' A.
0. RAZIUR RAHMAN (MEMRER).-The appellant, who was appointed as Superintendent E/M Grade-II (Casual) by the Chief Engineer (Army) on 25th September, 1971 and, subsequently, in an officiating capacity in the same post on 3rd June, 1976 was removed from service by an order, dated 28th March, 1979 issued by the Garrison Engineer (Air), Lahore Cantt. Which is reproduced below : - "As the original Diploma in Technology produced by you has not been assessed equivalent to three years post-Matric Diploma vide Punjab Board of Technical Education, Lahore letter No, BTD/ACD/ 79-512, dated 20th February, 1979 your services are, therefore, hereby terminated from today the 28th March, 1979 (F. N.).
' Auth : JSHQ E in C's Branch Rawalpindi No, 1409/EIE, dated 11th March, 1979 and DW & CE (PAF)
Peshawar No, 1104/EIE, dated 21st March, 1979."
' Against this order, the appellant made a representation to the Government of Pakistan through the Secretary, Ministry of Defence in which, inter alia he pointed out that although originally appointed on casual basis later, after having put in 4 years and 9 months service, he was appointed on regular basis and yet his services were terminated after he had put in full 7 and a half years of service, on the ground that his Diploma in Technology had not been assessed equivalent to 3 years post-Matric Diploma, in spite of the fact that, according to an order, dated 15th February, 1965 vide Engineer-in-Chief Branch GHQ Rawalpindi No, 1402/2EI/(E) the Engineer-in- Chief had been pleased to recognize the Diploma in Electrical Engineering awarded by the Technical Institute, Lahore as a basic qualification required for recruitment of subordinates (Superintendent E & M Grade-II) in the M.E.S. He, therefore, prayed that the order terminating his services be rescinded and he may be allowed to continue in his appointment. In reply to this representation, the Engineer-in-Chief vide his letter No, 8466081/EIE, dated 3rd May, 1979 informed him as under :- "Your appeal, dated 11th April, 1979 addressed to Ministry of Defence refers.
' Your services have been terminated as a result of certification by the Secretary, Punjab Board of Technical Education, Lahore that the Diploma issued by the Technical Institute Shahrah-e-Quaid- e-Azam, Lahore in any technology has never been assessed as equivalent to three years post- Matric Diploma of their Board in any technology.
' If you had passed the departmental promotion examination you could have been considered for promotion to Superintendent E/M alongwith the other departmentally qualified people. C.E. for C-in-C Zia-ud-Din"
' Thereafter, the appellant served on the respondent a notice under section 25-A of the Industrial Relations Ordinance, 1969, but failing to get relief he filed a petition under the same section of the aforesaid Ordinance before the Punjab Labour Court No, 1, Lahore on 15th May, 1979. The Labour Court, after hearing the parties, dismissed the petition on 29th November, 1979 on the ground that the matter was outside the purview of the Labour Court, since the Industrial Relations Ordinance, 1969 was not applicable to the persons employed in any defence service of Pakistan or any service connected with or incidental to the Armed Forces of Pakistan. Consequently, the appellant preferred his appeal before this Tribunal under section 4(2)(a) of the Service Tribunals Act, 1973.
This appeal was admitted for hearing by the Tribunal on 27th August, 1980 subject to Limitation and was heard in full on 15th September, 1982 and 21st September, 1982.
2. The appeal was opposed by the respondents, both on legal ground and on ground of merit. So far as the legal ground is concerned, it was claimed that the appeal was time-barred and, therefore, liable to dismissal as such. As for merits, it was claimed that the order of termination was legal and in accordance with the rules ; that it was based on the ground that the Diploma obtained by the appellant from the Technical Institute Lahore had never been assessed as equivalent to 3 years post-Matric Diploma recognized by the Board cf Technical Education. It was also claimed that proper enquiry had been held before action was taken to terminate the services of the appellant.
3. So far as the objection on the ground of limitation is concerned, the appellant made an application under section 5 of the Limitation Act, praying that delay in filing the appeal be condoned on the ground that, under a bona fide mistake of fact and law, he had served the respondent with notice under the Industrial Relations Ordinance, 1969, which had delayed his coming up in appeal before the Tribunal and that he had otherwise been vigilant in pursuing his case and approached the Tribunal without loss of time after the dismissal of his petition by the Labour Court. From the record, we find that the petition was dismissed by the Labour Court on 29th November, 1979 and that he filed his appeal before the Tribunal on 15th December, 1979. Since the appeal was filed within one month of the dismissal of his petition by the Labour Court and since he had agitated the matter in the wrong forum under a bona fide mistake, we condone the delay and proceed to decide the case on merits.
4. The facts and circumstances of the case, on which there is in dispute between the parties, clearly show that the appellant was selected for appointment first in a casual capacity and later in the regular cadre in officiating capacity ; that both the appointments were made after observance of the necessary formalities ; that although he had served in all for a period of 7 years and 6 months, he was thrown out of job on the ground that hi Diploma in Technology was not equivalent to a 3 years post-Matric Diploma. Although there is no mention of a Diploma equivalent three years post- Viatric Diploma being a prerequisite to appointment to the post in question, in the letters of appointment issued to the appellant, firs in 197i and later in 1976, and neither the learned counsel for the respondent nor the Departmental Representative could explain whether it was a prescribed qualification for the post that the candidate should be holding a Diploma in Technology equivalent to 3 years post-Matric Diploma, it 1, presumed that the departmental authorities felt that the appellant could not be retrained in the post because he was not fully qualified for the job. As already stated, the appellant, having been first recruited on casual basis, and after having served in that capacity for 4 years and 9 months, was placed on regular footing, it is presumed that he must have been appointed after the authorities had satisfied themselves as to his fitness for the job, both technically and otherwise. In the appointment letter, it was not mentioned that his appointment was subject to the production of any certificate to the effect that his Diploma in Technology was equivalent to 3 years post-Matric Diploma, as per assessment of the Punjab Board Technical Education. Consequently, it was not open to the Department, after the appellant had put in continuous service of 7 years and a half, to terminate his service on a ground which was not specified in the letter of appointment. Of course, the service of the appellant, according to one of the conditions specified, was liable to termination on a fortnight's notice, or pay in lieu thereof. This, however, did not empower the Department to dispense with his service arbitrarily, or on a ground which was not mentioned in the letter of appointment. The letter of appointment, being in the nature of a contract between the employer and the employee, has to be honoured equally by both the parties. This implies that, while the department could terminate the service of the appellant on a fortnight's notice, this termination could be justified either by considerations of administrative necessity or by one of the terms specified in the letter of appointment. Since, in the present case, the respondents have not been able to adduce any justification on either of the two above grounds, we cannot understand how their action in dispensing with the services of the appellant can be defended.
5. It, however, stands to reason that some technical qualification must have been prescribed for the post to which the appellant was appointed. Apparently, as he had completed 2 years Diploma course in Electrical Technology from the Technical Institute, Lahore, he was appointed on the basis of this qualification. As pointed out by the appellant, this Diploma had been recognized as basic qualification for recruitment of Superintendent E/M Grade-II in the M.E.S. By the Engineer-in-Chief himself, and as far back as 1965. If, as is apparent, the appellant's appointment was made on the strength of this Diploma, it is not open for the Engineer-in-Chief to say, in the year 1979, that, because the Punjab Board of Technical Education does not consider this Diploma as equivalent to 3 years post-Matric Diploma, the appointment of the appellant could not be continued. If, originally the appointment had been made on faulty assumptions made by the appointing authorities, the employee should not be made to suffer on that account. Having been appointed after proper selection in a regular manner, the appellant has acquired a vested right, which cannot be taken away by an arbitrary decision of the appointing authority.
6. In the light of the above, our finding is that the termination of the service of the appellant as Superintendent E/M Grade-H under the Engineerin-Chief was not justified and cannot be upheld.
The order of the Garrison Engineer (Air), Lahore Cantt., dated 28th March, 1979 terminating the service of the appellant and that of the Engineer-in-Chief, dated 3rd May, 1979 rejecting his appeal are, therefore, set aside and it is ordered that the appellant be re-instated in service with effect from the date of its termination and with full consequential benefits.
7. No order as to costs.
8. .