1. S. NASIM HAIDER (SENIOR MEMBER),--By this common judgment, the above said 4 (four) service appeals are disposed off, as these involve the common questions of facts and points of law under the Sindh Civil Servants Act, 1973 and rules framed, thereunder.
2. The facts of these appeals, briefly stated are:-- Appeal No,77 of 1996: "(i) The appellant. (Mr. Noman Ahmad) was offered the post of Excise and Taxation Inspector (B.14) appointed against a leave vacancy vide No,S0(ADMN.)/E&T/1(4)/82-Estt, dated 29th November, 1991, by the then Secretary, Excise and Taxation, Government.
(ii) The Secretary E & T, Sindh, vide No: PS/Secy-E&T/73-91, dated 21-12-1991 submitted a note to the then Chief Minister, Sindh which inter alia stated that the appellant, alongwith 6 others was appointed as Excise and Taxation Inspector, under the orders of the Chief Minister Sindh during the ban period. Since the ban was lifted and the applicants were still continuing against leave vacancies and had also gained experience of the departmental work, the administrative department suggested that their services be regularized against vacant posts, in relaxation of the appointment rules, which was approved by the then Chief Minister, Sindh. Consequently, the services of the appellants were regularized vide No,SO. ADMN)/E&T/3(40)/1992-Estt., dated 2-1-1992 by the then Secretary, E&T Sindh, in relaxation of the ban and procedure laid down in the Sindh Servants (Appointments, Promotion and Transfer) Rules, 1974 w,e,f, the date of his appointment.
(iii) The services of the appellant alongwith 76 others E.T.Is. were terminated by the then Secretary, E&T Department Sindh, vide impugned Order bearing No, SO(ADMN-II)/E&T-12(16)/93, dated 23-8- 1995, for the reasons mentioned below:-- 'The services of the following Excise of Taxation Inspectors, who were irregularly appointed in violation of the recruitment rules, were required to appear before the Departmental Selection Committee. As they were not cleared/recommended by the Departmental Selection Committee, their services are hereby terminated with immediate effect."
3. APPEAL NO.78 OF 1996:
(i) The appellant (Mr. Syed Baqar Ali Raza) was offered the post of E&T Inspector (B. 14)/appointed vide No, SO(ADMN)/E&T/1(4)/82-Estt/531, dated, 16-11-1991 by the then Secretary, E&T Department Sindh, against a leave vacancy.
(ii) The Secretary E&T, Sindh vide his No,PS/Secy-E&T/73-91, dated, 21-12-1991, submitted a note to the then Chief Minister, Sindh which inter alia stated that the appellant, alongwith 6 others was appointed as Excise and Taxation Inspector, under the orders of the Chief Minister, Sindh during the ban period. Since the ban was lifted and the applicants were still continuing against leave vacancies and had also gained experience of the departmental work, the administrative department suggested that their services by regularized, against vacant posts, in relaxation of appointment rules, which was approved by the then Chief Minister, Sindh, Consequently, the services of the appellants were regularized vide No,SO(ADMN)/E&T 3 (40)/92-Estt., dated 21-1-1992 by the then Secretary, E&T Sindh in relaxation of the ban and precedeure laid down in the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974, with effect from the date of his appointment.
(iii) The services of the appellant alongwith 76 other E.T.Is. were terminated by the then Secretary, E&T, Department Sindh, vide impugned Order bearing No,S0.(ADMN-II)/E&T-12(16)/93, dated 23-8- 1995, for the reasons mentioned therein/already reproduced before.
4. APPEAL NO.79 OF 1996:
(i) The appellant (Muhammad Farooque) was offered appointment/appointed as, Excise and Taxation Inspector (B-14) by the then Secretary, E&T, Sindh vide No,SO(ADMN)/E&T/3(41)/92 dated, 7-1-1992 against a leave vacancy.
(ii) The services of the appellants were regularized vide No,(ADMN)/E&T/3(48)/92-Estt., dated, 10-3- 1992 with effect from his date of appointment on leave vacancy i,e, 9-1-1992 subject to clearance by the Departmental Committee as and when held/as mentioned therein.
(iii) The services of the appellants were terminated, along with 76 other E.T.Is. vide impugned Order bearing No:SO.(ADMN-II) E&T12(16)/93 dated, 23-8-1995, already reproduced above, for the reasons mentioned therein.
5. APPEAL NO.50 OF 1996:
(i) The appellant (Arif Shamim Khan) was offered the post of Excise and Taxation Inspector (B.14) appointed as such vide No,SO(ADMN)/E&T/1(4)182-Estt., dated 23-10-1991, by the then Secretary E&T Department Sindh against a leave vacancy.
(ii) The services of appellant alongwith 6 others were regularized vide No,S0.(ADMN)/E&T/3(40)/92- Esst., dated 2-1-1992 under the order of the then Chief Minister, Sindh, in relaxation of the ban and procedure laid down in the Sindh Civil Servants (Appointments, Promotion & Transfer) Rules, 1974 w,e,f, the date of his appointment (23-10-1991), issued by then Secretary E&T Sindh.
(iii) The services of the appellant were terminated alongwith. 76 other E.T.Is. vide impugned order, bearing No,S0(ADMN)-IIE&T-12(16) 93, dated 28-8-1995.
6. Mr. Ahmed Yousuf Rizvi, Advocate, who first argued the Appeals Nos. 77, 78 and 79 of 1996 (of Messrs Noman Ahmad, Syed Baqar Ali Raza and Muhammad Farooque) stated that the appeals, though time barred, the delay may be condoned because the appellants under wrong legal advice, first approached the Honourable High Court--but realizing the mistake withdrew their CP.No,D.1841/75. Moreso, because the impugned order was illegal ab initio and amounted to gross denial of justice. He further stated that the appellants were regular appoint as Excise and Taxation Inspectors (BSP.14) since 1991 and 1992 (though the regularization of Messrs: Noman Ahmad and Syed Baqar Ali Raza differed with that of Muhammad Farooque) as such, they could not be directed to appear before the D.S.C. nor their services could be terminated for their alleged failure to clear the same in 1995. The Senior Member, Sindh Service Tribunal invited his attention to their regularization orders. In case of Messrs Noman Ahmed and Syed Baqar Ali Raza, their regularization orders were issued with the approval of the then Chief Minister Sindh, as suggested by the then Secretary Excise and Taxation Department in relaxation of procedure laid down in the Sindh Civil Servants (Appointments, Promotion & Transfer) Rules, 1975, but in the said rules nothing empowers the Chief Minister, Sindh to grant such relaxation/exemption from the operation of Rules 5(1) and 5(2) of the said Rules, i,e, without the approval of the legally constituted D.S.C. with the concurrence of S&GAD. He could not quote any law, rule or regulation in support of his contention but submitted that being the Chief Minister, he could grant such exemptions/relaxations from the operation. of laid down law/rules on the subject. His attention was further invited to the so-called regularization order of Mr. Muhammad Farooque in Appeal No,79 of 1996, which was subject to the clearance by the Departmental Promotion committee (D.P.C.) which had no locus standi in the matter of regularization as it fell within the purview of Departmental Selection Committee (D.S.C.). He submitted that it was a clerical or typographical mistake. His attention was specifically invited to the last words in the so-called regularization order i,e, as and when held and would not it be in reverse order of the prescribed procedure i,e, regularization order should follow the clearance by D.S.C. and not precede it? He had no valid, answer to these observations but submitted that the regularization of the appellants (Messrs: No man Ahmad, Syed Baqar Ali Raza and Muhammad Farooqe) was fate accomplie in 1992, and could not be questioned in 1995, nor could the respondents direct the appellants to appear before the D.S.C. or terminate their service for their alleged failure to clear the same. He further submitted that even the services of an ad hoc or temporary appointee could not be terminated without issuance of a show cause notice or holding and departmental inquiry, under the Sindh Civil Servants (Efficiency and Discipline) Rules, 1974 as it would amount to violation of the principles of natural justice, fair play and equity, appellant being condemned unheard. In support of this contentions he submitted the following citations:--
(i) PLD 1987 SC 304 (Shariat Appellate Bench).
(ii) C.P. No,D-283 of 1992 High Court of Sindh (Syed Saeed Jafri v. Federation of Pakistan).
(iii) 1985 PLC (C.S.) 553 N.-W.F.P. Service Tribunal, Peshawar.
7. Mr. Raja Haq Nawaz, advocate for Mr. Arif Shamim Khan, (Appeal No,50 of 1996) stated that he would like first to answer the query of Senior Member S.S.T., whether the Chief Minister Sindh was competent to grant relaxation/exemption from the prescribed procedure for regularization? Under' the Civil Servants Acts of the Provinces and the Federation, there is a hardship clause. Under section 24 of the Sindh Civil Servants Act, 1973, the Chief Minister was competent to grant such relaxation/exemption from any provision of that Act or rules, framed thereunder. Moreover, under Sindh Government Rules of Business, the Chief Minister Sindh, being the Chief Executive of the Province can grant such exemptions/relaxations. However, he did not specify the relevant rules therein, in this regard. Senior Member S.S.T. also invited his attention to the famous case of Ahsanullah Memon v. Akbar Rashidi and others wherein the Honourable Supreme Court of Pakistan, by a majority judgment has held that the Chief Minister, in exercise of powers under section 24 of the Civil Servants Act had to use the same in a just and equitable manner/without causing injustice to others. He however, maintained that section 24 of the Sindh Civil Servants Act, 1973 provides Residual power for relaxation of rules and Sindh Government is competent to relax the rules. In this connection he relied upon PLD 1992 SC 184/189-C." Such relaxation has been made in past in such-like cases and has been a past practice for a long period. Every Chief Minister has been following the same. It can be stopped from now onward but prior action cannot be undone, impairing the vested right of a civil servant." In this connection, he submitted the following citations:-- PLD 1970 SC 453/459 1985 SCMR 1753/1756-A PLD 1976 Karachi 253/259-D 1977 SCMR 371/387-F PLD 1994 Karachi 480 1989 MLD 1379/1381 1995 SCMR 516/519 He submitted further that where the order has already taken effect and acted upon, vested right is created in favour of the appellant and the same cannot be rescinded, varied or withdrawn.
8. Principle of locus Penitential is attracted along with section 20 of the Sindh General Clauses Act, 1956. In this connection he submitted the following citations:-- PLD 1969 SC 407/412-413 1962 SCMR 1420/1423-A 1981 SCMR 523/526-C PLD 1964 SC 503 1992 SCMR 1652/1669-E 1997 SCMR 15.
9. He also submitted that service of the appellants were terminated without issuance of a show- cause notice or providing an opportunity of being heard and opportunity of hearing means, real opportunity not formality. As such, it violated the principles of natural justice--(Principles of audit alteren perturm). Even for ad hoc or temporary appointments, notice is necessary before termination of their services..
10. Lastly, he submitted that the action of the respondents was discriminatory, mala fide coram non judice, partial harsh, unreasonable, or unjust--it has to be set aside--more so because no D.S.C. was ever held, as no such committee at relevant times existed, no notification has been presented.
11. Even if such committee existed only one Mr. Agha Jan did not form the Committee, it was a fraud on statute--order is coram non judicia.
12. He requested for beneficial interpretation--if two interpretations are possible, the one favourable to citizen shall be adopted. He relied upon the following citations:-- PLD 1973 SC 589/593 AIR (36) 1949 FC 135 AIR 1981 SC 1284 1992 SCMR 1652 para. 25 PLD 19$4 Karachi 522/532 PL13198dKarachi 459.
13. Mr. S.M. Saydain Zaidi, the A.A.G. stated that the appellants appointment regularization was not in accordance with the prescribed law and procedure. They were not recommendethby the D.S.C. convened by the respondents/E&T Department as per written statement of the respondents. He, in reply to the question of the Senior Member S.S.T. stated that. all the departmental record produced by the respondents to him has already been submitted to the S.S.T. in earlier appeals, heard/decided by S.S.T., judgments announced on: 28-1-1998.
14. We have gone through the arguments, of the counsels for the appellants and citations quoted by them, arguments of the A.A.-G. and record produced by the respondents in earlier appeals, w.s. of the respondents etc. very carefully.
15. There is no denying the fact that all the four (4) appellants were originally appointed as ad hoc Excise and Taxation Inspectors (B-14) by the appointing authority i,e, Secretary Excise and Taxation Government of Sindh, empowered to do so at Serial No,5, under Rule 4(1) of the Sindh Civil Servants (Appointments, Promotion & Transfer) Rules, 1974.
16. Section 2(1)(a) of the Sindh Civil Servants Act, 1973, defines ad hoc appointment as under:-- "2(1)(a): 'ad hoc appointment' means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending the recruitment in accordance with such method; ".
17. Rule 3(1)(b) of the Sindh Civil. Servants (Appointments, Promotion & Trans:er) Rules, 1974 provides that the method of appointment shall be in accordance with para. III Of the said rules Part III--Initial Appointment, in Rule 11--of the said rules, states that:-- "Initial appointment to post in Grades 3 to 15 shall be made on the recommendations of the Departmental Selection Committee."
18. The use of the word 'shall' in the said Rule 11 has a mandatory effect. Nothing in Sindh Civil Servants Act, 1973 or Sindh Civil Servants (Appointment, Promotion & Transfer), Rules, 1974 empowers the Chief Minister, Sindh to approve appointment of a person (in B.3 to B.15) in relaxation of the prescribed procedure i,e, without recommendations of the D.S.C. Hence, it was wrongly suggested by the then Secretary, Excise and Taxation Department and, wrongly approved by the then Chief Minister, Sindh that their ad hoc appointments be regularized in relaxation of prescribed rules/procedure laid down in the said rules. As such, the regulatization orders bearing No,SO(ADMN)/E&T/3(40)/92 Estt., dated 21-1-1992 in respect of the three (3) appellants namely Messrs Noman Ahmad, Syed Baqar Ali Raza and Arif Shamim Khan in Appeals Nos.77 and 50 of 1996, was ab initio illegal/ultra vires. Therefore, the respondents rightly called them to appear for regularization of their appointment, before the Departmental Selection Committee. As regards Mr. Muhammad Farooque (Appeal No,79 of 1996), his regularization order bearing No,SO.
19. (ADMN)/E&T/3(48)/92 Estt., dated 10-3-1992 is also illegal, ab initio ultra vires, because the then Secretary, Excise and Taxation Department issued his regularization order prior to actual clearance/approval by the D.S.C. using the words 'subject to clearance by the Departmental Promotion Committee (not D.S.C.) as and when held. (D.P.C. had no locus standi in the matter too), it amounted to putting the cart before the horse i,e, in reverse order of the prescribed procedure.
20. In accordance with the provisions of section 2(1)(a) of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 prescribed the whole scheme of law regarding the termination of an ad hoc employee, i,e, subject to their appearance before the prescribed/notified D.S.C. and non-clearance of the same, by the ad hoc appoints.
21. While the 1st part of the respondents' action i,e, to call the appellants to appear before the D.S.C. was perfectly legal/right, they have miserably failed to justify the 2nd part of their action and bona fides, thereof i,e, regarding termination of the services of the appellants on the alleged grounds of non-clearance/non-recommendation by legally constituted/notified D.S.C. for_the posts of Excise and Taxation Inspector (B.14) in the Excise and Taxation Department Government of Sindh inasmuch as:-- (i)No Notification has been produced before this Tribunal, in these appeals regarding the constitution of a D.S.C., with the approval of S.&.G.A.D., for recruitment to the posts of Excise and Taxation Inspectors (B.14) as laid down under Rule 5(1) of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974, at the relevant time i,e, when the appellants were allegedly called for interview by it.
22. (ii)No Notification regarding the correct formation of the D.S.C. consisting of a Chairman and other two members of it, as required under Rule 5(2) of the above said appointment rules has been produced before this Tribunal, in evidence by the respondents or alongwith their w.s. and Taxation Department when he appeared before the Tribunal, in one of the hearings previously, could even name the Chairman and the other two members of D.S.C. for Excise and Taxation Inspectors (B.14) nor had any record available with them allegedly not provided to them by the respondents, as verbally stated before us.
23. (iv)No minutes of a legally, properly constituted D.S.C. in E&T Department in respect of Excise and Taxation Inspectors (B.14) have been produced by the respondents, alongwith their written statement or during the course of hearing Of the appeals, even to the time of writing these judgments.
(v) No merit list/marking of the candidates, interviewed by the alleged D.S.C. in respect of the candidates/Excise and Taxation Inspectors (B-14) selected viz-a-viz--those rejected/not recommended, has been produced before this Tribunal to justify their rejection viz-a-viz-- those selected recommended.
(vi) The documents presented to the Tribunal in twenty appeals in respect of which judgment was announced on 28-1-1998 were in respect of D.S.C. for constables/Junior Clerks (B.5) in the Directorate of Excise and Taxation (Admn) Karachi and are irrelevant because according to the provision of Rule15(1) of the Sindh Civil Servants Appointment and Promotion) Rules, 1974, in each Department or Office there shall be one or more Departmental Promotion Committees, and Departmental Selection Committees, the compensation of which shall be determined by the concerned Department in consultation with the Services and General Adminstration Department.
24. As such, D.S.C. in respect of constables/Junior cleiks (BSP.5) in the Directorate of Excise and Taxation (Admn) Karachi whose appointing authority was the Director, himself (ail officer of BSP.18) is obviously/necessarily different from D.S.0 in respect of Excise and Taxation Inspectors (BSP-14) whose appointing authority was the Secretary Excise and Taxation, Government of Sindh. Their composition had to be different, with different Chairmen and different members. The questions of issuance of a show cause/departmental inquiry as provided under Sindh Civil Servants (E&D)
25. Rules, 1974 are irrelevant as neither a misconduct was alleged against the appellants nor their services were terminated under the said E&D Rules.
26. In view of what has been stated above, we are of the considered opinion that we are not in a position to maintain the impugned orders bearing No,SO (ADMN II) E&T-12(16)/93, dated 23-8-1995 the D.S.C. referred to in the w.s. of the respondents, being a hoax, an eye-wash and public consumption only--moceso because justice should be done and seen to have been done as well as two wrongs cannot make one right. We, therefore, allow these appeals by setting aside the impugned orders with orders that the intervening period between the termination of their services and reinstatement be treated as 'leave due' as provided under 2nd provision of section 18 of the Sindh Civil Servants Act, 1973. We do not agree that in case of the appellant doctrine of locus penitential protects their ab initio, illegal regularization as E.T.Is. (B.14) because nothing in the Civil Servants Act, 1973 dr Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1975 empowered the then Chief Minister Sindh, to relax the prescribed condition of appearance before and, recommendations of the legally constituted D.S.C. for such regularization. We are also of the firm opinion that provisions of section 24 of the Sindh Civil Servants Act, 1973, also did not empower the then Chief Minister to relax such a provision of law it did not amount to 'hardship' due to silence of the Act/Rules as enunciated by the Honorable Supreme Court of Pakistan in Ahsanullah A.
27. Memon v. Government of Sindh and Akbar Hussain Rashdi in Appeal No,247-K of 1991 announced on 6-3-1992 which is the latest judgment on this subject. The net result of this judgment on the appellants shall be that they will remain ad hoc appointees, till regularized by a properly, legally consisted D.S.C. in the Excise and Taxation Department, Government of Sindh or termination of their services, for failure to do so, in accordance with the law on the subject. Applications filed under section 5 of the Limitation Act in Appeals Nos.77, 78 and 79 of 1996 are also allowed under the circumstances.
28. There are no orders as to the costs.
29. Given under our hands and the seal of this Tribunal this 13th day of February, 1998 at Karachi.