Brief facts of the case as gathered from memorandum of appeal are that the appellant was appointed as Chowkidar vide Order No, 20954-59/EDO(H)NWL dated 29.09.2007 on contract basis and was posted at RI-IC Baddomalhi after having fulfilled all the nodal and official requirements of the department and after having been selected by District Selection/ Recruitment Committee Narowal. His initial contract was for two years commencing from 29.9.2007 which was further renewable as has been mentioned in condition No, 3 of his appointment order. During the year 2009 Chief Minister Punjab was pleased order contract employees to be regularized with immediate effect vide Notification No, DS(O&M)5-3/2004/CONTRACT(MF) dated 14.10.2009. Health Department Narowal declined to regularize him due to the charge that he was overage for about one month at the time of his initial appointment on 29.9.2007 vide Order No, 20957-59/EDO (H) dated 29.09.2007 and also did not extend his contract even. Whereas the appellant continued to perform his duty as Chowkidar from the date of his first initial appointment i.e 29.09.2007 till 02.02.2011 without any gap even after expiry of his contract appointment order, i,e, 29.9.2007, because first initial contract was extendable and 2ndly it was general practice of the department to accord extension of the contract so made. The appellant remained performing his duties which is evident in the light of record of the office and attendance register of WIC Baddhomathi etc. However suddenly the Incharge Baddomalhi stopped him to mark his attendance in the attendance register. No order was officially communicated to the appellant however he got impugned Order No, 1336-51/EDO(H) dated 9.4.2011, whereby, the services of the appellant were not regularized and struck off from the duties on account of having appointment unlawfully, wit hour fulfillment of requirement of Rule 18 of the Punjab Civil Servants (Appointment and Condition of Services) Rules, 1974 alongwith three other officials. The appellant challenged this order before Respondent No, 2 being the appellate authority, who, vide, order, dated 14.9.2015 rejected the departmental appeal of the appellant. Both these orders have been challenged in the instant appeal.
2. Record as produced by the department, memorandum of appeal alongwith its annexures and comments of the respondents were perused. Arguments heard from both sides.
3. Learned counsel for the appellant argued that the appellant has selected by District Selection/Recruitment Committee after having fulfilled all the codal and legal requirements and thus he was issued appointment order against the vacant post of Chowkidar at RHC Baddhomalhi.
The counsel argued that the appellant did not conceal any fact at the time of submitting his application and mentioned everything on record which portrayed that he was overage for almost one month at the time of his initial recruitment on contract on 29.09.2007, whereas all other requirements and qualifications were upto the mark. The counsel held that if this was a lapse at all, it was on part of the department and not on part of the appellant. He placed his reliance upon law established by Hon'ble Supreme Court of Pakistan in 1996 SCMR 413 (Full Bench) and 2004 SCMR 303 whereby it was held that "the department could not be allowed to take benefit of its lapses in order to terminate the services of civil servant merely because it had itself committed irregularity in violation of procedure governing such appointment".
4. The learned counsel further argued that the appellant was neither issued a show-cause notice nor any regular inquiry was conducted against him before his termination which was a sine qua- non in the light of law established by the Hon'ble Supreme Court of Pakistan. He placed his reliance in this regard upon 2011 PLC (CS) 174, 2012 PLC (CS) 175 & 2005 SCMR 1306 whereby it is provided that even for contract appointment regular inquiry should be held before termination. The counsel stressed that the competent authority as well as the appellate authority have not only exercised injustice to the appellant rather they have committed economic murder of the appellant and his entire family which has been condemned and rejected by the Hon'ble Supreme Court of Pakistan in 2006 SCMR 60.
5. The counsel further placed his reliance on 2011 PLC (CS) 351, 1994 PLD (SC) 556, PLD 1996 (SC)
837, 2004 SCMR 158 and upon 2005 SCMR 57 whereby, he argued, that a valuable right had occurred in favour of the appellant which cannot be recalled in view of the well established principle of locus poenitienie as has been held in view of above-mentioned case law.
6. The learned counsel further argued that DCO Narowal discriminated the appellant against one lady namely Misbah Rani who was also included in the first impugned order and who was under age at the time of her first appointment on contract basis and she was also terminated, same way the appellant as terminated vide the said impugned order dated 31.3.2011 issued by EDO Narowal, but the departmental appeal of the said lady official was accepted by the DCO Narowal and she was reinstated in service with remarks that "this fault goes to the part of the competent authority which did not take into account of underage at the time of appointment".
7. The counsel argued that this is sheer discrimination devastating all norms and standards of justice and violation of the law established by Hon'ble Supreme Court of Pakistan in 2008 SCMR 598 and that of Article 25 of the Constitution of Pakistan. He further argued that the appellate authority accepted the appeal of Misbah Rani and rejected appeal of the present appellant on the exactly same charges and against the same orders of termination from service. The counsel for the appellant held that no else glaring example of discrimination could be possible as against the present appellant.
8. On the point of jurisdiction learned counsel relied upon the judgment passed by Apex Court of Pakistan on 19.07.2011 in Civil Appeal No, 38-4 of 2011 and held that ,this Court has jurisdiction to proceed with the instant appeal. With these assertions learned counsel prayed for accepting the instant appeal by setting aside the impugned orders and by reinstating the appellant.
9. Learned District Attorney on the other hand relied upon the comments submitted by the respondents and held that the instant appeal is not competent in view of the fact that the appellant is a contract employee. He further held that vide Condition No, 16.23 of the Contract it is established that the department can terminate the services of the appellant without notice even and in that case the appellant would not be entitled to approach this Tribunal. He further held that in the advertisement published in the newspaper at the time of recruitment, a categorical age limit was prescribed and the appellant was admittedly overage at the time of recruitment. He further held that since the initial recruitment of the appellant was in violation of terms and conditions of contract hence the respondents have issued termination order validly and lawfully which does not called for any intervention by this Tribunal. With these assertions learned District Attorney requested for rejection of the instant appeal.
10.Due consideration has been given to the arguments raised by both the sides as well as record has been perused carefully. It appears that the instant appeal essentially requires its adjudication in the light of judgments of the Hon'ble Superior Courts which have been relied upon by the counsel for the appellant. It is established on record that the appellant was appointed on contract after having been determined and accepted as an eligible candidate by the District Selection/Recruitment Committee. All the contract employees in the province were regularized block in the light of a general policy extended by the government vide notification dated 14.10.2009 hence the appellant could not be proceeded against under terms and conditions of the Contract, and Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 or in case of any misconduct under the PEEDA Act, 2006 would have been applicable to him. It is also on record that the appellant did not commit any misconduct and did not conceal any fact and information which was required for his selection and appointment. Strength has to be derived from judgment of the Hon'ble Supreme Court of Pakistan reported vide 1996 SCMR 413 wherein it has been held that the respondents cannot take benefits of their own lapses, if any, to terminate services of the appellant.
11. It is also established on record beyond any shadow of doubt that the departmental appellate authority discriminated against the appellant by way of accepting appeal of Mst. Misbah Rani who was under age at the time of her appointment on contract basis but whose departmental appeal was accepted whereas in the exactly same circumstances the departmental appeal preferred by the present appellant was declined by the appellate authority. It is provided under Article 25 of the Constitution of Pakistan as well as in Section 24-A of the Specific Relief Act that all are equal before law. Guidance has further to be sought from the Hon'ble Supreme Court of Pakistan where the verdict given in 2010 SCMR 739 is partially reproduced as under: "It is contended by the learned Advocate General that 1,25,000 school teachers have benefited from the above notification as their services have been regularized. However, his attention was drawn towards the rules mentioned in paragraph* 3 of the above notification specially according to Rule 18 mentioned in above para a person who has crossed the requisite age limit would only be entitled to remain in the service subject to grant of age relaxation according to rules. The Secretary Education, Punjab, however, undertakes that all those persons who have been crossed the upper age limit shall stand regularized. Mr. Mohammad Akram Sheikh appearing as amicus curie, stated that Para 5 of the Notification is also detrimental. In this behalf the Secretary Education and learned Advocate General explained that the school teachers who had already been receiving 30 percent pay above their salary as social security benefit, would be entitled for pension from the date of regularization. The explanation so offered on behalf of the Advocate General seems to be reasonable. There are cases of some of the teachers i,e, Nazia Rafique, etc, who have stated that they have not been regularized for lame excuses. On this, Secretary Education, Punjab stated that let all these teachers through their three representatives approach him with application in this office in Lahore on 30th October, 2009 when he will be hearing them and shall redress their grievances. Since the petitioners serving on contract basis have been regularized, noticed issued to the Chief Secretary, Punjab in the listed petitions, stands discharged."
12. Further strength has been sought from dictum laid down by the Hon'ble Supreme Court of Pakistan in 2015 SCMR 1418 titled Mst. Basharat Jehan versus Director General, Federal Government Education FGEI (C/Q) Rawalpindi and others, wherein it has been held as under:-- (a)Civil Servant (Appointment, Promotion and Transfer) Rules, 1973--- ---R. 3(2)---Civil Service---Initial appointment---Relaxation in age prescribed for initial appointment -Typographical error in advertisement for post qua upper age limit of applicant-- Vested right of civil servant on issue of appointment letter and joining of service-- (b)Civil Service-- -- Appointment letter, cancellation of---Scope---Vested right of appointment--Once a person was appointed after fulfilling all the codal formalities and appointment letter was issued, a vested right was created and appointment letter could not be withdrawn. [p. 14261 Ghulam Murtaza v. Federation of Pakistan 2011 PLC (C.S) 709; Civil Petitions Nos,426-K to 436-K of 2008 and-Muhammad Farooq M. Memnon . Government of Sindh 1986 C LC 1482 ref
(c) Civil Service.-- ---Appointment--Vested right of appointment--ScopeLocus poentientiae, doctrine of----Once a right was accrued to a civil servant by appointment letter issued `o him-after complying with all the nodal formalities, the same could not be taken away on mere assumption,. supposition, whims and fancy of any executive functionary---Such right once vested, could not be destroyed or withdrawn as legal bar would come into, play under the doctrine of locus poenitentiae.1427] F.
Director, Social Welfare, N. W.F.P. Peshawar v. Sadullah Khan 1996 SCMR 1350 ref
13. In view of what has been discussed above, both the impugned orders are hereby set aside and the appellant is reinstated in service with effect from the date of his termination. The intervening period shall be treated as leave of the kind due. Disposed of.