MUHAMMAD IRSHAD KHAN (MEMBER).-The facts of' the case, briefly speaking, are that the appellant was appointed by the Director-General of Health, Government of Pakistan to the Central Medical Services Class II on temporary basis vide letter of appointment dated 15-6-1960, which inter alia contained the condition that her services were liable to be terminated at any time on a fortnight notice without assigning any reason. She was posted as Resident Medical Officer, Jinnah Hospital, Karachi and assumed her duties on 16-6-1960.
2. Vide his letter dated 16-6-1961, the then Administrator, Jinnah Post-graduate Medical Centre, respondent No. 5 herein, recommended to the Director, Central Health Establishment and Stores, Government of Pakistan, the respondent No. 3 herein, that the appellant, being inefficient and unfit for retention in the said Hospital, be relieved of her duties in the said Hospital at the earliest, whereon the respondent No. 3 by his letter dated 28th June, 1961 served upon the appellant a fortnight notice of termination of her services, without assigning any reason, and on expiry of the notice period to relieve her. Accordingly, her services were terminated with effect from 13-7-1961.
The appellant appealed to respondent No., 2, against the said order of termination of her services.
But her appeal was rejected by respondent No. 2, as conveyed to her, vide letter dated 21-7-1961.
On 6-8-1962, the appellant filed a writ petition in the High Court Karachi, under Article 98 of the Constitution then in force, seeking a declaration that the termination of her services was without lawful authority and of no legal effect. The said petition \vas allowed, vide the order of a Division Bench of the High Court, dated 3-10-1963, holding that respondent. No. 3, being junior in rank and subordinate to respondent No. 2, who appointed the petitioner, was not competent to terminate the services of the appellant, which he did in violation of the constitutional guarantee that services of a Government servant cannot be terminated by an officer lower in rank than the officer who had appointed him. Their Lordships, therefore, declared the notice terminating the services of the appellant, to be inoperative and unlawful. It was however, added by their Lordships that it was open to the Director-General of Health, Government of Pakistan, to terminate the appellant's services by giving proper notice in terms of the appointing letter dated 15-6-1960.
3. In pursuance of the said decision of the honourable High Court, a decision to re-instate the appellant in service with retrospective effect was conveyed, vide a letter of Health Division, Government of Pakistan, dated 14th January, 1964. It was, however, mentioned in the said letter that she will get no salary for the period 13-7-1961 to 14-1-1964. The appellant was, accordingly, posted as Resident Medical Officer again in the Jinnah Post-graduate Medical Centre, where she resumed her duties on 20-1-1964. However, on the following day i. e. 21st January, 1964, a notice under the signature of a Section Officer, Health Division, Government of Pakistan was issued stating that her services were no longer required by the Govern--ment, therefore, on the expiry of the notice period, her services will be deemed to have been terminated automatically. Accordingly, the appellant was again removed from service were. f. 5-2-1964. But, strangely, she was not paid any salary for even those 16 days during which she actually performed her duties after her reinstatement in service. A representation of the appellant,, dated 21-1-1964 against her removal from service, made to respondent No. 1, was also rejected, as conveyed to her, vide letter dared 20.8-3964. The appellant then filed a Civil suit in the Court of Civil Judge First Class, Karachi praying for a declaration that the termination of her services; under order dated 21-1-1964, was without lawful authority and of no legal effect and that the appellant continued to be in service of the Central Medical Services Class II as Resident Medical Officer, J:M.P.C. The said suit was, however, held to have abated in view of the provisions contained in Article 212 of the Constitution of 1973, read with Service Tribunals Act, 1973. Hence the present appeal.
4. We have heard Ch. Abdul Aziz, Advocate for the appellant and Mr. Nasrullah Awan, counsel for the respondents and also perused the available record of the case. It is the case of the appellant that a niece of the appellant was also employed as Resident Medical Officer in Jinnah Post- graduate Medical Centre during the period when the appellant was on the job. Respondent No. 5 harboured evil intentions towards the said niece of the appellant and made a number of attempts towards her, which were frustrated by her. Eventually, to save her honour, the said niece of the appellant resigned from service. Even thereafter, in order to satisfy his evil designs, respondent No. 5 asked the appellant to persuade her niece to yield to his dirty wishes. On refusal of the appellant to do so, he threaten--ed her with dire consequences, including termination of her services, On the appellant's resistance to be intimidated by the threats of the respondent No. 5, she became a victim of his malicious annoyance and bias, which ultimately resulted in .The termination of her services. The learned counsel for the appellant assailed the impugned order on several legal grounds also. On the other hand, it was mainly emphasised by the learned counsel for the that the services of the appellant were terminated according to the terms of her appointment letter, after serving upon her a requisite notice, and that the reason for termination of her services, was her ineffici--ency. It was so averred in the objections filed on behalf of the respondents also.
5. The appellant laid no evidence in support of her allegations against the respondent No. 5. Yet, there appears some truth therein as the appellant in her appear dated 6th July, 1961 against her first termination order, submitted to the Director-General of Health, had specifically asserted in detail the allegations against the respondent No. 5, relating to her niece. Strangely enough,, however, such serious allegations remained completely unnoticed and nothing whatsoever was don` by the relevant authorities to verify the correctness or otherwise of these serious allegations.
6. Be that as it may, however, the well-established legal position prevailing at the relevant time was teat a Government employee holding ant appointment for indefinite duration, although not in a substantive capacity but expressly, described as temporary, was entitled to avail of the constitutional guarantees then available, and the condition permitting termination of services by a 14 days' notice, being violative of and inconsistent with the constitutional guarantees, was illegal and void and therefore, could not be validly acted upon. It was also well settled that a person who was appointed to a permanent post in a permanent department as a temporary incumbent and whose tenure was not fixed, was also entitled to avail of the constitutional guarantees. If authority is needed on the point, PLD 1960 Lah. 242, PLD 1956 SC 431, PLD 1962 SC 142, PLD 1962 SC 203, PLD 1965 SC 208 and PLD 1966 SC 253, may be referred to with advantage. The position that emerges from a careful consideration of the above-cited authorities and the relevant provisions of the Constitution and other laws then in force is that termination of services according to the condition of 14 days' notice contained in the appointment letter, was in fact an order of removal from service and hence opportunity to show cause ought to have been given before termination of her services, for the condition of termination of services on 14 days' notice was illegal and void, being unconstitutional. The only eventuality which could, perhaps, be availed for termination of a temporary employee on 14 days' notice was the abolition and in that case also the junior-most incumbent was to be terminated. In the case in hand, there was not such a position. First, because no post was abolished in the organization, and, secondly, because the appellant was not the junior-most hand, as had been stated by the appellant in her first appeal dated 6th July, 1961 to the Director-General of Health that she was appointed on a sanctioned and regular post and there were seven temporary Class Ii Medical Officers, Junior to her in that Hospital. This position has not been disputed by the respondents. Rather, the only reason given for termination of services of the appellant, was her in-- efficiency. Quite obviously, for the reason of inefficiency, a Government servant could be removed from service only after taking disciplinary action against him in accordance 'with the Efficiency and Discipline Rules, which was not done in the present case.
7. In view of the legal position discussed above and in the circum--stances of the case, the irresistible conclusion would be that the impugned order dated 21-1-1964 was without lawful authority and of no legal effect. It is, therefore, impossible for us to maintain the impugned order, which is hereby set aside, and we direct that the appellant may be re-instated in service and shall always be deemed to be in service, for the purposes of all service and retirement's benefits including confirmation, seniority, promo--tion and fixation of pension etc., as if the impugned order was never passed, with the only exception that she will get no salary for the period from 5-2-1964 to the date on which 'she now resumes her duties, because we have been informed, during the course of hearing, that, practically, she has not remained unemployed during this period as she has been running her own private clinic.
8. We have, however, found that the first termination order dated 28th June, 1961 was declared by the Honourable High Court to be inoperative and unlawful, which obviously means that it was of no consequence at all. In our view, therefore, the appellant was entitled to the salary alongwith other benefits for the period from 13-7-1961 to 5-2-1964 when her services were again terminated. Indeed, the respondent deprived' the appellant of her salary for this period unjustifiably and in total disregard of the order of the High Court. We, therefore, direct that the salary for this period may be paid to the appellant.
9. In view of the foregoing, the appeal must succeed and is accordingly disposed of in terms of directions given by us in paras. 7 and 8 above. There shall be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.