JUDGMENT CH. IJAZ AHMAD, J. - The brief facts out of which this writ petition arises are that the petitioners submitted applications for the appointment in response to the advertisement issued by the respondents appeared in the 'Daily Khabrain' dated 23.7.1993. The petitioners appeared before the recruitment committee and were appointed by the respondents and the petitioners joined the service of the respondents. It is pertinent to mention here that appointment letters of the petitioners revealed as such: {{ URDU TEXT MISS }}
2. On 1.12.1994 the Divisional Director Audit pointed out that the petitioners were appointed during the ban period and they are not entitled to any salary in accordance with law on the basis of the aforesaid audit objections. The Administrator issued a show-cause notice to the petitioners that their appointments are irregular and were appointed during the ban period, as to why their services may not be terminated. The petitioners submitted replies of the show-cause notices and stated that the petitioners appeared in obedience of the advertisement issued in 'Daily Khabrain' and therefore the petitioners did not committed any irregularity and if the irregularity committed by the respondents themselves then the petitioners should not be penalised by the act of the respondents. Respondent No. 4 sent the case of the petitioners to respondent No. 1 with the recommendations that the services of the petitioners may be regularised and the irregularity committed by the respondents may be relaxed. The recommendations submitted by the Deputy Commissioner was not accepted by the respondent No. 1 and Section Officer of the respondent No. 1 sent general letter to all the Administrators in the following terms:- It has been brought to the notice of Chief Minister that appointments against vacant posts have been made by certain Departments during 1993-94 when there was a ban on recruitments. The Chief Minister has desired that all such appointments being irregular should be reviewed and cancelled.
You are requested to take action in the light of Chief Minister's directive and a report to the undersigned within three (3) days, positively for onward transmission to the Chief Minister's Secretariat.
The services of the petitioners were terminated on 5.6.1996. Hence, the present writ petition.
3. The learned Addl. A.G. Contended that the respondents/ Municipal Committee has no authority to relax and appoint the petitioners during the ban. He further stated that respondent No. 1 has taken a stand in his para were comments that Government of the Punjab vide letter dated 25.5.1993 imposed a complete ban on fresh recruitments but some local councils- made recruitments during the said period. The Chief Minister has now decided to review such appointment being irregular and these should be cancelled. He further relied upon the Para were Comments of the Deputy Commissioner who in reply of para-5 stated as under:- "I is correct to the extent that respondent No. 3 vide letter No. 149, dated 2.2.1995 (copy enclosed) made a reference to respondent No. 4 requesting therein to move the Government of the Punjab, LG & RD Department for the grant of relaxation pertaining to appointment of i.e officials including the petitioner during the ban period. In order to avoid hardship to these menial/ministerial employees, to avoid litigation and remove audit objections raised by the Audit Department, respondent No. 4 vide letter No. LFC/2032, dated 11.12.1995 (copy enclosed) after depicting full aspects of the case referred the matter to Secretary, Local Govt. & Rural Development.
Punjab supporting the request of the municipal committee for the grant of relaxation applied for."
Learned counsel for the respondents Nos. 3 and 4 contended that principle of locus Poenitentiae is not attracted and the petitioners obtained the appointments during the ban. He further stated that the Government is in a position to impose a ban. During the ban any appointments made or allowed and join them is not in accordance with law.
4. I have given my anxious consideration to the contention of the learned counsel for the parties. It is admitted fact that the advertisement appeared in the 'Daily Khabrain' on -the request of the respondents on 23.7.1993 and the petitioners submitted their applications for the appointments.
The petitioners appeared before the recruitment committee and the petitioners were selected and respondent No. 3 issued the appointment letters. The petitioners worked for more than one year.
The audit objection was raised after one year and 4 months on 1.12.1994. It is also admitted fact that show-cause notices were issued to the petitioners and the petitioners submitted their replies. The Deputy Commissioner sent the case for relaxation of the petitioners to the respondent No. 1 with the following recommendations:- The record shows that the ban imposed by the Govt, on 25.5.1993 vide letter No. SOR.III-2-56/93 was lifted on 9.9.1993 vide letter No. LG & RD/Admn/215/92, whereas the appointments were made in 8/93. It has been clarified by the municipal authorities that at the time of recruitment of these posts, the instructions with regard to imposition of ban had not been received in the office of the local council. There is no denying the fact that ban on recruitment was imposed and lifted many a times after short intervals and such aspects were publicised through Press. Anyhow, the appointees who have no faults on their part, are near completion of two years of their service in the municipal committee. In order to avoid hardship to these menial/ministerial employees, to avoid litigation and remove audit objection it is recommended that relaxation under rule 14 of the West Pakistan Municipal Committee Service Rules, 1969, applied for may kindly be accepted and conveyed in the matter.
The Administrator received the general letter of the respondent No. 1 dated 12.2.1996 in which the directions were given to the respondents that the services of the employees, who were appointed during the ban period, be cancelled immediately within three days. Resultantly, the services of the petitioners were terminated vide order dated- 5.6.1996. It is settled proposition of law that the order passed under the direction is no order in the eyes of law. Therefore, the termination order passed by the Administrator on 5.6.1996 is not in accordance with the dictum laid down, by the Hon'ble Supreme Court in Ghulam Mohyuddin's case (PLD 1964 SC 829). It is the duty and obligation of the respondent No. 3 to issue fresh show-cause notices to the petitioners to take action under the direction of the letter dated 12.2.1996 of respondent No. 1. Therefore, order dated 5.6.1996 is not sustainable in the eyes of law. The same is not in accordance with the dictum laid down by the Hon'ble Supreme Court in Zakir Ahmad's case (PLD 1965 SC 90) as the order dated 5.6.1996 was passed without providing any show-cause notice to the petitioners. The order dated 5.6.1996 is also not sustainable in the eyes of law and the Deputy Commissioner on 11.12.1995 sent the case of the petitioner to respondent No. 1 for relaxation under Rule 14 of the West Pakistan Municipal Committee Service Rules, 1969. Respondent No. 1 did not decide the same till date and the petitioners were terminated on the basis of the general order issued by the Section Officer IV of respondent No. 1 under the direction of the Chief Minister that all such appointments made during 1993-94 when there was a ban on recruitment being irregular should be reviewed and cancelled. The para were comments did not reveal that the respondent No. 1 has brought into the notice of the worthy Chief Minister qua the aforesaid recommendations. Even otherwise it is only respondent No. 1 who should decide the same under Rule 14 of the West Pakistan Municipal Committee Service Rule, 1969.
Coupled with the fact that the petitioners were appointed after due advertisement in the newspaper and the principle of locus Poenitentiae is attracted in full force. I am supported by the judgment of the Hon'ble Supreme Court (PU 1996 SC 405) and the relevant observation is as follows:- The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointment. The respondent was reinstated.
The Hon'ble Supreme Court has laid down guidelines for the public functionaries to act within the framework of law and Constitution in Zahid Akhtar's case (PLD 1995 SC 53). The relevant observation is as follows:- It was the duty of the Secretary concerned to have pointed out to the Minister concerned the extent of his authority in matters of transfer/posting of Government Servants could neither be justified as exigencies of service nor it could be described in the public interest.
It is also settled principle of law that no body should be penalised by the act of the public functionaries as the dictum laid down by this Court in PLD 1994 Lahore 3. As mentioned above the recommendations sent by the Deputy Commissioner is still pending adjudication. In the interest of justice and fair play, It a copy of the writ petition be sent to respondent No. 1 who shall pass an appropriate order strictly in accordance with law preferably within one month after receiving the order of this Court. The order dated 5.6.1996 is held in abeyance till the decision by the Respondent No. 1.
5. In view of what has been stated above, the writ petition is disposed of in the aforesaid terms. At this stage the learned counsel of the petitioner entered appearance and requests that his presence may be marked. The request is accepted accordingly.