' JUSTICE (R) MUJEEBULLAH SIDDIQUI, CHAIRMAN.---All the above 24 appeals arise out of same set of facts and same point of law has been agitated, therefore, all the appeals are disposed of by this single consolidated judgment.
2. With the consent of learned counsel for the appellant and the learned AAG, Appeal No,1319/2015, Muhammad Asif Dayo v. Government of Sindh and others is treated as leading appeal and the facts are taken from the said appeal.
3. According to the facts contained in the memos. Of appeal the appellants were appointed against the posts of Data Entry Operator, Accountant, Senior Clerk, Junior Clerk, Driver and Naib Qasid by the Executive District Officer (Information Technology) Ghotki at Mirpur Mathelo in the year 2010. All of them joined their duties in the office of Executive District Officer (Information Technology) Ghotki at Mirpur Mathelo. Their service books were prepared and they were regularly receiving their salaries through online system. Subsequently, Sindh Local Government Ordinance, 2001 was repealed. However, the appellants continued to work at their posting place and received salaries upto October, 2012. Thereafter, their salaries were stopped by the District Accounts Officer, Ghotki at Mirpur Mathelo. They approached the respondents for release of their salaries but to no avail. It is contended that after the enforcement of Sindh Local Government Ordinance, 2001 several departments were constituted including Information Technology Department in different Districts of Sindh. After abolishment of Sindh Local Government Ordinance, 2001 in the year 2011 the Commissionerate system was revived and all the appellants along with other employees were put at the disposal of Commissioner, Sukkur Division. However, they have produced copy of letter dated 18.02.2012 written by Section Officer (B&E-IX), Finance Department, Government of Sindh addressed to all the Deputy Commissioners in Sindh which is reproduced below: "No,FD(B&E-IX)1-2/ 2012 Government of Sindh Finance Department ' Karachi dated the 18th February, 2012 ' To, The Deputy Commissioner's in Sindh (All)
' SUBJECT:- PAYMENT OF SALARY AND NON SALARY OF DEFUNCT EXECUTIVE DISTRICT OFFICER INFORMATION TECHNOLOGY (FINANCE AND PLANNING) AND COMMUNITY DEVELOPMENT DEPARTMENT FROM THE FUND CENTER OF CONCERNED DEPUTY COMMISSIONERS.
' I am directed to refer to the subject noted above and to state that competent authority has decided that all the bills of Salary and Non Salary, components including outstanding liabilities of the defunct Executive District Officer (Information Technology) Executive District Officer (Finance and Planning) and Executive District Officer (Community Development Department) etc. May be managed/met out from the funds already released to concerned Deputy Commissioners in Sindh and then approach this department through final list of Excess and Surrenders for the shortfall, if any through Services General Administration and Coordination Department Government of Sindh, under respective object element.
(MUBARAK HUSSAIN)
SECTION OFFICER (B&E-IX)
FOR SECRETARY TO GOVT. OF SINDH"
4. Thereafter on 13.12.2012 Additional Deputy Commissioner-II, Ghotki at Mirpur Mathelo wrote a letter to the Chief Officer District Council District Ghotki at Mirpur Mathelo which reads as follows:- "OFFICE OF THE DEPUTY COMMISSIONER GHOTKI @ MIRPUR MATHELO ' To, ' The Chief Officer District Council ' District Ghotki at Mirpur Mathelo ' Subject: REPATRIATION TO THE PARENT DEPARTMENT.
' This is to bring in your kind notice that the officer/official of office of defunct Executive District Officer (Information Technology) have become surplus after abolition of SLGO, 2001. The office of the Deputy Commissioner has currently no budgetary provision/sanctioned strength to provide them salaries. As per advise of Finance Department Govt. Of Sindh, a total of 26 employees working in the office of EDO (I.T) having their date of appointment after year 2001 are being placed at the disposal of your good office payment of salaries and for further necessary action as per law please.
(Mehtab Waseem Azhar)
Additional Deputy Commissioner-II"
5. Prior to that the Project Director, Introduction of Information Technology in District Administration wrote a letter to the Executive District Officer (Information Technology) District Government Ghotki on 05.10.2011 stating that the Information Technology Department, Government of Sindh has already handed-over the Hardware, MIS, Human Resources and Website provided under the Project, "Introduction of IT in District Administration" to the District Government Ghotki. It was further stated that Government of Sindh invested a big amount on the infrastructure including the expenditure for the capacity of building of the project staff. It was further recommended that District Government Ghotki should continue the same staff for future implementation and execution of MIS applications. It was further stated that the continuation of project staff is in the interest of public because Sindh Government has invested in their capacity building and District Government is already satisfied with their progress. On 10.12.2011 the Finance Department intimated the Deputy Commisioner District Ghotki that budget for the month of November, 2011 during Financial Year 2011-12 by way of re-appropriation of funds from the lumpsum provision kept under the head of account "SC21045 (045) Grands and Subventions-01-General Public Service-014- Transfers-0141-Transfers (Inter-Governmental)-014102-To District Government-KA-4735-Grants to Local Bodies in Sindh-A05023-To District Government-5-Local Government (District Govts.
TMAs/UAs) and will be debitable under the head of account "SC21001- Organ of State (Ex. Law Depts and others)019120-Others (Information Technology Department)" during the current financial year 2011-12. On 23.11.2011 the Finance Department wrote a letter to the Administrative Secretary/ Principal Accounting Officer, Government of Sindh Information Technology Department which reads as follows:- "No,F.D(B&E-IX)I-I/ 2011-12 Government of Sindh Finance Department ' Karachi dated the 23rd November, 2011 ' To, The Administrative Secretary/ Principal Accounting Officer, Government of Sindh, Information Technology Department, Karachi.
' Subject: COMMUNICATION OF BUDGET ESTIMATES 2011-12 OF REVIVAL OF COMMISSIONERATE SYSTEM.
' I am directed to refer to the captioned subject.
' Consequent to the revival of Commissionerate System, Finance Department agrees to release funds amounting to Rs,12,970,100/- (Rupees Twelve million nine hundred seventy thousand only) being one month salary/Non Salary Expenditure for the month of November 2011 of devolved information Technology offices for further disbursement, during the current financial year 2011-12, details thereof are at (Annexure-I).
2. It may be clarified that all the Cost Centers/DDOs as they existed under repealed SLGO, 2001 have been allocated provisionally for transition phase and adjustment of posts, allocations and cost centers. The Administrative Department will submit their comprehensive proposal under revived set-up.
3. The Expenditure of Rs, 12,970,100/- has been sanctioned by way of re-appropriation of funds from the lump-sum provision of Rs,135,171,078,000/- kept under the Head of Account "SC21045(045)
Grants and Subventions 01 General Public Service-014-Transfers-0141- Transfers (Inter Governmental)- 014102-To District Government-KA4735- Grants to Local Bodies in Sindh-A05023- To District Government-5- Local Government (District Govts. TMAs/UAs)" and will be debitable under the head of account "SC21001-Organ of State (Ex. Law Deptt. And others)-019120-other (Information Technology Department)" during the current financial year 2011-12.
4. Administrative Department must ensure that post-wise details of Employees Related Expenditure, object wise details of Operating Expenses and other relevant expenditure of all Information Technology Department Offices which come under the jurisdiction of respective DDOs may be sent to this Department of maintaining proper record.
5. Administrative Department is requested to communicate the details of descriptions IDDOs/Operating Officers for Cost Center created in the budget of defunct District/Local Government, with respect to their subordinate Organization/Offices at Division, District, Taluka level at the earliest to avert any communication gaps.
6. Administrative Department may also carry out an exercise for rationalizing the sanctioned strength for each office/ Establishment/Cost Center with an objective to maintain/retain manageable number of Funds/Cost Center without adversely affecting the best practices of financial management.
7. Preferably .One cost center may be identified/allocated for each establishment/office/DDO/Function and the strength of officers and staff may be incorporated therein so that entire process is streamlined in budget for next financial year. The other terms and conditions/ policy decision communicated in this Department's letter of even number dated July 5, 2011 and the instructions issued from time to time, shall however remain the same and should be adhered to. Section Officer (B&E-IX,)
For Secretary to Govt. Of Sindh"
6. The appellants approached the Chief Officer District Council Ghotki at Mirpur Mathelo but he refused to accept the appellants by saying that they were appointed in IT Department and they will not be accepted. The appellants then approached Deputy Commissioner Ghotki at Mirpur Mathelo who requested the Secretary Finance for release of funds. The problem was not resolved and, therefore, the appellants filed petition before the High Court of Sindh Bench at Sukkur being C.P.
No,D-106/2013. The petition was allowed by Hon'ble High Court Bench at Sukkur vide, judgment dated 05.11.2014. The Hon'ble Judges of the High Court took notice of the directives of the Chief Minister Sindh which were issued to the Secretary,. Services and General Administration Department, Government of Sindh. The Chief Minister had ordered that the appellants should be adjusted as they were regular employees. The Hon'ble High Court held that all the appellants were appointed after completing all the formalities. The Hon'ble High Court further held that the stopping of salaries of the appellants was violative of their fundamental right as they were willing to work at any other department if their services have become surplus. The respondents and the Finance Department, Government of Sindh were directed to release the salaries of the appellants.
7. The Government of Sindh preferred appeal before the Hon'ble Supreme Court. It was contended before the Hon'ble Supreme Court that the appointments were made by the then EDO (IT), Asghar Mujahid Mahar, who was not from IT Department and on promotion has been appointed as Assistant Professor in the Education Department. It was further contended that SNE was held in 2005 and 2006 but the posts were abolished before the appointment of the respondents. It was informed to the Hon'ble Supreme Court that no action was taken against the then EDO (IT). The Hon'ble Supreme Court observed as follows:- "it is strange that the officers by abusing their authority make appointment in such manner which the law does not permit and the government files appeals without initiating departmental proceeding against such officers."
' The Hon'ble Supreme Court directed the competent authority to initiate departmental proceedings against the then EDO (IT) for prima facie misusing or abusing his authority in appointing the respondents, which has resulted loss to the Public Exchequer and the government through Advocate General/Additional Advocate General shall report back the outcome of the proposed departmental proceedings for the perusal of Hon'ble Judges of Supreme Court in Chambers. The learned counsel for the appellants submitted before the Hon'ble Supreme Court that they were still working and were transferred in 2012 on their becoming surplus employees to the office of Deputy Commissioner. The Hon'ble Supreme Court ultimately held that the High Court had no jurisdiction to adjudicate the issue pertaining to the terms and conditions of civil servants in view of bar under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, the Hon'ble Supreme Court converting the petition into appeal set aside the judgment of High Court of Sindh, Sukkur Bench and remanded the case to the Sindh Service Tribunal treating the Constitution Petition of the appellant as departmental appeal and the comments of the department as order of the departmental appeal. It was directed that the Service Tribunal may record the findings inter alia on the issue of appointment of appellants or otherwise and decide the matter in accordance with law.
8. A common petition was filed before the High Court against which appeal was preferred before Supreme Court. In service matters, appeals are required to be filed individually and separately, therefore, the appellants were directed to file separate memo of appeals which has been done. It is stated in the grounds that all the appellants were appointed as permanent employees and they received their salaries until October, 2012. Thereafter, they have been running from pillar to post but to no avail except the correspondence between the officials. It is submitted that all the appellants are permanent employees and are still in job and therefore, they are entitled to release of their salaries. It is alleged that the Chief Minister of 'Sindh passed order dated 12.09.2013 directing that the appellants may be adjusted which is reproduced below:- CHIEF MINISTER'S SECRETARIAT, SINDH KARACHI ' No,SO(IMP-IV)/CMS/PA/1-07/2013 Karachi dated 12th September, 2013 ' The Secretary (Services)
' Services General Administration and ' Coordination Department Governments of Sindh, Karachi.
' Subject: LIST OF REGULAR STAFF 0/0 THE DEFUNCT EXECUTIVE DISTRICT OFFICER (IT) GHOTKI AT MIRPUR MATHELO.
I am direct to forward herewith a copy of list of employees (in original) received from employees of the Defunct Executive District Officer (IT). Ghotki at Mirpur Mathelo on the subject noted above.
The Honourable Chief Minister Sindh has been pleased to pass the following directives/ orders on the same.
' It is said that they are regular Employees ' They must be adjusted and report Sd/- ' Chief Minister, Sindh ' Dated 08.09.2013 ' Further necessary action may please be taken in light of the above directives as per rules/policy, under intimation to this secretariat at the earliest.
Sd/- (MUHAMMAD ANWAR-UL-HAQ) Additional Secretary (IMP)"
9. The appellants have referred to two letters written by Deputy Commissioner, Ghotki at Mirpur Mathelo to the Secretary Finance Department dated 21.05.2013 and 04.06.2013 wherein it is stated that 26 employees of defunct EDO (IT), Ghotki at Mirpur Mathelo were appointed by the EDO (IT)
Ghotki on regular basis after fulfillment of all codal formalities and were working against the sanctioned posts since October, 2010. It is further stated that the said posts were sanctioned by Secretary, Finance Department vide letter dated 13.05.2005. It is further stated in the letter that salaries of said employees of the defunct Executive District Officer (Information Technology) Ghotki at Mirpur Mathelo have been stopped by the District Accounts Officer, Ghotki since 01.11.2012 due to non release of funds. It is further stated in the letters that the Finance Secretary issued a letter to all Deputy Commissioners according to which the payment of salaries to employees of all defunct EDOs may be met out from the head of accounts of concerned Deputy Commissioner vide letter dated 18.02.2012. It was further requested that the budget/funds may be released under salary component as per demand to the fund center of Deputy Commissioner Ghotki for the year 2012-13 so that the pending bills/liabilities of salaries may be cleared and paid to the employees of defunct EDO (IT) in the best interest of public. In both the letters it was requested that the concerned staff of defunct EDO (IT) Ghotki along with sanctioned posts may be transferred to the Revenue Department Ghotki at the earliest.
10. The appellants have prayed that directions be issued for release of their salaries along with arrears and the respondents may utilize their services in their respective posts and scales.
11. As already observed, the Hon'ble Supreme Court vide order dated 24.07.2015 treated the Constitution Petition filed by the appellant as departmental appeal and the comments by the department as order of the departmental appeals, therefore, now we come to the written statements/comments filed by the respondents.
12. The respondent No,1, Secretary Finance, has stated in the written statement that Finance Department has imposed ban on appointment on contingency basis. However in case of urgency Administrative Departments were advised that if appointment is necessary on contingency basis it should be made against sanctioned posts with the approval of Finance Department. Copies of two letters have been produced. The first letter is dated 10.03.1994 under the subject conversion of work charge/contingent paid establishment into regular establishment. It is stated in the letter that as per directions of Prime Minister of Pakistan issued during her visit to Larkana in January, 1994 all such work charge/contingent paid employees are to be regularized. It is further stated in the letter that with the approval of competent authority, all the department; and officers under which such employees are working are requested to scrutinize all such cases with financial implications for getting the required posts in the budget for regularization of such employees w.e.f, 01.07.1994 by constituting a committee to submit and verify list of eligible workers to Finance Department who fulfilled the following conditions:-
(i) who rendered five years or more than five years continuous service as directed by the Prime Minister and the duties performed by them are of permanent nature.
(ii) who possess valid NIC.
' It is further stated in the letter that in future no such work charge/contingent basis appointment shall be made and audit/accounts officers should not entertain bills from ADs in future without specific approval of the Finance Department for each post if required with full justification. In the letter dated 25.09.2013 addressed to all Administrative Secretaries, the Finance Department has drawn attention to the letter dated 10.03.1994 and another letter dated 10.03.2011 regarding appointment of staff on contingency basis whereby Finance Department has imposed ban on appointment on contingency basis. It is further stated in the letter that in order to avoid legal lacuna and un-due financial liabilities, it was again advised that no appointments are made against un-sanctioned posts and against sanctioned posts on contingency basis without specific approval of Finance Department for each post. It is further stated that in this particular case EDO (IT). Before offering appointment letter on temporary basis made no correspondence with the Finance Department and the directions/instructions of the Finance Department were not taken into account which make him liable to disciplinary action under the relevant rules. It is further stated that the District Accounts Officer, Ghotki at Mirpur Mathelo has stated in his comments that salaries of petitioners have been drawn upto October, 2012 which was stopped after discussion and verbal advice of Finance Department, Government of Sindh as the budget and sanctioned strength of the EDO (IT) was not provided/approved by the Finance Department during the Financial year 2012-13.
It is stated that salary of appellants were managed by the then District Government and no advice was issued from the Finance Department. It is further stated that the Finance Department is nowhere in the picture through out the appointment process and onward. The EDO (IT) made appointments, purely on temporary basis without observing the codal formalities which does not make the appellants entitled for appointment on regular basis. It is further stated that, however, if deemed necessary the matter may be taken up with the Services, General Administration and Coordination Department as the domain of appointment, promotion etc. Rests with Services, General Administration and Coordination Department.
13. The Secretary, Information Technology Department, Government of Sindh has stated in his written statement that the Information Technology Department is an administrative department of Government of Sindh at provincial level. The then District Government was a tier of government.
The Executive District Officer (Information Technology) of the then District Government was not working under the administrative control of Information Technology Department. The Executive District Officers (Information Technology) of the then District/City Government were working under the administrative control of the then District Coordination Officer. It is further stated that the appointments made by the then Executive District Officer (Information Technology) Ghotki of the then District Government was not concerned with Information Technology Department, Government of Sindh.
14. The respondent Deputy Commissioner, Ghotki at Mirpur Mathelo has stated in his comments that the appellants were appointed by the then Executive District Officer (Information Technology) himself. It is further stated that due to abolition of Local Government System (SEGO, 2001) salaries of the appellants were stopped by the District Accounts Officer. In order to resolve the issue the matter was consulted with Section Officer (B&E-VII) and in the light of his verbal advice the employees of the IT Department with date of appointment before 2001 were referred to their parent administrative department vide letter dated 13.12.2012. This letter is addressed to the Secretary to Government of Sindh, Education and Literacy Department under the subject repatriation to the parent department. It is stated in the letter that the officers/officials of the office of defunct Executive District Officer (Information Technology) have become surplus after abolition of Sindh Local Government Ordinance, 2001 The office of the Deputy Commissioner has currently no budgetary provisions/sanctioned strength to provide their salaries, therefore, two officials of the Education Department working in the office of the defunct Executive District Officer (Information Technology) having their dates of appointment before 2001 are being repatriated to Education Department for absorption and payment of salaries. The two officials are named as 'Ali Gul Soomro, Assistant appointed on 13.07.1992 and Nazir Ahmed Chejan, Naib-Qasid appointed on 01.07.1989. It appears that they were transferred from the Education Department. It is pertinent to observe that these two officials who were repatriated to their parent department are not included in the list of appellants. It is further stated by the Deputy Commissioner Ghotki that while those with date of appointment after 2001 were referred to Chief Officer, District Council Ghotki at Mirpur Mathelo for absorption and payment of salaries vide letter dated 13.12.2012. In this letter, the Deputy Commissioner has informed the Chief Officer District Council Ghotki that the officers/officials of the office of the defunct Executive District Officer (Information Technology) have become surplus after abolition of Sindh Local Government Ordinance, 2001. The office of the Deputy Commissioner has currently no budgetary provision/sanctioned strength to provide them salaries. As per advice of the Finance Department, Government of Sindh a total of 26 employees in the office of Executive District Officer (Information Technology) having their dates of appointment after 2001 are being placed at his disposal for payment of salaries and for further necessary action as per law. It is further stated that the matter was brought to the notice of Finance Department, Government of Sindh vide letters dated 21.05.2013 and 04.06.2013 requesting for release of funds under the salary component of funds as per demand of the fund center of Deputy Commissioner Ghotki and transfer of concerned staff of Executive District Officer (Information Technology) Ghotki to the Revenue Department along with sanctioned strength posts. It is further stated that the Finance Department referred the matter to Secretary, (Services) SGA&C Department, Government of Sindh vide letter No, FD/ SO(B&EVII) 10(21)DC-GH/2011-12 (1326). Reference has been made to paras Nos.2, 3, 4, 5 and 6 of the said letter which reads as follows:- "2. Finance Department issued concurrence of creation of Information Technology Department in all Districts from financial year 2005-06 having strength of Ten (10) officers and twenty eight (28) officials through District S.N.E subject to condition that funds/expenditure will be met out from District Government. These posts were intact on system without filling of posts and were slashed from Financial Year 2010-11 as verified by Incharge PIFRA System-II.
3. After withdrawal /slashed of these post District Administration made appointment from July, 2010 to November 2011 (copy of list furnished by Deputy commissioner enclosed).
4. The recruited employees were paid salary from District Government Budget upto 30-6-2012 which existed from transition period and settlement of employees in the District Administration, as well as District Council. After closure of District fund centers, these employees could not get salary.
The Deputy Commissioner, Ghotki has requested for provision of funds and transfer of these post to Board of Revenue.
5. Finance Department observes that EDO(IT) (now defunct) Ghotki made appointments without lawful authority as these posts did not exist and at the time of appointment, District Government stood repealed. Further, standard recruitment rules were not followed as the post of Sr. Clerk is filled in only by promotion rather than through initial recruitment. Similarly Technical qualification was not considered for the post of Data Entry Operator. Besides, Information Department, was not involved in devolution era, therefore these officials stands nowhere as they cannot report to information Technology Department and Information Technology Department has informed that DCO has hired these services without consulting I.T. Department.
6. If Finance Department consider request of Deputy Commissioner Ghotki regarding providing funds and transfer of these posts to Board of Revenue, it would be regularization of irregular act of defunct EDO (I.T), as such SGA&C Department is requested to constitute an enquiry committee to probe in the matter of appointment of I.T. Staff in all the Districts without existence of posts and following recruitment rules and submit recommendation to Chief Secretary for final decision."
15. The respondent No,3, District Accounts Officer, Ghotki has stated in the comments that the salaries of the petitioners were drawn upto October, 2012 and were stopped thereafter, in pursuance of discussion and verbal advice of the Finance Department, Government of Sindh as the budget and sanctioned strength of EDO (IT) District Ghotki was not provided/approved by the Finance Department during the financial year 2012-13.
16. The respondent No,4, Chief Officer District Council, District Ghotki has stated that in reply to the Deputy Commissioner's letter dated 13.12.2012 a letter was written to the Secretary, Finance Department, Government of Sindh mentioning that for payment of salaries of 26 employees an amount of Rs,60,00,000/- (Rupees Sixty Lacs) per year was required which was not provided/sanctioned and, therefore, it was not possible for them to pay the salaries without any grant.
17. We have heard Mr. Mehta Naresh Nath Kohli, learned counsel for the appellants and Mr. S. Kamil Shah, learned AAG for the respondents.
18. Mr. Kohli has submitted that the issue involved is very simple but the respondents have unnecessarily confused the entire issue. He has submitted that the Secretary Finance has unnecessarily referred to two letters dated 10.03.1994 and 25.09.2013 which pertain to the appointment on contingency basis, while all the appellants were appointed on regular basis and none of them was appointed on contingency basis which is evident from the perusal of their appointment letters. He has further placed reliance on the advertisement in the Newspaper Daily Yadgar, Sukkur and Daily Pak Sindh, Sukkur. This advertisement was published at the instance of Mr. Asghar Mujahid Mahar, Executive District Officer Ghotki at Mirpur Mathelo and it is nowhere written in the advertisement that the appointments were to be made on contingency basis or work charge basis. He has further submitted that the respondents have concealed the real facts by alleging that there was no sanctioned budget for the post against which the appellants were appointed. He has submitted that when the matter was pending before High Court at Sukkur a rejoinder was filed on the comments of the then respondent No,2 and it was specifically stated that all the posts against which the appellants were appointed were sanctioned post and budget was also released for salaries for the years 2010, 2011 2012. It was further stated in the rejoinder that the Deputy Commissioner Ghotki verified the regular staff of the defunct Executive District Officer (Information Technology) Ghotki and thereafter issued letter to the Finance Department which was counter signed by ADC-II on 12.12.2012 regarding the regular posts of the appellants. It is further stated in the rejoinder dated 22.08.2013 that the Secretary, Finance Department issued letter dated 18.02.2012 to all the Deputy Commissioners in Sindh regarding the release of salaries to the employees of department. It is further stated that all the appellants are still working but salaries are not being paid to them. He has further referred to the comments filed by the Deputy Commissioner Ghotki in the High Court wherein it is clearly stated that due to abolition of Local Government System (SLGO, 2001) the salaries of the appellants were stopped by the District Accounts Officer and in order to resolve the issue the matter was consulted with the Finance Department. The Deputy Commissioner further stated in his comments filed before the High Court that two employees who were appointed before 2001 and were transferred from Education Department to the office of Executive District Officer (Information Technology) Ghotki were repatriated while remaining employees were referred to the Chief Officer District Council Ghotki for absorption and payment of salaries. He has submitted that it has not been stated in any comments that the appointments of the appellants were illegal or unauthorized. He has further argued that it was wrongly stated before the Hon'ble Supreme Court on behalf of provincial government and the Additional Finance Secretary that the posts were abolished before the appointment of the respondents. The correct facts are narrated in the comments filed on behalf of Deputy Commissioner, Ghotki. He has stated in reply to paras Nos.32 and 33 that due to abolition of Local Government System (SLGO, 2001) the salaries of the appellants were stopped by the District Accounts Officer and in order to resolve the issue the Deputy Commissioner repatriated two employees of the Education Department who were posted by transfer and the remaining employees were referred to the then Chief Officer District Council Ghotki at Mirpur Mathelo for absorption and payment of salaries. The learned counsel for the appellant has vehemently argued that if there were no budgetary provisions and the posts were not sanctioned how the appellants were paid their salaries upto October, 2012 as stated in the parawise comments of District Accounts Officer, Ghotki. He has vehemently argued that the correct facts are discovered from the comments filed on behalf of respondents according to which the appellants were appointed by the Executive District Officer (Information Technology) Ghotki under the Sindh Local Government Ordinance, 2001 and were paid salaries upto October, 2012. They were employees of the District Government Ghotki and therefore, after repeal of the Sindh Local Government Ordinance, 2001 in the year 2011 and the revival of commissionerate system the appellants became surplus. This fact is admitted by the Finance Department while referring matter to the Secretary (Services), Government of Sindh to the effect that Finance Department had issued concurrence of creation of Information Technology Department in all Districts from financial year 2005-06 subject to the conditions that the funds and expenditure will be met out from District Government. However, it is wrongly stated that the posts were slashed from the financial year 2010- 11 as in the same letter the Finance Department has clearly stated that the recruited employees were paid salaries from District Government budget upto 30.06.2012 while the District Accounts Officer has submitted that salaries were paid to the appellant, upto October, 2012. He has submitted that in fact the appellants were employees of the Executive District Officer (Information Technology) Ghotki and with the repeal of Sindh Local Government Ordinance, 2001 in the year 2011 the said office became defunct and the employees were rendered surplus. He has vehemently argued that it was not stated by any respondent in their comments in the High Court which are to be treated as orders of the respondents in pursuance of the order of Hon'ble Supreme Court dated 24.07.2015, that any illegality was committed in the appointment of the appellants. It is admitted fact that all the appellants were appointed on regular basis after completion of all the formalities and they were being paid their salaries without any let or hindrance and, therefore, in the changed circumstances they were required to be dealt with in accordance with rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. He has submitted that none of the respondents have denied that the office of the Executive District Officer (Information Technology)
Ghotki was government department and when this department was abolished the appellants were required to be appointed to any post in any government department or office in accordance with rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974.
19. The learned AAG has though opposed the appeals but he is not able to deny the contentions of the learned counsel for appellant.
20. After giving very anxious considerations to the entire facts on record it is held that appellants were admittedly appointed on regular basis by the then Executive District Officer (Information Technology) Ghotki after completion of all the codal formalities. All the appellants were performing their duties and were getting their salaries upto October, 2012. On account of repeal of the Sindh Local Government Ordinance, 2001 and abolition of the department and the posts, they were rendered surplus. It is evident from the comments of the Deputy Commissioner Ghotki who has stated in reply to paras Nos.32 and 33 of the petition that he referred the appellants to the Chief Officer District Council Ghotki at Mirpur Mathelo for absorption and payment of salary. Thus it is admitted fact that the appellants were required to be absorbed but the procedure adopted by the Deputy Commissioner was not in accordance with the law. The appellants were required to be treated in accordance with the provisions contained in rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 which reads as follows:- "9-A. Notwithstanding anything contained in these rules, a person who has been rendered surplus, on account of abolition of a post he was holding in any office or department of the Government or, any autonomous body or, on account of permanently taking over the admission of such autonomous body wholly or partially by the Government, may be appointed to any post in any Department or office of the Government, provided that--
(i) such persons possesses each qualifications :as are laid down under rule 3(2), for appointment to such post;
(ii) such person shall be appointed to a post of equivalent or comparable Basic Scale and if such post is not available, then to a post of lower Basic Scale;
(iii) seniority of such person in the new cadre shall be reckoned from the date of appointment in that cadre; and
(iv) previous service, if not pensionable, shall not count for pension and gratuity unless Government directs otherwise."
21. The Deputy Commissioner, Ghotki has further requested to the Secretary, Finance Department vide his letters dated 21.05.2013 and 04.06.2013 that all the appellants were appointed on regular basis after fulfillment of all codal formalities and were working against sanctioned posts since October, 2010 and the said posts were sanctioned by the Finance Department. It was further stated that the salaries of the appellants were stopped by the District Accounts Officer, Ghotki from 01.11.2012 due to non-release of funds. The Deputy Commissioner also referred the letters of the Finance Department to all the Deputy Commissioners for payment of salaries to employees of all defunct EDOs and to meet out from the head of accounts of concerned Deputy Commissioner vide letter dated 18.02.2012. The Deputy Commissioner further requested to the Finance Department that the budget/funds may kindly be released under the salary component as per demand to the fund centre of Deputy Commissioner, Ghotki for the year 2012-13 so that the pending bills/liabilities of salaries may be cleared/paid to all the employees of defunct EDOs. The Deputy Commissioner further requested that the staff of EDO (IT) Ghotki along with sanctioned strength may be transferred to the Revenue Department Ghotki at the earliest. We find that the sole reason for stopping the salary of the appellants was that no funds were available with the Deputy Commissioner after abolition of the office of Executive District Officer (Information Technology)
Ghotki.
22. We have considered the contents of the letter written by Finance Department to the Secretary (Services) wherein it is written that the posts were created in the Information Technology Department in all districts with the concurrence of Finance Department and that on account of non-filling of the post they were slashed from the Financial Year 2010-11. It is admitted position that all the appellants were appointed in the year 2010-11. It merely means that the appellants were being paid salary not from the budget of Information Technology Department but from the budget of District Government upto 30.06.2012 which existed for transition period and settlement of employees in the District Administration as well as District Council. The Finance Department itself has written that after closure of District fund centers the employees could not get salaries. It is stated in the letter of Finance Department that the appointments were made without lawful authority as these posts did not exist and at the time of appointment District Government stood repealed. This fact is incorrect as the appellants were appointed in the year 2010 and the Sindh Local Government Ordinance, 2001 was repealed in the year 2011. The letter of the Finance Department referred to in the comments of the Deputy Commissioner, Ghotki further contains that standard recruitment rules were not followed as the post of Senior Clerk is filled in only by promotion rather than through initial recruitment. Similarly Technical qualification was not considered for the post of Data Entry Operator. The Finance Department has ignored the fact that the Information Technology Department in the District was a newly created department, therefore, there was no question of filling any post by promotion. A perusal of the advertisement shows that the requirement for Data Entry Operator was possessing Bachelor Degree in second class and one
(01) year Diploma in Information Technology from recognized university/institution having 1 year experience in Computer Operator. It is further contended in the letter of Finance Department addressed to the Secretary (Services) that Information Technology Department was not involved in devolution era, therefore, these officials stand nowhere as they cannot report to Information Technology Department and Information Technology Department has informed that DCO had hired these services without consulting Information Technology Department. This merely shows that with the abolition of office of Executive District Officer (Information Technology) Ghotki the appellants have been rendered surplus and are required to be dealt with in accordance with rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. Although no illegality has been brought on record in the appointment of appellants, however, if there is any illegality it cannot be eliminated by committing another bigger illegality. If there is any illegality/irregularity it has to be dealt with in accordance with the law prevailing for the time being in force. The appellants are admitted to have been appointed on regular basis after completion of all the codal formalities but if there is any wrong, the appellants are required to be dealt with in accordance with the law, as it is provided in Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 that to enjoy the protection of law and to be treated in accordance with the law is the inalienable right of every citizen, wherever he may be, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with the law. It is provided in section 3(e) of the Removal from Service (Special Powers) Sindh Ordinance, 2000 that if in the opinion of the competent authority a person in government service is found to have been appointed on extraneous grounds in violation of law and the relevant rules, the competent authority, after inquiry by an inquiry officer or the inquiry committee appointed under section 5, may, notwithstanding anything contained in any other law or the terms and conditions of service of such person by order in writing dismiss or remove such person from service, compulsorily retire from service, or reduce him to lower post or pay scale, or recover from pay/pension any other amount payable to him, the whole or a part of any pecuniary loss caused to the organization in which he was employed or impose one or more minor penalties as prescribed in the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973. Without recourse to law the salary of any government servant cannot be withheld.
23. It is admitted position that all the appellants were appointed on regular basis prior to the repeal of the Sindh Local Government Ordinance, 2001 w.e.f, 15.07.2011. It was provided in section 4 of the above repealing Act as follows:- "Notwithstanding the repeal of the Sindh Local Government Ordinance, 2001 (Ordinance No,XXVII of 2001), all orders made (including rules, bye-laws, regulations and notifications and other legal instruments), proceedings taken, appointments made, acts done by any authority or any person, which were made, taken or done, or purported to have been made, taken or done thereunder, between the sixth day of August, 2001 and the date on which this Act comes into force (both days inclusive), shall continue to remain in force, until altered, repealed or amended by the Chief Minister or any authority or officer, authorized by him."
24. By virtue of the above provision all the appointment orders of the appellants are intact and shall continue to remain in force, until altered or amended by the Chief Minister or any authority or officer authorized by him. It is to be read with the order of Chief Minister dated 08.09.2013 to the effect that the appellants who are regular employees must be adjusted.
25. If any appointment order is bogus or fake or has been issued/obtained by fraudulent means, maneuvering or in violation of law it shall not confer any right, title or status on the holder of such appointment order for the simple reason that a fraud vitiates even a most sacrosanct act from its very inception. However, if an appointment order has been made on regular basis, by competent authority on completion of all the codal formalities as it appears to have been done in the case of appellants, such appointment cannot be nullified and the holders of such appointment orders cannot be deprived of their right, title and status of a civil servant conferred on them by mere stoppage of salary for the reason that in the facts and circumstances of this case the Finance Department or the Services and General Administration Department failed to deal with the appellants in accordance with the law and by not providing the funds. Under the terms and conditions of service of the appellants flowing from their regular appointment orders read with the provisions contained in rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer)
Rules, 1974 the appellants are entitled to be treated in accordance with the provisions contained in rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974.
26. For the foregoing reasons, all the above appeals are allowed in the following terms:-
1. It is held that all the appellants were appointed by the competent F authority, the Executive District Officer (Information Technology) Ghotki at Mirpur Mathelo on regular basis.
2. They were paid their salaries upto October, 2012 against the sanctioned posts.
3. They have been rendered surplus after the abolition of the office of Executive District Officer (Information Technology) Ghotki at Mirpur Mathelo on account of repeal of the Sindh Local Government Ordinance, 2001 and therefore, they are required to be dealt with in accordance with the provisions contained in rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974.
4. The Services Department, Government of Sindh is directed to place the services of all the appellants in surplus pool and they may be absorbed and posted in accordance with the provisions contained in rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer)
Rules, 1974.
5. The Secretary (Services), Government of Sindh and the Secretary Finance, Government of Sindh in consultation with each other shall make necessary arrangement and provide fund for payment of salaries to the appellants with effect from 01.11.2012 onward. Necessary arrangement shall be made for payment of arrears of salary to the appellants and their current and future salaries in accordance with the law.
If the Finance Department, Services and General Administration Department and Information Technology Department have any reservation about the legality of appointment of the appellants they are at liberty to initiate appropriate proceedings strictly in accordance with the provisions contained in the Removal from Service (Special Powers) Sindh Ordinance, 2000 but after their absorption/adjustment and payment of their arrears and salaries and back benefits.