' IFTIKHARMUHAMMAD CHAUDHRY, J.---Petitioners seek review of the judgment, dated 27th July, 2001 passed by this Court in Civil Petitions Nos.2215-L and 2259-L of 2001, mainly on the ground of discriminatory action of respondent No,1 in removing the petitioners from the service qua a good number of its employees whose appointments were also made on the recommendation of the Provincial Minister for Education, without advertisement of the posts etc. But no action has been taken against them. Relevant para from the judgment under review, dealing with the question of discrimination, reads as under thus:-- "As regards plea of discrimination, suffice it to say that it is not squarely attracted in the cases of the private respondents/petitioners because they were not only appointed in violation of the rules regarding advertisements of the posts but also on the recommendations of the Minister for Education. The relevant record of the employees who were earlier appointed without advertisement of the posts, is not before us and it is not even so much as alleged by Hafiz Tariq Nasim that they were also recommended by any person other than the competent authority. The case of Sui Southern Gas Company Ltd. v. Engineer Naraindas and others 2001 PLC (C.S.) 743 relied upon by Hafiz Tariq Nasim in support of plea of discrimination is not attracted to the facts and circumstances of these cases in that the appointees in the precedent case were not appointed in the manner in which the private respondents herein had been appointed i.e, under the orders of the Minister for Education."
2. Precisely stating the facts of the case are that petitioners were appointed in BS-1 to BS-15 in different cadres by the Chairman of the Punjab Text Board, Lahore [hereinafter referred to as 'the Board] on the directives of Provincial Education Minister issued between the period of 1994-95 on various dates. Subsequent thereto services of some of them were regularized on the recommendations of a Scrutiny Committee appointed by the controlling authority. It is to be noted that despite of regularizing their services, some of them apprehended their removal from service as such they invoked the Constitutional jurisdiction of the Lahore High Court, Lahore by filing appeals and got disposed them of in view of the statement made on behalf of the Board that they are regularized employees, therefore, they are not being removed. Later on again towards the year 1996-97 some of the petitioners approached the High Court to obtain restraint order against the Board not to remove them from services. This petition being No,3789 of 1997 was disposed of on 15th March, 1999 in view of the statement made by counsel for theBoard namely that the petition is premature, as presently the Board has no intention to terminate their services and in case the Board decided to pass any adverse order, they shall be given due notice and they shall be heard.
After having passed this order by the High Court petitioners received show-cause notice dated 12th June, 2000 wherein it was mentioned that their appointments were, prima facie, found contrary to the provisions of West Pakistan Text Book Board Ordinance, 1962 and Punjab Text Book Board Employees Service Regulations 1980, as they were appointed under political consideration and without advertising the posts. On receipt of these notices, petitioners again invoked the Constitutional jurisdiction of the High Court by filing Writ Petitions Nos.12555 and 11865 of 2000 which were dismissed on 13th October, 2000, with direction to the petitioners to .File reply of show- cause notices, which would be duly considered and disposed of by the competent authority. In compliance of such directions the Board passed separate orders in each case on 16th October, 2000 holding that their appointments and regularization was illegal, void ab initio and of no legal effect. Petitioners preferred departmental appeals, before the Governor Punjab and also approached the High Court by assailing the said order. The learned Single Judge in the Chambers of the High Court issued the writ as prayed for vide order, dated 13th June, 2001 against which Civil Petitions were filed being Nos.2215-L and 2259-L of 2001. Petitioners contested the petitions by fling caveat. However, said petitions were converted into appeals and allowed by means of impugned judgment as such instant petition has been filed for review of the same.
3. Learned counsel vehemently contended that petitioners got produced record from the office of the Board during hearing of the writ petitions before the High Court to substantiate that besides them, there are 304 employees who were also appointed by the Board without advertisement of the posts on various dates but they had been allowed to continue in service, whereas, the petitioners had been removed from service discriminately. But this Court instead of granting leave to appeal and allowing opportunity to petitioners to produce documents to substantiate their plea of discrimination, converted the petitions into appeals and allowed the same, as such the judgment under review suffering from error deserves to be recalled in exercise of powers under Article 188 of the Constitution of Islamic Republic of Pakistan.
4. On the other hand learned counsel appearing for the Board contended that appointments of the petitioners took place contrary to the Punjab Text Book Board Employees Service Regulations 1980, as in pursuance of its Regulations No,11 and 13(2), the appointing authority is the Chairman of the Board in respect of the employees in the cases of BS-1 to BS-16. As far as Minister for Education to the ProvincialGovernment is concerned, he is only controlling authority but has nothing to do with the appointments, therefore, petitioners were rightly removed :rom service. However, he frankly conceded that there is a good number of employees, who were also appointed on the directions of Education Minister without advertisement from 1991 to 1993, therefore, following the doctrine of past and closed transactions their cases have not been re-opened.
5. We have heard both the sides and have also undertaken an exercise with the assistance of the learned counsel appearing for the Board to ascertain as to whether, prima facie, petitioners were eligible to hold the posts and on the basis of the material produced before us which was also produced by the Board before the learned Single Judge in Chambers of the High Court and on the basis of the same we feel no hesitation in holding that most of them were qualified for appointment against the posts being held by them. It is an uncontroverted fact that petitioners were appointed in the years, 1994-95 by the Chairman of the Board on the directions of the Provincial Minister for Education temporarily, however, later on, on the recommendation of Scrutiny Committee the Board had regularized their services and they did perform their duties as regular employees till the date of their removal from service i.e, 16th October, 2000 satisfactorily when there were so many other employees who were also appointed in the same manner by the Board but they were allowed to continue in service. In this behalf learned Single Judge having taken into consideration the material available on record held as under:--- "There is merit in the contention of the learned counsel for the petitioners that the petitioners have been unfairly discriminated against. A perusal of the list of appointees placed before the Court shows that out of 373 officials recruited in the Board since 1962, 304 officials were recruited without inviting applications through an advertisement in newspaper and only 69 officials were appointed after the posts had duly been advertised. Appointments of 304 officials in the respondent Board were, therefore, also contrary to regulation No,11..............
6. It is to be seen that while disposing of civil petitions for leave toappeal, the above conclusion of the High Court escaped from the notice of the Court, probably for the reason that at the leave granting stage petitioners could not file concise statement and their counsel verbally emphasized the question of discrimination with vehemence but the same was not entertained for want of material. Although, such material was produced before the High Court, who while believing the same had concluded that 304 employees of the Board who are still working were appointed contrary to Regulation No,11 of the Punjab Text Book Board Employees Service Regulations 1980.
Such findings of the High Court had not been controverted either at the time of hearing of civil petitions for leave to appeal before this Court or now by the learned counsel appearing for the Board. Besides it, he had frankly conceded that a good number of the employees whose appointments had also taken place on the recommendations of the authority, other than the Chairman of the Board are in service. Thus in such view of the matter an error seems to be apparent on the face of the record in the judgment which calls for rectification.
7. We have noted with pain that departmental authorities responsible to run its affairs do submit to whims and wishes of their superiors and never feel hesitation in implementing even an illegal order, knowing well that it has no legal sanction and if such order is implemented it is bound to give rise to a number of complications in the future. This Court time and again has emphasized that the departmental functionaries are only obliged to carry out lawful orders of their superiors and if they are being pressurized to implement an illegal order, they should have put on record their dissenting note and if such practice is followed chances of issuing/passing illegal orders shall be minimized.
However, reference in this behalf may be made to the case of Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development and others PLD 1995 SC 530.
Relevant para therefrom is reproduced herein below:--- " We need not stress here that a tamed and subservientbureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with law. Succumbing to each and every order or direction of such electedfunctionaries without bringing to their notice the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the pleathat it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the converted Government servant to the risk of disciplinary action."
8. It may be observed that for such reason beneficiary cannot be blamed alone because primarily the authority who had actually misexercised his powers, for the reasons known to it, is bound to be held responsible for the same, instead of penalizing the petty employees like Chowkidar, Naib- Qasid, junior clerks etc. Who have to earn livelihood to support their families and if after having served for a long period they are removed from service discriminately, such action would not promote the cause of action and it would give rise to a number of problems to them. In this regard at a number of occasions, it has been held by this Court that instead of removing the employees from service, action should have been taken against the authority who had mis-exercised its powers. Reliance in this behalf can be made to the judgment reported as Managing Director, SSGC Ltd. v. Ghulam Abbas PLD 2003 SC 724. Relevant paras therefrom are reproduced herein below:--- "As far as second argument is concerned, same is also not acceptable because a perusal of appointment letter reproduced herein above indicates that the appointment was given to them with reference to their applications and subsequent tests/interviews which would mean that they were also recruited on merits. In view of such position statement of the learned counsel that respondents got their appointment due to political influence does not seem to be correct.
Assuming that appointments of some of the respondents were contrary to Rules/Regulations then the authority who was in the helm of the affairs may have declined to honour the directions of political personalities. However, for any flaw or defect in the appointment as far as respondents are concerned, they cannot be blamed as it has been held in the case of Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413.
Relevant para therefrom reads as under thus:--- "6. It is disturbing to note that in this case petitioner No,2 had himself been guilty of making irregular appointment on what has been described 'purely temporary basis'. The petitioners have now turned around and terminated their services due to irregularity and violation of rule 10(2) ibid. The premise, to say the least, is utterly untenable. The case of the petitioner was not that the respondent lacked requisite qualification. 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. In the peculiar circumstances of the case, the learned Tribunal is not shown to have committed any illegality irregularity in reinstating the respondent."
' The above view has also been reiterated in the case of Abdul Hafeez Abbasi and others v.
Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034.
It is to be noted that in the impugned judgment Federal Service Tribunal has correctly appreciated and applied the principle laid down in the judgments of Saleem Mustafa Sheikh, etc. Thus the contention of the learned counsel being without force is rejected."
9. The above principle has also been re-affirmed in the case of Collector of Customs and Central Excise v. Abdul Waheed 2004 SCMR 303.
10. Thus for the foregoing reasons, review petition is allowed, consequently judgment, dated 27th July, 2001 passed by this Court is recalled and Civil Petitions Nos.2215-L and 2259-L of 2001 filed by the Board are dismissed with the observation that petitioners shall be reinstated in service from the date of their removal from service without financial back-benefits and the Chairman of the Board/competent authority shall be free to examine their cases, if need be, to ascertain as to whether they are eligible to hold the post or not and shall dispose of the same after providing an opportunity of hearing to them.