Mahmood Salim Mahmood, Member.--By this common judgment, we intend to dispose of all the captioned appeals as in all of them similar questions of law and facts are involved therein.
2. We take up Appeal No, 1544(R)CS of 2012. In this appeal, the appellant is aggrieved by the impugned order dated 2.4.2012 whereby he was removed from service on the basis of his illegal appointment made by the Ex-SRP/Rawalpindi Javaid Iqbal by .misusing his official position during his tenure. In this regard the appellant was also directed, to deposit the financial benefits drawn during his illegal appointment in the Railway Treasury. The appellant submitted a department appeal on 5.4.2012 which was rejected vide appellate order dated 24.4.2012. Hence this appeal.
3. Concisely, the facts of the case, are that the appellant was appointed -as Constable in the Pakistan Railways vide order dated 1.10.2009. After completion of his 61/2 months training period from - Railway Police Academy Walton he joined his duty as Constable. Subsequently, after completion of 2 years and 8 months of service, he was removed from service vide impugned order dated 2.4.2012 without issuing Show Cause notice and without affording him an opportunity of personal hearing by declaring his appointment as illegal which was made against the recruitment rules during the tenure of Javaid Iqbal, Ex-.SRP/Rawalpindi.
4. The learned counsel for the appellant states that the impugned order is illegal and unlawful by which major penalty of removal from service was imposed on the appellant without holding a regular inquiry which is mandatory in law as held by the Hon'ble Supreme Court in the cases reported as 2006 SCMR 104 and 2009 PLC (CS) 19 that major penalty cannot be imposed without holding a regular. inquiry. The learned counsel further stated that the allegation of respondents in regard to illegal appointment of the appellant is not valid at this stage when the appellant has already completed more than 21/2 years service as Constable. Moreover, the appellant had applied for the post of Constable and after qualifying physical test, he was appointed by the competent authority vide order dated 1.10.2009 and at this stage when the appellant has already completed the required training course for the post of Constable, his appointment cannot be declared as illegal even after the expiry of probation period of the said post. The learned counsel ,contended that at the time of appointment of the appellant, his age was 25 years and at the time of removal he has become over-age and cannot apply for Government service which is gross injustice as if the appointing authority committed any irregularity at the appointment, the appellant cannot be victimized at this belated stage which is also against the rules of locus- poenitentine whereby once a benefit is granted to a civil servant cannot be taken back.
5. The, learned counsel for the respondents has vehemently opposed the appeal by stating that the retired SRP/Rawalpindi Jawaid Iqbal Khan by misusing of his official authority appointed certain officials including appellant for his ulterior motive without observing .appointment rules. In this regard, three criminal cases were already registered which are under investigation. It is stated by the learned counsel that being illegal appointee, the appellants have no legal right to continue Government service, therefore, he was removed from service by the competent authority vide impugned order dated 2.4.2012 without issuing Show Cause Notice and without providing them personal hearing.
6. We have herd the learned counsel for the appellants and the respondents. We have also perused the record.
7. We have observed that the respondents have not denied the facts in their objections as laid down by the Hon'ble Supreme Court of Pakistan in its judgments reported as 2007 SCJ 561; that if at all lapses had occurred on the part of respondents. The departmental authority cannot take benefit of its own lapse as laid down by the apex Court in the case reported as 2004 SCMR 1662; that a civil servant cannot be held responsible for violation of rules committed by the competent authority as per ruling to this Tribunal in 2002 PLC (CS) 1298; that no adverse action can be taken against a person without allowing him a show cause notice against the proposed action as per dictum of the apex Court in 2001 SCMR 1394; that according to the dictum of the apex Court in 2002 SCMR 1124, no executive order can be passed by giving effect from the back date. Moreover, certain rights had been created in favour of the appellant, on account of the letter of appointment dated 1.10.2009 consequent to which the appellant has joined the Railway Police which cannot be taken away by the respondents. In this regard, the principle of locus poenitentiae is also operating in favour of the appellant since the appointment letter dated 1.10.2009, had been acted upon in so much as that the appellant had performed his duties till 1.4.2012. If the respondents wanted to dispense with the services of the appellant, they were free to proceed against him under the relevant rule in case they had cogent reasons. They did not do so and instead removed the appellant from service. It was a colouarble exercise of power. If the letter of appointment had been issued illegally as mentioned by the respondents, then the responsibility rested squarely on the shoulder of respondents but the appellant cannot be made to suffer on account of the mistake committed by them as certain rights had been created in his favour by virtue of his having joined the respondent department which cannot be taken away by a mere stroke of pen and without due process of law. Reliance is placed on the case reported as 2003 SCMR 410; .1999 SCMR 1540; 1996 SCMR 1350.
8. The only ground taken by the respondents is that the letter of appointment of the appellant had been issued illegally. We do not find any weight in this argument. If the appellant has fully net the eligibility criteria and he also passed the test and interview which has not been denied by the respondents, then the appointment letter dated 1.10.2009 was a logical action. To describe it that the same was not legal only an afterthought and there seems to be more to it than meets the eye.
9. As a sequel to the above discuss on, the appeal is accepted and the impugned order dated 2.4.2012 and appellate impugned order dated 24.2.2012 are set aside. The appellant stands re- instated into service. However, the respondents are at liberty to initiate de novo proceedings against the appellant by completing all codal formalities if anything adverse on the part of the appellants in the subject-matter. The de novo proceedings shall be completed with a period of three months from the date a copy of he judgment is received in the office of respondents. The question of back benefits shall depend on the outcomes of the de novo proceedings.
10. This judgment shall also apply mutatis mutandis in Appeal Nos, 1545 to 1550 (R)CS/2012.
11. No order as to costs. Parties be informed.