' MRS. SYEDA TAHIRA SAFDAR (MEMBER-II).---The above mentioned appeals titled as Shamsuddin v.
Government of Balochistan No.138 of 2003, Shoaib Muhammad v. Government of Balochistan No.139 of 2003, Hazrat Ali v. Government of Balochistan No.140 of 2003, Syed Mahmood Ahmed v.
Government of Balochistan No.141 of 2003, Naqeebullah v. Government of Balochistan No.142 of 2003: Muhammad Zafar v. Government of Balochistan No,143 of 2003, Abdul Rasheed v.
Government of Balochistan No.144 of 2003, Muhammad Alam v. Government of Balochistan No.145 of 2003, Ahmed Shah v. Government of Balochistan No.146 of 2003, Muhammad Zaman v.
Government of Balochistan No.147 of 2003, Khairullah v. Government of Balochistan No.148 of 2003, Asmatullah v. Government of Balochistan No.149 of 2003, Abdul Nafay v. Government of Balochistan No.150 of 2003, Muhammad Aslam v. Government of Balochistan' No.151 of 2003, Faiz Ali v.
Government of Balochistan No.152 of 2003, Habibullah v. Government of Balochistan No.153 of 2003, Paideen v. Government of Baluchistan No.154 of 2003, Fatehullah v. Government of Balochistan No.155 of 2003, Nasir Khan v. Government of Balochistan No.156 of 2003, Usmanul Haq v.
Government of Balochistan No.157 of 2003, Syed Sadruddin v. Government of Balochistan No.158 of 2003, Marfa v. Government of Balochistan No.159 of 2003, Dost Muhammad v. Government of Balochistan No.160 of 2003, Bismillah v. Government of Balochistan No.161 of 2003, Hameedullah v.
Government of Balochistan No.162 of 2003, Habibullah v. Government of Balochistan No.163 of 203, Muhammad Masood v. Government of Balochistan No.164 of 2003, Kaleemullah v. Government of Balochistan No.165 of 2003, Riaz Ahmed v. Government of Balochistan No.166 of 203, Abdul Hadi v.
Government of Balochistan No. 167 of 2003, Abdullah Jan v. Government of Balochistan No.168 of 2003, Kaleemullah v. Government of Balochistan No.169 of 2003, Badruddin v. Government of Balochistan No.170 of 2003, Shah Wali v. Government of Balochistan No.171 of 2003, Mst. Safia Kakar v. Government of Balochistan No.172 of 2003, Abdul Samad v. Government of Balochistan No.173 of 2003, Abdul Bari v. Government of Balochistan No.174 of 2003, Abdul Qayum v. Government of Balochistan No.175 of 2003, Muhammad Rauf v. Government of Balochistan No.176 of 2003, Muhammad Jan v. Government of Balochistan No.177 of 2003, Abdul All v.. Government of Balochistan No.178 of 2003, Muhammad Siddique v. Government of Balochistan No.179 of 2003, Habibullah v. Government of Balochistan No.180 of 2003, Saeedullah v. Government of Balochistan No.181 of 2003, Khalid Ahmed v. Government of Balochistan No.182 of 2003, Sanaullah v. Government Balochistan No.183 of 2003, Muhanimad Qasim v. Government of Balochistan No.184 of 2003, Abdullah v. Government of Balochistan No.190 of 2003, Mst. Razima v. Government of Balochistan No.191 of 2003, Mst. Rizwana Naheed v. Government of Balochistan No.192 of 2003, Mst. Bibi Yasmeen v. Government of Balochistan No.193 of 2003, Mst. Sakina v. Government of Balochistan No. 194 of 2003, Zakria v. Government of Balochistan No.194-A of 2003, Jalaluddin v. Government of Balochistan NO.195 of 2003, Wali Jan v. Government of Balochistan No.196 of 2003, Mir Ahmed v.
Government of Balochistan No.197 of 2003, Azizullah v. Government of Balochistan No.198 of 2003, Mst. Sanaullah v. Government of Balochistan No.199 of 2003, Mst. Asifa Fayaz v. Government of Balochistan No.200 of 2003, Muhammad Nabi v. Government of Balochistan No.203 of 2003, and Mst. Zahida Parween v. Government of Balochistan No.204 of 2003, are filed by the appellants against an order made on 28-6-2003, as the appeals are based on same facts while common point is involved and impugned order is also the same therefore, it will be just and proper to dispose of these appeals through this common judgment to avoid any sort of contradiction.
2. In appeal No.138 of 2003 it is case of the appellant (Syed Shamsuddin) that in pursuance of publication made in Daily Jang on 5-3-2003, he also applied for the post in the Education Department. He along with other candidates appeared in test and interview held on 19/20th May 2003, which was taken by a Committee, constituted by the Government. While a special team was also sent by the Department for purpose of holding of fair and transparent test and interviews and selection thereby. Thereafter, he was appointed through Notification dated 17-6-2003, whereupon he joined his duties and started performing his job. It is further his case that as the Minister of Education and Minister of Health wanted to appoint and accommodate their own brothers and 'relatives of high-ups of their party, firstly they tried to influence the process of test and interview .But due to resistance and refusal of Authorities, they were not successful. But afterwards they (the Ministers) pressurized the Authorities to cancel the appointment orders of all the selected candidates including him (the appellant). Thus due to the same the appointments were cancelled through Notification dated 28-6-2003. Being aggrieved of the same he along with other appointees filed Constitutional petition in High Court of Balochistan, which was withdrawn. He filed departmental appeal, which remained un-responded, where after he filed present appeal.
3. The appellant has preferred present appeal on grounds that the impugned order is illegal and made in excess of authority. Further, as per condition of appointment order one month's notice is mandatory to be issued before terminating his service. But no such notice was served upon him. He has been condemned un-heard. The appellant has prayed for setting aside of impugned Notification while he be reinstated in service with all back-benefits.
4. Respondent No.1 in reply admitted taking of test and interviews under Chairmanship of District Coordination Officer Killa 'Abdulah at Chaman, while he (respondent No.1) was one of the members of the same. Test and interviews were conducted, merit lists were prepared, while the candidates were appointed in various categories on basis of said list, with approval of higher Authorities. He has asserted that the test and interviews were held in fair and transparent manner, while appointment orders dated 17-6-2003 were issued by his 'signatures. While the said appointment orders were withdrawn by his signatures, with approval of Provincial Cabinet, through order dated 28-6-2003. It. Is further his contention that the said decision taken in Provincial Cabinet meeting held on 14-6-2003 was sent to him by Secretary Education Balochistan for strict compliance and necessary action through dated 28-6-2003. As such he (respondent No.1) was bound to obey the orders of the Superiors, and was not in position to refuse the same.
5, Respondent No.3 in reply has admitted that the test and interviews were conducted in fair and transparent manner, while merit list, after preparation, was sent to Education Department and after receiving the instructions E.D.O. Education issued the appointment orders of successful candidates.
Further cancellation of appointment orders is decision of Provincial Cabinet.
6. In their joint reply respondents Nos.2,4,5 and 6 has objected on maintainability of the appeal. It is their contention that as the appellant has not filed departmental appeal before competent Authority within time, therefore, present appeal is not maintainable. Further, as the appellant has been appointed on contract basis and he has not completed his probationary period, therefore, his services can be terminated being temporary, thus present appeal is not maintainable. On merits it is their contention that the appointment orders were cancelled by Executive District Officer (Education) Killa Abdullah at Chaman (respondent No.1) while no orders of this sort was passed by respondent No.4 or respondent No.2 while the Cabinet decision was sent to the Secretary, Education Department by S&GAD which was sent onwards to E.D.O. (respondent No.1) for necessary action. They have prayed for dismissal of appeal.
7. In remaining appeals bearing Nos.139 to 194, 194-A to 200, 203 and 204 the appellants of the same have raised same contention and. Prayed for their reinstatement in service. While in said cases, only respondents Nos.2,4,5, and 6 filed their joint reply, thereby raised same contention as raised in S.A. No.138 of 2003. While in' appeals bearing. Nos.195 and 196 of 2003 no reply has been filed from respondent's side.
8. In all these appeals the impugned order is of 28-6-2003, which is issued by Executive District Officer Education Killa Abdullah at Chaman (respondent No.1), whereby orders issued on 17-6-2003 are cancelled. The orders mentioned therein are the appointment orders, whereby the appellants and others persons are appointed in different categories. The appellants being aggrieved of the same have preferred present appeals for setting aside of the same and their reinstatement in service. As according to them they have been appointed as per law and rules, fulfilling the merits.
Respondents Nos. 1 and 3 admitted the claim of the appellants, while respondents Nos. 2,4,5 and 6 contested the same and raised objections on maintainability of present appeals. It is their objection that as the appellants have not filed departmental appeals in time to the competent Authority thus this appehl is not maintainable, further they have not filed present service appeals in time. Before going into merits of the case the objection requires consideration. The appellants have asserted that they have filed departmental appeals to the concerned Authorities. The perusal of the record reveals that photocopies of Departmental appeals are present in all the appeals, which are filed on 2-7-2003 and 22-7-2003. It is also apparent from record that the appeals filed on 22-7- 2003 are sent through Courier service to Director Education. The receipt of the same are present in some of the files. The provided period for filing of Departmental appeal before Appellate Authority is 60 days from communication of the order. In present case the impugned order was issued on 28-6-2003 thus the provided sixty days comes to an end on 28-8-2003. In both cases the appellants have preferred appeal before departmental Authority within provided period. As far as present appeal is concerned, the same is filed on 2-10-2003. The time for filing service appeals is to be counted after expiry of 90 days from filing of departmental appeal/representation, if there is no final order on the said appeal disposing it of, within thirty days from the same and in case the same is disposed off than from communication of final order within a period of 30 days. In present cases the departmental appeals are filed on 2-7-2003 and 22-7-20p3, in such case the present appeals are filed within provided period, which in each case is to expire in November 2003. While present appeals are filed on 2-10-2003. In the circumstances, the present appeals are filed well within provided period, thus very much maintainable. The objections are without merits thus rejected.
9. As far as second objection to the effect that the appellants were appointed on contract basis, while they had not completed probationary period of their services, which is two years thus their services can be terminated being temporary is concerned it is the respondents who have to establish that the appellants are appointed on contract basis while a contract has been executed between them. But the said respondents have not filed any document along with their reply. While on the other hand the appellants have filed their appointment letters. The perusal of the same reveals that the terms and conditions are entered therein conditions entered at serial No. 1 and No.3 are relevant in present case which speak as under:-- " I. They shall continue at their place of posting at least for a period of two years.
2. The appointment is made on temporary basis and can be terminated on one month's notice." No probation Period is mentioned in the terms and conditions. Rather the period of two years is used only for purpose of posting. As per S.6 of Balochistan Civil Servants Act, 1974 an initial appointment shall be on probation as may be prescribed. While S.7 of the Act of 1974 provides the procedure for confirmation in service. The period of probation is to be mentioned in the appointment orders, but the concerned Authorities have failed to mention the same. The fault is on their part. Further, though in term No.3 it is mentioned that the appointment is made on temporary basis but from this it cannot be presumed that the appointments were made on contract basis. No contract executed between the parties have been placed on record, whereby the Authorities are empowered to take such action in such a manner and can made the contract to an end in this way. The mentioned respondents are failed to establish their contention. The objection is baseless, which needs no further consideration.
10. Now coming to the merits of the case it is apparent from record that the appellants on advertisement made in newspaper appeared in test and interview held by the Authorities, while they compete and they were appointed thereafter being succeeded on merits. Appointment letters were issued in their favour on 17-6-2003. While thereafter on some complaint the matter was considered by the Provincial cabinet and as per decision, taken therein, respondent No.1 was directed to withdraw the appointment orders. It was held by the Cabinet that the District in which test/interview have not been finalized and result has not been announced the same be cancelled and be conducted afresh. While specifically in case of District Killa Abdullah the previous process of selection of the candidates would be cancelled and the test/interview be conducted afresh. The decision was implemented by respondent No.1/appointing authority through order dated 28-6- 2003. Respondent Nos.1 and 3 in their replies though have admitted that all process of appointment of the appellants and other candidates was fair and transparent but they cannot disobey their superiors. While on the other hand respondents Nos.2,4 and 5, being the Superior Authorities, have asserted nothing about the irregularities made in the appointments rather they only asserted that respondent No.1 had cancelled the appointment orders. Their conduct show that they are only shifting the burden on shoulder of others, this is objectionable and show their in-competency.
Further as per record they were fully aware of all the matter and respondent No.1 acted as per their guidance. They cannot get rid of their liabilities in such a manner.
11. Apart from the same though the appellants have not completed the period of probation and they have not been confirmed in their services, but this fact does not give an unlimited power to the Authorities to end the services of the appellants in such an arbitrary manner. According to appellants after issuance of appointment letters in their favour they joined their duties and started performing their jobs. The contesting respondents have not given any specific reply in said respect.
Thus in case when they (appellants) have joined their duties a valuable right accrued in their favour, which cannot,be disturbed except with due process of law. It is to that noted that in term No.3 of appointment letters it is clearly mentioned that the service can be terminated on one month's notice. But no such notice was issued by the Authorities before terminating the services.
Further, no separate order was issued to the appellants about termination of their services. Rather a joint order is made on 28-6-2003, cancelling the orders issued on 17-6-2003. The Authorities/respondents have not adopted the proper procedure. As per terms of service the Authorities are bound to serve a notice before terminating the service. But the same has not been done so without any legal reason. The appellants have been condemned unheard, which is neither just nor proper. The respondents/Authorities have further failed to establish any such illegality or irregularity due to which the appointments of the appellants have been cancelled without giving any notice to them. In case they want to terminate the services of the incumbents of the post, they have to act in accordance with law as provided therein.
12. The appellants have established their cases except the appellant Mst. Razima daughter of Shandoula in Appeal No.191 of 2003. She has not filed her appointment letter. The appointment letter placed on record pertains to Mst. Rizwana Naheed, Mst. Abida, Mst. Spozmai and Mst. Gul Sakina. The name of the appellant is not present therein. Despite direction the appellant failed to file appointment letter issued in her favour. Further,, in appeal No.138 of 2003 the relevant documents are filed by the parties. The perusal of the same reveals that the merit lists have been filed by respondent No.1 along with his reply. Annexure B-19 is relevant, which show the presence of name of appellant Mst. Razima at S.No.8. As per merit mentioned in the same she is, at 5th position.
While as per appointment letter mentioned above only four candidates are appointed excluding the appellant. No other appointment order filed in other cases also contains the name of the appellant. She was bound to file her appointment letter in order to get relief as prayed for. In absence of the same no relief can be given to her. She has failed to establish her appointment.
13. In view of above discussion as the appellants have established their cases, therefore, appeals bearing Nos. 138 to 190, 192 to 194, 194-A to 200, 203 and 204 of 2003 are hereby allowed. The appellants namely Shamsuddin, Shoaib Muhammad, Hazrat Ali, Mahmood Ahmed, Naqeebullah, Muhammad Zafar, Abdul Rasheed, Muhammad Alam, Ahmed Shah, Muhammad Zaman, Khairullahah, Asmatullah, Abdul Nafay, Muhammad Aslam, Faiz Ali, Habibullah, Paideen, Fatehullah, Nasir Khan, UsmanulHaq, Syed Sadruddin, Marfa, Dost Muhammad, Bismillah, Hameedullah, Habibullah, Muhammad Masood, Kaleemullah, Riaz Ahmed, Abdul Hadi, Abdullah Jan, Kaleemullah, Badaruddin, Shah Wali, Mst. Safia Kakar, Abdul Samad, Abdul Bari, Abdul Qayum, Muhammad Rauf, Muhammad Jan, Abdul Ali, Muhammad Siddique, Habibullah, Saeedullah, Khalid Ahmed, Sanaullah, Muhammad Qasim, Abdullah, Abdul Samad, Noor Muhammad; Dost Muhammad, Abdul Manan, Fida Muhammad, Mst. Bibi Yasmeen, Mst. Rizwana Naheed, Mst. Sakina, Zakria, Jalaluddin, Wali Jan, Mir Ahmed, Azizullah, Mst. Sunaullah, Mst. Asifa Fayaz, Muhammad Nabi and Mst. Zahida Parween are reinstated in service with all back-benefits. The impugned order is hereby set aside to the extent of the appellants. While appeal No.191 of 2003 filed by Mst. Razima is hereby dismissed.
14. The parties are left to bear their own costs. File after completion be consigned to record. accordingly.