MIAN BURHANUDDIN KHAN, J.-- Leave was granted by this Court, vide order, dated 12-12-1981, to consider, inter alia, that the appeal before the learned Tribunal was not competent because under section 4 of the Punjab Service Tribunals Act (IX of 1974) the learned Tribunal could hear appeals only from orders passed by a departmental authority.
2. The respondent was appointed as Inspector of Police on ad hoc basis vide order of the Inspector-General, Police dated 17-9-1976. He completed, his training at .The Police Centre Chuharkana and later on at the Police Training College, Sihala, Martial Law Instruction No.21 pertaining to the regularization of adhoc appointments war, promulagated on 7-8-1977 and the respondent's case was taken up for scrutiny his services were terminated on 13-9-1977. This was notified in the Police Gazette of Multan Range in September, 1977. Hereafter the respondent preferred a petition to the Martial Law Administrator Zone-A for review of the decision terminating his service. The review petition was decided on 18-3-1978 wherein it was stated, "It has been decided by the Martial Law Administrator, Punjab, Zone-A to re-instate him as Assistant Sub- Inspector of Police with immediate effect subject to the proviso mentioned below. ---the intervening period will be treated as extraordinary leave or any other leave, that he may be entitled to.--- Necessary order will be issued by your Department to implement the above decision with information to this Headquarter. The respondent represented to the Government through a petition against the order of his re-instatement as A.S.I. This petition was rejected by the Home Secretary vide his Memo, dated 27th December, 1980. The petitioner then filed an appeal before the Punjab Service Tribunal challenging the order of the Martial Law Administrator, Headquarter Zone-A dated 18-3-1978 and also the order of the Punjab Government dated 27-12-1980. The learned Tribunal vide its impugned order dated 10-8-1981 held that the to impugned orders passed by the Martial Law Administrator and the Government were bad in law and, therefore, set aside both the said orders and further directed that the respondent (appellant before us) be re-instated as Inspector of Police.
3. Learned counsel fox the appellants assailed the findings of the learned Tribunal that the order of the Martial Law Administrator Headquarter Zone-A directing re-instatement of the respondent as A.S.I. Was beyond the scope of Martial Law Instruction No.21 on to-fold grounds that the order of the Martial Law Administrator Zone A clearly indicates that on review it was found that the respondent was not fit to be taken back or re-instated as Inspector of Police and according to the decision he could validly be taken and was fit for appointment as A.S.I. Which offer was made to him vide order dated 18-3-1978;that the word, re-instated in the said order does not signify to take him back as Inspector of Police; that the- order of the Martial Law Administrator reviewing the appointment of the respondent is not an order of a departmental authority as contemplated in the Civil Servants Act, and, therefore, it was not appeal able under section 4 of the Punjab Services Tribunal Act.
Hence, the learned Tribunal was not competent to adjudicate on the scope and authority of the Martial Law Administrator Zone-A. It was further contended by the learned counsel that the learned Tribunal was debarred from adjudicating on the order passed by the Martial Law Authorities or any person deriving authority from the Martial Law under Article 15 of the Provisional Constitutional Order, 1981, and that the learned Service Tribunal has not properly appreciated this aspect of the case.
4. We have examined the contentions raised by the learned counsel and have gone through the Judgment of the learned Service Tribunal. Relevant portion of the Martial Law Instruction No.21 reads as follows: (1)In the past some the a large number of ad hoc appointments in avenue, Police, Education and other departments were made in the Province of Punjab. These ad hoc appointments fall in the following categories:-
(a) ......
(b) .....
(c) .....
2. Martial Law Administrator, Punjab, Zone-A has decided that the following procedure will be adopted with immediate effect to regulate these appointments
(a) ---------
(b) ...------.
Cases of all other persons appointed directly or promoted on ad hoc basis at present in service will be reviewed immediately by the appropriate selection authority competent to make recommendations for regular appointment according to the rules. On such reviews those who are found ineligible or unsuitable their services will be terminated. Those found eligible and suitable, will be converted to regular basis. This action shall be completed by 31st August, 1977 by all departments in the Province of Punjab.
(3). Martial Law Administrator, Punjab Zone-A further directs that all appointments, whether by initial recruitment or by promotion, made otherwise than in accordance with the prescribed method of recruitment /promotions, shall be deemed to have been made on ad hoc basis notwithstanding that they have been made in the purported exercise of power of relaxation of rules and their cases will also be regulated according to policy given in para. 2 above."
5. On the publication of the aforesaid Martial Law Instruction No.21 all ad hoc appointments made by the ex-Chief Minister were scrutinized by a Committee comprising the Inspector-General Police and Brig. Fayyaz Ghani and it was found by Committee that none of the appointees was suitable for retention in service. Accordingly, the services of all the Inspectors including the respondent, appointed on ad hoc basis under the orders of the ex-Chief Minister, were terminated.
Respondent's case was subsequently reviewed by the Headquarters, Martial Law Punjab Zone, 'A'
Review Board and vide latter No.805/I/C/E/M, dated 18-3-1978 the Chairman of the Review Board informed that it had been decided by the M.L.A. Zone A, Punjab that Mr Saleem Hussain Gardezi ex- Inspector of Police be re-instated as Assistant Sub-Inspector of Police and the intervening period be treated as extraordinary leave. It is also clear that the respondent was not appointed by the competent authority but his appointment was the result of the direction from the Government and thus he had been selected by the Adhoc Selection Board constituted by the ex-Chief Minister and that provision of rule 22 of the Punjab Civil Service (Appointments and Conditions of Service) Rules, 1974 and all other relevant rules had been relaxed in his case by the Government of Punjab. In fact direct appointment in the rank of Inspector was not permissible under the rules and he had been appointed against a post specially created after relaxation of all the relevant rules. Therefore, his services were terminated because he was not found fit to be retained in service by the Board.
Besides this the order of termination was passed by the Review Board constituted under Martial Law Instruction No.21, and, therefore, could not be challenged under section 4(1) of the Punjab Service Tribunals Act, 1974 which reads as follows: "Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of communication of such order to him, or within six months of establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal."
Therefore, the finding of the learned Tribunal is misconceived on this' point. Moreover, under Article 15(2) of the Provisional Constitution' Order, 1981 which is as follows; "All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the fifth day of July1977, in exercise of the powers derived from any President's Orders, Orders of the Chief Martial Law Administrator, Martial Law Regulations, Law Orders, enactments, notifications, rules, orders or bye-laws, or in execution of any', Orders made or sentences passed by any authority in the exercise',, or purported exercise of powers as aforesaid shall,' notwithstanding any judgment of any court, be deemed to be, and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever .... " the order of the Board or the constitution of the Board cannot be challenged. In view of this propitiatory provision of law the learned Tribunal was debarred from adjudicating on the order passed any under Martial Law Instruction. Appeal allowed, with no order as to costs.