Through this service appeal Muhammad Musa appellant has challenged the office order bearing No. DDE.(G)/2(9)/ESTT/2014 dated 04, August 2014 passed on departmental appeal filed by the appellant for release of his pay, upheld by the respondents Nos. 2 to 4 (Education Department).
2) The brief facts of the case are that the appellant was appointed as Naib Qasid in Grade 1 at Primary School Muhammad Abad Danyore, vide office order dated November 10, 2011, with an explicit condition of probation period for the year, which was extendable for another year in accordance with Section 6, Rule 21 of The Civil Servant (Appointment, Promotion and Transfer)
Rules, 1973. The appellant in compliance and pursuance of office order dated November 10, 2011, commenced duties on 11.11.2011 following a medical examination conducted on 10.11.2011 as specified in the appointment letter. Subsequent of his appointment, the appellant's service book was maintained by the department as per service rules and monthly salary was started from AGPR Office, Gilgit, which continued till February 2013. Once a bad day the Deputy Director Education Gilgit verbally ordered the stoppage of the appellants salary without any legal and lawful justification as well as against the provided service rules and regulations. Prior to this verbal order the appellant has received his monthly salary without any break till February 2013. The verbal directives issued by Deputy Director Education, Gilgit resulting in the Headmaster High School Danyore unjustly restrained the appellant from performing his duties without any fault, nor the authority recourse the procedure as laid down in the service rules/laws to restrain the appellant for performing duties. Feeling aggrieved of the verbal order of Deputy Director Education, Gilgit and as well as unjustified act of the Head Master Danyore, the appellant submitted an application for release of his salary (Page 51) and said application remained under consideration at different forum of Education Department and at last Deputy Director Education, Gilgit vide his letter bearing No. DDE(G)/2(9)/ESTT/2014 dated 04.8.2016 turned down the same while referring an inquiry committee report/recommendation bearing No. DDE(G)-3(5)/DEV/2014, dated 20.4.2016. Hence feeling aggrieved and dissatisfied of the above action of the respondents Nos. 2 to 4, appellant filed this service appeal for redressal of his grief.
3) Parawise comments filed by the respondents through learned law officer, wherein the respondent denied the version of the appellant except his appointment.
4) Learned counsel for the appellant argued that the appellant was ever terminated from his service till to date and his request for release of salary was refused on the basis of so-called inquiry report which was carried out against all the service rules practice and procedure. The appellant was not called/summoned to join the inquiry report for granting him opportunity of personal hearing: Contended that all proceedings and inquiry report available on record is ex-parte in nature and against the principle of natural justice (Audi Alteram Partem) principles laid down for this purpose; the respondent bulldozed all service rules/regulation and denied the lawful right of appellant argued that appeal may kindly be accepted. Appellant has annexed the following documents along with his appeal. Details of documents are as under. a) Departmental appeal: (Page 7) Dated: 11.8.2016 (important report on the marginal side) b) Appointment Letter Dated: 10 November 2011 (Page 10) As Recommended by the DRC Muhammad Musa (Appellant) was appointed as Grade 1 against the clear vacancy in Girls High School Khomar. However, he will work in Boys Primary School Muhammad Abad, Danyore. c) Joining Report: (Page 14) Dated 11.11.2011, 2nd Joining Report (Page 15) Joining Report regarding duty Government Primary School Muhammad Abad dated 29.01.2014 d) Service Book (Page 12) e) Joining Report, High School Danyore (Page 16, Dated 04 February 2014, Headmaster Process the same.)
Relieving from Duty (Page 17) Issued by Ex- DDE. H. g) Appeal for release of pay (page 19). Letter Issued by DDE, DDE(G)/2(9)/ESTT/2014 Gilgit dated 4 August 2016 mentioning therein an inquiry Committee has been constituted to look into the matter. h) Pay Slips, June 2012 to February 2013 (Pages 20 to 25) i) Attendance Sheet, February to July 2014 (Pages 26 to 31) j) Letter No. DE-7(2)/2014(ADMIN) dated 25th July 2016 by DE (Page 32) k) Application for release of salary (Pages 53 to 57) Letter to Headmaster dated 24th April 2014. l) Letter dated 25th July 2016, Inquiry Report, Release of Pay DE (Academics) address to DDE Gilgit for release of pay of appellant. m) Letter from DD dated 22nd June 2016 (Page 33) n). Letter from DE 14th June 2016 (Page 34) o) For Release of Pay as per recommendation of the Committee at own level, dated 14th June, 2016 (Page 34) p) Inquiry Report (Page 36) q) Letter DDE(G)-2(3)/ESTT-/2014, dated 23 Dec 2,015 issued by DDE Gilgit (Page 41, Inquiry Committee Recommended that pay of Grade 1 (Muhammad Musa) may be adjusted against any vacant post). And DE (Academies) agreed with the report. r) Letter Issued by the DE (Academics) in the name of DDE Gilgit for review of report dated 13th July 2015 (Page 42) s) Letter dated 25th June 2015 issued by DDE Gilgit (Page 43) t) Inquiry Report dated 16th June 2015 (Page 44). History and Recommendations are reproduced as follows: "HISTORY: -
1. The applicant Muhammad Musa son of Noor Khan is resident of Danyore Village, District Gilgit.
2. Vide office order No. DDE(G)-2(3)B/Estt/2010 dated 10th November, 2011. He was appointed as Grade 1 in Girls High School Yarkote Khomer against the clear vacancy vacated by Mrs. Nooren Qasim. He was directed to perform his duties in Boys P/S Muhammadabad, Danyore.
3. He joined his duties in Boys High School Danyore on 11-11-2011.
4. He performed his duties with Ex-DDE Mir Baz Ali Faraz in his House. Later on he was relived off his duties by the named Ex-DDE. (Copy of Reliving order is attached)
5. He has drawn his subtly till the month of February 2013.
6. Thence onward lie has not drawn his pay as being surplus.
7. He has submitted a copy of his attendance up to the month of July 2014 wherein the name of the school is not mentioned.
FINDINGS: -
1. Why he has been surplused no record is found. Furthermore, he is not enlisted in 183 and 109.
2. The G-I is appointed in the union council Gilgit." u) Release of Pay dated 9th October 2014 (Page 45) v) Application for Release of Pay, 1st October 2014 (Page 46) which is reproduced as follows: "To The Deputy Director Education, Gilgit Subject: - APPLICATION FOR RELEASE OF PAY In compliance with the order of Deputy Director Education Office Letter No. DDE(G)-2(9)/Est/2011 dated 9th April 2014 on the above noted subject I thoroughly studied the case of Mr. Muhammad Musu son of Noor Khan on the above noted subject.
1. The appellant Muhammad Musa son of Noor Khan is resident of Village Danyore District Gilgit.
2. Vide office order No. DDE(G)-2(3)B/Estt/2010 dated 10th November, 2011. He was appointed as G-1 in Girls High 'School Yarkote Khomer against the clear vacancy vacated by Mrs. Nooren Qasim. He was directed perform his duties in Boys Primary School Muhammadabad Danyore.
3. He joined his duties in Boys High School Danyore on 11-11-2011.
4. He performed his duties with Ex-DDE Mir Baz Ali Faraz in his House and he was relived off his duties by the above noted DDE. (Copy of Reliving order is attached)
5. He has drawn his pay directly through computerized System till the month of February 2013.
6. Thence onward he has not drawn his pay as being surplus.
7. He has submitted copy of his attendance up to the month of July 2014 wherein the name of the school is not mentioned.
8. This Office has already circulated to all the school in District Gilgit not to allow surplus person to perform duties in any school.
FINDINGS: -
1. In the light of the facts mentioned vide supra, the applicant is surplus. Furthermore, he is not enlisted in 183 and 109." w) Application for Release of Pay dated 29th August 2014 (Page 49) x) Application for Release of Pay dated 12th August 2014 (Page 51) y) Headmaster Government Boys High School, April 2014 Address to DDE Gilgit (Page 52)
5) Learned Counsel for the appellant placed his of his contention on Case Laws mentioned below: i. 2015 SCMR 1418 ii. 2011 PLC (C.S.) 666 iii. 2011 PLC (C.S.) 331 iv. 2011 PLC 351 v. 2013 PLC (C.S.) 289 vi. 2003 PLC (C.S.) 1376 vii. 1997 PLC (C.S.) 666 6) On the other hand, learned law officer and legal advisor Education Department, GB vehemently contested the appeal and argued that appellant was appointed illegally without adopting due process required appointment and was inducted through a back door channel; contended the said post was never advertised nor the competent authority is authoiized to appoint anyone in Education Department by way of illegal means. The appointment of appellant was illegal; therefore, legal proceedings were initiated against the responsible authority coupled with the initiating proceedings through NAB authority; argued that the appellant was removed from his service being illegally appointed with us any test/interview; hence, he has no case at all. Moreover, after thorough inquiry the appellant service was declared as illegal appointment and removed from service relied on following case laws: i. 2007 SCMR 318 ii. 2009 PLC (C.S.) 694 iii. 2013 PLC (C.S.) 115 iv. 2000 PLC (C.S.) 155 7) We have heard the learned counsel for the appellant and law officer at length and gone through the record with their able assistance and case laws referred by the counsel of the parties.
Before discussing the merits of the case, we would like to settle following questions to resolve the controversy of the case. a) Whether the appellant has been removed from service, while adopting the proper service rules and, practice and procedure as well as due process of law? b) Whether the recommendation No.1 of the inquiry committee dated 4th August 2016 is termed to be a terminated order or not? c) Whether the principle of, locus poenitentiae is applicable in the present case or not? d) Whether the appellant has been offered opportunity of personal hearing before the inquiry committee?
Case of the appellant is that he was appointed by the deputy Director in Grade 1 as Naib Qasid at Muhammad Abad Boys Primary School at Danyore, vide office order No. DDE(G)-2(3)B/ESTT/2010 dated 10 November 2011 (Page 10) on the standard terms and condition under the Civil Servant Act, on the basis of the said appointment letter appellant joined his posting place and his monthly salary has been paid to him.
8) It is an admitted position that the appellant was appointed as Grade-I by the D.D Education by fulfilling the legal/codal formalities and thereafter he had started to perform his duties at his place of posting and got his pay and allowance from AGPR, Gilgit till February 2013. Nothing is available on record to question the performance of the appellant during the probation period of one year or extending of probation period for further one year under the rules, after the successful completion of one year, the appellant deemed to have been considered as permanent employee. Moreover, he had continued to draw his pay and allowance till the month February 2013, even otherwise the appellant had served more than 03 years as regular employee, which is over and above the extended period of probation. Hence the service of appellant is termed as regular employee, for all intends and purpose and his service could not be terminated without adopting legal procedure as provided under service law i.e. Civil Servant Act, 2011 and E&D Rules. On careful perusal of the whole record there is nothing adverse against the appellant or proceeded him under E&D Rules, 2011. It is crystal clear from the record that the salary of the appellant was verbally stopped and he was directed that he is no more in service, the said practice is strange and against all the norms and practices as laid down and provided under the service laws, hence the issue framed by us affirmed in negative, the department has not adopted any procedure for removal of service of appellant.
9) Inquiry committee has given different kind of opinion, in response to the question No. 2 in respect of the recommendation of the inquiry committee report dated 22nd June 2016 and 4th August 2016 could not be termed as termination of service of the appellant as no specific order of termination of service of the appellant was issued in pursuance of the inquiry committee recommendation. Both the said committees had merely recommended that the order of the appellant may be considered cancelled, meaning thereby, the said committee has accepted the appointment of the appellant after the completion of codal formalities, therefore, there should be a clear speaking order with regard to termination of service of the appellant and no such order is available in the record, hence, in the absence of any termination letter, the recommendation of the inquiry committee could not be accepted as legal instrument. It may be pertinent to mention here that all the documents rest in favor of the appellant as well as the recommendations of the inquiry committee wherein the Committee has recommended either for release of salary of the appellant and to adjust him in any vacant post and in the absence of any specific termination order in written form with reason, the appellant deemed to have been in service and his service was not terminated in the eyes of law and this question also goes in favor of the appellant and answered in affirmative.
10) Another issue regarding provision of opportunity of personal hearing before the inquiry committee. It is an admitted fact from the bare reading of committee report that the appellant was neither summoned to appear before the inquire committee nor provided any opportunity of personal hearing to justify his position and the said reports are ex-parte and against the universally recognized principle of nature justice (Audi Alteram Partem). It is further necessary to mention here that as per inquiry report dated 16th June 2015 (Available at Page 44). The Committee had given its findings, which is reproduced as under: - FINDINGS:
1. Why he has been surplused no record is found. Furthermore, he is not enlisted in 183 and 109.
2. The G-I is appointed in the union council Gilgit."
In view of the findings of the Committee, the committee did not declare his appointment-as illegal.
Hence, the issue also rests in favor of the appellant.
11) From perusal of record, it reveals that appellant has joined his service on 29.1.2014, which is duly processed by the headmaster.
12) As per available record, the appellant had joined his duties and rendered his service up to the entire satisfaction of his seniors and all of sudden, on the basis of verbal order DDE, Gilgit, the pay of the appellant was stopped, and he was verbally informed that his service was no more required.
Upon the verbal service termination order, the appellant had preferred a departmental appeal on which the respondents had constituted an inquiry committee, and the inquiry committee did not recommend the termination of service of the appellant, rather, they had recommended through different letters to release the pay of the appellant due to non-release of the pay of appellant, he has preferred the instant service appeal. It is pertinent to mention here that we have also examined the reply as well as the documents annexed by the official respondents with their reply no service termination order of the appellant has been appended with their reply, which reflects that the respondents do not have any document in respect of termination of appellant from service. It may be explained here that mere any irregularity which has been committed by the department during the process of appointment, the appellant could not be punished for the lapse caused by the department. It is also settled law of the Hon'ble Apex Court of the Country that the appointing authority is responsible to face the consequence of their lapses because the appointment of an employee made illegal could not be cancelled.
13) Under the Section 21 of General Clauses Act, 1897 the computer authority who has issued an order in favor of any individual and when the same order has taken its legal effect or implemented the appointing authority becomes functus officio. In the instant case, the appellant has joined his duty in the pursuance of the appointment order and has also received monthly salary till February 2013 as such a valuable right had been accrued to appellant and this valuable right cannot be snatched without following the proper procedure. Principle of locus poenitentiae in the circumstances, is fully applicable and department is not vested with the authority to cancel the order of appointment of appellant which was passed their predecessor and stood act upon.
In view of what has been discussed above we allow this service appeal in hand and pass the orders in following terms: -
1. The appellant is entitled to get his salary from March 2013 till 20.4.2016, on cancellation of appointment order of appellant by the inquiry committee.
2. The intervening period from discontinuation of service- of appellant i.e. 20.4.2016 till that of this order shall be treated as leave without pay.
3. The office order dated 04 August 2014 passed by the respondents vide No. DDE (G)/2(9)/ESTT/2014 is hereby set aside and the appellant is restored in his service.
Service appeal is disposed off in the above terms. File be consigned to record. Parties to bear their own cost.