' JUSTICE (R.) GHULAM NABI SOOMRO (CHAIRMAN).---The case of the appellant is that he was appointed as High School Teacher (B-16) on 13-8-1995. Subsequent to such order of appointment by the D.E.O. '(Boys) Secondary, Khairpur Mir (Respondent No, 4), the Director School Education, Sukkur Region @ Sukkur, also issued an order of even No, dated 13-8-1995 detailing terms and conditions of appellant's service.
2. That the appellant served at High Schools in District Khairpur and Nawabshah, when all of a sudden, on the premise of being one out of some 12 fake appointees, by an order dated 5-6-2004 passed by the respondent No,5 (District Officer, Education), Nawabshah, appellant's monthly salary was stopped. The appellant however continued to serve the department, when ultimately on 28-4- 2007 the appellant was informed that he was no more a Government servant.
3. The case of the appellant thus briefly stated is, that on his removal from service on 28-4-2007, he had put in more than a decade of service as a teacher. It is the case of the appellant further that an enquiry was ordered in the matter of above-said fake appointees and E.D.O., (Education), Sanghar was appointed as an enquiry officer. The enquiry officer submitted his report dated 17-9- 2007 (Annexure "H") to the department of education and literacy, through its Section Officer. The relevant portion of which is reproduced below for ready reference:-- "(i) Appointment record in respect of said twelve teachers is not available in the office of the Executive District Officer, Khairpur/Sukkur.
(ii) Photocopies of appointment orders signed by former Additional -Director have been provided by the Teachers concerned as explained above.
(iii) Inter-district transfer order from Khairpur to Naushahro Feroze also available on the basis of which the above teachers have been allowed their salaries from 2001 to onward.
Recommendations: ' Although the appointments of these teachers are dubious yet since they have performed their duties upto 2005-2006 and allowed salaries and acquired professional trainings i.e, B.Ed. And teaching experience hence their removal from service may open the door for further litigation in the Court of law.
' It is therefore submitted that a Committee may be constituted to hold interview of these teachers in District Khairpur have been their domicile to ascertain their eligibility to continue as a teacher, as was done in the case of JSTs/HSTs fake appointments made in District Hyderabad. The constitution of Committee is proposed as under:---
(1) District Coordination Officer, Khairpur Chairman
(2) Executive District Officer (Education), Member Khairpur
(3) District Officer (Education) Sec: and Member Higher Sec: Khairpur (Eijaz Ahmed Leghari)
' Executive District Officer Education Sanghar/Enquiry Officer"
4. In the meanwhile, however, he filed a departmental representation on 9-5-2007 to the Secretary, Government of Sindh, Department of Education (respondent 1), which was not responded within statutory period of 90 days. The appellant sent reminders for deciding his departmental appeal but to no avail. The appellant ultimately filed this appeal with an application for condonation of delay under section 5 of the Limitation Act.
5. In the written statement filed by the Secretary, Department of Education (respondent No,1), E.D.O.
Education (respondent No,2) and D.O. Education (respondent No,5), the defence taken is that the appellant was a bogus employee, his appointment was made on fake/fictitious documents and that he committed fraud with the department/Government, by drawing salaries and allowances, keeping the department in darkness for a long period of more than 9 years. In para. 9 of their written statement, it is also averred that there was no need to complete procedure or codal formalities as his (appellant) service bona fides were never accepted by the department.
6. We have heard the learned counsel for the parties and perused the record. Out of the above pleadings of the parties following issues arise:---
(i) Whether the appeal is time-barred and the delay uncondonable?
(ii) Who is to be blamed for permitting the appellant to continue serving as H.S.T. For the undisputed long period of 9 years' service?
(iii) Whether termination of service of the appellant was in accordance with the law?
7. Learned counsel for the appellant argued that the appellant's termination from service was not through any written order. First his salary was stopped and then he was informed that he was no more a government servant. He vehemently contended that not only the required detailed enquiry in the matter of the appellant was not held but even a show-cause notice was not issued to apprise the appellant of his crime, forming basis of his ouster from service. The counsel urged that in view of the situation, the impugned order was void ab initio, ultra vires and without jurisdiction.
On the said premises, it was argued that question of limitation would not arise in this appeal.
8. Mr. M. Bachal. Tunio learned Additional Advocate-General was not able to controvert the above contentions raised in support of the appeal. He therefore did not oppose the appeal and has very fairly conceded to it.
9. While dealing with the 1st issue it is pertinent to note that the appellant challenged letter.Dated 23-4-2007 in his departmental appeal of 9-5-2007, which despite 4 reminders of different dates and finally a legal notice dated 18-9-2008, did not mature into a written order, which it may not be out of place to mention, was in flagrant violation of repeated dicta of the honourable Supreme Court, binding the departmental authority to pass orders in writing on departmental appeals/ representations preferred by the aggrieved civil servants.
10. The appeal was filed in this Tribunal on 14-10-2008. It seems time-barred by about 13 months.
The appellant in his application for condonation of delay has urged that his valuable rights are involved and he may suffer irreparably if delay is not condoned. To consider this question we would refer to some relevant case-law on the point, as below:---
(i) Government of Sindh v. Masood Hussain 2002 SCMR 155.
(ii) Messrs Sui Northern. Gas Pipelines Ltd. v. Malik Murawat Hussain 2004 PLC (C.S.) 821.
(iii) Ali Muhammad v. Hussain Bakhsh and others PLD 1976 SC 37.
(iv) Muhammad Shafi v. Mushtaque Ahmed through Legal Heirs and others 1996 SCMR 856.
' In the case of Masood Hussain (supra) the honourable Supreme Court while dismissing the petition of the Government of Sindh and refusing leave to appeal, maintained the observations of this Tribunal in its common judgment, whereby this Tribunal while allowing some 8 appeals had observed as follows:--- "We have gone through the arguments of either side carefully. The established legal position is that there is no limitation against a void/illegal order. The considered/consistent view of the superior judiciary in Pakistan has been that limitation should not be considered, where there is a material denial of justice. Moreover, the appellant in these appeals being illiterate/semiilliterate Constable, we are competent to condone delay and do so following the traditions of superior judiciary that has invariably shown magnanimity and benevolence to the downtrodden members of the society."
' In the case of Messrs Sui Northern Gas Pipelines Ltd. Decided by the honourable Supreme Court, the delay condoned in the appeal by the Service Tribunal, was termed to be not an illegality, in the following words:-- "(8) When questioned, learned counsel for the appellant frankly admitted that the departmental appeal filed by the respondent was not disposed of by any order in writing holding the same as barred by time. He says that it was not responded, therefore, in our view, the question of condonation or otherwise in filing departmental appeal would not arise. Even otherwise, it was a fit case for condonation of delay for the respondent had been pursuing his remedy vigilantly from pillar to post but was not given the relief, therefore, the Tribunal did not commit any illegality in holding that it was a fit case for condonation of delay."
' In the case of Ali Muhammad, the honourable Supreme Court while discussing the question of limitation has declared that if an order is without jurisdiction and void, then it need not be formally set aside.
' In the case of Muhammad Shafi (supra) while allowing the appeal and reiterating its earlier pronouncement in the case of Ali Muhammad v. Hussain Bakhsh and others PLD 1976 SC 37 honourable Supreme Court held that the question of limitation may not arise in respect of judgments which are nullity in law, void or ultra vires; ruling that if an impugned order has been passed without hearing and notice to a party whose presence is otherwise necessary before the authorities concerned, then the order will be a nullity in the eye of law no question of limitation could arise.
11. Admittedly, the appellant was a school teacher belonging to and serving in a rural area, where lack of education, knowledge and awareness about the laws administering his services can well be recognized. Moreover, if the appellant who continued receiving salary for not less than a period of nine years without ever being questioned, had with the passage of a decade in service acquired a very valuable right and if thrown out of job at this stage and his age, he may never get a like job else where, for various reasons including the stigma of dismissal.
12. Being fortified by the dicta laid down in the above cases, we hold that the order of termination of the appellant is void ab initio, illegal and without jurisdiction. We therefore, declare that the instant appeal is not hit by any provision of the Limitation Act. As a result no time will run against the order of termination.
13. Taking up the 2nd and 3rd issue together, the admitted position is that the appellant was recipient of salary for a continuous long period of not less than nine years, when he was orally informed that he was no longer in service. Prudence demands that there must be a limit of time before which a person appointed must be informed whether his appointment was made, on the basis of genuine or fake documents. As stated above the appellant in view of his long unblemished service had thus acquired a valuable right. Thus there seems absolutely no fault on the part of appellant. The fault entirely lies on the part of the respondents who were either so careless or in a deep slumber for more than 9 years to learn about alleged irregularity in appointment. The order of termination as, already stated above is in flagrant disregard of well-settled law and has therefore been declared as void and without jurisdiction.
' In similar circumstances in case of Province of Punjab v. Zulfiqar Ali 2005 PLC (C.S.) 1165, honourable Supreme Court of Pakistan observed that:--- "It may be noted that these rules contemplate an action against an employee who is guilty for the breach of good service order, indiscipline, misconduct etc. But it does not contain any provision on the basis of which appointment of an employee can be cancelled on the ground that it has been made illegally. In other words in such-like situation instead of taking action against an appointee it is appropriate if an action is taken against the Appointing Authority who apparently committed a misconduct by making such appointment". It was further observed that "Thus, the competent Authority of Provincial Government i.e,. Chief Secretary, had a legal burden upon his shoulders to take action against Director of Agriculture (Bashir Ahmed Sabir) not only for making alleged illegal appointment as per his own admission, without prejudice to the case of respondent but also engaging the Provincial Government in litigation upto this Court at the cost of public exchequer."
' In another case of Mian Tariq Javed v. Province of Punjab and 2 others 2008 SCMR 598, honourable Supreme Court has observed thus at para. 6 of the judgment:- "(6) (sic) For any irregularity whatsoever, if committed by the department itself, the appointee cannot be harmed, damaged or condemned subsequently when it occurs to the department that it had itself committed some irregularities qua any appointment. This Court has on numerous occasions held that for the irregularities committed by the department at itself qua the appointment of a candidate, the appointees cannot be condemned subsequently with the change of the heads in the department or on the upper level. Government is an institution in perpetuity and its orders cannot be reversed simply because the heads have changed. Such act of departmental authorities is all the more unjustified when the candidate is otherwise fully qualified to hold the job."
' In yet another case, Pakistan International Airlines Corporation through Chairman and others v.
Shahzad Farooque Malik and others 2004 SCMR 158 honourable Supreme Court held that:- "Vested rights would accrue to employee, who after appointment was confirmed in service. Such right of employee could not be interfered with only on the ground that he had been irregularly appointed by corporation, unless there were other allegations against him in view of locus poenitentiae."
' As authoritatively ruled, by the honourable Supreme Court in the case of Abdul Qayoom v. D.C.
Project Management Organization, J.S. Hq. Rawalpindi and others 2003 PLC (C.S.) 353, the relevant portion, is reproduced hereunder:- "The perusal of record shows that the preliminary enquiry was held only for the purpose of collecting the evidence in support of the allegations for holding a regular inquiry under the Government Servants (E&D) Rules, 1973. The serving of charge-sheet with a statement of allegation to the petitioner was necessary under the Rules to provide him a fair opportunity to submit reply in the charges. He was also entitled to cross-examine the witnesses and produce evidence in rebuttal in the regular inquiry and on the conclusion of the inquiry, the competent authority in the light of the evidence and the findings of Inquiry Officer, could pass an appropriate order but the respondent without observing the procedure of inquiry awarded major penalty of dismissal from service to the petitioner on the basis of preliminary inquiry. This is correct that the requirement of regular inquiry can be dispensed with in exceptional circumstances but if the recording of evidence is necessary to establish the charge, the departure from the requirement of regular inquiry under the rules, would amount to condemn a person unheard."
14. The upshot of the discussion is that, we find the oral order of termination of service of the appellant being without jurisdiction, illegal, void ab initio and is therefore set aside with the direction to the respondents to reinstate the appellant from the date he was removed from service, with all back-benefits admissible under the law. There is no order as to costs.
15. This appeal was allowed by our short order dated 6-8-2009. Above are the reasons for the same.