MUHAMMAD SIDDIQUE KHATTAK, MEMBER.-- This appeal has been filed by Abdul Majeed Ex-Lecturer, against the orders dated 25.3.1989 of respondent No. 1, whereby the services of the appellant were terminated. He has prayed in his appeal that the said order may be set aside and he may be reinstated in service with all back benefits.
2. The background of the case, as narrated in the appeal is, that the appellant was serving as lecture! In the Education Department. He was appointed as Superintendent in the Intermediate Examination (Annual) 1983 at Govt. College Abbottabad Centre. During the examination a case was registered against him u/s 420/409/109/463, P.P.C., and C.M.L.O. 77 vide F.I.R. No. 221, dated 23.5.1983. At Police Station Abbottabad, for extending undue assistance to certain candidates in using unfair means. On registration of a case, the appellant was placed under suspension vide order dated 14.12.1983 retrospectively from 23.5.1983 and the orders of suspension were communicated to him on 6.3.1984. The appellant was thereafter, tried by Summary Military Court and sentenced to one year's rigorous imprisonment and a fine of Rs.50,000/- vide order dated 22.4.1984. Later the Deputy Martial Law Administrator ordered his release on 30.4.1984. He was dismissed from service vide order dated 22.8.84. The DMLA, on consideration of his case, granted him pardon and the amount of Rs. 50,000/- was ordered to be refunded to him vide order ML/3/A- 2 (2806), dated 8.9.1985. The free pardon given to him, removed the disability for fresh employment.
3. Aggrieved with the order of his dismissal from service the appellant preferred a representation to the Governor NWFP. His representation was examined and considered in consultation with Law Department and Services and Central Administration Department and he was reinstated in service vide order dated 20.9.87. On re-instatement the appellant was asked to give ah undertaking to the effect that he would not claim any benefits of previous service. He took over charge of his post on 22.9.1987, but through an order dated 25.3.89, the respondent No. 1 germinated his services. The appellant again preferred an appeal against his termination which was rejected on 30.5.1989.
Hence the present appeal.
4. The appellant has assailed the order of his termination on the grounds that he was not afforded any opportunity of self defence and so was condemned unheard. That before his re-appointment, rules were relaxed in his favour, therefore, his re-appointment was legal and covered by the rules.
His termination without any charge sheet and show cause notice was illegal.
5. Respondent No. 1 in his parawise comments has raised preliminary objections stating that the appeal is the barred, necessary parties have not been impleased and the appellant is estopped from filing the present appeal. On the factual side it has been stated that the appellant was dismissed from service on the grounds that he was convicted and was sentenced to one year's rigorous imprisonment with a fine of Rs. 50,000/-. That he was later granted pardon but he was not to be restored to public office forfeited in consequence of his conviction. He could not be reinstated on the post from which he was dismissed, but he could be appointed afresh to any post for which he might have been eligible under the rules prescribed for that post. It has further been stated that the Secretary to Governor on his petition to the Governor had suggested that the appellant be given fresh appointment as lecturer, without considering it a continuity of service and making him entitled to the benefit of intervening period. The suggestion, given by the Secretary to the Governor, was not in order, so the position was explained to him. The case of the appellant for fresh employment was referred to the law Department who advised that while considering his fresh employment it is to borne in mind that fresh employment is to take place and is to be finalized within the spirit and the permissible limits of the Law and Rules on the subject as are normally applicable. That no inquiry was conducted by the Minister for Education as stated by the appellant.
The appellant was called to explain his position only. He was appointed afresh vide order dated 20.9.1987, but was not reinstated in service. That the appellant had given an undertaking not to claim the benefits of his previous service but on appointment he submitted an appeal to the Administrative Department for giving him the benefits of his past service and consider his appointment as rainstatement so as to give continuity to his service and thus violated the terms of undertaking given by him. When the appellant submitted his pay bill to the concerned District Accounts Officer, he was advised to produce age relaxation certificate from the competent authority as he was over age by 7 years. The appellant made a request for relaxation in upper age limit. On receipt of his request the matter was taken up with the Services and General Administration Department. The Services and General Administration Department, after consulting the Law Department and the NWFP Public Service Commission, advised that the appointment of the appellant was irregular and illegal. Similar advice was given by the Advocate General NWFP, who held that the re-appointment of the appellant suffered from prose legal infirmity and so was not tenable in the eyes of law.
6. Since the Services and General Administration Department did not accede to the request for relaxation in upper age limit, the order of appointment of the appellant dated 70.9.87 was superseded and his services were terminated vide order dated 25.3.89. It has further been stated that before his termination from service all formalities had been completed and relaxation in upper age limit was granted only to enable the appellant to draw the salary for the period he had worked as lecturer.
7. Counsel for the appellant and Govt. Pleaded were heard and relevant record perused. It is the order of termination dated 25.3.89 (Annexure-N on file) which has been challenged before this Tribunal, so we do not intend to go into the merits of the earlier case of dismissal of the appellant from service contained in order dated 22.8.84. The case of fresh appointment of the appellant, on a representation to the Governor, was examined by the respondent department and referred to the Services and General Administration and Law Department for advice on 15.2.87. The Services and General Administration Department advised that the case be processed in light of the advice of the law Department contained in its U.O. Dated 8A.87, the concluding para of which reads as under:-
7. "As far as the case of Mr. Abdul Majeed is concerned, his fresh employment can be considered, because the disability for the grant of fresh employment in his case stands removed by the DMLA as per order dated 8.9.1985. But while considering the fresh employment of Mr. Abdul Majeed it has to be borne in mind that the fresh employment of Mr. Abdul Majeed is to take place and is to be finalized within the spirit and the permissible limits of the law and rules on the subject as are normally applicable".
8. The S & GAD advised that the case of the appellant be processed in the light of the advice of the Law Department vide its letter dated 17.5.87. On the basis of the advice of the Law Department and the S & GAD, the respondent department moved a summary to the Governor through the Chief Minister who advised the Minister for Education to give personal hearing to the appellant. The Education Minister, after consulting the Secretary Education and the Chairman Board of Intermediate and Secondary Education, recommended that the appellant be re-appointed as Lecturer in relaxation of the rules as a special case. The proposal was approved by the Chief Minister and the Governor. As a result, appointment order of the appellant was issued on 20.9.87.
Since this order was revoked on 25.3.89, and it is the order which has been challenged in the Tribunal. It would therefore, be relevant to reproduce it for facility of reference.
GOVERNMENT OF N.W.F.P.
EDUCATION DEPARTMENT.
Dated Peshawar the 20.9.1987.
NOTIFICATION.
No. S.O.(COLLEGES) II-9/84:- The Government of N.W.F.P, in relaxation of the rules, is pleased to appoint Mr. Abdul Majeed S/o Abdul Wahab of Village Baghdada, District Mardan as Lecturer (NPS- 17) in Dotany viz Rs. 2065-155-3925 on regular basis at Govt. College Nowshera against an existing vacancy with effect from the date of the taking over charge subject to the following Conditions:- CONDITIONS.
1. That he shall rank junior to all the lecturers who are in service on regular basis on the date of issue of this notification and shall also rank junior to the lecturers who in pursuance of the recommendations of the NWFP Public Service Commission made before the date of issue of this notification, are to be appointed as Lecturer, irrespective of their actual date of appointment.
2. His service is liable to termination on one month's notice, from other side. In case of resignation without notice his one month's salary & allowance, if any, shall be forfeited to Government.
3. No TA/DA is allowed to him on his first appointment.
4. He should join the post within 30 days of the issue of this order. The Director of Education (Colleges) NWFP, should furnish a certificate after one month of the issue of this notification to the effect that he has joined the post or otherwise.
5. Charge report could be submitted to concerned.
6. He will be governed by such rules and regulations as may be issued from times to the by the Government for the category of Government Servants to which he belongs.
7. The declaration of assets should be obtained from him and kept on record.
8. His appointment will be subject to the satisfactory reports of his character and antecedents.
9. His appointment is subject to be declared medically fit by the Standing Medical Board constituted by the Health Department.
Sd/- Secretary to Govt, of NWFP Education Deptt: Peshawar.
9. In pursuance of this notification the appellant took over charge of the post of lecturer in Botany at Government College Nowshera on 22.9.87, but when he submitted his pay bill to the concerned District Accounts Officer, it was returned to him asking him to produce age relaxation sanction as he was overage by 7 years and 5 months at the the of his fresh appointment. The appellant made a request to the respondent department, his case was referred to the services and General Administration Department for accordingly relaxation. The S&GAD, after consulting the Law Department and the NWFP Public Service Commission, regretted to grant the desire re-laxation on the grounds that the appointment of the appellant was illegal as the NWFP Public Service Commission was not consulted which was a prerequisite for making regular appointment against post in PS-17. Advice pf the S&GAD is reproduced below: - GOVERNMENT GF NWFP SERVICES & GENERAL ADMN: DEPARTMENT "Reference orders of the Chief. Minister vide para 11 on the summary submitted by the Education department.
10. The case was taken up afresh with the law Department. Secretary Law vide his note under para- 6/N has re-iterated his earlier contention which is contained in their letter at page 186/C (Flage'CC') that no appointment against BPS-17 post could be made by the Government without having views of the Public Service Commission thereon.
11. The case was -reexamined by the S&GAD as well. S&GAD is also of the view that not only age relaxation is involved in the appointment of Mr Abdul Majeed as a lecturer but by passing of the Public Service Commission is also violation of the rules. No precedent exists where a Govt. Servant in BPS-17 and above had been appointed on regular basis by the Government in relaxation of the rules by passing the selection process of the Public Sendee Commissioner. Age could be relaxed by the competent authority but the appointment of an Officer against B-17 post without consultings the Public Service Commission shall be contrary to the rules and not permissible. The views contained in the brief at pages 169-191/C (Flage 'AA') of the S&GAD are quite elaborate and the S&GAD is of the considered view that proposal contained in paras of the summary may be approved."
Sd/- Secretary S&GAD 14.3.89 On the basis of the advice of the Law Department and the S&GAD, another summary was submitted to the Chief Minister/Governor herein it was pointed out that the fresh appointment of the appellant had been made in relaxation of all the rules including his appointment without recommendations of the NWFP Public Service Commission and his upper age limit as he had initially been recruited on the recommendations of the NWFP Public Service Commission, but since the Service and General Administration Department did not agree to the grant of age relaxation, so the department had no alternative but to propose the termination of service of the appellant. The summary submitted by the respondent department was approved by the Chief Minister/Government and as a result the services of the appellant were terminated on 25.3.1989.
While terminating his senders, the appellant was allowed to draw pay of these period he had served i.e. From 22.9.1987 to 25.3.1989. Later relaxation in upper age limit by 7 years 5 months and 15 days was also accorded to enable the appellant to draw his salary vide orders dated 14.5.1989 (Annexure-R on File).
Learned counsel for the appellant referred to the appointment order of the appellant dated 20.9.87 (Annexure K on file) and argued that the appointment was made in relaxation of the rules and on regular basis on the conditions that the appellant would rank junior to all the lecturers who were in service on regular basis on the date of issue of the order of appointment of the appellant. The appellant was also made junior to the lecturers who, in pursuance of the recommendations of the N.W.F.P. Public Service Commission, made before issue of the orders of appointment of the appellant, were to be appointed as lecturers irrespective of their actual date of appointment and that his services were liable to termination on one month's notice, therefore, his services could not be terminated without any show cause notice. Moreover, under the terms and conditions of his appointment the appellant was required to be given one months' notice which was not given.
Neither his post was retrenched, nor he was declared surplus, so the order dated 25.3.1989 was irregular and not sustainable. He further argued that relaxation in upper age limit was accorded by the Government to enable the appellant to draw the salary of the period he served, Relaxation in upper age limit is accorded for the purpose of appointment and not for the purpose of drawing salary. The relaxation accorded by the Government in upper age limit later, could be given earlier to regularise his appointment. The appellant was not given opportunity of personal hearing, so he was condemned unheard which is against natural justice.
12. We have gone through the objections raised by the Services and General Administration Department namely that the NWFP Public Service Commission was not consulted and no relaxation in upper age limit was obtained before making appointment of the appellant and that no precedent exists where a Government Servant in BS-17 and above has been appointed on regular basis by the Government in relaxation of the rules and by passing the selection process of the Public Service Commission. We regret to agree to these views because it was not the first appointment of the appellant. He had already gone through the process of the selection by the Public Service Commission when he was first appointed as lecturer. The re-appointment of the appellant was against the post of lecturer and not against any higher post. When once his suitability was assessed by the Public Service Commission and he was recommended for appointment as lecturer then there was hardly any need of consulting the Public Service Commission on appointment in the same scale and against a similar post.
13. No other charge, except that he assisted some candidates in using unfair means in the Intermediate Examination was attributed to him for which he was tried by the Summary Military Court and was convicted but later pardoned taking away his conviction meaning thereby that there was no bar on his fresh employment. There was no other charge against him on the basis of which the Public Service Commission could reassess his suitability. Furthermore, when the rules were relaxed and is appointment was made on regular basis, by implication it means that the appellant was exempted from appearing for the second the before the Public Service Commission for assessing his suitability and that relaxation in upper age limit was also accorded. Furthermore, instances are many where the services of the adhoc lecturers were regularized without their appearing before the Public Service Commission except that the Commission was only to see that such adhoc lecturers possessed the prescribed qualifications. He was appointed afresh in March, 1987 and all lecturers (190 in all) appointed on adhoc basis between the period from 1986 to 1988 were regularized on 31.5.1988, so even if it is presumed for the sake of arguments that the appellant was n6t appointed on regular basis (which he was not). His services could be regularized like other lecturers. The second objection was that the appellant was overage. It is on the record that upper age limit was relaxed in his favour so as to enable him to draw his salary for the period he served.
Relaxation in upper age limit could be accorded in his favour, before his fresh appointment although impliedly it had been relaxed at the the of his re-appointment.
14. Now coming to the orders of his termination, there is nothing on record to show that before the termination (removal) of his service, a show cause notice was given to the appellant. Termination (removal) of service is a major penalty for which procedure laid down in the relevant rules should have been followed. The respondent department superseded its own orders after about one year and six months for the reasons that proper procedure in his fresh appointment as a lecturer in BS- 17 was not followed without caring for its repercussions although the respondent department had relaxed the rules with the approval of the competent authority before the appointment was made.
Even the terms of appointment as laid down in the appointment order dated 20.7.87 were not followed wherein 30 days notice was required to be given to the appellant before the termination of his services. No reason what soever, were indicated in the termination order of the appellant, nor he was given any opportunity of personal hearing which implies that he was condemned unheard which is violation of the principles of natural justice.
15. Respondent No.2 in his comments had stated that the Board of intermediate and Secondary Education was not associated with this case at any stage, except that it was informed on phone that the superintendent (the appellant) of Examination Centre Abbottabad had been arrested for extending undue assistance to the candidates in the examination Hall. Proceedings against the appellant were finalized by the Education Department itself which means that there was no case against the appellant in the Board of Intermediate and Secondary Education Peshawar.
16. The upshot of the above discussion is that the impugned orders of termination (removal) from service of the appellant dated 25.3.1989 is without lawful authority and as such is void. This order is set aside and the respondent department is directed to re-instate the appellant in service. -The period from 25.3.1989 to the date of reinstatement is treated as leave without pay, as he did not perform his duty during this period. No order as to costs. File be consigned to the record.