ABDUR RASHID (MEMBER).-The appellant joined the Medical Social Research Project, Lahore as Office Assistant were. f. 28-7-1961. The said Research Project was renamed as West Pakistan Research and Evaluation Centre from 27-7-1961. It was then merged with the Pakistan Family Planning Council in 1970. As a result of this merger, the appellant was appointed as Superintendent in the Training Research and Evaluation Centre (TREC) vide Pakistan Family Planning Council memorandum dated 10-9-1970 and Office Order No. F 18-5/70-FP dated 12-10-1970.
2. Vide extraordinary Gazette Notification No. S. R. O. 603 (1)/79 dated 4-7-1979, the position of the appellant was re-affirmed as civil servant under the Population Division. Thereafter the Ordinance No. .XIV of 1981 dated 11th May, 1981 "Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance 1981" was issued.
3. The services of the appellant were terminated under section 6 of the above-mentioned Ordinance with immediate effect vide Director-General Population Welfare Planning Punjab Letter No. PWPP/Admn/PF/628-1 dated 13-12-1981.
4. The appellant preferred a departmental appeal on 24-12-1981 which was turned down vide letter dated 8-3-1982. Thereafter, the appellant filed his present appeal before the Federal Service Tribunal on 7-4-1982 on the main ground that the termination order being illegal be set aside and the appellant re-instated.
5. The learned counsel for the respondents took the plea that since the appellant had never been appointed under the Civil Servants Act 1973, the Federal Service Tribunal had no jurisdiction to hear this appeal. This plea, we may reiterate, stands repelled in our judgment in Appeal No. 8 (L)/82, Riaz Ahmed Beg v. Secretary Population Division and others which shall form an appendix to this order.
As would be seen from the appended judgment, we are fully competent to hear this appeal and proceed to do so accordingly.
6. The said learned counsel argued further that the appellant who was a temporary hand was not considered suitable by a duly constituted Departmental Selection Committee. As such, his services were terminated in accordance with the Ordinance XIV of 1981 and the departmental action so taken was legally tenable.
7. The learned counsel for the appellant drew our attention to the Population Division Office Order No. 4-1/81-Admn-11 dated 6-12-1981. In this Office Order ac Serial No. 7, the appellant has been appointed as Administrative Officer (Grade-16) even though the remarks column says; "He will work against this post in his own pay and scale i.e. Grade-14." This posting order issued only a week before the termination did prove that the appellant was not an inefficient official otherwise he would not have been placed in this position of greater responsibility as Administrative Officer, argued the learned counsel.
8. The said learned counsel then drew our attention to an Office Order No. 4 (1)/81-Admn-V dated 31-12-1981 which posted the appellant, Mr. Niaz Sheikh, as Administrative Officer (Grade-14) at the.
Population Welfare Training Institute Lahore. Subsequent to this posting order, there is a letter by the appellant which reads; "The Principal, Population Welfare Training Institute, 36/A, Lawrence Road, Lahore.
Sub:- CHARGE ASSUMPTION REPORT IN PWTI AGAINST THE POST OF ADMN : OFFICER GRADE-14 Sir, On my representation regarding restoration of my services the Deputy Secretary to the Government of Pakistan, Ministry of Planning and Development (Population Division), Islamabad has very kindly ordered my posting as Admn. Officer (Grade-14) in the PWTI, Lahore vide Population Division Office Order No. 4 (1)/81-Admn. V, Islamabad-, dated 31st December, 1981 (Photo copy of the orders enclosed).
The charge assumption report is, therefore, submitted in compliance thereto.
Yours obediently, Dated : 27-1-1982 (Sd.)
(NIAZ M. SHEIKH)."
9. The above letter left no doubt that the appellant whose services had been terminated vide letter dated 13-12-1981 had been re-instated and hence the departmental posting. Order dated 31-12-1981 as well as the charge report dated 27-1-1982 by the appellant argued the learned counsel.
However, since the Principal of the Population Welfare Training Institute did not accept the charge report of the appellant, the latter preferred an appeal dated 18-2-1982 to the Secretary Planning and Development, Population Division seeking clarification as to his status. This appeal evoked no response, said the learned counsel;
10. The learned counsel .For the respondents said that the factual position was that the services of the appellant stood terminated since 13-12-1981. The posting order of the appellant dated 31-12-1981 was, admittedly; an error on the part of-the Population Division and they have in their written reply at (c) page 2 said : "The appellant's posting order was wrongly issued." The learned counsel who was assisted by the Deputy Secretary Population Division (Kamran Masood) submitted before they would redress the grievance of the appellant departmentally and that time should be allowed. This was the position on 7-12-1982 and the respondents were allowed two months thereafter within which to take action. The Population Division in their reply dated 15-1-1983 addressed to our Deputy Registrar with reference to the above position said; " . ....The services of Mr. Niaz Muhammad Sheikh former Superin--tendent, Population Welfare Division, Lahore were terminated under Ordinance, 1981 on 13-12-81. The Office Order dated 31-12-81 was issued inadvertently. Factually speaking Mr. Niaz Muhammad Sheikh was not in service when the said order was issued. Since the termination, of his services took place under the Ordinance, referred to above, the department is unable to provide Mr. Niaz Ahmad Sheikh with any relief,"
11- The case was heard on 16-3-1983. As a result, the Bench who had perused the A.C.Rs of the appellant together with the recommendations of the Departmental Selection Committee (D.S.C.) found that there was some serious mistake The A.C.Rs. Were so good that the appellant could not have been rejected by the D.S.C. In the summary fashion in which it had been done and with adverse remarks which we shall advert to where necessary. For this purpose, Mr. Iftikhar. Ali, a Director in the Population Division who had headed the D.S.C. And had initiated as well as endorsed the A.C.Rs. Of the appellant was summoned for 20-4-1983 together with the relevant record so that the issue could be resolved.
12. The A.C.Rs. Record made available to us is from ending December, 1970 to ending December, 1980 (11 years). All these reports on the appellant are as Superintendent. These A.C.Rs. Between 1970-1975 have been initiated by Zahur Iqbal Khan, Deputy Director T.R.E.C. And are of a nature which could be regarded as excellent, The general remarks, without exception, are praising the appellant and recommending him for pro--motion. The countersigning officer whose signature is illegible is also one and same and has recommended the appellant for promotion.
13. For the year ending 1976 the Reporting Officer is Mr. Iftikhar Ali Director Population Training Centre who has given the appellant all "As" "good" with the following pen picture; "He is very thorough in official procedures and has adequate knowledge of Rules and Regulations."
The countersigning officer (Director-General) has given "no comments" dated 9-8-1977.
14. The initiating officer for the years 1977 to 1980 was again Zahur Iqbal Khan whose reports on the appellant are of course, excellent. For the years 1977 and 1978 the countersigning officer is Iftikhar Ali who has not given any remarks as he could have but has just signed the said reports indicating approval of the remarks of the Reporting Officer. In the year 1979 the countersigning officer (Babar Ali Mirza Director,' Population Training Centre Population Division, Lahore) has remarked : "He is an average worker." In the year 1980 the report has again been countersigned .;.By Babar Ali Mirza without appending any remarks.
15. After the above analysis of the A.C.Rs. For 11 years we would reproduce the performance report on the appellant as recorded by the Departmental Selection Committee which met on 28-11-1981.
The said D.S.C. Remarked; Recommendation Remarks "Unfit"(1) Irresponsible
(2) non-serious towards duty,
(3) Incompetent.
The above DSC consisted of Mr. Iftikhar Ali as Chairman and with him were Zahur Iqbal Khan, Principal and Senior Instructor P.W.T.I. Whose signature is illegible and we cannot name him. Here, we shall take the opportunity of commenting on the conduct of Zahur Iqbal Khan. We have no doubt that the above three remarks are in the hand of the said Zahur Iqbal Khan whose 11 years continuous good/excellent reports on the appellant have been nullified by what he has now written (or concurred in, at any rate) in an interview of only a few minutes. Could we ever look upon Mr. Zahur Iqbal Khan as an intellectually honest person. This is an issue which the Population Division would do well to look into.
16. On appearance before us on 20-4-1983, Mr. Iftikhar Ali tried to impress us with his background of being a Psychologist. He had to be told that he was before us not for ascertaining his psychological attain--ments but to tell us how he and with him the D.S.C. Came to the conclu--sion which appeared in the form of three remarks reproduced at para. 15.
For instance, how he concluded only as a result of a brief interview that the appellant was incompetent. To this, the said gentleman replied that he had seen the entire file work of the appellant of over many years and had come to this conclusion. But when we reminded him that he could not have performed this miraculous function even in a couple of years, let alone a few minutes, he changed gear at once and said that the appellant had failed to complete the service books once in the past and hence this remark. We then reminded the gentleman as to why he had not said so in his A.C.R. On the appellant. To this question, he had no answer. He was told in no uncertain terms that it was the intellectual honesty which he lacked. Again, we feel that this gentleman needs to be watched by the Population Division. We have no hesitation in recording that both Messrs Iftikhar Ali and Zahur Iqbal Khan (as well as the third gentleman of the D.S.C.
Whose name we do not know) are devoid of intellectual honesty and thus cannot be considered to possess moral courage. If such are the officers who cannot speak the truth in recording the A.C.Rs.
Of their subordinates at the right moment they cannot inspire much confi--dence in any one and in the Administration.
17. Having dealt with this appeal at length, we have no doubt left in our mind that the Departmental Selection Committee was nothing more than a Kangaroo Court in this case. The three officials who constituted the D. S. C. Failed to perform their duty as was expected of them. By this we do not mean that their performance of duty should have culminated in the selection of the appellant.
However, what we do mean is that the eleven A.C.Rs. Of the appellant which have been good without exception with laudatory remarks and with which two of the gentlemen of the D.S.C. Have been closely associated, should have been shown some respect. "Either the A.C,Rs. Are fake or the D.SC. Proceedings bogus and shorn of honesty. On our part, however, we shall place reliance in the A.C.Rs. Rather than the fleeting D.S.C. Proceedings whereby the appellant was dubbed as "irresponsible" "non-serious" and "incompetent", without M- Iftikhar Ali's ability to explain before us how the D.S.C. Came to such conclusions in a few minutes interview with the appellant.
18. We have given this rather strange and sad case our serious consideration. The conclusion we have reached is that the posting order of the appellant dated 31-12-1981 was issued after the termination order dated I3-12-1981 which we hold to be a re-instatement of the appellant thus nullifying the effect of the termination order. The Population Division have said that the posting order was issued "inadvertently' as if it was a minor error to be overlooked. But this is not so.
Admittedly, the posting orders are issued in respect of only such officials who are in service. To this date the said posting order remains in the field and has not been recalled. We shall, therefore, hold that despite a valid posting order, the appellant has been kept out of service through no fault of his and that he was not allowed to resume duty in the Population Welfare Training Institute Lahore, when he reported there on 27-1-1982. Such being the legal position, the appellant shall be deemed to have continued in service as Superintendent without any break with entitlement to financial and other benefits and we order accordingly.