' JUSTICE (RETD.) RIAZ KAYANI (CHAIRMAN).---Zaid Sultan, former Senior Clerk in the office of Director, Agriculture (Extension), Multan Region, Multan has come in appeal, assailing the order dated 30-12-2004 whereby the Executive District Officer (Agriculture), Multan rejected the appeal of the appellant and maintained the order dated 1-11-2004 by the District Officer Agriculture (Extension), Multan, imposing major penalty of dismissal from service with immediate effect, while proceedings under the provisions of the Punjab Removal from Service (Special Powers) Ordinance, 2000.
2. Appellant was serving as Senior Clerk in the office of Assistant Director Agriculture, Multan when he was served with the charge-sheet, accompanied by the following statement of allegations:-- "(i) The Deputy Director of Agriculture (Extension) Khanewal has already been held preliminary enquiry against you in connection with illegal appointment vide Letter No.4048/Estt. Dated 18-7- 2000 and declared your appointment as illegal/bogus. In the light of this enquiry and guidance/clarification of the Director General Agriculture (Extension) and A.R. Punjab Lahore vide No.10724/EC/Estt. Dated 12-7-2001, the Director Agriculture (Extension), Multan dismissed by you from your services vide order No.11624-27/7-298/Estt., dated 3-8-2001.
(ii) Your name (Zaid Sultan s/o Muhammad Nawaz) was not mentioned in the merit/interview list nor application was received at that time. Your appointment is totally bogus/fictitious as per reported by Deputy Director of Agriculture (Extension), Muzaffargarh.
(iii) No salary has been drawn by the Deputy Director of Agriculture (Extension), Muzaffargarh against you (Mr. Zaid Sultan s/o Muhammad Nawaz, Junior Clerk).
(iv) Your appointment was illegal/fictitious because the post of Junior Clerk is of Divisional Ministerial cadre post and the appointment was required through the divisional DPC, Dera Ghazi Khan whereas you are the resident of Multan District."
' Appellant denied the charges taking a preliminary objection that having been asked to give reply to the charge-sheet within 3 days was violative of sub-rule (6) of rule 6 of Efficiency and Discipline Rules, 1999 which mandates at least 7 days clear notice from the communication of the charge- sheet to submit reply to the charges. Appellant submitted yet another reply denying the charges on merits stating that he was appointed on merit as evidenced by the affidavit of Extra Assistant Commissioner Agriculture (Extension), Muzaffargarh by name to Sheikh Muhammad Iqbal, who was the member of the Departmental Selection Committee confirming the appointment on merits on 3-4-1993 after interview. The other two members could not be contacted as they died subsequently. It was further stated that in the earlier appeal before the Punjab Service Tribunal, the comments submitted by the respondents, it was acknowledged that the appellant was appointed as Junior Clerk by the Departmental Selection Committee held on 3-4-1993 on merits. Replying to the allegation that he did not draw his pay while posted at Muzaffargarh, appellant stated that it was due to the lapse on the part of District Accounts Officer, Muzaffargarh for not sending his pay bill to District Accounts Officer, Multan -where he was transferred, however, the- Deputy Director Agriculture (Extension), Muzaffargarh verified that he served from 10-4-1993 to 15-5-1993 at Muzaffargarh by making entires in his service book. The Inquiry Officer in the first instance required the appellant to fill in a questionnaire comprising 11 questions. This was followed by inquiry proceedings which took into account the preliminary inquiry held by Deputy Director Agriculture (Extension), Khanewal, in which the appointment of the appellant was declared as bogus, as a result of which the Director of Agriculture (Extension), Multan dismissed the appellant from service, against which appellant filed Appeal No.416 of 2002 before the Punjab Service Tribunal which accepted the appeal, reinstated the appellant in service, directing a de novo _inquiry to be held by the respondents. It was in pursuance of the orders of the Punjab Service Tribunal that the Inquiry Officer after being directed by the Authority embarked upon the de novo inquiry. The Inquiry Officer directed the District Officer Agriculture (Extension), Muzafargarh to supply the following record pertaining to the appointment of the appellant as Junior Clerk:--
(i) Advertisement notice got published in the press;
(ii) Number of applications received for the post of Junior Clerk.
(iii) Date of meeting of Departmental Promotion Committee.
(iv) Merit list.
(v) Minutes of the meeting.
(vi) Joining report.
(vii) Photo copy of the Pay bill.
(viii) Photo copy of LPC.
' It is stated by the Inquiry Officer that only photocopy of working paper and appointment orders and reply of the department in Appeal No.416 of 2002 filed in the Punjab Service Tribunal were supplied but the remaining record including the personal file was stated to be not available. It was admitted by the Inquiry Officer that the perusal of the letter of District Officer, Agriculture (Extension), Muzaffargarh addressed to the Chairman, Punjab Service Tribunal, Lahore revealed that District Officer Agriculture (Extension), Muzaffargarh admitted that the appellant was appointed as Junior Clerk by the them Deputy Director of Agriculture Extension), Muzaffargarh on the recommendation of the District Recruitment Committee in its meeting held in the office of the Deputy Director of Agriculture (Extension), Muzaffargarh on 3-4-1993 vide order No.83- 85/Steno/Estt. Dated 10-4-1993 but it was observed by the Inquiry Officer that the appointment of the appellant was not within the purview of the District Recruitment Committee to make appointment/recommendation against the post of Junior Clerk which was borne on divisional cadre. It was also noted that by comparison the signatures of Mian Sadiq Hussain, Deputy Director
(SS) PP Senior Subject Matter Specialist, DG Khan, who was a regular member of the Divisional as well as the District Recruitment Committee, did not tally and seemed to be quite different tab the minutes of the Departmental Promotion Committee meeting dated 3-4-1993 which seemed to have been managed afterwards just to prove the appointment of the appellant as legal. On the other hand, appellant produced affidavit of Sheikh Muhammad lqbal, former Deputy Director/District Officer Agriculture (Extension) who had retired by then, stating on oath, that he was member of the Departmental promotion Committee which met on 3-4-1993 whose Chairman was Chaudhary Muhammad Yasin deceased and that the appointment of the appellant was on merit.
The other member Mian Muhammad Sadiq, SSMS, DG Khan also approved the merit list by signing it. Strange enough the Inquiry Officer who earlier admitted in the inquiry report that except for sending documents, mentioned earlier, the meeting of the Departmental Promotion Committee, merit list and advertisement notice published in the press along with the number of applications received for the post of Junior Clerk was not produced before him but on the very next page of the inquiry report it was observed by the Inquiry Officer that name of the appellant neither was mentioned in the merit list/interview nor his application for appointment was received. It was also mentioned in the inquiry report that as provided under rule 3 of the Ministerial Service Rules, 1964, post of the Junior Clerk was to be filled in by initial appointment reserved for the residents of DG Khan but the appellant failed to justify his appointment in Muzaffargarh District despite the fact that he was resident of Multan District. Finally the Inquiry Officer came to the conclusion that the appointment of the appellant as Junior Clerk was made against the provisions of Service Rules without observing the codal formalities. The Authority after hearing the appellant imposed the penalty of dismissal from service which was upheld by the appellate Authority and both the orders have been assailed through the instant appeal.
3. Learned counsel for the appellant contended that the inquiry was defective in nature as the Inquiry Officer reached of the conclusions on the basis of record which admittedly was not produced before him, therefore, the same being based on surmises and conjectures could not be admitted in evidence. It was further stated that no witness was examined to prove charges. To the contrary, affidavit produced by the appellant of Sheikh Muhammad Iqbal, one of the members of the Departmental Promotion Committee, could have been easily summoned by the Inquiry Officer to verify the contents of the affidavit but not having been done so, a fair presumption arises in his favour. If this course was followed the charges would have been proved false. It was next contended that the appellant was performing his official duties after being inducted in services as Junior Clerk since 10-4-1993 and received promotions in due course and at the time of passing the impugned order he was serving as a Senior Clerk on regular basis, there being no complaint against him of any kind of misconduct. If at all there was any irregularity in his appointment, the authorities had to be blamed, rather the sword fell on the neck of the appellant after serving for more than 11 years without blemish. Conversely, learned District Attorney supported the impugned orders.
4. I have heard the arguments of the respective counsel and perused the record.
5. One fact which has not been denied by the respondents is that the appellant was fully eligible to be inducted in service as Junior Clerk. The question that the appointment was on divisional cadre and not on District cadre and that the Recruitment Committee who selected the appellant was not authorized to do so is part of the charge for which the appellant has not to be blamed. It was for the authorities to put their case A in order, with which appellant had nothing to do. Similarly, selecting the appellant out of District was once again irregularity committed by the Recruitment Committee and the Authority who issued the appointment orders were to bear the brunt. There is no allegation that the appellant manipulated a domicile to gain entry in service. As far as the allegations that the appellant did not make an application in response to the advertisement in the press and that his name was not included on the merit list, suffice it to observe that the Inquiry Officer in the inquiry conducted by him has admitted that neither advertisement nor the merit list or the number of applications received by the Committee were produced before him as the record was not available but later on, on the basis of mere surmises he reached the conclusion that the name of the appellant did not figure in the merit list. The charge-sheet was served upon the appellant under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 on 9-3-2004 by the Inquiry Officer, thereafter, it was replaced by fresh charge-sheet by the Authority under the provisions of the Punjab Removal from Service (Special Powers) Ordinance, 2000 on 17-9-2004.
Appellant was directed by the Inquiry Officer to appear before him on 2-10-2004 in connection with the inquiry which commenced with service of a questionnaire upon the appellant which he duly answered whereafter the inquiry was conducted. It is rather strange that important record containing the advertisement in the press, number of applications received by the Committee, merit list and minutes of the meeting having not been produced as admitted by the Inquiry Officer, he went on to observe in the very next page of the inquiry report that relevant record was checked by him on 8-10-2004 and he found that the name of the appellant was not mentioned in the merit list. The Tribunal wonders which record the Inquiry Officer alluded to as the District Officer Agriculture (Extension) Muzaffargarh, who was asked to supply the record mentioned in the preceding paragraph of this judgment was not able to make the record available, except for the working paper and the appointment orders and some other documents which went in favour of the appellant.
6. I am also impressed with the argument advanced by the appellant's counsel that having been inducted in service as far as back 1993 it was too late in the day to commence disciplinary proceedings after about 11 years to throw the appellant out of service on the ground that his entry in service was doubtful. Transparency of the induction of the appellant not having been proved against him for reasons given in the judgment which stemmed out of the inquiry report, appointment by a wrongly constituted Recruitment Committee was not headache of the appellant for which he could be blamed. I am fortified in my views by the case of Collector Customs and Central Excise Peshawar and 2 others v. Abdul Waheed and 7 others reported in PLJ 2004 SC 216, also reported in 2004 SCM R 158, that once having admitted that the appellant possessed the requisite qualification he could not be penalized after putting more than 10 years' service without there being any allegation of misconduct and the only charge against him was that he was brought into service by a wrongly constituted Recruitment Committee, for which he was not responsible. Another fact which has impressed the Tribunal is that admittedly service of the appellant is without blemish for 10/11 long years and at this stage showing him the door is not only a belated action not supported by any tangible evidence but very harsh for the appellant and his family which is likely to be ruined. I, therefore, set aside the order dated 1-11-2004 passed by the District Officer Agriculture (Extension), Multan and the order dated 30-12-2004 by the Executive District Officer (Agriculture), Multan. Resultantly, appellant shall be reinstated in service with complete back-benefits. There shall be no order as to costs.