MUHAMMAD IRSHAD KHAN (MEMBER)----- The case of the appellant, briefly speaking, is that in December, 1972, he was selected as candidate for appointment as Assistant Manager in the Auqaf Department by the Chief Administrator of Auqaf, Punjab. He joined the Department and on successful completion of departmental training, was declared successful for the post. He served as such till 29-7-1973 when he was appointed as Manager in the same Department. He served the department honestly and with due diligence till he was illegally removed from service, vide order dated the. 15th of April, 1979, purportedly passed in exercise of the powers conferred by section 3 of the Corporation Employees (Special Powers) Ordinance 1978. Aggrieved thereby he submitted a representation to the President of Pakistan on 23-4-1979. When no decision on the said representation was conveyed to the appellant even after expiry of a period of about a year, he filed a writ petition in the Lahore High Court which was admitted to regular hearing on 3-6-1980 and ultimately came up for hearing on 20-9-1981 alongwith some other writ petitions involving the same point of law and facts. During the course of hearing a plea was raised on behalf of the respondents that, in the circumstances of the case, the appropriate forum for the purpose of redress of the grievance of the appellant was Service Tribunal. In view of the discovery of certain materials on the file and the submissions made by the respondents, the appellant withdrew his writ petition to seek the remedy before this Tribunal and accordingly filed the present appeal on 18-10- 1981. He has assailed the impugned order of his removal from service on a number of grounds of law and facts averred in the memo of appeal and urged at the bar.
2. A preliminary objection regarding limitation has been raised on behalf of the respondents contending that the appeal is hopelessly time-barred because the impugned order was passed on 15-4-1979 while the present appeal was filed on 18-10-1981. The appellant has submitted an application for condonation of delay. It was explained that against the impugned order he had first submitted a departmental representation which is still pending. Thereafter under a bona fide belief that the impugned order having been passed by an incompetent authority is coram non judice, he filed a writ petition before the Lahore High Court which was admitted for regular hearing and was heard on 19/20-9-1981. During the course of the said hearing it transpired that the impugned order could be challenged before this Tribunal, therefore, the learned counsel for the appellant submitted that he would like to withdraw the writ petition with a view to approach the Service Tribunal... The appellant thus during the intervening period, had been vigilantly pursuing his remedy in good faith before the departmental authorities and the High Court. The contention is not without substance. In any case, since no decision has yet been taken on the departmental represen--tation submitted by the appellant; the cause of action for approaching this Tribunal still subsists inasmuch as a right to file an appeal before the Service Tribunal shall afresh accrue if and when the decision is taken by the competent authority on the departmental representation of the appellant which, according to the respondent-department, "has not been decided as in the meantime he filed a writ petition and the matter became sub judice". The delay thus stands explained and accounted for to our satisfaction. The objection of the respondent-department is accordingly overruled.
3. On merits it was contended on behalf of the respondents that the initial appointment of the appellant as Assistant Manager, Auqaf, on 28-3-1973, and his subsequent appointment as Manager with effect from 30-7-1973 against the direct quota, was made on the directions of the Provincial Minister for Auqaf in violation of the prescribed recruitment rules which require advertisement of the post and, therefore, the impugned order has rightly been passed in exercise of the powers conferred by section 3 of the Corporation Employees (Special Powers) Ordinance, 1978 on the recommendation of a Review Board set up for reviewing all appointments made during the relevant period in the Corporations and institutions under the Ministry of Religious Affairs.
4. It is noticeable that to establish the violation of the prescribed recruitment rules the only emphasis was that the appointment had been made without advertising the vacancy. However, no rule could be shown to us in support of assertion that the advertisement of the post was a prerequisite for such appointments. We have carefully perused the relevant rules i.e. West Pakistan Auqaf Service Rules, 1962. It has been provided therein that the "vacancies in the posts of Assistant Managers shall be filled by initial recruitment or by transfer of a suitable official serving under the Government". The qualifications for appointment to different posts have also been prescribed therein which for the post of Assistant Manager is Intermediate and for the post of Manager is Graduation from recognised University. There is, however no provision in the said Rules imposing any condition of advertisement of post before appointment. Therefore, the contention of the violation of the prescribed procedure in the appellant's appointment cannot be substantiated, more particularly, when the appellant was admittedly well-qualified for the appointment as Assistant Manager when he was appointed as such. Perusal of the record has further revealed that while making appointment of the appellant, one of the considerations before the authorities concerned was that there was no other earning member in his family after he martyrdom of his elder brother who sacrificed his life during the 1971 Indo-Pak War. In the circumstances, the appellant's appointment made in recognition of the meritorious services and sacrifices rendered by his family for the defence of the country, cannot and must not be considered an irregular/ political appointment. Thus there was, in our considered view, no wrong at all in the appointment of the appellant as Assistant Manager and subsequently as Manager.
5. It, surprisingly enough, further transpired that information given to the Review Board by the Chief Administrator, Auqaf, Punjab; that the appointment was made under the direction of the Minister in violation of the prescribed rules, was not based on the relevant record but on some unauthentic source as the personal file of the appellant was reported to be untraceable. Indeed, Mr. Fazalur Rahman Khan, the then Secretary, Ministry of Religious Affairs, had taken due notice of this anomalous position by recording the following note when the case was put up to him on the representation of the appellant:- "23. The cases of the following two officials of Auqaf Department (Punjab) are returned herewith:-
(1) Mr. S. Atique ShahEx-Manager, Auqaf (Punjab).
(2) Mr. Ehsan AhmadEx-Manager, Auqaf (Punjab).
24. It has been stated in the office nothings that the personal files of these two officials are not traceable. If this is the case, it is not clear as to on what documents the Chief Administrator, Auqaf, Punjab, has relied upon his recommendations as contained in his letter No. SOG(A) 17 (136)/77 (SA- 1), dated 29th October, 1979. It is also not clear that if their files are not traceable, what material was put up to the Review Board when their cases were put up to the Board for review. These two points need clarification.--- It thus becomes manifestly evident that the recommendation of the Review Board is not based on genuine material but on unauthentic and insufficient information, which was nothing but too arbitrary an action to deprive a person of his livelihood. On this account also the impugned order is liable to be struck down.
6. It was also urged by the appellant that the Federal Cabinet decided to exclude the appointment made upto Grade-16 during the relevant period from action taken under the Corporation Employees (Special Powers) Ordinance, 1978. It was, however, contended on behalf of the respondents that this decision was taken by the Cabinet on 15-7-1979 and was to operate prospectively while the impugned order was passed prior thereto on 15-4-1979 and, therefore, the appellant cannot take the benefit of the said Cabinet decision. In any case, our conclusion seeks further strength from the said Cabinet decision inasmuch as in the appeal before us the entire case is reopen for our scrutiny.
7. The appellant also urged a number of legal and technical grounds to challenge the vires of the Corporation Employees (Special Powers) Ordinance, 1978, and its applicability to his case. Since, however, the appeal is being allowed by us on merits, we do not consider it necessary to examine and discuss these grounds.
8. For the foregoing reasons we accept the appeal, set aside the impugned order and direct that the appellant shall be re-instated from the date of removal to the job from which he was removed.
Consequently, he shall be deemed to have been allocated to the Province of Punjab in pursuance of section 3 of the Auqaf (Federal Control) (Repeal) Ordinance, 1979, 'read with the Federal Government Order notified on the 15th of April, 1979
9. There shall be no order as to costs.
A . E.