' MRS. SYEDA TAHIRA SAFDAR (MEMBER-II).-In the above mentioned Appeals bearing Nos.50 of 2002, 51 of 2002, 52 of 2002, 53 of 2002, 87 of 2002, 67 of 2003, 69 of 2003, 70 of 2003, 71 of 2003, 72 of 2003, 73 of 2003, 74 of 2003, 87 of 2003, 90 of 2003, 104 of 2003, 105 of 2003, 106 of 2003, 107 of 2003 and 110 of 2003, the matters in issue are the same, therefore, in order to avoid any contradiction, it is just and proper to dispose off the same with this common judgment.
2. In Appeal No.50 of 2002 it is case of the appellant Qamar Din that he has been appointed as Road Man B-1 through order, dated 19-5-1994, and continue as such until he has been terminated from service w.e.f. 1-7-2000 through order, dated 29-6-2000, on account, of completion of Project. It is his contention that as he has been appointed in Government Service by respondent No.1, thus.
Winding up of Project shall have no effect on his services. Rather he has to be absorbed as permanent employee in the post available. The impugned order is contrary to law and facts.
Further, the impugned order has been declared as void by the Court. He has prayed for setting aside of impugned order and his reinstatement in service.
3. The respondents in their joint reply has raised objection on maintainability of the appeal, as it has been filed with a delay of two years; thus time-barred. While on merits it is their contention that the termination of services of Project Employees (including the appellant) are covered by item No. (i)(ii) and (iii) of Recruitment Policy against, the project posts. Further, the appellants were not appointed against the regular posts. While their appointments were made purely for project. The project employees are not covered by the Department's Service Rules nor by Civil Servant Act 1974, rather they are governed by "Project Posts Recruitment Policy". As such the services of the appellants were terminated on termination of On Farm Water Management (OECF) Japan Assisted Project on 30-6-2000 as per decision taken by the Cabinet. Moreover, the departmental appeal filed by the appellant was time-barred, as filed after lapse of two years. Furthermore, the project appointees cannot be adjusted against non-development budget/regular posts. They have prayed for dismissal of appeal, as the appellant has no locus standi and also time-barred.
4. Appellants Lal Muhammad in S.A. No.51 of 2002, Ghulam Farooq in S.A. No. 52 of 2002, and Mian Dad in Appeal No.53 of 2002 have raised exactly the same contention as raised by appellant Qamar Din in S.A. No.50 of 2002. All the three appellants have been appointed as Road Man B-1 through appointment orders, dated 19-5-1994. While notices for termination of service have been issued on 29-6-2000 on same ground.
5. The respondents in all these cases filed consolidated reply in S.A. No.50 of 2002. Thus their contention against said appellants are the same.
6. While in S.A. No.87 of 2002 it is case of appellant Abdul Malik that he was appointed as Vehicle Driver B-4 in Agriculture Department through order, dated 24-8-1983 made by respondent No.2. He performed his duties, whereafter he was transferred to Project and on completion of the same he was transferred to another Project namely On Farm Water Management (OECF) Japan Assisted Project, thereafter to other Project. Meanwhile through order, dated 29-6-2000 his services were terminated without any reason, without issuing show-cause notice. Further, he was appointed on permanent basis, thus it was incumbent upon the department to absorb him in the department after completion of Project. Being aggrieved of the same he preferred departmental appeal, which was rejected through order, dated 14-10-2000. Whereafter he approached an Advocate for filing of service appeal and remained under impression that appeal has been filed, as he is an illiterate person. He remains in contact with his counsel, while said appeal was accepted through judgment made on 2-5-2002. On the same he also approached the Department for his reinstatement at said time he came to know that his name was not included in the list of appellants. There were two Abdul Malik in said appeals whose parentage was different. As such the circumstances were beyond his control. Thereafter, he preferred present appeal. The appellant has prayed for setting aside of impugned orders, dated 29-6-2000 and 14-10-2000 and his reinstatement in service, on grounds that as he had been permanently appointed by respondent No.2 in his office and afterwards transferred in project therefore, he should have been absorbed in the department. The impugned orders are discriminatory, as a lot of employees have been absorbed in different departments.
7. The respondents have not filed any reply to the same.
8. Appellant Atta Muhammad in S.A. No.67 of 2003 has raised contention that he was appointed as Junior Clerk B.P.S.-5 on 11-10-1994, while he was transferred to a Project of Agriculture Department namely OFWM (OECF) Japan Assisted Project at Musa Khel, he served there and in other projects uptill termination of his services on 29-6-2000. Besides him several officials were also terminated, therefore, there was negotiation between the respondents and office-bearers of the Union.
Whereby it was assured by the respondents that the services of such employees be absorbed somewhere else after reinstating them. But no step was taken. Due to the same he was unable to file departmental appeal in time, which was filed on 28-2-2003. There was no reply of the same.
According to him the impugned order is against law and facts. Further no show-cause notice was issued to him, while impugned order is issued without observing the legal formalities. The impugned order is in violation of Article 25(1) of the Constitution and in contravention of S.11(2) Civil Servants Act.
He has prayed for his reinstatement after setting aside of impugned order.
9. No reply from respondent's side is on record.
10. In Appeal No. 69 of 2003 it is case of appellant Abdul Raziq that he was appointed as Field Assistant B.P.S-6 on 22-7-1987 while afterwards his services were transferred to one Project. During continuance of his service he was terminated through order, dated 29-6-2000 without any show- cause notice. He was unable to file departmental appeal in time as along with him several other employees were also terminated, therefore, there were negotiations between the Department and the Union whereby assurance was given that the employees shall be reinstated or absorbed somewhere else. Despite efforts no order was made. Therefore, he filed departmental appeal on 3- 3-2003, which was not replied. It is his contention that impugned order is issued without fulfilling the formalities and also without any show-cause notice thus illegal and also against facts, while he has been condemned unheard. Further, the impugned order is made in violation of Article 25(1) of the Constitution 1973 and section 11(2) of Civil Servants Act, 1974. Furthermore, the other terminated employees have been reinstated in service by this Tribunal on their appeals through judgment made on 2-5-2002, his case is also at par with them. He has prayed for his re-instatement in service after setting aside of impugned order.
11. Appellants Muhammad Azam of S.A. No.70 of 2003, Lal Muhammad of S.A. No.71 of 2003, Muhammad Ismail of S.A. No.72 of 2003, Zarif Khan of S.A. No.73 of 2003, and Khan Muhammad of S.A. No.74 of 2003 in their appeals have raised same contention as raised by appellant Abdul Raziq in his Appeal bearing No.69 of 2003. They all prayed for their reinstatement in service on same grounds as raised in mentioned appeal.
12. A consolidated reply has been filed by respondents Nos.1 and 2 in Appeals Nos.66 to 75 of 2003, which is on record in file of S.A. No.66 of 2003. It is their contention that the appointments of the appellants are made purely on temporary basis for period of Project, while such employees are not covered by Departmental Service Rules and also not by Civil Servants Act, 1974. Further the services of the Project employees are covered by item (i), (ii) and (iii) of Recruitment Policy. Thus on abolition of Project the services of the appellants were terminated as per said Policy. There is no discrimination. According to them the appellants have filed departmental appeals after lapse of three years, thus present appeal is time barred. They have prayed for rejection of appeal.
13. It is case of appellant Abdul Hakim of S.A. No.87 of 2003 that while he was working as Beldar in the Department since 18-5-1986, his services were terminated along with other employees through order, dated 29-6-2000. Due to his continuous service he cannot be termed as temporary Government servant. He approached the authorities, who promises to reinstate them, but failed to do so. While other employees who were terminated along with him were reinstated in service through order, dated 26-9-2000. This is discrimination and clear violation of Article 25 of the Constitution and also provisions of Civil Servants Act, 1974. Further junior officials are not terminated rather seniors are terminated, this shows mala fide of the Authorities. He has prayed for setting aside of impugned order and his reinstatement in service.
14. In S.A. No.90 of 2003 appellant Muhammad Hanif, S.A. No.104 of 2003 appellant Faiz Muhammad, S.A. No.105 of 2003 appellant Murad Bakhsh, S.A. No.106 of 2003 appellant Ghafoor Shah, S.A. No.107 of 2003 appellant Aziz Ahmed, S.A. No.110 of 2003 appellant Gawahar Khan, have same case as of appellant Abdul Hakim of S.A. No.87 of 2003. They all prayed for their reinstatement in service and setting aside of impugned orders.
15. None of the respondents have filed reply in any of the above mentioned appeals. Rather a consolidated reply of respondents Nos.1 and 2 has been filed in Appeals Nos.100 to 110, which is present in Court file of S.A. No. 100 of 2003. It is their objection that appeals are time-barred. Further the appellants are Project employees as per their appointment orders thus governed by recruitment policy for the Project posts, the departmental Rules and Civil Servants Act are not applicable. Their services were terminated on completion of Project as per policy. Further the appellants have failed to submit departmental appeals in time, they filed the same after lapse of three years. They have prayed for dismissal of appeals.
16. The appellants have filed applications for condonation of delay in each case. It is their contention in all these appeals except S.A. No.87 of 2002 that as negotiation was going on between the Departmental Authorities and office-bearers of Union, while there was assurance, of reinstating them in service, by the Authorities, but despite efforts and their assurance no positive step was taken, whereupon they filed departmental appeals, whereafter they filed service appeal. The respondents have not replied these applications, except raising objections in their parawise comments to the effect that the appeals are filed after lapse of three years thus time-barred. While in S.A. No.87 of 2002, it is contention of appellant Abdul Malik that after rejection of his departmental appeal he approached an advocate along with other aggrieved persons who filed service appeals, on their behalf. While he remained under impression that his appeal is also pending but after acceptance of said appeals when he approached the Department then this fact was disclosed that no appeal was filed on his (the appellant) behalf, rather two other persons of same name as his own were included in the list of appellants. Whereupon he filed present appeal. In all these appeals the appellants are aggrieved of orders made on 29-6-2000 and 30-6-2000. Whereby their services were terminated on the occasion that the Project under which their appointments were made had been terminated. The appellants have filed departmental appeals on 14-6-2002, 3-3- 2003, 29-4-2003 and 4-5-2003. No copies of departmental appeals are placed on record by appellants Abdul Hakim (S.A. No.87 of 2003) and Muhammad Hanif (S.A. No.90 of 2003). They have filed copy of an application/arrival report bearing date 1-6-2003, whereby they have requested for restoring their service as the impugned order has been suspended by this Tribunal. They have further mentioned that they have already filed appeal before competent authority, which is not replied. They are bound to file copy of departmental appeals filed by them before concerned Authorities but they have failed to do so. As there is no objection from other side about non-filing of departmental appeal making present appeals not maintainable, therefore, in interest of justice it is presumed that the said appellants had filed departmental appeals. Admittedly the above mentioned appellants except appellant Abdul Malik (S.A. No.87 of 2002) have preferred departmental appeals after lapse of two and three years from issuance of impugned order. The provided period for filing of appeal before departmental Authority is 60 days. As such admittedly the appeals/representations filed by the appellant are time-barred. While present appeals are filed on 4-9-2002, 27-5-2003, 29-7-2003. As such present appeals are filed before the Tribunal even before expiry of provided 90 days, rather pre-mature at the time of filing the same. But it is to be noted that the Departmental Authorities have not disposed off the said appeals they are still pending, as such the cause of action still subsists. Further, the circumstances asserted by the appellants are not denied by the respondents/departmental Authorities. Further, in case the appellants are successful in establishing that the impugned order is made in violation of law and rules thus void, than in said case no limitation comes in the way. Thus it will be just and proper to consider the cases on merits firstly and then decide the issue of limitation thereafter.
17. As far as S.A. No.87 of 2002 is concerned appellant Abdul Malik has failed to file copy of departmental appeal. But he has placed on record an order dated 14-10-2000, whereby his appeal was returned by the concerned Authorities while rejecting his prayer of reinstatement in service. This is the final order in his (appellant) case. His departmental appeal was in time. But as he has filed present appeal on 20-1-2002 much beyond provided period of 30 days. He has asserted that along with some other terminated employees he approached same counsel and due to similarity of names his appeal was not filed by counsel and he remained under impression that he is included in the same and on decision of said appeals, this fact was disclosed, whereafter he approached this Tribunal. Copy of judgment made on 2-5-2002 is present on record. The perusal of the same reveals that two appeals are filed by persons named as Abdul Malik. The contentions raised by the appellant have some weight. Keeping in view the circumstances of the case, in interest of justice the delay is condoned. The appeals shall be disposed off on merits.
18. In all these cases, from perusal of record it is apparent that appellants were appointed by the Director of Agriculture (Extension) Balochistan, Quetta or by Director General Agriculture, Balochistan, Quetta on different dates during years 1986 to 1988, 1994 to 1999, on different posts in B.P.Ss. 1, 4, 5 and 6 as Road Man, Beldar, Peon, Chowkidar, Naib Qasid, Vehicle Driver, Junior Clerk and Field Assistant. They continued as such without any break, till issuance of Notices whereby their services were terminated w.e.f. 1-7-2000 on reason that the Project under which their appointments were made has been terminated w.e.f 25-3-2000. The appellants claimed themselves to be permanent Government Servants, thus cannot be terminated in such a way. While on the other hand the official respondents have asserted that the appellants were never appointed against regular posts, rather their appointments were made purely for Project, as such they are neither covered by Civil Servants Acts nor by Departmental Service Rules. While their cases are covered by Recruitment Policy against the Project posts. A copy of said policy is placed on record. The perusal of the same reveals that Items Nos.(i), (ii) and (iii) are related to posting and promotion on ex- cadre/Project posts. While as far as initial appointment is concerned that is to be made on contract basis that too relates to B-16 and above posts as per the same. This policy is silent about filling the posts below B-16. Thus in each case the appointment orders issued in favour of the appellants are of much importance. The perusal of the same reveals that the appointments of the appellants are made in Agriculture Department either by Director General or Director Agriculture.
Though in clause No.1 of the same it is mentioned that the appointment in the Department is purely temporary, which can be terminated on one month's notice without assigning any reason. But nothing has been mentioned in the same about the Project in which respect the appointments are made. Nor from perusal of the same it appears that the services shall come to an end on termination of the Project. Though the appellant have been posted in various Projects where they performed their duties during all these years. But in absence of such condition it cannot be presumed that the appellants were initially appointed in respect of some Project, while mere posting after appointment do not affect their rights which accrued in their favour during all these years. In view of contents of appointment orders the appellants shall be presumed to be appointed in Agriculture Department on regular basis. They cannot be termed as Project Employees being temporary one. They may have been working in Project at the time of issuance of impugned order, but as no clause is included in their appointment orders to same effect therefore, the winding up of the Project shall have no effect on their service. In case the Project has come to an end than the Authorities were bound to send the appellants back to the relevant Department, who should treat them in accordance with relevant law and rules. But this has not been done in present case rather mere on wounding up of Project the services of the appellants were also terminated treating them as Project employees, which is not correct. The Authorities have made an error while issuing termination oraers to the appellants. The impugned orders are of Rules, thus of no legal effect.
19. In view of above discussion as the concerned Authorities have made an error while issuing the impugned orders, wrongly treating the appellants as temporary employees of Project, thereby terminated their services. The impugned orders being contrary to law and Rules, thus were of no legal effect. As the impugned orders are void, therefore, no limitation runs against void order. As such, the present appeals are very much maintainable and are not hit by limitation.
20. It is to be noted that if the Authorities wanted to put an end to the service of the appellants, they must have adopted the legal procedure as provided under Civil Servant Act, 1974 and Rules applicable in the matter. Moreover, it is further to be noted that all this happened due to the fact that the Authorities concerned are neither vigilant nor show their competency while making the appointments either on .Permanent or temporary basis, nor even strictly observe the procedure provided under relevant Rules. Due to this conduct all this inconvenience happened while suffering and misfortune is always on the side of poor, low paid employees, which is unfortunate. In case appointments are made on contract basis, in respect of some Project, this fact must be disclosed in the appointment letter/contract, issued/executed by the Authorities. The terms and conditions of services must be clear so that no ambiguity arises from it, thus no undue benefit can be obtained by any of the parties. But in present cases this has not been done. The appointment orders are simply appointing them in service without mentioning the post to be a Project Post, which has come to an end on completion or winding ' up of the same. Thus, it is neither just nor proper that the suffering remain on the side of the employees who served the department for quite a long time that .Too due to the lapses from the side of the concerned Authorities.
21. In view of above discussion it is established that the appellants were appointed in Agriculture Department on regular basis, therefore, they cannot be treated as Project employees and on winding up of Project their service cannot be put to an end in such a manner affecting their legal rights. Thus the Appeals bearing Nos.50, 51, 52, 53 and 87, of 2002, 67, 69, 70, 71, 72, 73, 74, 87, 90, 104, 105, 106, 107 and 110 of 2003, are hereby accepted. The impugned orders dated 29-6-2000 and 30- 6-2000 to the extent of appellants are set aside. The appellants namely Qamar Din, Lal Muhammad, Ghulam Farooq, Miandad, Abdul Malik, Atta Muhammad, Abdul Raziq, Muhammad Azam, Lal Muhammad, Muhammad Ismail, Zarif Khan, Khan Muhammad, Abdul Hakim, Muhammad Hanif, Faiz Muhammad, Murad Bakhsh, Ghafoor Shah, Aziz Ahmed and Gahwar Khan are reinstated in service from the date of termination with all back-benefits. The concerned Authorities/ Department are directed to do the needful in the matter within a period of two months with intimation to this Tribunal.
22. Parties are left to bear their own costs. File after' completion be consigned to record.