ABID HUSSAIN CHA TTHA, J: This Judgment shall decide the titled and connected Writ Petitions No. 3557, 3176, 3162, 3481, 3101 & 3173 of 2021 as common questions of law and facts are involved therein and are directed against the impugned Order bearing No. EB/490-493 dated 17.03.2021 issued by the Deputy Commissioner / Administrator , District Education Autho rity (DEA), Bahawalnagar and Order bearing No. 2226/G.B. dated 06.04.2021 issued by the Chief Executive Of ficer, DEA, Bahawalnagar .
2. The brief facts of this case are that the Petitioners were appointed as Junior Clerks in BS-1 1 on the recommendation of District Selection Committee under Rule 17-A of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 (the "Rules ") vide orders dated 07.11.2020. In response to multiple public complaints, the Deputy Commissioner / Administrator , DEA, Bahawalnagar constituted an inquiry committee to probe and ascertain the transparency and fairness regarding the recruitment process with respect to eligibility of candidates and subsequent appointmen ts and promotions in the Education Department, District Bahawalnagar vide Order dated 12.12.2020 and further clarified vide Order dated 15.12.2020. Consequently , vide inquiry report dated 11.02.2021, all 36 appointments of Junior Clerks made under Rule 17-A of the Rules were recommended to be declared as null and void ab initio on account of various illegalities carried out during the overall recruitment process. Accordingly , the Deputy Commissioner / Administrator , DEA, Bahawalnagar issued directions to the Chief Executive Officer, DEA, Bahawalnagar to implement the recommendations of the inquiry committee vide impugned letter dated 17.03.2021. In compliance thereof and after endorsement of the same by the Secretary Schools, Government of the Punjab, all appointments made under Rule 17-A of the Rules were withdrawn through impugned Order dated 06.04.2021. Fresh process of recruitment was ordered and new schedule for Type Test was announced for 29.04.2021.
3. Learned counsels for the Petitioners contended, inter alia, that the constitution of the inquiry committee was unlawful; that no show cause notice was issued to the Petitioners; that no regular individual inquiry was conducted; that the principle of locus poenitentiae was violated as accrued vested rights of the Petitioners were taken away; that the Petitioners were not at fault; and that the withdrawal order was unconstitutional, illegal and unlawful being in violation of Articles 10-A, 4 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution "). In support of the aforesaid contentions, reliance was placed on cases titled "Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI (C/Q) Rawalpindi and others" (2015 SCMR 1418 ); and "Muhammad Akhtar and 3 others v. Board of Intermediate and Secondary Education, Faisalabad through Chairman and 3 others" ( 2020 PLC (C.S.) 352 ).
4. Record depicts that the inquiry committee formed on public complaints after due scrutiny of the recruitment process made the following recommendations:
(i) Appointment of 36 Junior Clerks made under Rule 17-A of the Rules may be declared as null & void ab initio.
(ii) Promotion against 20% in-service quota of 44 Naib Qasids / Class-IV employees as Junior Clerks may be withdrawn, being violative of the prevailing law / rules / Promotion Policy , 2010.
(iii) The CEO, DEA / Competent Authority may be directed to initiate fresh process of appointment as Junior Clerks under Rule 17-A of the Rules and promotion against the slot of Junior Clerks amongst Naib Qasid / Class-IV employees, in conformity with the mandatory provisions of The Punjab Educa tion Department (School Wing Ministerial Posts) Service Rules, 1989 and the Promotion Policy , 2010 in a transparent manner , preferably within 30 days.
5. Before proceeding further , it is importantly noted that this Court has already dismissed as non-maintainable, the Petitions with respect to promotions against 20% in-service quota pursuant to the same recruitment process, subject matter in the instant Petitions, vide detailed Judgment dated 12.10.2021 passed in Writ Petition No. 3099/2021/BWP along with other connected Petitions.
6. The thrust of the arguments of learned counsels for the Petitioners revolved around the protection accorded to the appointments on the touchstone of the principle of locus poenitentiae. In the case of Mst. Basharat Jehan (supra), the appointment of an individual was judicially scrutinized by the Apex Court. The upper age limit for the advertised post was 35 years. The Appellant therein was of 37 years at the time of application and was selected on merit after qualifying written test and interview . She was issued a show cause notice after joining service and consequently , removed from service on the ground of being overage at the time of initial appointment. However , it was found that the Appellant was entitled to age relaxation of five years in view of notification dated 28.11.2000 and as such, was not overage at the time of her application for appointment since she was not required to obtain and submit age relaxation order . The said notification escaped the notice of the employer . The Honorable Supreme Court of Pakistan, while legitimizing the appointment, held that the Appellant had not procured her appointment through dubious means and she could not be attributed any wrong on her part. In this context, it was declared that once a person was appointed after fulfilling all codal formalities and appointment letter was issued, vested right accrued in favor of the appointee and as such, the appointment letter could not be withdrawn on the touchstone of the principle of locus poenitentiae.
7. In the case of Muhammad Akhtar (supra), the principle of locus poenitentiae was applied to set aside a notice of recovery in the context of audit objection raised against the employees seeking deposit of excess payment received by them in lieu of their appointments in higher personal scales. It was pronounced by this Court that once a right accrued in favour of a person, the same could not be taken away on mere assumption, supposition, whims and fancy of any functionary . Importantly , decisive steps were taken by the executive authority which were not unlawful. Accordingly , protection in terms of the principle of locus poenitentiae was recognized.
8. It is vividly evident that the cases cited above and relied upon by the Petitioners are unambiguously distinguishable from the facts and circums tances of the instant case in terms of applicability of the principle of locus poenitentiae. The Honorable Supreme Court of Pakista n while dilating upon the scope, contours and applicability of the principle of locus poenitentiae in case titled "Shakeel Ahmad Zaidi and others v. Secretary , Higher Education, Government of Punjab, Lahore and others" (2021 SCMR 474) importantly held in paragraph No. 7 as follows: "Notwithstanding the above even in Jallal-ud -Din's case "The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin" (PLD 1992 Supreme Court 207), the relief was granted in a very structured manner and it was clearly and categorically held that: "Locus poenitentiae 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-II, they withdrew the said letter . The principle of locus poenitentiae would not apply in this case"
Similarly , in Muhammad Feroz v. Deputy Director Officer (Education) and others (2005 SCMR 1490 ) involving a case where a person was mistakenly appointed as PTC Teacher against a post for which he lacked the requisite qualification this Court held as follows:- "We are not persuaded to agree with learned Advocate Supreme Court on behalf of the petitioner that after having appointed the service of the petitioner could not have been terminated on the principle of locus poenitentiae because the said principle can only be pressed into service to protect the legal rights based on lawful orders."
Likewise, in the case regarding Pensiona ry Benefits of the Judges of Superior Courts (PLD 2013 SC 829) it was held as follows: "It is held that locus poenitentiae conceptually connotes, that authority which has the jurisdiction to pass an order and take an action, has the due authority to set aside, modify and vary such order / action, however there is an exception to this rule i.e. if such order / action has been acted upon, it creates a right in favour of the beneficiary of that order etc. and the order / action cannot thereafter be set aside / modified etc. so as to deprive the person of the said right and to his disadvantage. However , it may be pertinent to mention here, that as pointed out in the preceding part, no valid and vested right can be founded upon an order , which by itself is against the law ."
9. Similar view was endorsed in case titled "Province of Punjab through Secretary , Finance Department, Civil Secretariat, Lahore and others v. Atta Muhammad Zafar and others" (2021 SMCR 1195). It, therefore, follows that the principle of locus poenitentiae does not protect actions that are unlawfu l, void, without jurisdiction or coram non judice . When the initial or basic order of appointment is void, the entire superstructure built thereon is also illegal and must fall to ground. There is no concept of protection of vested or accrued rights with respect to an illegal and unlawful order to perpetuate illegal gains.
10. It is evident from the record that the process of recruitment as a whole was scrutinized with reference to transparency and due process of law under the lawful exercise of authority vested with the executive. Public functionary entrusted with executive functions in his capacity as administrative head of DEA on the basis of public complaints ordered an inquiry to verify the veracity of allegations of malpractices, corruption and violations of applicable law with respect to overall recruitment process with bona fide intentions in furtherance of fiduciary public duty bestowed by law. There is no allega tion that the inquiry was initiated with malice or mala fide intentions or to achieve any extraneous purposes or was discriminatory . There is also no assertion that the inquiry process in itself was flawed or deficient in terms of due process of law. The recommendations of the inquiry committee were implemented across the board and the impugned action was not discriminatory as the entire process was scrapped. It was also not confiscatory as fresh process of recruitment was ordered forthwith. The right of appointment of the Petitioners under Rule 17-A of the Rules is not affected or infringed subject to eligibility of the Petitioners within the scope, mandate and parameters of Rule 17-A of the Rules. The Petitioners were merely asked to undergo the fresh process of recruitment. As such, the entire process of initial recruitment was struck down and the appointment letters were withdrawn by declaring the same as void ab initio by the competent authority which had issued appointment letters. Hence, the principle of locus poenitentiae does not apply to the facts and circumstances of this case.
11. There is no specific charge against the Petitioners and no wrong was attribute d to them. Thus, the question of affording personal hearing by conducting regular inquiry regarding each Petitioner separately was irrelevant and unnecessary . The principle of audi alteram partem is well entrenched in our legal parlance and is elevated to the status of a fundamental right with the insertion of Article 10-A in the Constitution through the Constitution (Eighteenth Amendment) Act, 2010. Nevertheless, the principle of personal right of hearing is not an absolute right and is subject to a number of exceptions. One such recognized exception is in the case of enormous malpractices in selection process. The rationale behind this exception is that such malpractices are generally not attributed to the participants and are directed against government functionaries and employed processes resulting in unlawful actions. In such cases, it is impractical to accord personal hearing to large number of applicants especially when there is no specific allegation against the participants. The more proportionate and balanced approach is to order de novo process by providing fresh opportunity to all. An inquiry into the tainted selection process marred with allegations of violation of due process of law can surely be equated to the right of personal hearing when no specific wrong is attributed to a participant in larger public interest. Even if right of hearing was provided, the result would have not been any different. Thus, when provision of right of hearing becomes academic in character and futile in terms of desired relief, it can be dispensed with to avoid further delay, frustration and agony of the participants. In case titled, "Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others" (2000 SCMR 907) in paragraph No. 10, it was observed that:- "...It may be noted that his Lordship Mr. Justice Ajmal Mian (as he then was) has concluded that principle of "audi alteram partem" is to be read into the relevant provision if the action is to affect any vested right of a person.
Further , adding to these reasons we would observe that if this rider is not placed for applying the principle of "audi alteram partem" then in certain cases where the law demands that action not taken promptly shall defeat the ends of justice and there is very likelihood that the object is required to be achieved by an immediate action shall not be accomplished and in the meanwhile a person who has no vested right shall continue to enjoy the benefits of the deeds without any legal entitlement. It is also to be noted that it is high time to ensure that transaction between the individuals vis--vis the State are just, fair , open, honest and transparent..."
12. Further reliance is placed on cases titled "Warid Telecom (Pvt.) Limited and 4 others v.
Pakistan Telecommunication Authority through Chairman"(2015 SCMR 385);"Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another" (PLD 2010 SC 483) and "Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary , Sindh and others (2009 PLC (C.S.) 161). Hence, there was no need to provide a right of personal hearing in the instant case as no breach of any fundamental right, principle of natural justice, fair play and equity was established.
13. The executive was well within its right to inquire into the process of recruitment amidst public complaints of malpractices, corrupt practices, illegalities and irregularities committed in the recruitment process with the objective to cure illegalities and remedy the wrong within a reasonable time frame. In fact, equal application and treatment of law, fairness, good governance and merit are indispensable dictates of the Constitution that must make way and prevail in the last resort vis--vis unequal treatment of law, corrupt and unfair practices and illegal processes. The rights and interests of several other applicants who were ousted from the process of recruitment on account of unfair means were equally important and precious in contrast to the claimed right of appointment by successful applicants. The impugned withdrawal orders did not cause any prejudice to the Petitioners who are free to take part in the fresh process aimed to bring transparency and fairness in the process of recruitment which would be just and equitable to the Petitioners as well as to all other eligible persons.
14. However , this Court is conscious of the fact that initial appointment letters were issued on 07.11.2020. The Petitioners are stated to be in service on account of interim relief provided to them by this Court. Therefore, certain rights of the Petitioners as existing on the date of submission of applications require protection for the reason that they were not at fault and no specific wrong was attributed to them.
15. Therefore, in view of the above discus sion, the titled as well as connected Petitions are disposed of subject to the following directions:
(i) Fresh process of recruitment shall be conducted and concluded under Rule 17-A of the Rules preferably within a period of one month from the date of this Order in accordance with law;
(ii) The last date of submission of applications under the initial scrapped recruitment process would be taken as the relevant date to determine the eligibility of the Petitioners and other unsuccessful Applicants under the initial recruitment process; and
(iii) The Petitioners shall be entitled to permissible salaries and service benefits regarding the period they remained lawfully employed with the Department.