' To the post of Professor of Education (BS-20), advertised by the respondent-Commissioner, three persons namely (i) Dr. Iftikhar Ahmad Baig, petitioner; (ii) Dr. Hafiz Muhammad Iqbal, respondent No,3 and (iii) Dr. Muhammad Saeed, joined the contest. One of the conditions of eligibility was that a candidate must have at least six research papers duly published in a recognized journal to his credit. Respondent No,3 was not eligible but the Commission permitted him to join the contest, as a matter of grace. Petitioner was selected on 1-10-1998. This recommendation was accepted. On 16- 3-1999, the post was formally offered to the petitioner (Annex. 'C), which was accepted and a notification to that effect was issued on 6-4-1999 (Annex 'D'). Petitioner assumed the post on 9-4- 1999; and since than is working.
' Respondent No,3 filed a complaint with the Commission to the effect that three of the research papers presented by the petitioner were not original works and were copies of the essays/Research papers already published. The Commission took cognizance of the complaint and on 11-4-2000, issued show-cause notice (Annex.'E'). Petitioner filed a written reply, denying the allegations vide Annex. 'F'. Petitioner also presented the opinion of National Language Authority to the effect that essays of the petitioner were original. This is vide Annexures 'G' and 'G-1'. On 31-8- 2000, the Commission found the complaint to be correct and recalled its recommendation. This petition under Article 199 of the Constitution is directed against the order, dated 31-8-2000.
2. It is contended by the learned counsel that Commission has no jurisdiction to recall the recommendation; that even if it had the jurisdiction, it was to be exercised by the Commission and not by Single Member; and that in arriving at the present conclusion the learned Member has disregarded the opinion of the National Language Authority (annexures 'G' and 'G-1'). It is also contended that in the comments submitted by the Commissioner in the earlier writ petition brought by respondent No,3 viz. Writ Petition No,20866 of 1998, the Commission strongly defended the eligibility of the petitioner. It is argued that the Commission cannot blow hot and cold.
3. In reply learned counsel for the Commission has relied on Regulation No,43, to submit that the Commission can recall its recommendation if the same is based on some error and omission. It is urged that during the course of hearing before the learned Member the petitioner admitted the charge but on the adjourned date retracted from the same.
4. Learned counsel for respondent No,3 has also defended the impugned order by submitting that the comments in the earlier writ petition were filed prior to the complaint. It is asserted that before the complaint, the Commission itself was unaware of the charges. He has also supported the claim of learned counsel for the Commission that the petitioner admitted the allegations against him. He has further argued that the learned Member has recorded a finding of fact, which should not be and cannot be set aside by this Court in Constitutional jurisdiction. Lastly he has pleaded that the conduct of the petitioner itself disentitles him to any discretionary relief from this Court. For this purpose he has relied on Tariq Maqsood v. Government of Punjab through Secretary, Home Department, Lahore and another 1998 PLC (CS) 810. In rebuttal learned counsel for the petitioner has also relied on Umed Khan v. Kalu and another PLD 1959 (W.P) Lahore 671. Satyanarayan v.
Mallikarjun AIR 1960 SC 137 and Kaushalya Devi v. Baghittah Singh AIR 1960 SC 1168 to show the extent of the power of review. He has also relied on Pakistan through the Secretary Ministry of Finance v. Muhammad Himayatuallh Farukhi PLD 1969 SC 407 and Chairman, Selection Committee/Principal King Edward Medical College, Lahore and two others v. Wasif Zamir Ahmad and another 1997 SCMR 15 to support the argument that Commission was left with no locus poenitentiae to recall the recommendation. He has further urged that as admitted in the report/comments submitted in Writ Petition No,20866 of 1998, filed by respondent No,3, previously the same papers were "evaluated by senior Professors of Education, Punjab University", who approved the same but after receipt of complaint no expert opinion was sought and the learned Member himself proceeded to decide the correctness or otherwise of the allegations.
5. Regulation 43 of the Punjab Public Service Commission Regulations, 1998 reads:-- "If an error or omission is detected in the eligibility of a candidate, result or merit list at any stage after its despatch to the Department concerned, the recommendations (s) made on the basis of such a mistake/error will be corrected on the merits list withdrawn by the commission.For review."
6. Regulation empowers the Commission to correct the recommendation on the merit list, which can be withdrawn by the Commission for review after its dispatch to the department concerned. In my judgment this power is available to the Commission only, by the time its recommendation has not been acted upon. If the recommendation has been acted upon, as has happened in this case, both under this Regulation as well as under the general principle of locus poenitentiae, the Commission is debarred from withdrawing its recommendation. It may be recalled that in this case Commission made its recommendation in favour of the petitioner on 1-10-1998, which recommendation remained under consideration of the department till 16-3-1999, when the post was formally offered to the petitioner. The notification appointing the petitioner to the post was issued on 6-4-1999 and the petitioner assumed the charge of the post on 9-4-1999. From 9-4-1999 till 31-8-2000 the petitioner performed the duties of the office, apparently to the satisfaction of the department as there is nothing on the record, indicating to the contrary. In all the reported judgments including the two Supreme Court Judgments relied upon by Mr. Shahzad Shaukat, Advocate it is laid down that power of rescinding is available before decisive step has been taken.
Decisive step in this case was offering of the post and the appointment notification dated 6-4- 1999. The Commission could have recalled its recommendation before 6-4-1999.
7. The case otherwise presents some curious aspects. The papers submitted by the petitioner were forwarded to series Professors for approval and the petitioner was held eligible. There is no explanation whatsoever as to why the same papers were not referred to the "senior Professors of Education of Punjab University", for their opinion in the light of the complaint. How could the learned Single Member sitting alone decide this question is beyond comprehension. It has not been shown that the learned Member, on account of his academic attainments or otherwise, was well equipped to appraise the papers himself. In the impugned order it is recorded that the petitioner at one time confessed the correctness of allegation but later on retracted. Retracted confession is of no avail, in the facts and circumstances of this case. As there is no confession, the complaint ought to have been investigated thoroughly by reference to experts or otherwise since it involved the question of career and character of the petitioner. No such effort was made by the learned Member or the Commission, which accepted recommendation of the learned Member. There is no reference to the letter containing the opinion of National Language Authority. It ought to have been discussed and discarded if so advised, for reasons to be recorded. I venture to hold that in such cases Commission is required to act in a just and more appropriate manner, holding enquiries as called for, in the circumstances of the case. For this reason as well the impugned order, dated 31-8-2000 is bad in law.
8. The arguments that a person cannot be permitted to retain benefit of fraud and that the petitioner should be disentitled to any relief from this Court on account of his conduct, proceed on the premises that the finding of the learned Member of the Commission is correct. This is not so, as I am holding that no proper enquiry has been held by learned Member to come to the conclusion, which he has arrived at. He seems to have been impressed by the retracted confession alone. But this is not enough. These arguments, therefore, have to be rejected.
9. For the above reasons this petition is allowed and the impugned order/withdrawal of recommendation, dated 31-8-2000 is hereby declared to have been passed without lawful authority and consequently of no legal effect. Parties are left to bear their own costs.