MOHAMMAD SIDIQUE FAROOQI (CHAIRMAN).--This appeal is directed against the Government Order No. Admin/12492-99/80, dated 26-7-1980, whereby the appellant was reverted from the post of Assistant Engineer (Sub-Divisional Officer). The appellant stated that he was promoted as Sub- Divisional Officer on 11-4-1974 and after lapse of 6 years, he was reverted to the post of Sub- Divisional Officer, without issuing any show-cause notice. It was also alleged that some rules were framed in 1979, whereby 25$ quota was specified for non-graduate Engineers for the posts of Assistant Engineer/Sub-Divisional Officer in the Public Works Department. According to the appellant, these rules were not applicable to him because these came into force more than 5 years after his appointment as Sub-Divisional Officer. The Government respondent in this case pleaded that the appellant was appointed as Sub-Divisional Officer on ad hoc basis, therefore, he had no right of being retained on the post of Sub-Divisional Officer, when the appointment to the post was made on the regular basis. It was also pleaded that the appellant was declared unsuitable for the post and his reversion took place on the basis of the recommendations of the Public Service Commission. It was also pleaded that Government order dated 26-7-1980 had been amended vide another Government order issued vide No.649-56, dated 1-2-1981.
2. The preliminary objections were taken by the State respondent that appellant had no right of appeal, because he had been retired from service and furthermore he was a heart patient, therefore, he was not fit for service. It was also pleaded that the appeal was time barred and further that necessary parties were not impleaded as respondents.
3. We heard the arguments and, perused the record. Objections with regard to the retirement of the appellant, the health of the appellant and non-impleading of necessary respondents are baseless, because no material has been placed on record to support either of the three averments, made in the written statements. No arguments were addressed by the Advocate-General, the counsel for the respondents, on these three points and thus those objections shall be deemed to have been abandoned. Now the following points are left for determination:
(i) Whether the present appeal is time-barred
(ii) Whether the review petition before the Government was in time?
(i.e) Whether the impugned order was passed without a show-cause notice to the appellant?
The points (i) and (ii) reflected above being co-related are disposed of together.
4. The learned Advocate-General, laid much stress on the preliminary objection that the appeal is time-barred. According to him the order was passed on 26-7-1980 and the appeal purports to have been brought before the Tribunal on 3-3-1981. It was also argued by the learned Advocate- General that the appellant did not prefer review petition before the Government within time, because the review petition appended with the appeal, purports to have been presented on 5-11- 1980, which according to him having been preferred beyond 90 days from the date of issuance of the impugned order is time-barred. Therefore, according to the Advocate-General, it should also be presumed that the appellant did not avail of the departmental remedy available to him and as such the appeal was hit by the proviso (a) to section 4 of the Service Tribunal Act, 1975. As against this preliminary objection, the learned counsel for the appellant argued that the appellant was out of Pakistan on ex-Pakistan leave sanctioned in his favour, by the Government, therefore, period for which he was out of country, which as per entry of the passport stretches from 19th July, 1980 to 12th October, 1980 is to be excluded. He alternatively submitted that limitation runs against the appellant from the date, the order is communicated to the appellant or it comes to his knowledge.
There is no record before us to show as to when this order was communicated to him. According to the counsel for the appellant, at the most, it should be presumed that the appellant was apprised of the order when he returned to the country. He left Pakistan on 19th July, 1980 and the order was passed in his absence on 26th July, 1980. The limitation according to the learned counsel for the appellant will start from 12th October, 1980 when the appellant came back to Pakistan. Mr. Manzoorul Hasan Gillani the learned Advocate-General argued that the Tribunal is not competent to exclude any time and is bound to presume that the order was communicated on the day, it was issued. We are astonished to hear this strange argument having come from the Advocate-General.
If we are asked to dismiss any appeal, for limitation, it is our duty to determine the date, from which the limitation starts. Unless the starting point of limitation is not determined, it cannot be said that any case, may it be application, appeal or suit, is time-barred. Since the appellant was not in the country on the day of passing of the order, and it is not shown to have been printed in any Government Gazette nor it is pleaded that the order was communicated to the appellant abroad, we are unable to subscribe to the view put forth by the Advocate-General that the order shall he deemed to have come to the notice of the appellant, on the date of its issue. There is no such presumption in law, in the circumstances, stated by us hereinbefore. The law never expects any' person to do which is improbable. A person outside the country can never be expected to have the knowledge of the things, going on within the country.
5. It is borne out from the contents of the photostat copy of the passport Exh.C.W.A. That the appellant came back in Pakistan on 12-10-1980, therefore, it will be presumed that the order of his reversion, came to his knowledge on 12-10-1980. Resultantly, the limitation of 90 days will start from the date of communication or of the knowledge of the order, which in the present case would be 12-10-1980 and not 26-7-1980. The review petition was preferred on 5-11-1980, which in the circumstances of the case is not barred by limitation. Objection of the Advocate-General is, therefore, repelled that this Court is not competent to determine the starting point of limitation. It is made clear that the Service Tribunal is an appellate authority and has all the powers of departmental authority, for the purpose of the disposal of the case. This Tribunal has the powers vesting in a civil Court, under the Code of Civil Procedure. Section 107 of C.P.C. Is reproduced below for reference: - "107. (1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power-.
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
From the above provision of C.P.C., it is evident that an appellate Court has all the powers of original Court in addition to its powers as appellate Court. Apart from this, in PLD 1982 SC 349, it has been held by the Supreme Court of Pakistan that the Service Tribunal has were power as an appellate authority, to pass any order, which can be passed by the departmental authority. It was argued by the learned. Advocate-General that the Tribunal cannot act in two capacities namely; for consideration of the limitation, involved in the presentation of the Review petition and as appellate authority for deciding the appeal. This argument is also fallacious. Whenever, an appellate Court is required by law or asked by party to give finding on any point, which should have been decided by a subordinate Court or authority, the appellate' Court determines such matters as appellate Court and not as subordinate authority. For instance, a civil suit is decreed by a Sub- Judge or a District judge and High Court finds that it was time-barred, the High Court in such a case will be acting as appellate Court and not as the original Court, therefore, argument of the learned Advocate-General that the Tribunal has no authority to exclude any period out of consideration, or to determine the starting point of limitation, is repelled and it is held that the Tribunal has all the powers to determine any question arising out of the pleading, from the arguments of the parties or otherwise coming to its notice from the record which is necessary for the disposal of any appeal. It may be noted that remanding the case is never a requirement of law.
It is a discretion of civil or criminal Courts that they remand the cases otherwise such Courts have all the powers to try and determine the matters in issue coming before them, on appellate side.
7. The review petition was made on 5-11-1.980. The appeal before the Tribunal is preferred on 3-3- 1981, which is within 120 days from 5-11-1980, therefore, it is held that the appeal is not hit by limitation.
8. On merits, it was argued by the learned counsel for the appellant, that the impugned order was illegal for having been passed without issuing a show-cause notice to the appellant and it was also argued that the Public Service Commission never held that appellant, an unsuitable person for the post of Assistant Engineer, Sub-Divisional Officer. The Advocate-General argued that the appellant was promoted as sub-Divisional Officer on ad hoc basis, therefore, his case was covered by section 11 of the Civil Servants Act, 1976, which according to him dispenses with the requirement of notice. The learned counsel for the appellant cited a case entitled Rafique Akhtar Chaudhry v.
Azad Government PLD 1982 SC (AJ&K) 124 to which reference was made by the Supreme Court, while remanding this case to this Tribunal. No record was produced before us to show that appellant was heard by the respondent before his reversion nor there is any such assertion, I therefore, it is held that notice was not issued to the appellant. We have to see the legal aspects of absence of issuing of show-cause notice. The Supreme Court of Azad Kashmir in the case of Rafique Akhtar Chaudhry v. Azad Government PLD 1982 SC (AJ&K) 124 after discussing large number of cases, from Indian and Pakistan jurisdiction had observed at page 133 as under:- "The close scrutiny, however, makes us to believe that word 'terminate' is sub-Rule (2) when adjudged in relation to the last words 'whichever is earlier' only refers to the termination of the nature of the appointment which was originally an ad hoc one. The word 'terminate' and the phraseology 'whichever is earlier' used in this sub-rule, are to be read jointly and not disjunctively.
Therefore, an ad hoc promotion of a Government employee shall, in our estimation, lose its character at least for the purpose of taking action against him under Rule 13(2) of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, referred to above, in the event the incumbent is allowed to hold the post uninterruptedly for more than six months."
Again, it was observed in paragraphs 30 and 31 at page 134 as under:- "30. In our estimation, sub-Rule (2) of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, referred to above, is the controlling rule and does away with all the formalities which are required to be observed under the preceding provisions regarding the appointment of a person by promotion to a higher grade; and if such a promotion fulfils the conditions of sub-Rule (2) of Rule 13 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, the person holding the post at least for the purpose of taking action against him shall be deemed as a permanent employee.
31. The Dictionary meaning also supports. 'Terminate' in the Concise Oxford Dictionary carries the meaning as 'come to an end'. In the Reader's Digest Great Encyclopaedic Dictionary, Volume 2, the word 'terminate' is given the meaning 'bound, limit; bring, come to an end' Similarly, in Oxford English Dictionary the word 'terminate' is given the meaning 'Limited, bounded; ended, brought to an end; having a definite limit or limits; of determinate from or magnitude'."
9. The ad hoc appointments are sometimes made by the Government to any office with a view to avoid any delay and stoppage of the Government business, which would otherwise occur, if the appointment to such an office is made after due process of case through Selection Authority. Such an appointment meets its end under the provision of section 11 of Civil Servants Act, 1976, but the period, for which an ad hoc appointment can be made is not provided in the Act. To clarify the position Rule 13 is incorporated in the Rules made under the Act, whereby the period of ad hoc appointment is restricted to a maximum of 6 months. The Supreme Court has, thus held that, ad hoc appointment in view of this rule, cannot last beyond 6 months. In case an official appointed on ad hoc basis continues after the period prescribed under Rule 13, the nature of his appointment, is changed from ad hoc to the normal at least for the purpose of issuance of notice.
10. In view of the above findings of the Supreme Court, on the point, we have no option but to hold that the promotion of the appellant, which was initially made on ad hoc basis on 11-4-1974, lost its character of being ad hoc after the expiry of 6 months, from the date of issue of promotion order for the purpose of issuance of show-cause notice because according to the learned Judges of the Supreme Court, the maximum period of ad hoc appointment cannot last beyond 6 months, under the provision of Rule 13 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. We are bound by the verdict of the Supreme Court, therefore, we hold that the impugned order is bad in law, for having been passed without a show-cause notice.
11. There are certain other points, involved in this appeal. It is contended that the case of appellant was riot placed before the Public Service Commission for confirmation. We have gone through some record of the proceedings of the Public Service Commission. It has been found that department sent the names of some overseers and recommended that 18 overseers may be considered for the promotion. It was also indicated that there were 18 posts of Sub-Divisional Officers, which had been by that time filled in through ad hoc arrangement. It was recommended that out of the 18 posts, 75% were to be filled in by direct recruitment of graduates and 25% were to be the filled in through departmental promotion of non-graduate overseers, hence at the most, 5 overseers were to be promoted on the basis of the quota. The proceedings of the Public Service Commission show that 11 persons were recommended by the Commission for promotion. Out of 18, only 14, appeared before the Commission, while 4 were absent. This letter does not show the names of other persons, who were not found suitable, nor of those, who were absent. In absence of the names of persons, it cannot be ascertained, whether the appellant was considered. Thus it is not possible to accept the plea that appellant was found unsuitable by the Public Service Commission, because 4 persons are shown not to have appeared before the Public Service Commission. It is also not stated that the date of appearance, before the Commission was duly notified to the persons concerned. Second aspect of the above recommendation is also worth consideration. The Commission made recommendation somewhere in 1978/79, having considered the matter in its meeting on 12-8-1978. It has been indicated in the letter of the commission that service rules, for Public Works Department and the rules of Punjab Public Works Department were considered. It was pleaded by the appellant that no rules framed by the Azad Kashmir Government were is existence on 12-8-1978, therefore, the reference was misconceived. The rules according to the counsel for the appellant were framed in 1979. It was also contended that the rules of Punjab could not be followed, because they were not adopted in Azad Kashmir. It was also contended that the promotion of the appellant was made in April, 1974, therefore, any subsequent rule, depriving him of his rights to service, on a post to which he was appointed in 1974, could not be applied, in his case.
12. Since, we have already held in the earlier part of this judgment that the impugned order is bad in law, for having been issued without show cause, we deem it unnecessary to give finding with regard to the application of Punjab Service Rules to the case in hand. Although, we may remark that the rules framed in Azad Kashmir, which came into force in 1979, have no application to the appointments, made earlier and the right, if any, accruing to any incumbent, prior to the enforcement of these rules, will not be effected by such rules. Similarly, any excess from the quota, prescribed by such rules will also not be) sufficient cause, for the reversion of the officers, earlier promoted.
13. The upshot of the above discussion is that the appeal is accepted and order dated 26-7-1980, having been passed, without show-cause notice, is set aside. The appellant will be deemed to be restored to the post, held by him prior to the issuance of order dated 26-7-1980. We make no order as to the costs.
A.A.