' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).---While the appellant had been serving as constable in the Federal Investigating Agency (for short FLA.), his services were terminated vide order, dated 12-12-1996. He preferred a departmental appeal against the said order on 27-1-1997.
He was informed vide letter dated 31-1-2000 that his appeal had already been rejected and such information had already been communicated to him. On receipt of such letter, he filed this appeal before the Tribunal on 17-2-2000, praying to set aside the order of his termination and to reinstate him in service with all back-benefits.
2. Briefly, the facts leading to this appeal, as disclosed in the memo. Of appeal, are that in consequence of an interview by a Selection Board, constituted by the competent authority, the appellant was offered a post of constable in BPS-2 vide letter dated 18-10-1989 issued by the Deputy Director (Admn.) of the F.I.A., Southern Zone, Karachi. He was offered the post of constable purely on ad hoc basis, initially, for a period of six months. He joined the F.I.A. Accordingly as per order, dated 22-10-1989. He was deputed for training at Training Centre, Baldia, Karachi where he received the training upto 27-6-1990 and, thereafter, continued to perform his duty. Then all of a sudden vide order, dated 12-12-1996, his services were terminated without assigning any reason and without any notice simultaneously with. 39 other employees of the F.I.A. Of the status of Inspectors/Sub-Inspectors/ Assistants. However, the appellant was detailed on security duty vide office order dated 23-1-1997 whereby he continued to work, but he was finally relieved in the month of June, 1998. The said 39 officers filed Writ Petition bearing No,24263 of 1996 before the Lahore High Court, which was pleased to suspend the operation of the impugned order of the termination of 39 officers vide order, dated 30-12-1996. Among the 40 officials, whose services were terminated, the appellant was lowest in grade. He, being financially weak, could not approach the Honourable High Court. A suspension of the operation of the impugned order of termination, the officials were taken back in service by the respondents, but appellant was not taken up on the pretext that the order of termination in respect of him was not suspended by the Honourable High Court. He preferred a departmental appeal dated 27-1-1997 for his reinstatement which was not replied to. Since his departmental appeal was not decided by the respondents, he submitted reminder application dated 16-9-1998 followed by an application dated 22-1-2000, addressed to the Chief Executive of Pakistan, Federal Interior Minister and Director-General, F.I.A. For disposal of his departmental appeal by the respondent No,!, as a result of which he received a letter dated 31-1-2000 from the office of respondent No,1 wherein it was stated that "as the matter had been considered and found that the appellant being an ad hoc employee, his services were terminated in 1996 and he was informed accordingly at his residential address, therefore, his request at that belated stage, could not be considered"; hence, this appeal, as mentioned above.
3. In response to the notice of the appeal, the respondents filed their comments wherein plea has been taken that the appeal is extremely time-barred and the appellant had no cause of action for filing the appeal after expiry of the statutory period (viz. 90 days + 30 days) and that the appellant sent the application dated 22-1-2000 only to create the cause of action for filing the appeal before the F.S.T. On merit, it has been stated that the appellant was an ad hoc employee, who had obtained his appointment due to political affiliation, without following the criteria prescribed for recruitment including the Provincial/regional quota and advertisement through press etc.; that the appellant was more than 33 years of age, whereas, as per Rules, at the time of his appointment, he should have been 25 years of age, which was relaxed/condoned at the time of political motivated appointment; that his services were terminated in 1990 in accordance with Cabinet's decision dated 12-8-1990, but he was again inducted into Government service in December, 1993 when the Pakistan Peoples' Party (P.P.P.) again took over the Government of Pakistan. It has further been stated that undergoing training or earning good A.C.Rs, did not change the status of service of the appellant, who continued to be ad hoc employee and his service was rightly terminated in accordance with law; that office order dated 23-1-1997, deploying the appellant on security duty, was issued inadvertently due to typographical mistake; that the appellant was actually relieved on 12-12-1996 and, thereafter, no salary or allowances were paid to him; that the appellant was not reinstated in service because he had not obtained any order from the Court like 39 others. The respondents urged that the heavily time-barred appeal be dismissed on the point of limitation as also on merit.
4. We have heard the learned counsel for the parties and perused the record carefully.
5. The learned counsel for the appellant has drawn our attention to the fact that the predecessor Bench of the Tribunal had thrashed out the question of limitation threadbare and by cogent reasons, rejected the plea of the respondents for dismissing the appeal on the ground of limitation and had admitted the appeal for regular hearing, vide order, dated 23-4-2003.
6. On merits, the learned counsel forcefully argued that the appellant had though been appointed on ad hoc basis initially for a period B of six months, but he was allowed to continue in service and the competent authority had, without applying its own mind, terminated the service of the appellant earlier in 1990 in accordance with the Cabinet's decision dated 12-8-1990 without any fault on the part of the appellant and without any notice .To him. However, the successor Government reinstated the appellant in service in 1993 and he continued in service till 1996 and, thereafter also, but his services were again terminated illegally without any notice and without any fault on his part; that there was no evidence of using any political influence by the appellant who was a poor man and had nothing to do with any political party; that there was no evidence to connect the appellant with P.P.P. Or of using any influence by him upon the concerned authorities of the time; that as a matter of fact, the Placement Bureau of the Government of the time employed the appellant who, being a graduate, was jobless; that the apex Court had invariably disapproved the termination of the employees like the appellant without any cogent reasons, without any notice or without giving them any opportunity to defend the action against them and without personal hearing; that the apex Court had in a number of judgments, ruled that action should have been taken against the concerned authorities who had appointed the persons not in accordance with law and prescribed procedure; that the appellant had been rendered jobless for a long time and due to advance age he was not likely to obtain any job in Government or in public or private organizations; that over and above all, the appellant had been discriminated against severely as 39 officers whose services had been terminated in the like circumstances had been reinstated on the basis of the orders of the Honourable High Court and they had been in service continuously since then, whereas, the appellant who was a poor man of low grade, had been roaming jobless. Last argument of the learned counsel for the appellant was that the impugned order of termination of the appellant was bad in law, as it was made effective retrospectively. The learned counsel, therefore, earnestly prayed that the appellant be reinstated in service with all back-benefits. In support of his arguments, the learned counsel for the appellant relied on 1994 SCMR 2232, PLD 2001 SC 980, 2001 SCMR 934, 2003 PLC (C.S.) 314, 2001 SCMR 303, 630, 1077 and 1673, 2006 SCMR 678, 1999 PLC (C.S.) 1539; 1991 SCMR 2330 and 1999 PLC (C.S.) 1539.
7. The learned standing counsel opposed the appeal, which, according to him, was liable to be dismissed on the sole ground of limitation. On merit, he contended that the appointment of the appellant was on ad hoc basis, therefore, his services were liable to be terminated without notice; that the appellant had no vested right in service as his appointment was not in accordance with law and procedure prescribed for appointment in Government service,
8. We have carefully considered the arguments of both sides. Reverting to the issues of limitation, a perusal of the letter dated 31-1-2000 shows that there is no mention in it of the rejection of the departmental appeal of the appellant and the date when it was rejected. It was simply mentioned in it that he was informed about his termination at his residential address. However, the respondents have filed a letter dated 4-5-1998 addressed to the Director, F.I.A., Karachi Zone, Karachi, whereby he has been asked to inform appellant Naz Muhammad Lashari that his departmental appeal had been filed being time-barred. It has not been mentioned in it on what date and under what order the appeal was filed. On the other hand the respondents have also not filed a copy of the letter of information, if any, sent to the appellant. If the letter of termination had been sent to the appellant why he should have been agitating for decision of his appeal. Even so, the delay in filing the appeal could be condoned on the ground that the termination order of the service of the appellant was not in accordance with law, as the termination was without any reason and without any notice or show-cause notice which was absolutely necessary even if the appellant was an ad hoc employee. Reliance to place on 1997 SCMR 1552, wherein it has been held in a case of misconduct even if he is a temporary employee or a person employed on contract basis or probationer, he is entitled to a fair opportunity to clear his position which means that there should be a regular inquiry in terms of Efficiency and Discipline Rules before condemning him for the alleged misconduct. It may be pointed out that the termination of the appellant was not a termination simpliciter, but it was on the ground of misconduct, though not mentioned in the order of termination but the same has been clearly mentioned in the written comments, therefore, the show-cause notice/departmental inquiry was absolutely necessary in the case of the appellant providing him opportunity for defending himself.
9. The respondent's plea was that the service of the appellant was dispensed with due to his political affiliation without observing the codal formalities. Such reason has not been mentioned in the order of termination dated 12-12-1996 which is reproduced as under:-- ' Office of the Director-General ' Federal Investigation Agency, Islamabad No, 2/6934/Admn. 1/96/ dated 12-12-1996 OFFICE ORDER ' Subject: Termination of Service of Ad Hoc Appointee.
' Reference para.1(b) of Office order No,2/6934/Admn.1/ 93/1959, dated 13-12-1993 read with Memorandum No,B-9275, dated 18-10-1989, the services of Mr. Naz Muhammad Lashari, ' Constable (ad hoc appointee) are hereby terminated with immediate effect from 12-12-1996 (A.N.).
(2) This issues with the approval of competent authority.
(Sd.) (Omar Hamid Khan), Deputy Director/Admn.-I For Director-General/F. I. A.
' In 1998 SCMR 2419, 1991 SCMR 2330 and 1999 PLC (C.S.) 1539, the Honourable Supreme Court has held that reasons must be given in respect of every adverse order. Under section 24A(2) of the General Clauses Act, also, reasons have to be given in support of any order. Additionally, we must state that giving of reasons as mandatory specially in case of an adverse order. Needless to say that in the instant case, no reasons have been given for termination of the service of the appellant.
Now show-cause notice was issued to the appellant as such, the appellant had been deprived of defending himself in connection with the C allegations mentioned in the written comments. That such a notice was necessary, as mentioned in 1991 SCMR 1552, alread referred to above. Not issuing show-cause notice to the appellant had caused serious prejudice to him in his defence and had rendered his termination ultra vires void and against principles of natural justice.
10. So far as ad hoc appointment is concerned, we may point out that the concept of ad hoc appointment was introduced in the Civil Servants Act, 1973 and that was in respect of the post falling within the purview of the Public Service Commission. If a suitable candidate was readily not available, the concerned authority was empowered to appoint qualified candidate in the prescribed manner till he was selected by the Federal Public Service Commission or a selectee was duly appointed on such post. So far as other posts were concerned, method of appointment was prescribed under the rules which had to be followed by the concerned authorities. However, in the case of the appellant and many others, the Government of the time and appointed thousands of persons through Placement Bureau (on ad hoc basis which should have been on permanent basis). If the appointment was not in accordance with the prescribed rules, action should have been taken against the concerned authorities and not against the employees, who had already served for many years expecting to be regularized in service. Allowing such ad hoc temporary appointment beyond six months to continue for many years in service created a sort of vested right in service and dispensing with their service after so many years without any reasons, without any show-cause notice, without any opportunity of defence and for no fault on their part was not only against the principles of natural justice, but was cruel, and iniquitous. The Honourable Supreme Court had in a number of judgments, disapproved the termination of service of such employees and recommended action against the authorities who had deviated from the law and rules prescribed for the appointment of persons in Government service. Reference can be made here to a few of the authorities i,e, 2004 SCMR 303, 2004 SCMR 1077, 2004 SCMR 630 and 2006 SCMR 678. It has been held in 2004 SCMR 303 as under:-- "----S.4---Constitution of Pakistan (1973), Art.212(3)---Service of ad hoc appointees, termination of---Political appointments---Non-compliance of procedure for appointment---Lapses on the part of Appointing Authorities---Services of civil servants were terminated for the reason that they were not appointed on merits rather the appointments were made due to political and external pressures---Termination order was set aside by Service Tribunal and the civil servants were reinstated on the ground that the Appointing Authority, at no stage, had applied its independent mind at the time of initial appointment and carried out the directives of other Authorities-Plea raised by the Authorities was that the appointments of civil servants were made without observing prescribed procedure for appointment and they were no more required being ad hoc appointees- --Validity--Appointments of civil servants were made by Competent Authority---If prescribed procedure was not followed by the concerned Authority, the civil servants could not be blamed for what was to be performed and done by the Competent Authority---Competent Authorities should be held responsible and liable for the lapse on their part---Civil servants had put in more than ten years of their service and had lost all their chances to get fresh appointment elsewhere as they stood disqualified being overage---Supreme Court noted it with concern that in case the civil servants were to be removed then the same would amount to hitting them hard creating problems for the society at large considering each of the civil servants being a bread earner of his family--- Appointing Authorities had been acting mechanically without application of mind, therefore, the civil servants could not be made to suffer for whimsical and mechanical acts of the Authorities--- Supreme Court declined to interfere with the judgment passed by Service Tribunal as the act of the Authorities was not in accordance with law---Authorities had terminated the services of civil servants without any just and legal cause---Leave to appeal was refused."
' In 2004 SCMR 1077, it has been held as under:--"(c) Civil service---Wrong exercise of power--- Illegal appointments---Penalizing petty employees---Validity---Beneficiary of illegal appointment cannot be blamed alone because primarily the authority who had actually wrongfully exercised its powers, for the reasons known to it, was bound to be held responsible for the same---Instead of penalizing the petty employees like Chowkidar, Naib-Qasid, Junior Clerk etc. Who had to earn livelihood to support their families and if after having served for a long period they were removed from service discriminately, such action would not promote the cause of action and it would give rise to a number of problems---Instead of removing the employees from service, action should have been taken against the authority who wrongly exercised its powers."
' In 2004 SCMR 630, it has been held as under:-- "(b) Service Tribunals Act (LXX of 1973)--- ----S. 4---Constitution of Pakistan (1973), Art.212(3)--- Termination of services of ad hoc appointees on ground, of being violative of law---Petitioners were appointed on ad hoc basis for period of six months on recommendations of Placement Bureau subject to qualifying examination- --Petitioners could not qualify examination, thus, their services were terminated, but such order was not implemented and they were sent for specialized training course for evaluating their performance---Services of appointees were terminated with change of Government treating them as political appointees---Constitutional petitions filed by appointees against termination order were allowed by High Court---Authority did not press their petitions before Supreme Court after grant of leave to appeal leaving judgment of High Court in field alone---Appointees resultantly were reinstated in service on terms and conditions 'mentioned in their initial order of appointment subject to qualifying examination, which was never held---Appointees in order to get their services regularized approached High Court, which advised authority to organize examination---Authority again, with change of Government, terminated services of appointees terming them to have been appointed in violation of the rules laid down in human rights case---Service Tribunal set aside such order---Validity---Case of appointees did not fall within any of the categories laid down in human rights case---None of such appointees was lacking requisite qualification or had been appointed by incompetent authority---Authority had never organized examination and finalized their selection and regularization till passing of fjnal termination order---Impugned order showed that appointees had been discriminated against other employees, who had been appointed in similar manner on ad hoc basis, but had been subsequently confirmed and .Regularized---Non- holding of examination/interview by authority amounted to waiver and appointees should have been notified as confirmed---Appointees had served for eleven years and thus, vested right of being confirmed had accrued to them---Supreme Court dismissed petitions and refused leave to appeal."
' In 2006 SCMR 68, it has been held as under:--"Civil service--- ----Illegal appointment---Termination of service---Imposition of penalty by Appointing Authority responsible for making illegal appointment---Validity---Appointment of an employee, if made illegally, could not be cancelled under Efficiency and Discipline Rules---Instead of taking action against such employee, action must be taken against Appointing Authority for committing a misconduct by making illegal appointment as per his own admission---Principles illustrated."
11. Coming to the question of discrimination, Article 25 of the Constitution of Pakistan bars discrimination and that in that respect, it has been held in PLC 2003 SC 796 and 1998 SCMR 2482 that persons equally placed should be treated alike. In the case of the appellant it is an admitted position that the service of 40 ad hoc employees of the F.I.A. Including the appellant, had been terminated at the same time by the same order. That 39 officers had been reinstated under the orders of the Honourable Supreme Court. Such admission, in writing, has been made by the Deputy Director of F. I. A., which is reproduced as under:-- "Before the Federal Service Tribunal, Karachi ' Appeal No,29(K)(C.S.) of 2000 ' Mr. Naz Muhammad---Appellant ' versus ' Director-General, F.I.A. And others---Respondents Reply to the query raised vide order, dated 29- 7-2006 ' On behalf of the respondents named above, it is respectfully submitted that Suits Nos.1019 of 2002 and 1187 of 2002 were filed by the then ad hoc Inspectors/Sub-inspectors, F.I.A. And the Honourable High Court of Sindh was pleased to order on 8-10-2002 directing the parties to maintain status quo.
Presently C.P. No,D-139 of 2006, filed by ad hoc Inspector of F.I.A. Is pending before the Honourable High Court of Sindh at Karachi in which it is ordered that status quo will continue till the next date of hearing.
' Dated 14-9-2006 (Sd.) Deputy Director (Admn.) for Director."
12. Even if the appellant had not been able to obtain relief from the Honourable High Court, keeping in view the dictum about discrimination in the case of I.A. Sherwani reported in 1991 SCMR 1041 and in the case of Hameed Akhtar Niazi reported in 1996 SCMR 1185, justice demanded that respondents should have reinstated the appellant also in response to his departmental appeal, as he also sailed in the same boat like that of 39 officers, but brushing aside his request on the pretext that he had not obtained any order from the Honourable High Court like other 39 officers was violative of the principles of natural justice.
13. Lastly, the photocopy of the order of termination of the appellant and others was dated as 15-12- 1996 and it was retrospectively made effective from 12-12-1996, as such this order was illegal in view of the authorities reported in 2002 PLC (C.S.) 1027 and the latest authority on the point is reported in 2006 PLC (C.S.) 193 wherein it has been held that Government has no power to issue notification retrospectively.
14. In view of the facts and circumstances and for all the reasons, mentioned above, we accept the appeal, set aside the impugned order of termination of the appellant from service and direct the respondents to reinstate him in service from the date of his termination. He shall be entitled to all the back-benefits. However, the question of regularization of the service of the appellant shall depend upon the result of litigation of 39 other officers, referred to above and in that connection, it shall be open to the respondents to take any legal proceeding, deemed necessary under the law.
15. No order as to costs.
16. Copies of this judgment be sent to the parties under registered cover and to the relevant quarters as per Rule 21 of the Service Tribunal (Procedure) Rules, 1974.