' MRS. SYEDA TAHIRA SAFDAR (MEMBER-II).---The above mentioned Appeals, bearing No.50 of 2001, 89 of 2001, 6 of 2002, 7 of 2002, 66 of 2003, 68 of 2003 and 108 of 2003 are filed by the appellants as the matter in issue is the same in all these appeals, therefore, in order to avoid any contradictory order, it will be just and proper to dispose off them with a common judgment.
2. It is case of appellant Mirra Khan in S.A. No.50 of 2001 that he was appointed in place of his father, as per policy of the Government, after completion of all formalities on 1-11-1996, where after he started performing his duties. While on basis of observation of Monitoring Team, as per direction of D.G. Agriculture (Extension) Quetta, Deputy Director Agriculture (Extension) Sibi terminated his service through order dated 2-12-2000, without giving him any opportunity. Being aggrieved of the same he along with others preferred departmental appeal, which remains un-replied.
3. The appellant has preferred present appeal on grounds that he was appointed against post vacated by his father and served there for 5 years, while no complaint was against him. Further no Inquiry was held nor any show-cause notice was given to him. He has prayed for setting aside Of impugned order and his reinstatement in service.
4. Respondent No.1 and 2 in their joint reply have raised contention that there was not only complete ban on appointment against vacancies in B.P.S. 1 to 7 as per circular dated 21-5-1995,. But the Appointing Authority was also not competent to make appointment, nor he has fulfilled any codel formalities as per Notification dated 5-11-1996. Thus the appellant has been appointed during ban and without fulfilling the codel formalities, therefore, his (the appellant) service was terminated as per inquiry report. Further, the termination of irregular appointee is compulsory, while his adjustment to a regular post is contrary to law and rules. Furthermore, the said Appointing Authority has been declared as defaulter and penalized. They further raised objection on maintainability of appeal being time-barred and filed without having any locus standi.
5. In S.A. No.89 of 2001 it is contention of appellant Ghulam Haider that he has been appointed as Field Assistant w.e.f. 30-11-1996 and performed his duties as such. While his services were terminated through order dated 2-12-2000 with mala fide intention. He preferred departmental appeal on 4-12-2000, which is still pending. He preferred present appeal on grounds that he has been appointed on regular basis as per procedure, while before termination no show-cause notice was given to him neither he was given any opportunity to be heard, thus condemned unheard.
Further the impugned order has been declared void by this Tribunal in judgment made on 14-6- 2001, thus his case is to be considered under rule of consistency. Further no limitation runs against a void order. He has prayed for setting aside of the impugned order. While he be reinstated in service.
6. In reply respondent No.1 and 2 while denying the case of the appellant have raised contention that there was complete ban on appointments against vacancies in B-1 to B-7 as per circular dated 21-5-1996. Further in present case the Appointing Authority was neither competent nor fulfilled the codel formalities. Due to the same the said Appointing Authority was penalized through Notification dated 6-12-2000. Further as the appointments were made without lawful authority while codel formalities were not fulfilled and appointments were made in ban, therefore, services of the officials were terminated.. Furthermore, no appeal of the appellant has been received by the Department. Moreover, as there was no disciplinary proceedings, therefore, no show-cause notice was required in the matter. They have prayed for dismissal of appeal being time-barred and filed without merits.
7. S.A. No.6 of 2002 has been filed by appellant Sanaullah, wherein it is his case that he has been appointed in the Department as Field Assistant B-6 on 3-9-1998 by respondent No.1 where after he performed his duties as such. Without any complaint his services were terminated on basis of irregular appointment through order dated 15-11-2000. Being aggrieved of the same he preferred departmental appeal on 14-11-2001, which is not disposed off. The appellant has asserted that the impugned order is unjust and illegal. As no show-cause notice was served upon him he was condemned unheard. Further, any wrong committed by the Authority in appointment of him cannot be made basis for his termination. He has prayed for setting aside of impugned order and his reinstatement in service with all back-benefits.
8. In reply it is contention of respondent No.1 and 2 that as the appellant was an irregular appointee, therefore, his services was terminated along with other irregular appointees. As there was no disciplinary proceedings against him, therefore, no show-cause notice was given to him. While his appeal was not considered being an irregular appointee. They have prayed for dismissal of appeal.
9. Appellant Abdul Raziq in S.A. No.7 of 2002 has raised contention that he has been appointed as Field Assistant B-6 on 7-5-1999 in the Department, while performed his duties as such, until issuance of order dated 15-11-2000, whereby his services are terminated. This order is issued without any reason. Feeling aggrieved of the same he preferred departmental appeal on 14-11- 2001, which is not replied. He has prayed for setting aside of impugned order being made in violation of law and justice and also without giving him any opportunity of being heard, as no show-cause notice was given to him. In case there is any irregularity and non-fulfilment of codel formalities on part of the Appointing Authority, this cannot be made an excuse to penalize him by terminating his services. He has also prayed for his reinstatement in service with all back-benefits.
10. Respondent No.1 and 2 in reply has asserted that as the appellant was appointed without completion of codel formalities, thus being irregular appointee, therefore, his services were terminated along with others. Further, as no disciplinary proceedings were against him, therefore, there was no need to issue show-cause notice. Due to this irregular appointment his departmental appeal was also not considered. They have prayed for dismissal of appeal.
11. In S.A. No.66 of 2003 appellant Sikandar Khan has raised contention that he was appointed as Junior Clerk B-5 through order dated 13-8-1999, where after he performed his duties, until his services were terminated through order dated 1-4-2000. Being aggrieved of the same he preferred departmental appeal on 4-3-2003. He could not file departmental appeal in time because there was negotiation between the Authorities and office-bearers of the Union. While Authorities have given assurance that the terminated staff, including the appellant, shall be reinstated or absorbed somewhere else. But no order was made. The appellant has preferred present appeal on grounds that the impugned order is against law and justice, and issued without fulfilling the legal formalities. He has been condemned unheard. Even in case the Project has been completed he should have been absorbed somewhere else, as in case of other employees have been done.
While in case of abolition of post even the most junior has to go. He has prayed for setting aside of impugned order and his reinstatement in service with all back-benefits.
12. In reply respondent No.1 and 2 raised objection on maintainability of the appeal being filed after lapse of three years,thus time-barred. On 'merits it is their contention that the termination of services of Project employees are covered by the Recruitment Policy. While the appellant has not been appointed against regular post in. Prescribed manner. His appointment is purely on temporary basis uptill period of project. Thus there is no discrimination in this termination order.
They have prayed for dismissal of appeal being time-barred and without merits.
13. As per appellant Muhammad Siddique in S.A. No. 68 of 2003 he was appointed as Field Assistant through order dated 3-8-1999, where after he was transferred to a Project, he served there till issuance of order dated 1-4-2000, whereby his services were terminated. The said order was issued without any reason and also without issuance of show-cause notice. Further, as along with him several employees were terminated from service therefore, negotiation was held between the office-bearers of the Union and the Authorities, whereby assurance was given by the Authorities that he along with others be reinstated in service. Due to the same he was not able to file department appeal, while he filed the same on 4-3-2003, which remain un replied. According to him the impugned order is contrary to law and facts, without any show-cause notice. Further most of the other employees, who were working along with him, their services have been transferred/absorbed to some other departments. He also prayed for his reinstatement in service after setting aside of the impugned order.
14. Respondent No.1 and 2 has filed a consolidated reply in Appeal No.68 of 2003.
15. In Appeal No.108 of 2003 it is case of appellant Shah Jehan that he has been appointed as Field Assistant (B-6) on 9-10-1999, while he was transferred to one of the Projects of Agriculture Department and performed his duties. Thereafter through order dated 15-11-2000 his services were terminated, while in said termination order reference to his appointment order is wrongly mentioned, thus this order is not applicable to him. Further, as several employees were terminated along with him, there was negotiation between the Authorities and office bearers of Union, whereby it .Was assured that they would be re-instated in service and absorbed somewhere else. But no step was taken in same respect. Whereupon he filed departmental appeal; which was not replied.
According to him the impugned order is not applicable to him. Further, the same is against law facts and justice, as no show-cause notice was issued to him. Further, on completion of Project he must have been absorbed to somewhere else, as done to other employees but discrimination is made in his case. Otherwise in case of abolition of post the junior most has to go. He has prayed for his reinstatement in service and setting aside of impugned order.
16. No separate reply is filed in present case, rather consolidated reply has been filed by respondent No.1 and 2 in Appeal No.66 of 2003.
17. In S.A. No.50 of 2001, 89 of 2001, 66 of 2003, 68 of 2003 and 108 of 2003 the appellants have filed applications for condonation of delay. Though the respondents have raised objection to same effect in their reply to. Appeal but have not filed reply of the application separately. According to appellants Mirra Khan and Ghulam Hyder in Appeal No.50 of 2001 and 89 of 2001, they were kept waiting by the Department, while no reply on their departmental appeal was given, further the impugned order is void, thus no limitation runs against the same. Furthermore, the remaining persons, terminated along with them, are reinstated by this Tribunal. While according to appellants Sikandar Khan, Muhammad Siddique, Shah Jehan (appellants in Appeal No.66 of 2003, 68 of 2003 .And 108 of 2003) as several other employees were also terminated along with them, negotiation held between the employees Union and the Authorities, while it was assured that these employees will be adjusted and absorbed some where else, due to the same departmental appeals cannot be filed within provided time. In remaining two Appeals bearing No.6 of 2002 and 7 of 2002 there is no objection to the extent of appeal being barred by limitation.
18. The perusal of record reveals that- appellant Mirra Khan (S.A. No.50 of 2001) filed departmental Appeal on 4-12-2000 against order dated 2-12-2000, while filed present appeal on 29-6-2001. While appellant Ghulam Hyder (S.A. 'No.89 of 2001) being aggrieved of order dated 2-12-2000 filed departmental appeal on 4-12-2000 thereafter filed present appeal on 20-10-2001. In both these cases departmental appeals are filed within time. While appellant Sikandar Khan (S.A. No.66 of 2003) against order dated 10-4-2000 preferred departmental appeal on 6-4-2003 while filed present appeal on 27-5-2003. As such appellant Muhammad Siddique (S.A. No.68 of 2003) filed departmental appeal on 5-3-2003 against order dated 1-4-2000, while preferred present appeal on 27-5-2003. In Appeal No.108 of 2003 appellant Shah Jahan being aggrieved of order dated 15- 11-2000 filed departmental appeal on 23-3-2003, whereafter he filed present appeal on 29-7-2003.
Thus in view of the same the departmental appeals are filed by said appellants after lapse of nearly three years. While after preferring departmental appeals they filed appeals before this Tribunal within a period of 1-1/2 and 2-1/2/ months. It was somehow premature at that time but now a considerable time has been passed, thus they do not deem it to be premature. As far as case of appellant Shah Jehan is concerned he has also filed departmental appeal after lapse of nearly 2 years and four months, while filed present appeal after a period of 4 months. Thus in all these three appeals the appellants have filed departmental appeals after provided period, which is 60 days from communication of impugned order. In all these cases impugned order is made in April and November, 2000 but the appeals are preferred before departmental Authorities in year 2003, which is time-barred. As such in S.A. No.6 of 2002 and 7 of 2002 appellants Sanaullah and Abdul Raziq though have not filed any application for condonation of delay. But perusal of record reveals that in their cases impugned orders have been issued on 15-11-2000, while they have preferred departmental appeals on 14-4-2001, and on 14-11-2001, thereafter they filed service appeals on 13-3-2002. In their case their departmental appeals and also service appeals are filed after the provided period. But if the appellants are successful in establishing that the impugned orders are void then in said case no limitation runs against a void order. Secondly the Departmental Authorities have not rejected their appeals on ground of limitation. As far as cases of appellants Mirra Khan and Ghulam Hyder are concerned their departmental appeals are filed well within time, but they have filed service appeals after lapse of 6 to 10 months. Though technically speaking the appellants become entitled for filing of service appeal after lapse of provided 90 days from filing of departmental appeals. But until and unless the departmental Authorities dispose off their appeals and representations, cause of action subsists. It is further to be noticed that in all these cases the circumstances mentioned are not fully denied by the respondents/department.
This fact has come on record that several employees, who were also discharged/terminated from service along with appellants, are re-instated in service either by the departmental Authorities or by this Tribunal. While the appellants cases kept on pending by the Authorities without any reason.
Thus in the circumstances it will be in interest of justice to condone the delay and decide the appeals' on merits. Thus the delay is hereby condoned. As per record the appellants were appointed on different posts of B-1, B-5, and B-6 in year 1996 and 1999 on different dates, they perform their duties until issuance C of orders whereby their services were terminated on ground of being irregular appointment by incompetent person and without fulfilling the codel formalities.
According to official respondents appellants Ghulam Haider and Mirra Khan have been appointed by an incompetent person during ban and without completion of codel formalities. Further, the said officer was penalized on account of such illegal appointments. They have placed on record the relevant Notification dated 6-12-2000, whereby minor penalty of stoppage of two annual increments have been imposed with direction not to be posted on any key post against one Taj Muhammad, Extra Assistant Director Agriculture, on allegation of making illegal appointments during ban period. It is of official respondents, contention that as both the appellants are irregular appointees, therefore, their services were terminated after completing required formalities. As per record appellant Mirra Khan was appointed on 1-11-1996, while the appointment order was issued by Deputy Director of Agriculture (Extension) Sibi Division Sibi. While appellant Ghulam Haider was also appointed by same authority through appointment letter dated 30-11-1996. Both the appellants were terminated along with 10 other officials through a common order dated 2-12-2000.
The appellants have asserted that five of the said terminated persons are reinstated in service by this Tribunal, while accepting their appeals through judgment made on 14-6-2001. They have placed a copy of the same on record. It is further apparent from record that appellants Shah Jehan, Sanaullah, and Abdul Raziq are also terminated through orders dated 15-11-2000 on the reason that they have been appointed without completion of codel formalities, thus irregular employees. In reply it is the only contention of respondent that the appellants are irregular appointees, thus their services were terminated along with others. It is further asserted by them that out of said terminated persons 17 officials were restored by the Authorities. As far appellant Sikandar Khan and Muhammad Siddique are concerned they are terminated from service through orders issued on 1-4-2000, on the pretext that appointments have been made without observing the codel formalities of advertisement, interview of candidate by the Departmental Selection Committee, approval of the minutes by the Committee, purely on political ground. They have been given one month's notice.
19. In all these cases no show-cause notice was given to the appellants, nor they were given any opportunity to be heard. Further, there is no allegation from the respondent's side that there is lack of qualifications from side of the appellants. The lack of fulfilment of codel formalities cannot be attributed on the part of the appellants being the employees. It is the Authorities who have to observe the procedure provided under law and relevant Rules. Non-fulfilment of the same is the fault of the Authorities for which the employees cannot be penalized. In cases of appellants Mirza Khan and Ghulam Haider the officer who made the appointment, was only given minor punishment for his deeds, rather all the sufferings are to the officials appointed by him. The said officer who misused his authority must either be dismissed from service or must have been given some other major punishment. But contrary to the same the said appellants have been removed from service without any fault of their own, which is unfortunate. The Authorities must be vigilant enough while making the appointments on any vacancy and fulfil all the formalities as required by law, so that this sort of situation does not arise, which not only affect the poor incumbents of the post but also affect the working of the office/department.
20. Honourable Supreme Court of Pakistan has held in its judgment made on 13-11-1995 in appeal titled as Director Social Welfare N.-W.F.P. Peshwar v. Sadullah Khan that: "Authority being responsible for making irregular appointment on alleged purely temporary basis, had subsequently turned round and terminated civil servant's service which was utterly untenable- --Authority did not claim that civil servant lacked qualifications for the post---Authority having itself appointed civil servant on temporary basis could not be allowed to take benefit of its lapses in order to terminate services of civil servant merely because it had itself committed irregularity in violating procedure governing appointment" 1996 SCM R 1350).
21. Thus in view of the same the concerned authority cannot penalize their employees in such a manner. In case there is allegation of irregularities in making appointments than they have to adopt the procedure provided by law. In present cases appellants Mirra Khan and Ghulam Haider have been appointed in November, 1996 and remained in service uptill end of 2000, thus in these four years of service valuable right has accrued in their favour. Further, they have not been given any opportunity of being heard which is highly unjust. Moreover, five employees, who have been also terminated through the order dated 2-12-2000, the impugned one, have been reinstated in service through this Tribunal's Judgment made on 14-6-2001. The case of said two appellants is on same footing. Thus in the circumstances they are entitled to the relief claimed for. As far as cases of appellants Sanaullah, Abdul Raziq and Shah Jehan are concerned they were terminated through order dated 15-11-2000 being irregular appointees. While they were appointed in Agriculture Department on existing vacancy on 3-9-1998, 7-5-1999 and 9-10-1999. They remain in service for a period of more than one year to two years. In their cases the Departmental Authorities must have adopted legal course either to regularize their services or 'terminate them. But in their cases too no fault of the appointees have been pointed out nor they have been given any notice, whereby they can defend themselves. The act of the Authorities is unjust and arbitrary and contrary to law.
Further, as per showings of respondents 17 officials, whose services were terminated along with these appellants, on same ground, are restored to service by the Departmental Authorities. What was the criteria, nothing has come on record. Thus the cases of these three appellants are at par with them. As such they are also entitled for the relief as prayed. As far as cases of appellants Sikandar Khan (66 of 2003) and Muhammad Siddique (68 of 2003) are concerned. Both of them were appointed on 13-8-1999 on Project posts. While their services were terminated w.e.f. 10-4-2000 after giving them one month's notice on 1-4-2000. Though, these appellants are appointed on Project post, which is to come to an end on completion/expiry of the same, they may be temporary employees and their services can be terminated as per conditions of their appointment order. But this is to be noticed that the impugned order is not issued on expiry of the Project, rather their services are terminated on basis of allegation that their appointment is made without observing the codel formalities only on political basis. In the same it is not mentioned that the appellants do not fulfil the required qualification or are disabled due to some other reason. Non-fulfilment of codel formalities, in present cases too, is also on the part of the Authorities, for which the appellants cannot be penalized. In case the Authorities wish to put an end of their services they have to adopt legal procedure or in case the Project has already come to an end, in said case too it is the concerned Authority who has to look into the matter and has to take appropriate action in accordance with law.
21-A. Thus in view of above discussion the Appeals bearing No.50 of 2901, 89 of 2001, 6 of 2002, 7 of 2002, 108 of 2003, 66 of 2003 and 68 of 2003 are hereby accepted. The appellants namely Mirra Khan, Ghulam Haider, Sanaullah, Abdul Raziq, Shah Jehan, Sikandar Khan, and Muhammad Siddique are hereby reinstated in service from the date of their termination with all back-benefits.
The impugned orders dated 1-4-2000, 15-11-2000 and 2-12-2000 to the extent of appellants are hereby set aside.
22. Parties are left to bear their own costs. File after completion be consigned to record. accordingly.