Wiqar Ahmad. This order is directed to dispose of the petition filed by petitioner Bakht Munir son of Mian Jan under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. The petitioner has contended in his writ petition that he was appointed as Primary School Teacher (hereinafter referred to as "PST" ) in BPS-12 vide order dated 17.06.2017. His appointment was challenged by respondent No. 4 by filing a constitutional petition, bearing number 480-M of 2017, before this Court. The writ petition was disposed of by this Court vide order dated 24.09.2 018 with the direction to the concerned authorities to verify the Detailed Marks Certificate (hereinafter referred to as "DMC" ) produced by the petitioner before the recruitment authorities.
An inquiry was conducted by the concerned authorities pursuant to the directions of this Court, wherein it was found that the DMC produced by the petitioner during the recruitment process, was found to have been tampered whereby the actual marks obtained by the petitioner had been substituted with higher marks. The appointment order of the petitioner was also cancelled consequentially . The petitioner has challenged order of cancellation of his appointment by filing the instant constitutional petition with the following prayer; "It is, therefore, very respectfully prayed that on acceptance of this writ petition the order impugned dated 24.10.2018 may very kindly be set aside and the orders of this honourable Court may very kindly be implemented in letter and spirit by conducting an inquiry in light of the original record and in association of the petitioner . Furthermore, that the petitioner be reinstated back into service and the appointment order of the respondent No. 4 may very kindly be suspended till the final disposal of the petition.
Any other relief deemed appropriate in the circumstances and not specific ally prayed for may also very kindly be granted."
3. Comments were called from responde nts, which have accordingly been filed wherein they have contended that DMC of the petitioner regarding his qualification of F.A was found to have been tampered. His B.A DMC had also been found fake. In pursuance to findings of the said inquiry , the respondents have cancelled order of appointment of the petitioner .
4. Learned counsel for the petitioner stated during the course of his arguments that withdrawal of appointment order of the petitioner was illegal as the authorities were divested of their locus poenitentiae . He added that the order had been taken to ef fect and could not be rescinded in the manner as it has been done in the case in hand.
5. The learned Adll: A.G. submitted in rebuttal that since the order had been obtained on the basis of fraud, therefore same had rightly been recalled and the petitioner had got no right to continue the service any further .
6. We have heard arguments of learned counsel for the petitioner , learned Adll: A.G. on behalf of the official respondents and perused the record.
7. Perusal of record reveals that respondent No. 4 had earlier challenged appointment of the petitioner before this Court by filing writ petition No. 480-M of 2017. In the said petition he had alleged that educational testimonials, on the basis of which the petitioner had got appointment, had been fake and bogus. The said petition was disposed of by this Court vide order dated 24.09.2018 with the following order;
5. In view of the above, we direct the respondent (District Education Officer (M) Swat) as well as B.I.S.E Swat to positively complete the verification of the D.M.0 of Bakht Munir within a period of one month and thereafter , the respondent (District Education Officer (M) Swat) shall pass an appropriate order on the appointment of Bakht Munir and in case if it is found by the respondent that the D.M.0 of Bakht Munir is fake and withdraws the order of appointment of respondent No. 6 Bakht Munir , then he shall consider the present petitioner Zahid Hussain against the said post of PST ."
In pursuance to the order of this Court, respondents have conducted an inquiry wherein following findings and recommendations were submitted to the appointing authority; FINDINGS Consequent upon the procedure adopted by the inquiry committee, the following fact were found.
(i) The one Mr. Bakht Munir S/O Mian Jan appeared in higher secondary scho ol certificate Annual Examination in Art/Humanities group under Roll No. 241490 in the year 2001, and secured 449 (Four Hundred and forty nine) marks out of the total marks 1100 and subsequently was placed in grade "D". The same marks have been shown on page No. 158 of the result gazette of Board of Intermediate & Secondary Education Saidu Sharif Swat (copy annexed at page 1).
(ii) The detailed marks certificate (DMC) issued to the incumbent with marks 449 (Four Hundred and fort nine). Proof attached at page 3,4.
(iii) There has been found clear tempering in the photocopy of the DMC in marks obtained against Urdu as 168 whereas actual marks obtained in the Urdu Subject are 68, and the marks obtained shown against Islamic History (I.H) are 181 as against actual marks obtained which are 81. Resultantly there has been found clear tampering in the total marks obtained as 649 instead of the actual marks 449.
(iv) The copy of DMC with obtained marks 649 (six hundred and forty nine) is not genuine, hence is fake and bogus.
RECOMMENDA TIONS Keeping in view the nature of the case under study the marks obtained as per record of the Board of Intermediate and Secondary Education Saidu Sharif Swat in respect of Mr. Bakht Munir S/0 Mian Jan Roll No. 241490 Higher School Certificate Annual Examination 2001(Arts/Hum anities Group) are 449 (four hundred and forty nine) out of 1100, and the grade is "D". The photocopy of marksheet (DMC) for the Roll No. noted above bearing marks obtained 649 (six hundred and forty nine) Grad "C" is fake and bogus."
The inquiry committee has categorically stated that DMC of the petitioner had not been reflecting the actual marks obtained by him, which came out to be 449 marks out of a total marks of 1100. It had also been noted that the said marks got reflected in the gazette notification of the result notified by the concerned board as well as in the original DMC, but a copy of which had subsequ ently been tampered and the total marks 449 had been converted into marks of 649. It was in-fact on the basis of such high score that the petitioner had acquired a higher pedestal in merit and had been appointed. When this was the case, the appointing authority has righty cancelled the order of appointment of the petitioner , to which no exception could be taken.
8. The learned counsel for the petitioner during the course of his arguments has tried to bolster his case by taking the shelter of the principle of locus poenitentiae. Section 21 of the General Clauses Act, 1897 has vested powers in an authority passing an order to vary, amend, add to or to rescind the same. Said section of law being relevant for the present discourse is reproduced hereunder for ready reference;
21. Power to make to include power to add to amend, vary or rescind, order s, rules or by-laws. Where by any (Central Act) or Regulation, a power to [issue notifications], orders, rules, or by-laws is conferred, then that power includes a power , exercisable in the like manner and subject to the like sanction and conditions(if any) to add, to amend, vary or rescind any [notification], orders, rules or by-laws so [issued]."
An authority making an order has therefore the necessary locus poenitentiae i.e. power of an authority to recall its earlier order , under the ibid section law. But an exception to the said rule has been recognized in our legal system which provides that an order of an autho rity which takes effect and in pursuance thereof certain vested rights are created, same cannot be rescinded or altered causing prejudice to enjoyment of such rights. The Hon'ble Apex Court in the case of "Secretary Ministry of Finance v/s Muhammad Hamatullah Farooqi reported as PLD 1969 Supreme Court 407 had held that an authority which had the power to make an order had also the powers to undo it, but subject to the exception that where the order had taken legal effect and in pursuance thereof certain rights had been created in favour an individual, such an order could not be withdrawn or rescinded to the detriment of those rights. This exception does not however remains available in all the cases. Where the basic order is without jurisdiction, void, unlawful or obtained on fraud, the exception to exercise of powers under section 21 of the General Clauses Act shall not be invocable. This has been held by the Hon'ble Apex Court in a number judgments.
In the case of "Engineer-in-Chief Branch through Ministry of Defence Rawalpindi and another v/s Jalal-ud- Din" reported as PLD 1992 Supreme Court 207, the Hon'ble Court had recorded the following observation in this respect; It is therefore, clear that the Tribunal has also not disputed the contention of the appellant that respondent was not entitled to be fixed in Gra.de-1 1 of National Pay Scale. The principle of locus poenitentiae was invoked by the learned Tribunal in aid of the respondent. Having gone through the facts of the case, we have come to the conclusion that this principle is not attracted in the present case. Additionally , under section 21 of the General Clauses Act, the authority which can pass an order , is entitled to vary, amend, add to or to rescind that order . The order under which the payment was made' to the respondent had no sanction of law. Locus paenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order . The appellants when came to know that on the basis of incorrect letter , the respondent was granted Grade-1 1, they withdrew the said letter . The principle of locus paenitentiae would not apply in this case.
In a somewhat similar case to the case in hand, the Hon'ble Supreme Court in its judgment rendered in the case of "Executive District Officer (Education) Rawalpindi v/s Muhammad Younas" reported as "2007 SCMR 1835 " has dealt with the matter in the following manner; It is also a settled law that where the order of appointment was secured by fraud and misrepresentation than principle of locus poenitentiae is not attracted as law laid down by this Court in Jalal-ud-Din's case PLD 1992 SC 207. It is pertinent to mention here that respondent has not challenged the authenticity of his dismissal from Pak Army on 1-12-1982 wherein he was also declared unfit for civil service and awarded unsatisfactory character . This fact alone is sufficient that respondent secured appointment as P.T.C.
Teacher on 5-10-1985 by fraud and misrepresentation. It is also a settled law that tentative appointment is always subject to verification of character and antecedents. The petitioners were still within their , right after securing verification qua the dismissal of respondent from Pak Army on 1-12-1982 that the aforesaid observation to terminate the services of the respondent which is in consonance with the law laid down by this Court in Raja Muhammad Afzal Khan's case PLD 1958 SC Pak.) 258. The learned Service Tribunal has decided the case in violation of the dictum laid down by this Court and without adverting to the fact as mentioned above that respondent secured the appointment from petitioners by fraud and misrepresentation.
Further reliance in support of the said ratio may also placed on the judgments reported as PLD 2000 Supreme Court 58, 2016 SCMR 460, 2019 SCMR 643, 2003 PLC (CS) 1262 and 2007 CLC 1364 . Order in the case in hand has already been found by the Inquiry Officer to have been obtained by the petitioner as a result of tempering made in the educational testimonials of the petitioner and thus the order can safely be called to have been obtained by practicing a fraud. In such a case, exception to the locus poenitentiae of the authorities cannot be pressed in service.
9. In light of what has been discussed above, the writ petition in hand was found to be meritless and same is accordingly dismissed.