PROVINCE OF SINDH and others vs GHULAM FAREED and others

ORDER

' AMIR HANI MUSLIM, J.---These appeals, by leave of the Court, are directed against the judgments dated 1-8-2013 and 17-9-2013 of the learned Sindh Service Tribunal at Karachi whereby the Service.

Appeals filed by the respondents were allowed.

2. Facts material for the disposal of the present proceedings are that on 24-4-2008 several .Vacancies in the Education and Literacy Department, Government of Sindh were advertised in Daily Kawish, Hyderabad. Pursuant to such advertisement, the respondents submitted their applications for appointment and after fulfillment to codal formalities, the E.D.O., who was the competent Authority, in the month of May 2009, issued appointment letters and after completion of formalities, they were appointed.

3. The respondents despite joining of their duties, were not paid salaries, therefore, the respondents filed a Constitutional Petition on 6th July, 2009. Upon service of notice of the Petition the EDO issued back dated Termination Orders, whereby service of all the "appointees, including the respondents were terminated w.e.f. 6th June, 2009. Against the said Termination Orders, the respondents and others filed Constitutional Partition bearing No. D-1759/2009 in the High Court of Sindh, Sukkur Bench. The Petitions were allowed and the Termination Orders were set aside. After the judgment of the learned Sindh High Court (Sukkur Bench), after issuance of the fresh show-cause notices to the respondents and other appointees, the same EDO again terminated the services of the respondents and other appointees in pursuance of the show cause notices which, according to the respondents, were never served upon them. According to the respondents, the show cause notices were issued on 19-1-2010 and the Termination Orders were issued on 3-5-2010.

4. Against their terminations, the respondents preferred C.P. No.221 of 2010 before the learned High Court of Sindh, Sukkur Bench, whereby the order in nature of quo warranto was played. It was contended before the learned High Court that the office of EDO (Education) Khairpur fell vacant on or about 3-6-2009. The District Coordination Officer, Khairpur by an order dated 5-6-2009 allowed.

Amanullah Bhayo to look after the charge of EDO (Education) Khairpur in addition to his own duties with immediate effect till posting of some other officer by the Government of Sindh. Since then Amanullah Bhayo continued to hold the charge of EDO (Education) Khairpur. It was pleaded before the learned High Court that District Coordination Officer did not have the authority to appoint any person either to hold office of EDO (Education) or to discharge the functions of that office, therefore, Amanullah Bhayo was holding office of the EDO without lawful authority. The respondents in the Petition prayed for a writ of quo warranto seeking declaration that the office of EDO (Education)

Khairpur was vacant and further prayed ,that all the acts done and orders passed by Amanullah Bhayo ~ as EDO (Khairpur) be declared void ab initio.

5. The learned High Court, after hearing the parties reserved judgment on 12-4-2010 and on 27-4- 2010 had announced the judgment reaching the following conclusion:- "In view of what has been stated in the foregoing we are of the opinion that a case was made out for issuing a writ_ of quo warranto. We hold that the Impugned order of the DCO, Khairpur dated 5-6-2009 whereby additional charge of the office of EDO (Education) was given to the respondent, No.3 was without lawful authority. This would ordinarily have led to the petition being accepted, and a declaration that the said office was vacant. However, certain developments.

Have been brought to our attention since we heard the matter and reserved judgment on 12-4- 2010. While reserving judgment, we had also directed that the competent authority .Be asked to take immediate steps to appoint a permanent incumbent to the said office. On 27-4-2010, the learned AAG placed on record certain documents with reference to this part of our order of 12-4- 2010. There is firstly a letter dated 14-4-2010 by means of which the respondent No.3 relinquished charge of the office of EDO (Education). There is then a notification dated 15.4-2010 issued under the hand of the Chief Secretary to the Provincial Government by means of which the respondent No.3 was transferred and posted with immediate effect as EDO (Education) in his own pay and scale. Finally there is a "resumption report" dated 19-4-2019 by means of which the respondent No. 3 has confirmed taking charge of the office of EDO (Education) in terms of the notification of 15-4- 2010."

6. The learned High Court for the aforesaid reasoning did not issue writ of quo warranto, inter alia, on the ground that Amanullah Bhayo vide Notification dated 15-4-2010 issued by the Competent Authority was assigned charge of EDO (Education) on OPS basis. The said officer on assuming the charge by virtue of the Notification dated 15-4-2010, on 3-5-2010 issued Termination Orders of the respondents. The respondents preferred Departmental Appeals before the Secretary Education and Literacy Department, but the same were not decided and in the meanwhile respondents preferred C.P.No.D-1(sic.) of 2010 before the learned Sindh High Court challenging their Termination Orders of 3-5-2010. On 19-3-2011, learned High Court allowed the said Constitution Petition, which, judgment of the learned High Court was challenged before this Court. This Court on 2-12-2011 with the consent of the parties, set aside the judgment of the learned High Court and remanded the matter to the leaned High Court to decide the issue of maintainability of the Petition. On remand the learned High Court dismissed the Petition of the respondents, inter alia, on the ground that the Petition was barred under Article 212 of the Constitution. On 21-12-2012, the respondents preferred Service Appeals before the Service Tribunal at Karachi, which appeals were heard and allowed vide impugned Judgments dated 1-8-2013 and 17-9-2013. The appellants being aggrieved have preferred these appeals, by leave of the Court.

7. It is contended by the learned Additional Advocate-General Sindh that the learned Sindh Service Tribunal has no powers to condone the delay in filing of the time barred Appeals of the respondents. He further contended that the provisions of sections 5 and 14 of the Limitation Act are inapplicable to the Service Tribunal and in support of his contention has relied upon the judgment of this Court in the case of Furqan Habib and others v. Government of Pakistan and others (2006 SCM R 460) in which it was held that limitation in time-barred Appeals cannot be condoned by the Service Tribunal by resorting to the provisions of Section 14. He further contended that the order terminating the services of the respondents was passed on 3-5-2010 whereas, on 21-12-2012, the Appeals were filed before the learned Service Tribunal, which appeals on the face of it were barred by time. The learned Service Tribunal overlooking the judgment of this Court, referred to hereinabove, has entertained these appeals and condoned the unexplained delay, which alone is sufficient ground to set aside the impugned judgments.

8. The 'learned. Assistant Advocate-General next contended that Amanullah Bhayo was posted by the D.C.O as E.D.O. In his own pay and scale (OPS) and his posting was challenged but in the intervening period the defect was cured and on 15-4-2010 he was appointed as E. D.0 on 0.P.S basis by the Competent Authority. According to the learned Law Officer, the objection in regard to the appointment of Amanullah Bhayo as E.D.O. Was cured on 15-4-2010. Therefore, on 3-5-2010 he being E.D.O. Was competent to issue the Termination Orders of the respondents.

9. We have heard the learned Law Officers and have perused the record. The learned Service Tribunal has not condoned the delay in filing of the time barred Appeals by resorting to the provisions of section 5 and or section 14 of the Limitation Act, on the contrary the Tribunal has taken a view that Termination Orders were issued by Amanullah Bhayo, who was not the competent Authority on 3-5-2010, as he was in BS-19 and was posted as E.D.O on O.P.S basis. The Tribunal has proceeded on the premise that since the Termination Orders were issued by an Officer who was in BS-19 and not by an officer of BS-20, therefore, it declared the Termination Orders of the respondents as void and without lawful authority. Consequently, neither bar of limitation would be attracted nor period of limitation would run against such orders. We endorse this view of the learned Service Tribunal.

10. We have also examined the view taken by this Court in the case of Fuman Habib relied upon by the learned Law Officer, which judgment is distinguishable on facts. In the first place, section 6-A of the Sindh Service Tribunals Act 1973 permits the application of the provisions of sections 5 and 14 of the Limitation Act to the appeals preferred before the Sindh Service Tribunal. Secondly in case of Furgan Habib the original order challenged before the Tribunal was neither a void order nor an order without jurisdiction, therefore, the bar of limitation was applicable in such cases whereas in the case in hand as noticed in the preceding para the termination orders having been issued by an officer not competent in law, therefore, such orders being void, would not attract the bar of limitation.

11. We have inquired from the learned Additional Advocate-General to show us any provision of law and or rule under which a Civil Servant can be appointed on higher grade/post on OPS basis. He concedes that there is no specific provision in the law or rule which permits appointment on OPS basis. He, however, submitted that in exigencies the Government makes such appointments as a stop gap arrangement. We have examined the provisions of Sindh Civil Servants Act and the Rules framed thereunder. We do not find any provision which could authorize the Government or Competent Authority to appointment any officer on higher grade on "Own Pay And Scale Basis".

Appointment of the nature that, too of a junior officer causes heart burning of the senior officers within the cadre and or department. This practice of appointment on OPS basis to a higher grade has always been discouraged by this Court, as it does not have any sanction of law, besides it impinges the self respect and dignity of the Civil Servants who are forced to work under their rapidly and unduly appointed fellow officers junior to them. Discretion of the nature if allowed to be vested in the Competent Authority will offend valuable rights of the meritorious Civil Servants besides blocks

12. At times officers possessing requisite experience to qualify for regular appointment may not be available in a department. However, all such exigencies are taken care of and regulated by statutory rules. In this respect, Rule 8-A of the Sindh Civil Servants Appointment, Promotion and Transfer) Rules, 1974, empowers the Competent Authority to appoint a Civil Servant on acting charge and current charge basis, it provides that if a post is required to be filled through promotion and the most senior Civil Servant eligible for promotion does not possess the specific length of service, appointment of eligible officer may be made on acting charge basis after obtaining approval of the appropriate Departmental Promotion Committee/Selection Board. Sub-Rule 4 of the afore-referred Rule 8 further provides that appointment on acting charge basis shall be made for vacancies lasting for more than 6 months and for vacancies likely to last for less than six months. Appointment of an officer of a lower scale on higher post on current charge basis is made as a stop-gap arrangement and should not under any circumstances, last for more than 6 months. This acting charge appointment can neither be construed to be an appointment by promotion on regular basis for any D purposes including seniority, nor it confers any vested right for regular appointment. In other words, appointment on current charge basis is purely temporary in nature or stop-gap arrangement, which remains operative for short duration until regular appointment is made against the post. Looking at the scheme of the Sindh Civil Servants Act and Rules framed thereunder, it is crystal clear that there is no scope of appointment of a Civil Servant to a higher grade on OPS basis except resorting to the provisions of Rule 8-A, which provides that in exigencies appointment on acting- charge basis can be made, subject to conditions contained in the Rules. We, in the circumstances, hold that Amanullah Bhayo, who was a junior officer of BS-19 amongst his colleagues, as it appears from the record, was not competent even in exigent o be appointed in BS-20 as, E.D.O. On OPS basis, nor was he otherwise competent being an officer working on OPS basis to exercise powers of BS-20 officer as E.D.O. To issue termination orders of the respondents. The Government cannot confer powers of Competent Authority to Amanullah Bhayo, who was not eligible for promotion and otherwise junior amongst the officers of his scale and cadre working in the department.

14. The above are the reasons for our short order dated 7-2-2014, which reads as under:-- "Heard learned Additional Advocate-General Sindh on behalf of the appellants. For the reasons to be recorded separately, the connected appeals are dismissed, however, with the observations that since the respondents have not performed any duty during the intervening period they will not be entitled for the back benefits from the date of their appointment letters till the judgment of the Tribunal dated 1-8-2013. In addition, it is left open for the appellants that they may take fresh appropriate action against the respondents, if they so chose, but strictly in accordance with law and for this purpose impugned judgment of the Tribunal will not come in their way."