helped the petitioners to earn the post reserved for the Province of the Punjab and that instead of regularization of their service in accordance with the Notification No, DS (O&M) 5-3/ 2004/ Contract/(MF), dated 14.10.2009, issued by Government of the Punjab, S&GAD, the service of the petitioners have illegally been terminated; that in fact the regularization is only a formality giving permanence to the service of those who though initially were appointed on the contract basis yet by the passage of time and by continued performance of the duties without any breach have impliedly attained the status of permanent employees. It is further contended that they are equipped with the basic qualifications and have, during their service, incurred no disability, either physical or mental or educational to disentitle them to continue to perform their duties or earn their livelihood. It is added by the learned counsel that any appointment, even if, made contrary to the rules or the procedure especially, in case of the petty employees cannot be recalled after the elapse of sufficient period. If any action is required to be taken, it should be taken against the authority who might have committed the illegality. Reliance is placed on 2004 SCMR 1077 titled Muhammad Akhtar Shirani and others Vs. Punjab Text Book Board and others, 2005 PLC (C.S.) 1056 titled Muhammad Shoaib and 2 others Vs. Government of N.W.F.P. through the Collector, D.I. Khan and others and 1996 SCMR 413 titled Secretary to Government of N.W.F.P. Zakat/Social Welfare Department, Peshawar and another Vs. Sadullah Khan; that if the petitioners had not produced the false certificates and the one produced by them was not objected to by the appointing authority, at the time Of initial appointment, the appointment of a person domiciled in any other Province may not be set aside. Reliance is placed on PLJ 1983 Tr.C. (Labour) 132 titled Agricultural Director, Agricultural Engineering Deptt, Multan and Another Vs. Malik Muhammad Amin; that even an admission to a medical college made against the merit on account of the error of a computer may not be set aside, later on, once a candidate has been allocated the roll number and has joined the classes. Reliance is placed on 1997 SCMR 15 titled Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2, others Vs. Wasif Zamir Ahmad and another and that if the appointing authority was competent but there was some irregularity in following the procedure, the same would not render the appointment illegal and liable to be set aside. Reliance is placed on 2004 SCMR 303 titled Collector of Customs and Central Excise, Peshawar and 2 others Vs. Abdul Waheed and 7 others. Lastly argues that an authority cannot take the benefit of its own lapses.
Relies on the judgment dated 02.02.2012, passed in Writ Petition No, 1970 of 2011 titled Nazir Ahmad Vs. Commandant Police Sihala etc.
4. On the other hand, it is contended by the learned AAG that any illegality committed on behalf of the competent authority gives no benefit to the persons appointed illegally; that even if a person having been so appointed has joined the service, he cannot be extended the protection under the principle of locus poenitentiae. Relies on 2000 SCMR 907 titled Abdul Haque Indhar and others Vs. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others, 2009 PLC (C.S) 161 titled Nazir Ahmad Panhwar Vs. Government of Sindh through Chief Secretary, Sindh and others and 2007 SCMR 318 titled Muhammad Sidiq through L.Rs, Vs. Punjab Service Tribunal, Lahore and others; and that the petitioners lack the basic eligibility, therefore, they .could not draw any benefit from the appointment orders which are ab initio void. Relics on 2006 SCMR 285 titled Muhammad Zahid Iqbal and others Vs. D.E.O. Mardan and others. Further argues that the contract employment bestows no right on a person. Relies on PLD 2011 Supreme Court 132 titled Pakistan Telecommunication Co. Ltd. through Chairman Vs. Iqbal Nasir and others.
5. I have heard the learned counsel for the petitioners as well as the learned AAG and also gone through the record.
6. The basic question is whether the petitioners lack the basic eligibility or not? In 2006 SCMR 285 titled Muhammad Zahid Iqbal and others Vs. D.E.O. Mardan and others, relied upon by the learned AAG, the petitioners holding various posts as teachers in the Education Department lacked the basic qualifications and training courses which were a pre-requisite for the posts in question.
Moreover, those affectees had a recourse before the learned Service Tribunal in all the cases after the elapse of five years. In the cases in hand, the petitioners do not lack the basic qualifications. In 2000 SCMR 907 titled Abdul Haque Indhar and others Vs. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others, the petitioners had obtained the lease rights to temporary cultivation of the Forest Land for three years without a public auction and the period was extended without lawful authority. In that case, it was held that the orders were ab initio void and had been passed and period had been extended without lawful authority. In 2009 PLC (C.S) 161 titled Nazir Ahmad Panhwar Vs. Government of Sindh through Chief Secretary, Sindh and others, it was held that the principle of locus poenitentiae was available only in the case if an order was passed by the competent authority. In the instant cases, it cannot be said that the orders had been passed by any incompetent authority. In fact, the same were passed by an authority competent to do it. The domicile in the particular Province is not such a qualification without which an appointee cannot properly perform his duties. It is only a mode of making the appointments in an area from amongst its residents. This factor, no doubt, has to be considered in order to safeguard the rights of the residents of a particular Union Council, Tehsil, District or a Province at the time of appointment. But the authorities had demanded and considered the domiciles of the petitioners and had held them legible for the appointment. They have, during the course of their service, not incurred any fresh disability. They have not become physically or mentally incapacitated. They have not changed their places of abode and they have also not made any false statement or produced any false certificates that would have misled the authorities. The petitioners are petty servants. Nature of their assignments will only acilitate them to earn their livelihood which is their basic and fundamental right, as has been held in 2003 PLC (C.S.)
69 titled Dr. Naveeda Tufail and 72 others Vs. Government of Punjab and others. The candidates seeking employment in the lower grades generally possess the basic education only. They do not understand the technicalities and intricacies of law. On the other hand, the appointing authorities having served their departments and having dealt with relevant rules for a long time, know the technicalities of law. It is the appointing authority who in case of an illegal appointment is to be punished and not the petitioners who if punished will be deprived of their right to earn livelihood and will be disabled to perform their duties towards their dependents. Reliance is placed on 2004 SCMR 1077 titled Muhammad Akhtar Shirani and others Vs. Punjab Text Book Board and others and 2005 PLC (C.S.) 1056 titled Muhammad Shoaib and 2 others Vs. Government of N.W.F.P. through the Collector, D.I. Khan and others. The authorities while making such appointments shall keep in view that the appointments, if made, from outside the Province may deprive its own inhabitants of their right of livelihood. It is pertinent to mention that the Nation today is facing the menace of prejudice on regional, religious, cultural and ethnic basis. At this juncture, the cancellation of appointment orders in favour of the petitioners not hailing from the Province of the Punjab, even if having been passed illegally, would generate misunderstanding and hatred amongst the people of various Provinces and the Federal Capital Territory.
For what has been discussed above, the impugned orders terminating the service of the petitioners are held illegal and the, same are set aside. These petitions are accepted. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.