GHULAM ABBAS SOOMRO MEMBER. - This Appeal is directed against the impugned order dated 12th August, 1991, terminating the appellant's services as Additional Secretary, Provincial Assembly of Sindh with immediate effect.
2. The facts of the case are that on account of the promotion of Mr. Agha Rafiq as Secretary Provincial Assembly of Sindh, the post of Additional Secretary fell vacant. In pursuance of Rule-8 of the Sindh Assembly (Recruitment) Rules, 1974, the then Speaker constituted a Special Committee for selection of a suitable candidate as Additional Secretary, The appellant contested and was selected as Additional Secretary w.e.f. 19.12.1989, vide Notification No. PAS/PF-32/89/1171(A), dated 16.12.1989 on adhoc basis in BPS-18. Subsequently, a corrigendum dated 27.12.1989 was issued by the Speaker to the effect that the Grade BPS-12 should be read as BPS-19 in the Appointment order referred to above. Thereafter, on the recommendation of the Selection Committee the appellant was appointed as Additional Searetary in BPS-19 w.e.f. 19th December 1989, on three months probation in supersession of earlier appointment order dated 16.12.1989. Rule 11 empowered the Speaker to determine the period of probation lesser than 2 years. This order bearing No.PAS/PF- 32/89, dated 24.2.1990 appeared in the Sindh Government Gazette Part-1, dated 24.2.1990. The appellant was confirmed as Additional Secretary by the Speaker on successful completion of his three months period of probation vide Notification No.PAS/PF-32-89, dated 13.6.1990 (Annexure 'C' to the appeal.) It seems that in the month July/August, 1991, some differences arose between the appellant and the Secretary of the Sindh Assembly and as such the Secretary is reported to have threatened the appellant's ouster from the service. However, on 16.8.1991, the appellant is said to.
Have been told that he was no longer in service and as such he approached the Hon'ble High Court of Sindh in CP No. D-969/91, which was subsequently withdrawn on 22.8.1991. The appellant pursued departmental appeal to the Governor/Speaker of the Provincial Assembly/Chief Minister and after waiting for 90 days statutory period, filed the present appeal before this Tribunal on 24.12.1991, when was dismissed by Judgement dated 6th October,1992, on the ground that appellant not being a civil servant, the Tribunal had no jurisdiction to entertain this appeal.
3. The appellant having been aggrieved of this Tribunal's Judgement, filed a Civil Appeal No. 50/1993 before the Hon'able Supreme Court of Pakistan which was allowed by Judgement dated 22.2.1994, holding that the appellant was a civil servant and remanded the present appeal to this Tribunal for decision on merits after notice to the parties.
4. We have heard the appellant in person at length and Mr. Abdul Latif Ansari, the learned Assistant Advocate General for the Respondents and examined the record with their assistance. After careful consideration of the case on both sides, we are definitely of the view that the impugned order dated 12.8.1991, terminating the appellant's service as Additional Secretary to the Provincial Assembly of Sindh cannot legally sustain for the reasons mentioned below:-
5. The sole question for determination in this appeal is as to whether the two notifications bearing No. PAS/PF-32/89/761, dated 24.2.1990 and Notification No. PAS/PF-32/89, dated 13.6.1990 being void ab initio, the appellant's appointment was illegal.
(a) The above two notifications relate to the regular appointment of the appellant in BPS-19 as Additional Secretary on three months probation and his subsequent confirmation in that opacity respectively. In order to adjudicate the question whether the appointment of the Appellant was legal or not, It is essential to go through the rules regulating the said appointment. The appellant has drawn our attention to the applicability of "SINDH ASSEMBLY SECRETARIAT (RECRUITMENT) RULES 1974" (here-in-after referred to as ASSEMBLY RULES). In the first instance we have to see as to whether the appointment of the appellant was made by the Competent Authority. Perusal of Rule- 10 of the Assembly Rules indicates that the appointing authority of the posts in Grade-17 and above shall be the Speaker. There is therefore no doubt that the appellant was appointed by the Competent Authority namely Speaker of the Assembly.
(b) In order to examine the issue whether the appointment was legal and regular, the provisions of rule 8 of the Assembly Rules shall have to be referred to which relate to the appointment by direct recruitment. According to this rule, the appointment by direct recruitment to the posts in Grade-17 and above had to be made on the recommendation of a Selection Committee consisting of not less than three members to be constituted by the Speaker. It is worthwhile to mention that the Speaker of the Sindh Assembly constituted Special Committee comprising of Speaker as Chairman and two Members namely Syed Ali Qutub Shah, MPA, and Mr. Zakir Hussain K. Mirza, the Secretary, as Members vide notification No.PAS/GEN/40/89, dated 14.12.1989 and it is thereafter that appellant was appointed on adhoc basis as Additional Secretary in BPS-18 vide Notification No.PAS/PF- 32/1171(A), dated 16.12.1989. On 2nd January, 1990 a corrigendum dated 27.12.1989 was issued substituting BPS-19 in place of BPS-18 in the appointment notification. Subsequently, in order to regularize the appointment, the Speaker on the recommendation of the Selection Committee appointed the appellant as Additional Secretary in BPS-19 on three months probation which appointment was confirmed by the subsequent notification dated 13.6.1990 after the appellant's satisfactory conclusion of the period of probation. The observance of procedural requirement for the appointment of the appellant makes it abandantly clear that all the legal formalities were completed before making the appointment of appellant. The learned AAG urged that the appointment of the appellant was in contravention of rule 9 of the Assembly Rules. We have examined the provisions of rule 9 which lays down that the qualifications, experience and age for appointment to various categories of posts shall be the same as are required for appointment to the corresponding posts in the provincial Secretariat subject to such modifications, variations or exceptions as the Speaker may by order specify and or such as may be specified the the-Speaker where no corresponding posts in the Provincial Secretariat existed. The learned AAG specifically pointed out that the appellant's upper age limit being higher by 12 years, he was not eligible. The record,. However, indicates that vide notification No. PAS/PF-32/89, dated 16.12.1989, the Speaker- had relaxed the upper age limit of the appellant in exercise of his powers under rule; 9, 13 and 16 of the Assembly Rules. Nevertheless, the Speaker possessed very wide discretionary powers for relaxation of Rules or for application of . Rules with variations and modifications as he deemed fit.
Reference to Rules 13 and 16 of these rules being essential,. The said provisions are reproduced as under; - "13. Matters not specifically provided for in respect of all other matters. Including recruitment policy, eligibility for appointment to a post and the rank, status, seniority prospects of promotion, privileges, and the conduct and discipline of the employees for which no provision has been made in these rules, the employee shall be governed by such Rules and orders as are for the time being in force and applicable to the employees holding corresponding posts in the Provincial , Secretariat subject to such modifications, variations or exceptions, if any, not amounting to amendments, in such rules and orders as the Speaker from time to time by order specify.
16. Residuary powers:- All matters not specifically provided for in these rules or in the rules and orders referred to in rule 13 shall be regulated in accordance with such orders as the Speaker may make."
The Plain reading of Rules 9, 13 and 16 clearly indicates that the Speaker possessed unfettered powers in deciding the questions of qualifications, experience and age for appointment purposes.
Under Rule 9, the Speaker is empowered to adopt rules relating to qualifications, experience and age prescribed for appointment to the corresponding posts in the Provincial Secretariat "subject to such modifications, variations, or exceptions" as the Speaker may by order specify. Similar phraseology has been used by the Rule Makers in Rule 13 which lays down that in all other matters including recruitment Policy, eligibility for appointment, rank, status, seniority, privilege, conduct and discipline etc. Where no such provision has been made in the Assembly Rules, the employees are to be governed by the provincial secretariat Rules but subject to such modifications as the Speaker may make from time to time. The provisions of Rule 16, however, gives a further impetus to the discretionary field of the Speaker and lays down that all matters not specifically provided for in these rules or in the rules of the Provincial Secretariat referred to in rule 13 shall be regulated in accordance with such orders as the Speaker may make: Perusal of the appointment orders dated 24.2.1990 and or 13.6.1990 would show that the same had been passed by the Speaker in exercise of his plenary powers as discussed above and the deficiency, if any, in the process of appointment shall be deemed to have been waived and requirements of rules relaxed impliedly. Of course, the upper age limit had been relaxed expressly by notification dated 16.12.1989 as already stated above. We, therefore, see absolutely no infirmity in the appointment and confirmation orders in question which were passed in accordance with requirement of the rules.
(c) A serious objection was raised by the learned AAG regarding the vires of Assembly Rules on the ground that Governor's assent not k having been obtained as required under Clauses (2) and (3) of Article 37/127 of the Constitution of Pakistan, 1973, the Assembly Rules were inoperative and as such the appellant's appointment was bad in law. This point is high-lighted by Respondent No. 2, in para-10 of his amended written statement. On examination of the rules we do not find ourselves in agreement with this argument for the simple reason that the preamble of these Rules itself shows that the Assembly Rules were made with the approval of the Governor of Sindh and as such there is absolutely no reason for us to disbelieve this fact which is declared in the Sindh Government Gazette dated 7th September 1974, wherein these Assembly Rules were published.
Lastly, the learned AAG stenously urged that the post of Additional Secretary having been surrendered to the Finance Department vide its approval contained in U.O.NO.FD (Expd) VIII/7(10)75 dated 22.8.1991, the appellant's case had fallen to the ground. The appellant has however, taken us through the Budget documents which clearly indicate that the post of Additional Secretary existed in 1975, 1976, 1977,1978, 1983,1984 to 1985,1985,1989, 1990 to 1991 and 1992. On further examination of the record it transpired that on 19.1.1989 a meeting of the Finance Committee was held under the Chairmanship of the Speaker and inter alia a decision was^taken that 36 temporary posts including that of the appellant were made permanent with immediate effect and it is thereafter that in exercise of the powers conferred by Rule 6, 8 and 9 of the Assembly Rules and all other powers enabling in that behalf the Speaker amended the Sindh Provincial Secretariat (Appointment, Promotion and Transfer) Rules, 1975, substituting Additional Secretary in place of Deputy Secretary in BPS-19 etc. In that view of the matter the Provincial Assembly Secretariat and or Finance Department could not abolish the post of Additional Secretary by simple U.O. Note dated 22.8.1991 as mentioned above except by way of further amendment in the Sindh Provincial Assembly Secretariat (Appointment, Promotion and Transfer) Rules, 1973. Had there been intention to abolish the post, the matter should have gone again to the Finance Committee which made the post permanent in a meeting on 19.1.1989 but this was not done for the reasons best known to respondents. However, proviso to Rule 4 of the Assembly Rules provides that no order sanctioning the creation of a post in the Grade of Assistant Secretary or above for a period exceeding 6 months could be issued by the Speaker except after consultation with the Finance Committee. The Finance Committee had already confirmed the post of the Additional Secretary in a meeting dated 19.1.1989 on the basis of which the amendment by Notification dated 24.2.1990 was made substituting Additional Secretary in place of Deputy Secretary. The Respondents could not therefore abolish the said post in such a circumvented manner. An objection was raised by the learned AAG that the proceedings of the Finance Committee dated 19.1.1989 not having been approved by the Governor, were of no legal effect and as sudi the post of Additional Secretary could not be said to have been the permanent post. This objection has been raised by the Respondent No.2, in para-1 of the amended Written Statement. This objection is not tenable since there is absolutely nothing in the Assembly Rules to that effect. In these circumstances, we are unable to agree with the learned AAG that the appellant's post stood abolished.
(c) Another most important point which has received our anxious consideration is that the appellant being a confirmed Civil Servant, could not be thrown out of service in the manner in which it has been done. As already pointed out above that under Rule-13 of the Assembly Rules matters not specifically provided for in these rules i.e. Conduct and discipline etc would be governed by the rules in force and applicable to the employees holding the corresponding posts in the Provincial Assembly Secretariat subject to modifications. It follows therefore that in the present case the Sindh Civil Servants (E & D) Rules, 1973, would come into play. By treating the appellant as ad hoc civil servant in the impugned order dated 12.8.1991, the Respondents have fallen in error in view of the documentary evidence which existed on the record viz notification dated 13.6.1990, whereby the appellant was confirmed. In that view of the matter regular proceedings under Rules 5 & 6 of the Sindh Civil Servants (E&D) Rules, 1573, should have been initiated against the appellant before terminating his services or at least a show cause notice should have been given to him. This mandatory procedure not having been followed by the respondents, the impugned order dated 12.8.1991 has become illegal and void abinition even on that score.
6. In view of the reasons mentioned above, we hold that Notification No.PAS/PF-32/161/90 and No./PAS/PF-32/89 dated 13.6.1990 viz appellant's appointment and confirmation orders respectively were passed/issued within the legal from work and cannot possibly be held as void abimitio. The result is that the appeal is allowed with no order as to costs and the impugned order dated 12.8.1991 is hereby set-a-side with immediate effect. Mention may be made that in view of the circumstances mentioned above this matter clearly seems to be a case of victimization and the appellant having undergone the agony of unemployment for the last several years, authorities concerned would dowell to consider his case for immediate reinstatement.
Given under our hands and the seal of this Tribunal on this 18th day of July, 1994 at Karachi.