ABDUL MAJEED KHANZADA (CHAIRMAN).---Through this common judgment we want to dispose of Service Appeal No, 6 of 1996 filed by Taufiq-uz-Zaman, Service Appeal No, 22 of 1996 filed by Muhammad Akram, Service Appeal No,34 of 1996 filed by Muhammad Asif, Service Appeal No, 32 of 1996 filed by Jawed Ahmed Khan and Service Appeal No,95 of 1995 filed by Miss. Ghazala as all these appeals are arising out of the common orders which have been impugned in these appeals and moreso these involve common points of law.
1. The facts of Service Appeal No, 6 of 1996 are that the appellant Taufiq-uz-Zaman was selected for appointment against the post of Junior Clerk on ad hoc basis and on puicly temporary basis subject to clearance of D.P.C. vide order dated 8-9-1992. The case of the appellant is that subsequently he was called upon to appear before the Departmental Selection Committee for regularization of his appointment through letter dated 20-10-1992. He appeared before the said committee for interview on 2-11-1992 in the office of Director, Excise and Taxation (Excise) Block No,11, Old Pakistan Secretariat, Court Road, Karachi and was selected as Junior Clerk in BPS-5 and consequently his services were regularized under order dated 22-12-1992. Out of 12 candidates selected and regularized under order dated 22-12-1992 the name of the appellant appears at Serial No, 8 of such order. He has also filed Seniority List of Junior Clerks as stood on 31-12-1994 wherein the name of the appellant appears at Serial No,328. The services of the . appellant were terminated under order dated 31-8-1995 and the name of the appellant appears at Serial No,8 under the caption of Junior Clerks in the said order. The order shows that services of 14 constables and 16 junior clerks were terminated enblock on the common ground that they were called upon to appear before the Selection Committee but they failed in such selection and as such their services were terminated..
2. That, in Service Appeal No, 22 of 1996 Muhammad Akram, the appellant, was appointed as Junior Clerk on ad hoc basis vide order dated 7-10-1992. The case of the appellant is that subsequently he was called upon to appear before the Departmental Selection Committee for regularisation of his appointment through letter dated 20-10-1992. He appeared before the said Selection Committee for interview on 1-11-1992 in the office of the Director, Excise and Taxation (Excise) Block No,11, Old Pakistan Secretariat, Court Road, Karachi and was selected as Junior Clerk in BPS-5 and subsequently his services were regularised under order dated 22-12-1992. Out of 12 candidates selected and regularized under order dated 22-12-1992, the name of the appellant appeared at Serial No,3.of such order. He has also filed seniority list of Junior Clerks as stood on 31-12-1994 wherein the name of the appellant appears at Serial No,331. The services of the appellant were terminated under order dated 31-8-1995 and the name of the appellant appears at Serial No,3 under the caption of junior clerks in the said order. The order shows that services of 14 constables and 16 junior clerks were terminated enbloc on the common ground that they were called upon to appear before the Selection Committee but they failed in such selection and as such their services were terminated.
3. That, in Service Appeal No, 34 of 1996 filed by Muhammad Asif, the appellant was appointed as Junior Clerk on ad hoc basis vide order dated 21-6-1992. The case of the appellant is that subsequently he was called upon --7.dappear before the Departmental Selection Committee for regularisation of his appointment through letter dated 20-10-1992. He appeared before the said Selection Committee for interview on 1-11-1992 in the office of the Director, Excise and Taxation (Excise) Block No,11, Old Pakistan Secretariat, Court Road, Karachi and was selected as Junior Clerk in BPS-5 and consequently his services were regularised under order dated 22-12-1992. Out of 12 candidates selected and regularised under order dated 22-12-1992, the name of the appellant appears at Serial No,1 of such order. He has also filed Seniority List of Junior Clerks as stood on 31- 12-1994 wherein the name of the appellant appears at Serial No, 324. The services of the appellant were terminated under order dated 31-8-1995 and the name of the appellant appears at Serial No,1 under the caption of junior clerks in the said order. The order shows that services of 14 constables and 16 junior clerks were terminated enbloc on the common ground that they were called upon to appear before the Selection Committee but they failed in such selection and as such their services were terminated.
4. Service Appeal No, 32 of 1996 filed by Jawed Ahmed Khan. In this appeal the appellant claimed that he has been appointed on ad hoc basis under order dated 28-9-1992, applied for regularisation of his services and under order dated 22-12-1992 his services were 'regularised against the existing vacancy as he was selected by the Departmental Selection Committee. He has filed order, dated 22nd December, 1992 with the memo. of appeal and his name appears at Serial No,4 of such order regularising his services. His name also appears at Serial No,338 of the Seniority List. However, his services were terminated under order dated 31-8-1995 and the name of the appellant appears at Serial No,13 under the caption of junior clerk in the said order. The order shows that services of 14 constables and 16 junior clerks were terminated enbloc on the common ground that they were called upon to appear before the Selection Committee but they failed in such selection and as such their services were terminated.
5. That, in Service Appeal No, 95 of 1995 filed by Miss. Ghazala, the appellant was appointed as Junior Clerk on ad hoc basis vide order dated 28-6-1992. The case of the appellant is that subsequently she was called upon to appear before the Departmental Selection Committee for regularisation of her appointment through letter dated 20-10-1992. She appeared before the said Selection Committee for interview on 2-11-1992 in the office of the Director, Excise and Taxation (Excise) Block No,11, Old Pakistan Secretariat, Court Road, Karachi and was selected as Junior Clerk in BPS-5 and consequently her services were regularised under order dated 22-12-1992. Out of 12 candidates selected and regularised under order dated 22-12-1992, the name of the appellant appears at Serial No,4 of said order. She has also filed Seniority List of Junior Clerks as stood on 31- 12-1994 wherein the name appears at Serial No,327. The services of the appellant were terminated under order dated 31-8-1995 and the name of the appellant appears at Serial No,4 under the caption of Junior Clerks in the said order. The order shows that services of 14 Constables and 16 Junior Clerks were terminated unblock on the common ground that they were called upon to appear before the Selection Committee but they failed in such selection as such their services were terminated.
That against these cases of the appellants wherein their main contention is that they having been regularised in the year, 1992 and, thereafter, the department itself had treated them as such, as their names accordingly were included in the seniority list and they were drawing their increments, neither there was any question for their further regularisation nor they have ever been called before any Selection Committee for further regularisation. Against this contention and ground taken by the appellants in the aforementioned appeals, which is common in all, the official respondents have filed their written statement which has been perused by us. The, written statement is also common typed on only 2 pages wherein the defence is that the appellants had failed in the Departmental Selection Committee and as such their services were rightly terminated, they being ad hoc appointees and such termination was in pursuance of the judgment of the Supreme Court of Pakistan in Human Rights cases. They have not disputed the genuineness of the regularisation letter dated 22-12-1992, but took the plea that since such letter is not supported by findings of the Departmental Selection Committee, therefore, it has no legal weight. This common defence has been taken by the official respondents in all the above appeals. We have enquired from the learned Assistant Advocate-General, Sindh Mr. Syed Syedain Zaidi whether the letter dated 22-12-1992 under which the services of the appellants were regularised in the year 1992 had been cancelled, or withdrawn by the department on the ground stated in the written statement? He candidly submitted that such letter has not been 'cancelled or withdrawn.
We ourselves have perused the personal files of the appellants which were called from the Department with the assistance of the learned Assistant Advocate-General, Sindh and we found that letter of regularisation is available on all the personal files of the aforementioned appellants.
The learned counsel for the appellants Mr. M.M. Aqil Awan has contended that temporary or ad hoc service is not countable towards seniority and since the names of the appellants in these appeals appear in the Seniority List which is final seniority list and their serial numbers have already been mentioned in the upper part of the judgment whereunder the appellants are entitled to count their seniority from a particular date which of course would be a date of regular appointment, therefore, the stand of the Department that they are not selected/approved by the Departmental Selection Committee in the process of regularisation of their services is not only contradictory but their own record does not prove that such exercise had ever taken place. The learned counsel in the course of his arguments highlighted the submission that Department has completely failed to produce any interview letter which was ever issued or served on these appellants to appear before the Departmental Selection Committee as mentioned in the impugned order dated 31-8-.1995. Not only this, no date has been mentioned in the written statement on which date the said committee has held its meeting, who were the members of this committee, what were the marks obtained by these appellants, if at all they appeared before the Committee, what were quantification of the marks for passed candidates, how many candidates appeared before such Committee and out of the total numbers of the candidates how many passed and how many failed by the Committee, no details are given in the written statement. This situation is disturbing in the light of the submission of the learned counsel that neither such Departmental Selection Committee was held nor the appellants were ever called to appear in such Committee. Since the basis of the order terminating the services of the appellants is that they were called upon to appear for interview before the Departmental Selection Committee for regularisation of their services and they failed in such interview and if this fact is not borne out from the record, the very foundation on which the impugned order is based would disappear and would make the impugned order mala fide and infirm in the eyes of law to the extent it terminates the services of appellants, keeping such anxiety in our mind, we have perused the personal files of the appellants very minutely in order to lay our hands on any order passed by the Departmental Authority which could show that the appellants were ever called for interview after 1992 before any Departmental Selection Committee and they had failed. In the wake of such anxiety we have also called upon the learned Assistant Advocate- General, Sindh to place result sheet before us prepared by such Selection Committee or at least the minutes of the meeting in which these appellants were interviewed, if it was so, as he pleaded.
But no such record was placed before us.
That the learned counsel for the appellants has contended before us that the ad hoc service is not a continuous service but primarily such appointment is for a period of 6 (six) months which is extendable from time to time at the discretion of the competent Authority, till the suitable candidates are appointed on regular basis. While arguing the case from this angle learned counsel submitted that it was the duty of the official respondents to produce the orders extending ad hoc appointments of the appellants from time to time, if the department was treating them as ad hoc appointees. But that record/orders are also not available on the files of the appellants. From this submission learned counsel has tried to persuade us that right after the passing of the order dated 22-12-1992, thereunder regularising the services of the appellants, at no stage of time the competent Authority has ever treated the appellants as ad hoc appointees. Therefore, he contended that termination of their services were mala fide and for extraneous reasons than provided under the law. We have given our serious thought to the contentions raised in these appeals by the learned counsel for the appellants. The resolution of the contentions was dependent on the record, of course the custodian of such record were the official respondents who have failed to rebut the contentions raised in the appeals despite they brought all record available with them.
That under such circumstances we are left with no option but to rely upon the order dated 22-12- 1992 under which the services of the appellants were regularised, such orders are also available on the personal files of the appellants and till our writing of this judgment, have not been recalled or cancelled by the competent Authority nor the official respondents have pleaded them to be forged documents. We would not allow the official respondents to blow hot and cold as the same is not permissible under the law. On the one hand the competent Authority passes the orders regularising services of the appellants on the ground that they have been cleared by the Departmental Selection Committee and on the face of such order they cannot pass any order to terminate the services of the appellants by saying that they had been declared unsuccessful by the Departmental Selection Committee. This position unfortunately is diametrically opposite to each other and irreconcilable.
That since we have decided to allow the appeals taking into consideration the factual aspect of the matter and we have based our findings on the record produced before us, therefore, we would not like to advert with the case-law, cited by the learned counsel in support of his proposition.
That in the light of, what has been stated above, these appeals are allowed with no order as to cost.
Given under our hand and the Seal of this Tribunal this 9th day of January, 1998.