' MUHAMMAD TRSHAD KHAN (MEMBER).-It is the case of the appellant that he was initially appointed as Population Officer with effect from 3rd July, 1965 under the erstwhile Population Planning Council. He was subsequently promoted as District Population Officer (Grade-18) from the 15th of March, 1973. Consequent upon the abolition of the Population Planning Council with effect from the 30th of April, 1977, the appellant was offered and he accepted an appointment in Grade-18 under the Population Division of the Government of Pakistan and he was specifically made subject to rules and regulations applicable to the employees of the Federal Government. He continued as such till the 14th of June, 1978, when abruptly a notification was issued by the respondent terminating his services with effect from 15th June, 1978 allowing fourteen days' salary in lieu of notice, on the alleged ground of being involved in disruptive activities. The Respondent- Government, however, on second thought realized the illegality and impropriety of termination order and had formally withdrawn it. The appellant was accordingly reinstated into service with effect from the date of termination vide Government Notification, dated the 18th of June, 1979. On the very next day, however, he was placed under suspension with effect from 19th June, 1979. The order of suspension was passed under the Government Servants (Efficiency and Discipline) Rules, 1973. The three months' period of suspension expired on 18th September, 1979 and if it was intended to continue the suspension beyond the 19th of September, 1979, the respondent was required, under the law, to obtain and communicate the approval of the competent authority to the extension of the period on or before the 18th of September, 1979. Since no such action was taken, the appellant' stood autmotically re-instated into service but instead of re-instating him into service and allowing him to perform his duties the respondent took an illegal action of issuing of belated order on the 29th of September, 1979, purporting to entend the period of suspension for three months retrospectively from 19th September, 1979. This pattern of action was repeated several times subsequently and the statement below shows the due dates on which extension of suspension could have been ordered and the actual dates on which letters of so, called extensions were issued :- "S. No.Date of Expiry of SuspensionLetter of extension issued on
1. 19th September, 197929th September, 1979
2. 19th December, 197910th January, 1980
3. 19th March, 1980 26th April, 1980 4.19th June 1980 26th June, 1980 5.19th September, 198013th October,1980 6.19th December, 198018th March, 1981
7. 19th March, 1981 19th March, 1981 8.19th June, 1981 25th August, 1981 9.19th September, 1981Services again terminated with effect from 17th September, 1981 under Population Welfare Ordinance, 1981."
' The respondent thus went on repeating an illegal exercise at its irregular intervals till the 19th of September, 1981, when ultimately a notification purportedly terminating the services of the appellant with effect from 17th September, 1981 under the Population Welfare Ordinance, 1981, was issued. After exhausting the departmental remedy the appellant challenged the extension of his suspension as well as the termination of his services before this Tribunal in Appeal No, .5 (R) of 1982 on various grounds including the one to the effect that the appellant was not an employee of the Population Council or Population Board, but a civil servant and, therefore, the provisions of Population Welfare Ordinance, 1981, could not be applied to him ; and that, in any case, having initiated action against him as a disciplinary measure, the Government was bound to follow the prescribed procedure laid down in the Efficiency and Discipline Rules and to take the proceedings to a logical conclusion and unless it was done his services could not be terminated under the Population Welfare Ordinance, '1984 even if it was applicable to him.
2. As the appellant's aforesaid Appeal No, 5 (R) of 1982 was fixed alongwith many other cases of Population Planning Employees affected by the Ordinance of 1981, the counsel for the appellant agreed during the hearing, to confine his arguments to the specific issue pertaining to the termination under the Ordinance and the illegal nature of the rules framed thereunder. One of the main issues involved in the appeal of the appellant relating to his automatic re-instatement into service in 1979 was agreed to be taken up later. By its order, dated 23rd February, 1983 this Tribunal while accepting the appellant's aforesaid Appeal No, 5(R) of 1982, set aside the order of termination of service adding that the Tribunal was not ordering re-instatement of the appellant into service at that stage and merely directed the respondent to refer the appellant's case again to the Federal Public Service Commission. Since, however, the question of automatic re-instatement into service in 1979 remained unattended to in that appeal and, therefore, remained unresolved, the appellant approached this Tribunal by way of a fresh appeal praying for a decision on this specific question and other ancillary matters. On 14th June, 1983 the appeal was admitted to regular hearing by the same Bench which decided the previous appeal and on 10th October, 1983 it came up before us for hearing.
3. We have heard the parties and perused the record. On the question of appellant's automatic re- instatement into service after expiry of first three months' period of suspension, it may be noted that according to rule 5 (1) of the Government. Servants (Efficiency and Discipline) Rules, 1973, any continuation of suspension requires approval of the 'authority' after every three months. This provision also makes it quite clear that not only the contemplated suspension but its further continuation also must be preceded by approval of the `authority'. This view is further supported by the official interpretation of the Department as given in Office Memo. Of the Establishment Division, dated 22nd February, 1975, printed at page 262 of the Estacode. The relevant portion may be reproduced with advantage.
"(a)
(b) Since continuation of forced leave or suspension beyond a period of three months again requires the approval of the "authority" it would appear that on expiry of the said period of three months the Government servant who has been placed under suspension or forced to proceed on leave would be deemed to have been reinstated unless before the expiry of the said period the approval of the "authority" to the Government Servant continuing to be under suspension or on leave has been obtained."
(Underlining is ours.)
4. It is thus evident that according to the Department's own official interpretation the appellant stood automatically re-instated into service on 19th September, 1979, on expiry of three months of his suspension as upto that date no approval of the competent authority for extension of suspension was obtained and notified. The same wrong exercise was repeated even thereafter as a result whereof the appellant practically remained under suspension till the 19th of September, 1981, when his services were terminated under the Population Welfare Ordinance. It is indeed a well-settled position of law that no executive order can enforced retrospectively. In any case the first extension order dated the 29th of September, 1979, being void, all subsequent orders based thereupon automatically fall to the ground. We may observe in this context that the Government itself is not only bound by the instructions it issues for the guidance of its officers but is also obliged to follow and implement its own interpretation of a particular provision of law, unless the same are found to be in clear violation of any law. This view appears to have universal following. It may be pertinent to quote a passage from pages 92 and 93 of Legal Control of Government by Bernard Schwartz and H. W. R. Wade :- "American law has not made any distinction between substantive and [Here in italics] ' procedural rules in respect of their legally binding effect. There are numerous cases in which agencies are held legally bound by their own procedural rules, even when made informally. This principle has been applied to procedural rules governing discharges of Government employees, deportation proceedings, tax proceedings, and other cases. It makes no difference that the procedures established by the agency are more generous than is required by Constitution or statute. Agency's violation of its own procedures is considered arbitrary action, which 'cannot be reconciled with the fundamental principle that ours is a Government of laws'.
' The American Courts have not limited their application of this principle to cases where the procedures are promulgated under statutory authority, formally labelled 'rules' or 'regulations' and adopted with strict regard to the requirements of the Administrative Procedure Act. Thus, the Supreme Court has held an agency bound by its own internal 'order', and other Courts have done the same with regard to a Federal Communications Commission 'rule' which, though not formally promulgated, had been established by the F. C. C's. 'usual practice' a Department of Defence 'Directive', and even a procedure enunciated in a 'News Release'. Thus, there are certain kinds of rule making which can have legal effect without any statutory authority whatever. It might almost be called legislation by estoppel."
15. In view of the foregoing there is no escape from concluding that the respondent acted in violation of its own official interpretation and instructions in continuing to place the appellant under suspension beyond 19th September, 1979 when, as said above, his three months' period of suspension expired and no approval of the competent authority for extension preceded. We, therefore, declare that all orders of xtension of appellant's suspension were incompetent unlawful and of no legal effect. Even otherwise, such belated executive orders could not be enforced retrospectively. The appellant thus automatically stood reinstated into service on 19th September, 1979 and it is held accordingly.
6. Coming to the question of termination of the appellant's services under Population Welfare Ordinance of 1981 it may be useful to reproduce below subsection (2) of section 1 and clause ( f ) of section 2 of the said Ordinance : "l ... ... ... ... ...
(2) It applies to all employees of the Council and the Boards including persons on deputation with the Council or a Board.
( f) "Employee" means an employee of the Council or a Board appointed on temporary or ad hoc basis in the Population Programme on or after the 30th April, 1977, and paid from the Pakistan Family Planning Council Fund or the Provincial Population Planning Board Fund : (Underlining is ours)
[Here in italics] ' The combined effect of the above provisions would doubtlessly be that action under the said Ordinance could be taken only in respect of an employee of the Council or Board appointed on temporary or ad hoc basis in the Population Programme on or after the 30th April, 1977. It, therefore, follows that no action under the said Ordinance could be taken even in respect of an employee of Board or Council who was appointed as such before the 30th April, 1977. It thus becomes abundantly clear that even if the appellant was an employee of the Council, his services could not be terminated under the provisions of the said Ordinance as he was appointed as such on 3rd July, 1965 i. e. Twelve long years before the 30th April, 1977.
7. Be that as it may, however, it is to be seen that not only this Tribunal recognized the appellant to be a civil servant while disposing of his Appeal No, 5 (R) of 1982 but significantly enough the appellant produced before us a copy of the written statement filed by the respondent in a civil suit filed by the appellant in the Court of Civil Judge, Jhelum, to challenge his suspension. Para. 1 of the aforesaid written statement of the respondent-Government reads as under :- "1. That the subject-matter of the suit is without the jurisdiction of the Civil Court after the creation of Service Tribunals, which have the sole and exclusive dominion over the subject-matter. The jurisdiction of civil court being precluded expressly, the suit is liable to be dismissed."
' A bare perusal of the respondent's above averment would clearly show that thereby the respondent specifically and unambiguously admitted that the .Appellant was a civil servant. The respondent, therefore, cannot be allowed now to turn round and say that the appellant is not a civil servant. Needless to say that under the universally accepted principle of 'estoppel' and the doctrine of 'approbate and reprobate' enshrined in maxim 'Qui approbate non reprobate", no one can be allowed to accept one thing for one purpose and to reject the same for another. This position being so clear, the respondent-Government cannot be allowed not to consider the appellant a civil servant for any purpose.
8. The upshot of the above discussion would be that the appellant was not an employee of the Council or a Board within the meaning and for the purpose of the Population Welfare Ordinance of 1981 but was admittedly a civil servant. The provision of the said Ordinance, there- fore, cannot be made applicable to him and no action thereunder could be taken against him. The irresistible conclusion would, therefore, be that the action of termination of the\ appellant's service under the said Ordinance was clearly illegal, incompetent and without lawful authority and is accordingly set aside. It is, therefore, directed that the appellant shall be re-instated into service with effect from the 19th of September, 1979 with all the consequential benefits and he shall be taken back on duty forthwith. As held above, the appellant is not covered by the Population Welfare Ordinance of 1981 and, therefore, it is further directed that he shall not be dealt with under that Ordinance.
6. It may be added that since in Appeal No, 5 (R)/1982 the aspect of the case examined herein was not considered by this Tribunal while directing that the appellant's case should again be referred to the Federal Public Service Commission, the said order to that extent becomes redundant and is superseded hereby.
10. No order as to costs.