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Case No. 838 of 1985, decided on 4th March, 1986.

(a) West Pakistan Social Welfare Department (Subordinate Poets) Recruitment Rules, 1964-

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R. 7 & Sched.--Auxiliary workers--Qualifications relating to age and education--No person who is less than eighteen years or more than twenty-five years of e. , held, could be appointed to a post under R.7 of Recruitment Rules of 1964--Minimum qualifications for Auxiliary Workers (Female) would be Middle School or equivalent qualification and Industrial Diploma from a recognized institute--Rules relating to qualification being mandatory unless relaxed concession relating to age and qualifications could not be claimed.

Muhammad Aslam Khaki v. Vice-Chancellor, Gomal University D.I. Khan and 2 others P L D 1980 Pesh. 128 ref.

(b) Punjab Service Tribunals Act (IX oaf 1974)--

---S. 4--West Pakistan Social Welfare Department (Subordinate Posts) Recruitment Rules, 1964, R.7--Appellate jurisdiction--Invoking of--Where qualifications relating to age and education have been prescribed through statutory Rules, Appellate jurisdiction of Service Tribunal, held, would not be available for relaxation of same.

S. Iqbal Haider Zaidi for Appellant.

A.G. Humayun, District Attorney for Respondents.

.--Mrs. Razia Bhutta, ex-Auxiliary Worker in the Social Welfare Department, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, against order, dated 28-10-1985, passed by respondent No. 2 in the appeal filed by appellant against order, dated 1-10-1983, passed by respondent No. 1, by which she has been dismissed from service. She has impleaded the Deputy Director, Social Welfare, Multan Division, Multan and Director-General, Social Welfare, Punjab Lahore, as respondents.

2. By virtue of this appeal, she has prayed that both the impugned orders be set aside and she be re-instated in service with full back benefits.

3. Brief facts of the case are that the appellant was appointed as Auxiliary Worker by order, dated 14-6-1973, with the express condition that her appointment will be purely temporary in the meaning of West Pakistan Government Temporary Employment Rules, 1968, and that the same appointment shall be terminated at any time without any reason being assigned on a minimum notice of 15 days. She accepted the appointment and reported for duty. She kept on working for about six years in the said post. However, during her period of service, some complaints against her, were received in which it was stated that she had acquired this appointment for which she was not eligible, on the ground that she was over age as well as did not possess the minimum qualification so prescribed under the rules for the said post. She was asked through a show-cause notice to produce her birth certificate as well as her vocational certificate to show that her appointment was made in the prescribed manner. After receiving the said show-cause notice, the appellant first of all got certain adjournments for filing her reply and ultimately she submitted reply and admitted that she had only primary level education and was 36 years of age at the time, she was so recruited. The competent authority dismissed her from service on the ground that she had concealed her age as well as her educational qualification and relied on a certificate, in which she claims to have passed the Middle School Examination and. therefore, her appointment was made under misrepresentation and on account of her fraud which she played with the Department. She filed appeal against the said order before the next higher authority which was rejected vide letter, dated 28-10-1985, after considering the merits of her case Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.

5. Learned counsel for the appellant has submitted that the appellant was taken in .service on the strength of medical certificate, in which her age was shown as 33 years, therefore, the Government was not within its rights to dismiss her from service when the appellant was employed on the strength of said certificate. It has been further argued that the perusal of appointment order would reveal that no age or educational qualification was prescribed, therefore, the age limit of 25 years, could not be applied after she had served the Department for about 10 years. Learned counsel for the appellant has vehemently argued that she secured appointment on the forged certificates i.e. educational as well as of her age and her employment was made by the Department with open eyes and under the locus poenitentiae, she could not be dismissed from service, as vested rights had accrued in her favour. For this she has relied on the judgment of Peshawar High Court reported as Muhammad Aslam Khaki v. Vice-Chancellor, Gomal University, D.I. Khan and 2 others P L D 1980 Pesh. 128.

6. On the other hand learned District Attorney has submitted that the said judgment so cited by the learned counsel for the appellant was not applicable in her case as it relates only such cases where facts were correct and no fraud had been played, but at the same time the orders were rescinded. According to the learned District Attorney, the West Pakistan Social Welfare Department (Subordinate Posts) Recruitment Rules, 1964, notified by the SGA a I Department vide Notification No. So/XVIII-1-41/63, dated 29-9-1964, are applicable to the appellant. According to Rule 7 of the aforesaid Rules, it provides that no person, who is less than eighteen years or more than twenty-five of age, shall be appointed to a post. Similarly according to the appendix attached to the said rules the minimum qualification for Auxiliary Workers (Female) is (i) Middle School certificate or an equivalent qualification from a Board; and (ii) Industrial Diploma from a recognized Institute. It has been argued that in case of the appellant both these conditions were missing as she was, by her own averment, of 36 years of age, at the time of her appointment and only possessed primary level education

It has been further contended that the appellant had produced a certificate from a school known as Islamia Model Girls High Schoo1, Chahlyak Multan, in which it was written that she had been studying in 9th Class at the time when she left the said school. This according to the learned District Attorney, was a fraud played with the Department and later on it came to the notice of the respondent that the said Institution was not a school but a Tuition Centre, where the students undertake studies at their own choice, a fact which has been proved by the Institution itself, in their letter Annexure/A, authenticated by the Headmistress, Islamia Model Girls High School, Chahlyak Multan, wherein it has been certified that said school was not a recognized school and only a Tuition Centre.

7. We have given our anxious thought to the arguments advanced' by the parties and find that the West Pakistan Social Welfare Department (Subordinate Posts) Recruitment Rules, 1964, so relied upon by the respondents make it obligatory on a person to be not more than 25 years of age at the time of his/her appointment against such posts. Similarly according to the schedule of minimum qualification for the post of Auxiliary Worker (Female), would be Middle School or an equivalent qualification from a Board; and (ii) Industrial Diploma from, a recognized Institute. This being so we have no hesitation to decide' that the appellant did not possess both these prerequisite qualifications' at the time of her appointment. We have seen the Service Book of the appellant to find as to what was her age at the time of appointment, the column of age has been left blank, as this information was not provided by the appellant to the Department when the said Service Book was so prepared. We have also examined the Provisional School Leaving Certificate issued by the Principal, Government Vocational Institute Women, Multan, wherein the date of birth of the appellant has been recorded as 1-4-1926. In both the cases, the appellant was either of 47 years of age or 46 years of age, at the time of her appointment, which would certainly make her ineligible for the said post according to the rules so mentioned above. We find that the said rules are mandatory as word 'shall' has been used both for educational qualification as well as for the age limit for such appointments, and thus unless and until we find that the Government has relaxed both these prerequisite conditions in her favour, we cannot allow any concession to the appellant for the same.

8. With regard to the law cited above, by the learned counsel for the appellant reported as P L D 1980 Pesh. 128 (Muhammad -Aslam Khaki v. Vice-Chancellor Gomal University, D.I. Khan and 2 others), we find that :heir Lordships Muhammad Sardar Khan and Shah Abdur Rashid, JJ., as they were, held as under:-

"Valuable right, held, accrued to petitioner to claim benefit of admission to Institue and such right could not be recalled unless secured by fraud-right not alleged to have been secured by fraud, order recalling recommendation for admission, in circumstances, held further, of no legal effect and set aside."

According to the facts of the said case, no fraud or misrepresentation was played by Muhammad Aslam Khaki, therefore, their Lordships of the High Court Peshawar decided the case in his favour, on the principle of locus poenitentiae, and set aside the order of Vice-Chancellor, Gomal University, D.I. Khan and 2 others. In the present case, as already stated above, the appellant was definitely over age by her own statement more than 11 years and according to the certificate issued by the Principal, Government Vocational Institute, Multan, 22 years. Similarly the certificate produced by her at the time of appointment was later on, proved to have been no certificate as the Institution itself' has admitted that it was a Tuition Centre and not a School recognized by the Government. This being so the appointment of the appellant came into existence on misrepresentation of facts and thus the law so cited by the learned counsel for the appellant, would not be applicable in her case. Moreover, we further find that even in the appointment order, it was expressly provided that her service can be terminated at any time without any notice or assigning any reasons.

9. In the light of the above, we do not find any merit in this appeal, which is dismissed accordingly. There will be no order as to costs.

A. A. Appeal dismissed.

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