' A.
0. RAZIUR RAHMAN (MEMBER).-By an order dated 17th February, 1974 the Commissioner and Resident for the Northern Areas appointed Mr. Sultan Muhammad Shah, the appellant, as Assistant Director Basic Democracies and posted him to Baltistan (Skardu) against an existing vacancy in the usual scale of pay and allowances admissible under the rules, under the Temporary Government Servants (Employment) Rules.
1965. On April, 23, 1979, the Kashmir Affairs and Northern Affairs Division of the Government of Pakistan issued an order announcing that the competent authority had decided under section 12-A of the Civil Servants Act, 1973, to terminate the services of the appellant and another officer, Mr. Muhammad Nasir, Development Officer. After some time, I e., on 27th August, 1979, the above orders were cancelled, with the result that the appellant stood re-instated in service. However by a subsequent order dated 17th November, 1979 the Commissioner. Northern Areas, once again terminated the services of the appellant, with effect from 30th November, 1979 (A.N.). In this order, it was also stated that the period, between the earlier termination of his service and 30th November, 1979, was to be treated as leave on average pay subject to title. Against this revised order, the appellant made a representation to the Kashmir Affairs and Northern Affairs Division, which was rejected, under a Memorandum dated 3rd April, 1980, issued by that Division. Against this order of the Kashmir Affairs and Northern Affairs Division the appellant has come up before the Tribunal.
2. We have heard both the parties and perused the documents produced before us. Although the original termination conveyed by the Kashmir Affairs and Northern Affairs Division on April, 23, 1979 was made under section 12.A, after revision of incompetent/political appointments in the Northern Areas, it appears to have been cancelled after representation has been made by the appellant to the President who was then Incharge of the Kashmir Affairs and Northern Affairs Division. It is, however, not clear whether cancellation was made as a result of the representation or for some other reasons. On behalf of respondent No. 1, the Commissioner, Northern Areas, Gilgit it has not been indicated why and on whose instructions the termination orders, originally issued, were cancelled. However, according to the written statement filed by the Kashmir Affairs and Northern Affairs Division, the cancellation of the order was made because on the exclusion of all posts upto Grade 16 from the purview of the review proceedings under section 12-A of the Civil Servants Act, but subsequently, in pursuance of the President's directive for economy in administration, action was taken for the retirement of the following categories of employees who had reached their ceiling :
(a) Those who had rendered more than 25 years' service.
(b) Those who had reached the maximum of time scale of their pay and there was no likelihood' of their being taken in the higher scale.
(c) Those who were considered to have reached their ceiling of efficiency and were unfit for promotion retention.
' According to the Kashmir Affairs and Northern Affairs Division, the appellant's case fell in the third category, because he did not possess the qualifications required under the rules for appointment to the post of Assistant Director, Basic Democracies and, therefore, his appointment in that capacity in 1973 was lab initio wrong and improper and, since the said appointment was made under the Temporary Government Servants (Employment) Rules, 1965, his appointment could be terminated by the competent authority after giving him 14 days' notice. Since this was done in the present case, it has been claimed that the removal was both justified and correct according to law.
3. As against the above, it has been claimed by the Appellant that he had quite a good record of performance and of service to the cause of Pakistan did of the liberation of the Northern Areas at the time of Independence, and immediately afterwards, in raising the Civil Administration in the area, that he also rendered service as Public Relations Officer for a period of one year and as Supervisor of Basic Democracies for 5 years. From 16th October, 1966 to 14th October, 1971. He has also claimed that the lack of educational qualification was shared by other employees under the Commissioner, Northern Area and, therefore, he should not have been singled out for termination of service. In this connection, he has cited the names of two Persons. Mr. Niat Khan, Assistant Settlement Officer (NPS-l7) and Raja Muzaffar-ul- Din Shah, Deputy Superintendent Jails, Gilgit (NPS-16) were both alleged to be only Middle Passed persons. Neither of the respondents has contested this statement made by the appellant, which leads us to believe it to be true.
4. Considering the circumstances of the case, it is clear that, although the appellant's services were terminated under section 12-A of Civil Servants Act, 1973 as a result of review of appointments made between 1st July, 1972 and 5th July, 1977, the termination was cancelled under the general order issued by the President, exempting Grade 16 employees from the purview of the review proceedings under section 12 A of the Civil Servants Act, 1973. However, after some time the question of retirement of other categories of persons listed at (a), (b) and (c) of paragraph 2 above was taken up. The first category was of those who had rendered more than 25 years of service. Such of them as were no longer considered suitable for retention were to be retired from service. The appellant had not rendered more than 25 years of service and he was not retired.
Therefore, it cannot be said that his removal from service was undertaken in pursuance of the President's directive relating to category (a). He could also not be retired under category (b), because he had neither reached the time-scale of his pay, nor was there any rule or law available to enable the authorities to terminate the services of those who had reached the time-scale of their pay and there was no likelihood of their being taken in the higher scale. However, action against him was possible under the category (c), if he were considered to have reached his ceiling and to be unfit for promotion/ retention, and it could have been undertaken by resorting to the procedure prescribed in this behalf in the Government Servants (Efficiency and Discipline) Rules, 1973, vide rules 5 and 6 of the said Rules. But, this was not done. Instead, the concerned authorities, after having recalled their earlier orders of termination of service under section 12-A of the Civil Servants Act, 1973, took action again under the same provision of law, because, in their opinion, his original appointment in 1973 was irregular and against the rules and he did not fulfil the requisite qualifications in this behalf. In this way, these authorities not only revived their original order of termination but also went against the declared policy and directive of the Government embodied in the Cabinet decision, by which employees of Grade 16 were exempted from the review proceedings of political/incompetent appointments made between January 1st, 1972 and July 5, 1977. Besides, it has been alleged, and not denied by the respondents, that discrimination was exercised in this connection and that the appellant was singled out for termination of service, while others similarly lacking in qualification were retained.
5. However, as the circumstances in, and the grounds for, which the appellant was removed from service still remained shrouded in mystery, we sent for the relevant record from the Kashmir Affairs and Northern Affairs Division. The file (bearing No. E 11.2/63/79 of the Kashmir Affairs Division), entitled "Recruitment of officers/officials in the Northern Areas who have reached their ceiling", was produced before us. From the perusal of this file, it appeared that, in the President's directive relating to Economy in Development and non-Development Expenditure, it was, inter cilia, laid down that steps be taken for the retirement of those who had reached their ceiling. In pursuance of this directive, the Kashmir Affairs and Northern Affairs Division carried out an exercise to screen out persons who had outlived their utility, as a consequence of which the Minister for Kashmir Affairs agreed to the proposal for the retirement of sixteen officers/ officials of various grades and categories. The appellant's name was not among those approved for retirement. But, in the Memorandum (bearing No. E. II-1/16/79, dated 17th October, 1979 addressed to the Commissioner for Northern Areas, Gilgit, it was mentioned that, as Mr. Sultan Muhammad Shah had not completed 25 years of service, he could not be retired under the rule relating to retirement of those completing 25 years of service, but could be proceeded against on specific grounds and then retired/removed.
We tried our best to find any papers indicating that the appellant had been proceeded against on any specific grounds, but without success. There was no indication in the file that any charges had been framed against the appellant or any proceeding; initiated. There was also no record of any discussion of his case or even of any decision pertaining to him. We are, thus, left completely in the dark as to how, when, in what circumstances, on what grounds and by whose orders the appellant's services were terminated. However, as stated in the beginning, the appellant's services were first terminated on 23rd April, 1979 by an order issued by the Northern Affairs Division, on behalf of the "competent authority", under section 12-A of the Civil Servants Act, 1973 ; the termination order was cancelled by an order dated 27th August, 1979 ; and, later, by an order issued by the Commissioner for Northern Affairs, the original order of termination was restored in a modified form, by changing the date of termination of service from 30th April, 1979 to 30th November, 1979 (A.N ). In other words, the termination of the services of the appellant was ordered under section I2-A of the Civil Servants Act, 1973. This was clearly and definitely contrary to the Cabinet decision excluding Grade 16 employees from the purview of review of political/incompetent appointments under section 12-A of the Civil Servants Act, 1973. For this reason alone, if not for any other, the impugned order cannot be defended and deserves to be struck down.
6. To sum up, from the documents on record and those produced before us during the bearing and, afterwards at our instance, as well as from the arguments and counter-arguments adduced by the two sides, the following facts and circumstances emerge clearly :-
(1) The appellant had put in 14 years of service with the Government, between the years 1963 and 1979, half of which was non-gazetted and other half in gazetted rank, when his services were terminated.
(2) His services were first terminated by an order dated 23rd April, 1979 under section 12-A of the Civil Servants Act, 1973.
(3) By an order dated 27th August, 1979, which cancelled the previous order of termination of service, he was re-instated.
(4) The appellant, being an officer in Grade 16, his case had to be taken out of the review proceedings conducted under section 12-A of the Civil Servants Act, 1973, in view of the Cabinet decision on the subject and, therefore, it is presumed that the cancellation of the first order of termination was made in pursuance of that decision.
(5) Subsequently, he was once again removed from service by an order dated 17th November, 1979, which, quite funnily modified an order which no longer existed, having been earlier cancelled.
(6) This subsequent action, against the appellant, is claimed to have been taken in pursuance of the guide-lines, provided by the Ministry of Finance, for the implementation of the President's directive for economy in expenditure.
(7) Admittedly, this was done by the concerned authorities on the ground that they considered him unqualified for the job he was holding and unsuitable for further retention in service.
(8) Since the officer had been removed under section 12-A of the Civil Servants Act, 1973 and was subsequently re-instated in pursuance of the Cabinet decision in this behalf, he could not be removed again under the same section.
(9) However, he was removed again by invoking the same section 12-A of the Civil Servants Act, 1973 and reviving and modifying an order which had already been cancelled and was no longer available for being modified. This was clearly illegal, ultra vices, and null and void.
(10) The ground for the termination of the service of the appellant, as given out in the written statements submitted on behalf of the respondents has been stated to be that he did not possess the requisite qualification for the post he was holding. This could be a good ground for action, but the action to be legally valid, had to be taken under some provision of law. Section 12-A of the Civil Servants Act. 1973, which had already been ruled out by the Cabinet decision in this behalf, was wrongly invoked once again.
(11) It was alleged by the appellant, and not denied by the respondent, that he had been discriminated against in the matter of the termination of his service, because two other officers, who were educationally under qualified, were retained in service in spite of the alleged directive of the President, while the appellant was thrown out, although according to him, he had a good record of service, bath under the Government and for the cause of Pakistan at the time of the liberation of the Northern Areas from Indian Domination.
(12) The action taken against the appellant was directly in violation of the Cabinet decision on the subject and obviously contrary to the Minister's clear and specific direction relating to the case.
(13) Purely on merit also, the impugned order was assailed on the ground that it was discriminatory and this charge was neither repelled nor denied.
7. We do not consider it necessary to go into the question whether on the merit the appellant deserved to be retained in the be he had held for about 7 years. By virtue of the fact that he had served as Assistant Director, Basic Democracies for a number of years, he had acquired a vested right, which could not be taken away, except through the due process of law. Since no specific charge was brought against him, nor any grounds for removal adduced, the action cannot be said to have been taken through the due, process of law. In the written objections filed on behalf of the respondents, the plea has been taken that he was a temporary Government servant, governed by the Temporary Government Servants (Employment) Rules, 1965, whose services could be terminated by the competent authority after giving 14 days' notice. This may be legally correct. But, in fact, the said Rules were not invoked and section 12-A of the Civil Servants Act was resorted to.
However, even if the Temporary Government Servants (Employment) Rules, 1965 had been invoked, the Tribunal would not have upheld the action merely on the ground that it was written within the competence of the relevant authority. In an administrative-matter like this, not merely the legality but the justification and reasonableness of the order have also to be taken into consideration and the Tribunal is the last forum of appeal in service matters who would be failing in its duty if it refused to consider other aspects of an action taken by a departmental authority in a service matter, merely on the ground that the impugned action was legally within the competence of the said authority and, therefore, not liable to scrutiny by the Tribunal. If, as alleged in this case, other officers similarly placed, were differently treated, for, if through the passage of time, the officer, whose services are terminated, had acquired a vested right, such termination can, I our opinion, be upheld only if carried out in pursuance of some' compelling administrative necessity, for example, retrenchment of staff or re-organization of the set-up or, if undertaken purely on grounds of merit, after providing the officer a reasonable opportunity of showing cause against the action.
8. In the light of the foregoing, we have no hesitation in deciding that the impugned order should be set aside. Accordingly, we allow the appeal, set aside the impugned order and direct that the appellant be re-instated in service forthwith; with effect from the date of termination and that he should be allowed all the consequential benefits of the re-instatement.
9. No order as to costs.