ABDUL GHANI SHAIKH, CHAIRMAN,- Appellant was appointed as Junior Clerk(B-5) Vide order dated 08.04.1997 by the Principal, Dow Medical College, Karachi (now Dow Medical University). However, when appellant's pay bills were sent to the office of Accountant General, Sindh, the same were returned un passed on the pretext that appellant's appointment was made during ban period. He approached the authorities concerned for release of his salary and on getting no positive response, he filed appeal No. 35/2001 before his Tribunal, which vide judgment dated 14.03.2005 was allowed with direction that salary of the appellant for the period from 08.04.1997 to 30.11.2000 be paid to him within two weeks time and so far the period from 30.11.2000 till termination of services, appellant was given liberty to agitate his claim before the proper forum.
2. The facts of the instant appeal are that Secretary, Health Department (respondent No. 2) vide his office letter dated 22.12.1998 directed all the subordinates to terminate the services of all those irregular appointees who were appointed from 13.03.1997 to 30.10.1998. In pursuance thereto, the Principal, Dow Medical College, Karachi (respondent No. 4) Vide office memorandum dated 04.01.1999 terminated the services of appellant and 4 others. However, vide another letter dated 09.01.1999 of respondent No. 2, the operation of letter dated 22.12.1998 was kept in abeyance till further orders. Accordingly, appellant was allowed to continue his services till further orders.
Subsequently, vide office order dated 20.11.2004 passed by respondent No. 2, the letter dated 09.01.1999 was withdrawn, meaning thereby, w.e.f. 20.11.2004. After availing departmental remedy which remained un responded, appellant has filed the present appeal.
3. Learned counsel for respondent Nos. 3 & 4 raised legal objection on the maintainability of appeal and stated that the employees of Dow University are not the civil servants in view of Dow University of Health Science Act (X of 2004), as. Such, this Tribunal has no jurisdiction to hear and decide the present appeal.
4. In reply to the above objection, learned counsel for appellant while referring (i) 1992 SCM R 1213
(ii) PLD 1996 SC 222 and 1999 SCM R 1596 has argued that appellant was civil servant and merely on account of giving status of University to the Medical College in no way change the status of appellant of being civil servant, therefore, appellant is still civil servant and this Tribunal has jurisdiction to entertain, hear and decide the appeal.
5. We have considered the above submissions and have gone through the Dow University of Health Science (Act No. X of 2004) so also the case-law referred to by appellant's learned counsel.
Admittedly the Dow University College was under the administrative control of Health Department, Government of Sindh and all the employees serving in the college were the civil servants.
According to Section 4(2) of Act X of 2004 all persons serving in the Dow Medical College, Sindh Medical College and Ojha Institute of Chest Diseases in any capacity immediately before the commencement of this Act shall, notwithstanding any law or terms and conditions as may be prescribed. Be that as it may, En bloc transfer of employees of Dow Medical College to Dow Medical University did not change their status as civil servant and Service Tribunal has jurisdiction to entertain such employees appeals and adjudicate the same on merit. In this regard we may first refer to the case of Abdul Rehman vs. Pakistan Broadcasting Corporation and others, 1992 SCM R 1213. In that case the employees of Radio Pakistan were transfer to the Pakistan Broadcasting Corporation of Pakistan after promulgation of Pakistan Broadcasting Act (XXXII of 1973) and it was held that the terms and conditions to which the employees were entitled before transfer did not imply that such transfer amounted to change the status of the civil servant as they remain civil servants nevertheless. The case of Abdul Rehman (supra) was relied in a case of Pakistan Telecommunication Corporation vs. Riaz Ahmed and others, (PLD 1996 Supreme Court 222) and was also referred to in a case of Divisional Engineer Phones, Phones Division, Sukkur vs. Muhammad Shahid and others, (1999 SCM R 1526). In a case reported as 1999 SCM R 1526, it was held that:- "In cases of Corporation created by the Government through statutory institutions if existing employees are transferred to the Corporation in the absence of any provision to the contrary, the transferred employees continue to remain in the service of Corporation on the same terms and conditions under which they were working before their transfer to the Corporation. Therefore, if an employee of the Corporation before his transfer to the Corporation was a civil servant, he continues to be a civil servant. In all other cases, where an employee is appointed in the service of the Corporation after Corporation is established, his service is governed by the Service Rules of the Corporation. If such rules are not statutory, the principle of master and servant governed the relationship between the employee and Corporation."
6. In view of the case law referred to above the appellant was admittedly civil servant before promulgation of Act X of 2004 shall continue to be a civil servant. Therefore, this Tribunal has jurisdiction to decide the appeal.
7. On merits, the only reason for terminating the services of appellant was that his appointment was irregular as it was made during ban period. Admittedly, appellant performed his duties from April, 1997 till November, 2004 i.e. Almost for 7 years and initially he was not paid salaries, which were paid to him after judgment dated 14.03.2005 passed in Appeal No. 35/2001 by this Tribunal. It is also an admitted fact that appellant's appointment as junior clerk was neither due to political influence nor it was manoeuvered by illegal means. It is well-settled law that, department having itself appointed a civil servant in violet' -r. Of rules could not be allowed to take benefit of its lapses in order to terminate services of civil servant. Reference is invited to the cases of Syed Amjad Ali vs. Government of Pakistan, Establishment Division & others, (1983 PLC (C.S) 995), The Secretary, Zakat & Ushr vs. Saadullah, (1996 SCM R 413) and Director, Social Welfare vs. Saadullah (1996 SCM R 1350).
The services of a large number of employees who were appointed during ban period have already been regularized by various departments of Sindh province so also by this Tribunal. Therefore, on the rule of consistency, the present appellant is also entitled to the same relief, benefit and treatment. In view of above case law, the order terminating services of appellant is not maintainable and liable to be struck down.
8. For what has been stated above, the impugned termination order dated 20.11.2004 passed by respondent No. 2 is set aside so also the office memorandum dated 04.01.1999 whereby services of appellant were terminated in pursuance of letter dated 22.12.1998 of respondent No. 2. Resultantly, the appeal is allowed and appellant is reinstated in service as Junior Clerk from the date of termination viz. 20.11.2004. The intervening period shall, however, be treated as 'leave without pay.
Announced in open Court.
Given under our hand and seal of the Tribunal this 14th day of November, 2007.