ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---The facts of this appeal are that the appellant was appointed as Overseer Grade-1, E&M, as a civilian personnel in the Rear Air Headquarters, Peshawar with effect from 10th November, 1985 and was posted with the D.D. Works (Progm) against an existing vacancy. He was on probation for one year extensible by order either before or after its termination by a further period not exceeding six months, provided that if no order has been made by the day following termination of either of the abovementioned probationary period. By order dated 3rd November, 1986, the appellant was considered fit for retention in his present grade. He was sent on deputation to Saudi Arabia for a period of three years in 1988. On his return, he reported for duty on 6-1-1992. He was not taken on duty but on 10th May, 1992, the appellant was discharged from service on the ground that he being junior-most and having become surplus as he was appointed in place of one Asif Rafiq, who returned from deputation. The appellant made a representation which was rejected by an order, dated 22-8-1992. Being aggrieved with these orders, the appellant has preferred this appeal under section 4 of the Service Tribunals Act, 1973.
2. The respondents have not filed comments and the last date for filing objections expired on 7-1- 1993. There is no request for extension of time. Therefore, they are proceeded ex parte under sub- rule (4) of Rule 13 of the Service Tribunal (Procedure) Rules, 1974.
3. We have heard Mr. Abdul Aziz Kundi, the learned counsel for the appellant. It is argued that the order of discharge is bad in law as the appellant was appointed against a clear existing vacancy and he continued in service right from 1985 and after satisfactory completion of probationary period, he was found fit for retention in service. He was sent to Saudi Arabia on deputation. For a period of three years and the department with mala fide intention did not take him back when he reported for duty after return from Saudi Arabia and the impugned order of discharge is not only void but illegal contrary to the rules.
4. The departmental representative Mr. Afsar Ali Rizvi, Superintendent appeared and submitted that they have not yet engaged any counsel and the comments have been sent to the Law Division.
5. This appeal was filed on 8-9-1992 and notices were sent to the respondents for filing objections but they did not care to file objections nor did they seek extension of time. Therefore, we have no alternative but to proceed with appeal.
6. In the appointment order dated 11th November, 1985, there is nothing to show that the appellant was appointed in place of Mr. Asif Rafiq, Overseer, but it is clearly mentioned that he was appointed and posted against an existing vacancy. After satisfactory completion of probationary period, he was found fit for retention in service and as such his services were deemed to have been regularised. Both the letters referred to above, are relevant for this appeal and are reproduced herein below:- "REAR AIR HEADQUARTERS, PESHAWAR (Dte. Of Civilian Personnel)
D.D. Works (Proam)
APPOINTMENT/POSTING: OVERSEER
(1) Reference is made to your L.M. No. AHQ/5509/5/Wks. P.1., dated 23rd October, 1985.
(2) Mr. Anwar Khan has been appointed as Overseer Gdr-I (E&M), w.e.f. 10th November, 1985 and posted to your directorate for duties against an existing vacancy.
(3) He will be on probation for a period of one year extensible by order either before or after its termination by a further period not exceeding six months, provided that, if no order has been made by the day following the termination of either of the abovementioned probationary periods, the appointment shall be deemed to be held until further orders. During the period of probation his services are liable to be terminated at any time without any reasons being assigned.
4. Report with regard to his suitability or otherwise for retention in service should be sent to this section ten days before expiry of the probationary period.
5. His joining report may please be forwarded to D.D.C.P, (Sd.) Sabir Hussain SQN LDR ADCP (AHQ) "
REAR AIR HEADQUARTERS PESHAWAR (Directorate of Works)
DDCP APPOINTMENT,/POSTING: OVERSEERS.
(1) Reference your loose minute No. AHQ/17226/R/DDCP, dated 11 November, 1985.
(2) The under-mentioned Overseers are considered fit for retention in their present grade.
AHQ/TE-80 Mr. Muhammad Pervez Overseer AHQ/TE-81 Mr. Anwar Khan Overseer.
(Sd.)
S. Bashir Akhtar, Wg-Cdr DD Wks (Progm)."
He continued working for three years and was sent on deputation to Saudi Arabia in the year 1988 for a period of three years, and according to rules, he was deemed to be a regular employee because a temporary employee having no lien against a substantive post, could not be allowed to proceed on deputation for a period of three years: Furthermore, at the time of his deputation abroad, he was required to give an undertaking that he will neither ask for voluntary retirementth from service nor apply for `No-Objection Certificate' to proceed abroad for at least one year from the date of his repatriation from deputation abroad. The matter did not end there but the appellant was required to remit to CAAF Lahore Cantt. His G.P. Fund subscription and pension contribution in foreign exchange through Senior PAF Officer in Saudi Arabia, which the appellant did. The abovementioned terms offered to the appellant go to prove that he was a regular employee as such conditions are not attached to the incumbents of the posts which are meant for short duration or against leave vacancy. The respondents have also been entertaining the applications for suitable jobs in other departments which were duly forwarded to the concerned agencies for further action. It may also be mentioned here that according to the appellant soon after his repatriation from Saudi Arabia, he was offered two options by the department either to accept a post of Draughtsman in Grade-5 or to resign but the appellant flatly refused to accept any of the options. From the events mentioned above, it is clear that the respondents were bent upon not to take him back in their service one way or the other and they succeeded when they passed the order of discharge from service on 10-5-1992 to the extent that it was given retrospective effect from 1-1-1992. All this shows the mala fide and hostile attitude of the respondents towards the appellant. It is a settled law that no executive authority can pass an adverse order retrospectively, for which reference is made to the judgment of the Supreme Court reported in 1985 SCM R 1178. This order of discharge is in all respects patently unlawful and void and cannot sustain.
7. For the reasons stated above, we accept the appeal and set aside the impugned order of discharge dated 10-5-1992. The appellate is reinstated into service with all back benefits.