Annum Jadoon VS FOP etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.512 of 2020 Annum Jadoon Versus Federation of Pakistan through Secretary, Establishment Division and others S. No. of order Date of order / Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 07.02.2022 Mr. Naveed Akhtar Rajpoot, Advocate for the petitioner.

Mr. Arshid Mehmood Kiani, learned Deputy Attorney-General.

Mr. Muhammad Yasin, Assistant Director,

P.I.M.S.

Through the instant writ petition, the petitioner, Annum Jadoon, impugns letter dated 16.01.2020 issued by the Pakistan Institute of Medical Sciences, Islamabad (“P.I.M.S.”). Through the said letter, the petitioner’s appointment and joining report against the post of Aya (BPS-02) was cancelled on the ground that she had mentioned her date of birth as 11.08.1989 instead of 11.08.1987 in her application for recruitment.

2.Learned counsel for the petitioner submitted that vide advertisement dated 30.08.2018, respondent No.2 invited applications against several vacant positions including the post of Aya (BPS-02); that the petitioner applied against the said post of Aya; that along with her application, the petitioner submitted copies of her educational testimonials and National Identity Card; that the said documents clearly show her date of birth as 11.08.1987; that vide letter dated 23.10.2018 she was called for the test/interview after which she was issued appointment letter 18.11.2019; that the petitioner submitted her joining report which was accepted and vide letter dated 09.12.2019 she was posted in Surgical OPD

of P.I.M.S.; that all of a sudden vide impugned letter dated 16.01.2020 issued by respondent No.3, the petitioner’s appointment was cancelled; and that on 28.01.2020, she submitted a representation but the same has not been responded to.

3.Learned counsel for the petitioner further submitted that the impugned letter has been issued without giving an opportunity of a hearing to the petitioner; that no regular inquiry was conducted against her before resorting to the impugned action; that the petitioner did not conceal her date of birth as it was clearly mentioned in the documents annexed with her application; that she cannot be made to suffer for the clerical mistake committed by the respondent department; that the petitioner’s appointment had already taken effect as she had joined her duties; that under the principle of locus poenitentiae, the petitioner’s appointment could not have been withdrawn; and that the respondents had exercised its discretion in an arbitrary manner by cancelling the petitioner’s appointment. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

4.On the other hand, learned Deputy Attorney-General submitted that the petitioner mentioned a wrong date of birth in her recruitment application; that she willfully concealed her actual date of birth by mentioning the same as 11.08.1989 instead of 11.08.1987; that the petitioner committed fraud on the department; that the petitioner’s appointment was provisional as the appointment letter dated 18.11.2019 had categorically stated that the appointment was subject to verification of the

antecedents provided by her; that the petitioner had submitted medical fitness certificate wherein her age was mentioned as 32 years; and that the petitioner’s appointment was irregular therefore, no disciplinary inquiry was required to be held. Learned Deputy Attorney-General prayed for the writ petition to be dismissed.

5.I have heard the contentions of the learned counsel for the petitioner as well as the learned Deputy Attorney-General and have perused the record with their able assistance.

6.The petitioner’s appointment as Aya (BPS-

02)was cancelled vide letter 16.01.2020 issued by the Deputy Executive Director on the ground that she had mentioned her date of birth as 11.08.1989 instead of 11.08.1987 in her application for recruitment. The contents of the said letter read as follows:- “Reference her joining report as Aya dated 25.11.2019 Ms. Annum Jadoon D/O Adalat Khan is hereby informed that she has concealed the facts mentioning her date of birth as 11.08.1989 instead of 11.08.1987 (Her date of birth according to CNIC and Secondary School Certificate) in the application form. Therefore the offer letter issued to her vide this institute letter of even dated 18.11.2019 and her joining report are hereby cancelled.

This issued with the approval of Executive Director.”

7.The petitioner does not dispute the fact that her correct date of birth is 11.08.1987. It has also not been denied that in her recruitment application the petitioner mentioned her date of birth as 11.08.1989. The said application bears the petitioner’s signature. Now, according to the recruitment advertisement dated 30.08.2018, the closing date for submission of recruitment applications was 14.09.2018. On the said closing date, the petitioner was more than 31 years of age. In the said advertisement dated 30.08.2018,

the post of Aya (BPS-02) was mentioned at serial No. 16 and for the said post maximum age limit of 25 years was provided. General age relaxation was made admissible under clause (iii) of the said advertisement. It is correct that under Rule 4A of the Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993, the maximum age limit prescribed for initial appointment is to be relaxed by a period of five years. However even if the said age relaxation is included, the petitioner remains overage, on the closing date of advertisement, by more than one year.

8.The petitioner’s case in fact is that under the principle of locus poenitentiae her appointment could not have been cancelled as the same had taken effect after her joining report dated 25.11.2019 was accepted. As has been observed above the petitioner was clearly overage on the closing date for the applications, therefore, her appointment was illegal. If this Court is to set-aside the impugned order cancelling the petitioner’s illegal appointment, it would amount to perpetuating an illegality. It is settled law that the principle of locus poenitentiae is not attracted to perpetuate an illegality. In this regard, I derive guidance from the law laid down in the following cases:-

(i)In the case of Province of Punjab Vs. Atta Muhammad Zafar (2021 SCMR 1195), the respondents/employees received the increased pensionary benefits to the tune of 20% although under the applicable notification they were entitled to an increase to the tune of only 15%.

Subsequently, the appellant / Punjab Government withdrew the said additional increase. The respondents challenged the

said withdrawal in a writ petition before the Hon’ble Lahore High Court. The said writ petition filed by the respondents was allowed by the Hon’ble High Court and withdrawal of increase was held void and illegal inter alia on the ground that the Government had taken a decisive step and could not have receded the increase in pension. On the appeal filed by the Punjab Government, the Hon’ble Supreme Court set-aside the judgment of the Hon’ble High Court and observed that the respondents had been granted increase in the pensionary benefits at the rate of 20% which was not due and was result of misinterpretation of the applicable notification. The Hon’ble Apex Court also discussed the import of the principle of locus poenitentiae and held as follows:- “11. We also note that the learned High Court has laid a lot of emphasis on the point that a decisive step taken by the authorities cannot be withdrawn and that once a right is created by extending a benefit for no default of a person the same cannot be taken away on the whims and fancy of any executive authority and that the doctrine of locus poenitentiae would be attracted. We are unfortunately unable to agree with the simplistic and over generalized view taken by the High Court in the impugned judgment. This Court has in a large number of judgments clearly and categorically held that locus poenitentiae is the power of receding till a decisive step is taken but is not a principle of law that an order once passed become irrevocable and it is a past and closed transaction. If an order is illegal then, a perpetual right cannot be created on the basis of such illegal order.”

(ii)In the case of Shakeel Ahmad Zaidi Vs. Secretary Higher Education, Government of Punjab, Lahore (2021 SCMR 474), a special

allowance was paid to the employees although they were not entitled for the said allowance for not having been recruited through Punjab Public Service Commission. Subsequently, the said allowance was withdrawn by the government and recovery of the already paid amount was started. The employees challenged the said withdrawal and recovery before the Hon’ble Lahore High Court. The Hon’ble High Court, while dismissing their writ petition, upheld the withdrawal of allowance and recovery of the already paid amount from the salaries of the employees. The Hon’ble Supreme Court upheld the judgment of the Hon’ble Lahore High Court and held as follows:- “we are therefore clear in our mind that only where lawful orders have been passed by an authority having the power to do so under the relevant law and a person bonafide received a benefit under the said law without any positive action on his part, such beneficiary can claim a right under the exception to the principle of locus poenitentiae and claim that the benefit bonafide received by him by virtue of a lawful order passed by the competent authority (which at the relevant time and for its duration till its withdrawal was lawfully passed by an authority competent to pass such order) cannot subsequently be recovered by virtue of the protection available under the exception to the aforesaid rule.”

(iii)In the case of Muhammad Sidiq Vs. Punjab Service Tribunal, Lahore (2007 SCMR 318), the appellant had secured reinstatement order by filing an appeal before the Minister by concealing dismissal of his appeal up to the Hon’ble Supreme Court against the order of his termination from service. The Hon’ble Supreme Court, while observing that the Minister had no lawful authority

under the Civil Servants Act, 1973 and the Rules made thereunder to entertain the appellant’s appeal, held as follows:- “It is settled proposition of law that if the order is illegal then perpetual rights cannot be gained on the basis of an illegal order and in such situation the principle of locus poenitentiae is not attracted as the law laid down by this Court in Abdul Haque Indhar’s case 2000

SCMR 907.”

(iv)In the case of Executive District Officer (Education), Rawalpindi Vs. Muhammad Younas (2007 SCMR 1835), the respondent had secured appointment as PTC Teacher by concealing his dismissal from Pak Army whereby he was declared unfit for civil service. His services were dispensed with by the department which he had challenged before the learned Service Tribunal through an appeal. The said appeal was allowed by the learned Service Tribunal. The Hon’ble Supreme Court, while setting-aside the judgment of learned Service Tribunal, held as follows:- “It is also a settled law that where the order of appointment was secured by fraud and misrepresentation then 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 the respondent had not challenged the authenticity of his dismissal from Pak Army on 01.12.1982 wherein he was also declared unfit for civil service and awarded unsatisfactory character. This fact alone is sufficient that the respondent secured appointment as PTC Teacher on 05.10.1985 by fraud and misrepresentation. It is also a settled law that tentative appointment is always subject to verification of character and antecedent.”

(v)In the case of Nazir Ahmad Panhwar Vs. Government of Sindh through Chief Secretary, Sindh (2005 SCMR 1814), the

petitioner was working in BS-17, his services were placed at the disposal of the Provincial Department for his absorption against the post in BS-19 in a Corporation. His absorption order was given effect and the petitioner assumed the charge in BS-19. Subsequently, the petitioner’s absorption was cancelled and was repatriated to his parent department. The Hon’ble Supreme Court observed that the post against which the petitioner was absorbed was a cadre post and could not be filled in by a non- cadre officer therefore, the petitioner’s absorption was made in violation of the rules and could not be treated as a valid and proper order. In this backdrop, the Hon’ble Supreme Court held as follows:- “The contention on behalf of the petitioner that the order, dated 24.11.1997 had been acted upon, therefore, a vested right had been conferred on the petitioner to continue on the post of Director (Administration) in Sindh Seed Corporation, in view of the principle of locus poenitentiae is misconceived as this principle can be invoked only in respect of an order which is legal and not in respect of an order which is contrary to and in contravention of any provision of law or the rules made thereunder or a settled provision of law.”

(vi)In the case of the Senate through Chairman Vs. Shahiq Ahmed Khan (2016 SCMR 460), the respondent, being an employee of a statutory body (National Construction Limited), was sent on deputation to the Senate Secretariat. The notification for his permanent absorption in the Senate Secretariat was issued without approval of the competent authority i.e., Chairman Senate and despite him being not a civil servant. The Hon’ble Supreme Court, while

remanding the matter to the learned Federal Service Tribunal, observed that the notification for the respondent’s absorption was issued unlawfully and there were other controversies like the status of the respondent as civil servant and his right of pensionary benefits while serving in National Construction Limited. Additionally, while expounding the principle of locus poenitentiae, it was held as follows:- “In the impugned judgment, there was import of the principle of locus poenitentiae to rescue the respondent. We are constrained to observe that the principle is meant to condone a bonafide misstate and to be pressed into service for reaping the benefit of any fraud or to camouflage the same. The Members of Federal Service Tribunal were not justified in the circumstances to invoke the principle of locus poenitentiae, in the fact and circumstances of the case.”

Law to the said effect has also been laid down in the cases of Government of the Punjab Vs. Muhammad Imran (2019 SCMR 643), Abdul Haque Indhar Vs. Province of Sindh (2000 SCMR 907), Abdul Baqi Siddiqui Vs. Province of Sindh (PLD 2000 SC 58), Aman Ullah Khan Vs. Lahore Development Authority (2004 YLR 1308 Lahore) and Muhammad Ayub Khan Tanoli Vs. Secretary of Industries, Government of N.-W.F.P. (2004 CLC

9.The petitioner does not contest that incorrect date of birth was mentioned in the recruitment application form submitted by her. The said application form was signed by the petitioner. By providing the said incorrect date of birth, the petitioner cannot be considered to have acted in a bonafide manner. Now, for a petitioner to invoke the Constitutional jurisdiction of this Court, it is of vital significance that she must show

his / her bonafide. Where a petitioner has not approached this Court with clean hands, her writ petition is not maintainable in the equitable jurisdiction. In the case of Muhammad Arif Vs. Uzma Afzal (2011 SCMR 374), it has been held as follows:- “5. There is no cavil to the proposition that the conduct of petitioner can be taken into consideration in allowing or disallowing equitable relief in constitutional jurisdiction. The principle that the Court should lean in favour of adjudication of causes on merits, appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour. High Court in exercise of writ jurisdiction is bound to proceed on maxim “he who seeks equity must do equity”. Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High Court to seek relief has to satisfy the conscience of the Court that he has clean hands.”

10.In view of the above, the instant writ petition is dismissed. The conduct of the petitioner in invoking equitable jurisdiction of this Court with unclean hands deserves to be penalized with costs. However since the petitioner is aspiring for appointment against a post of lower grade i.e., BPS-02 therefore, costs of Rs.1,000/- are imposed on her.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*