AFTAB AHMED (MEMBER). ---Since the facts and law in all these fourteen appeals are identical, it is proposed to dispose of them by this single order.
2. All these fourteen appellants were appointed on different vacancies under the Federal Directorate of Education Islamabad during the year 1996 in different grades. Particulars of each appellant are given as under- S.Appeals No.Names of theCadreDates of No.AppellantScaleAppointment (2)(3)(4)(5)
1.77-R/97 Nasrullah Khan NasirAcctt./B-119-9-1996 2.207-Ri97Mrs. Lubna ManzoorUUGT/B-1429-10-1996 3.208-R/97Mrs. Samina ShaikhTUGT/B-1429-10-1996 4.209-R/97Miss Shaheena ---ShaikhTUGT/B-1429-10-1996 5.213-R/97-Nasir Aziz MemonUUGT/B-1431-10-1996 6.215-R/97Muhammad Iqbal SajidLDC/B-59-9-1996 7.220-RI97Miss Shahnila VeryamanUUGT/B-143-11-1996 8.247-R/97Masel KhanLDC/B-52-10-1996 9.249-R/97Miss Ghazala ShaheenMUT/B-931-10-1996 10.250-R/97Miss Shazia ShaheenMUT/B-931-10-1996 11.260-R/97Muhammad RamzanTUGT/B-1422-10-1996 12.261-R/97Miss Ghazala YasminTUGTiB-14.7-8-1996 13.273-R/97Zarina ShalTUGT/B-143-11-1996 14.274-R/97Khalid MahmoodN/Qasid/B-128-10-1996
3. The appeals of Mrs. Samina Shaikh, Miss Sheheena Shaikh, Masel Khan, Miss Ghazala Shaheen, Miss Shazia Shaheen and Khalid Mahmood were argued by Raja Muhammad Asgher Khan, Advocate. Pleading their case it was said that the appellants were appointed as TUGT/UUGT by the competent . Authority in accordance with the prescribed manner, as per appointment orders, dated 23-9-1996. They continued to work as such for sometime under the Federal Directorate of Education when all of sudden, by order, dated 5-11-1996, their appointments were withheld/cancelled without assigning any reason. The appellants represented against this illegal cancellation of the appointment orders and having received no reply thereto, presented the present appeals before the Tribunal. Learned counsel for the appellants submitted that the appointments having been made in the prescribed manner and with the approval of the competent Authority, it could not be cancelled or withheld by any person other than the appointing authority whereas in this case the appointments had been cancelled/withheld under the order of the Secretary Education who had no authority whatsoever to order such a cancellation. Besides, it was submitted that the appointment had been cancelled without giving any show-cause notice as required by section 12 of the Civil Servants Act; 1973. Encountering the arguments of the respondent department that the 'appointments had been cancelled on account of their having been made under political pressure, Mr. Asghar, Advocate pleaded that it was absolutely wrong. The appellants had made proper application, they were interviewed by the Departmental Selection Committee which fact is apparent from the orders of their appointments and were later appointed with the approval of the competent Authority. It therefore, could not be said that they had been appointed simply on political consideration. Adding further Mr. Raja submitted that whatever may be the case, the authority having itself appointed the appellants on temporary basis, could not be allowed to take benefit of its lapse in order to terminate their services merely because it had itself committed any irregularity in violating the procedure governing appointment. In support of his arguments Raja Muhammad Asghar referred the case of Director Social Welfare N.-W.F.P. v.
Saadullah Khan reported as 1996 SCM R 1350. Relying on another reported case of Karachi High Court (1995 PLC (CS) 761-Vasdev v. Government of Sindh). Raja M. Asghar further submitted that as the appointment letters had been issued to the appellants after fulfilment of requisite formalities, they had acquired a vested right to continue with it and it could not be taken away through the letter of the Secretary Education. Moreso it could not operate retrospectively in the absence of any legal sanction. The cancellation/withholding of the appointment letters of the appellants was, therefore, said to be absolutely illegal and against all norms of justice.
4. The appeals of M/s Nasir Aziz Memon and Miss Shahnita Veryamani (213 and 220-R/97) were argued by. Mr. Aminur Rahman, Advocate. While adopting the arguments of Raja Asghar, Advocate Mr. Khan added that neither the Director-General, Federal Directorate of Education nor the Secretary Education had the power to withdraw/cancel the appointment letters of appellants when it had taken legal effect and certain rights were created in their favour and that the doctrine of locus poenitentiae was not attracted in this case. Besides, it was added that the authorities in the Education did not have the authority to review the orders. Learned counsel in support of his contention referred to PLD 1965 Dacca 156 and PLD 1976 SC 430.
5. The appeal of Muhammad Ramzan (260-R/97) was pleaded by Mr. Nasir Saeed Shaikh, Advocate. Adding to the arguments already advanced by M/s. Raja M. Asghar and Aminur Rehman Khan, Advocates, Mr. Shaikh submitted that the appellants had been appointed on regular basis against permanent posts in the prescribed manner with the approval of the competent Authority.
The decision of the Secretary Education to with hold/cancel these appointments when he was not the appointing authority was, therefore, absolutely illegal. Mr. Shaikh also referred to the case of Muhammad Nawaz v. Federation of Pakistan reported as 1992 SCM R 1420 pleading locus poenitentiae. Mr. Wahidi and Mr. Abdur Rashid, Advocates appeared on behalf of Miss Ghazala Yasmin and Mr. Nasrullah Khan Nasir (261 & 77-R/97 respectively). Their arguments were almost on the same lines as those of M/s Raja Asghar, Aminur Rahman Khan and Nasir Shaikh, Advocates. Mr. Wahidi also referred to the instructions of the Government contained in O.M.. No., 31/68/-86-R.III, dated 20-4-1987 appearing at Serial No.3 page 384 of ESTACODE 1989 Edition inter alia stating that the services of a civil servant could be terminated either under section 11 of the Civil Servants Act, 1973 or under the Government Servants (E&D) Rules, 1973 but that such service could not be terminated without notice or without assigning any reason if the employments is for an indefinite period or against a post which continued to exist for an indefinite period, as was the case of the appellants.
6. M/s M. Iqbal Sajid (215-R/97) and Zarin Shal (273-R/97) appellants pleaded their cases themselves. They, however, could not add anything to the arguments which had already been advanced by learned Advocates for the appellants in other connected appeals.
7. Defending the case of the respondent department Mr. Khalid Abbas Khan, Federal Counsel assisted by the representative of the Federal Directorate of Education submitted that the Federal Government had advertised various posts through the consolidated system of recruitment in phases-III and IV. All these applicants were called for interview test and that the merit lists were still under process when the appellants approached various political authorities for appointment under the Federal Directorate of Education. Accordingly on the direction of these authorities, the appellants were appointed as UUGT/TUGT and on other clerical posts. Pleading further Mr. Khalid Abbas added that some of the appellants even did not have the requisite qualifications some were said to be over age and in most of the cases the appellants were appointed against quota. It was said that the Federal Directorate of Education had received a list from the P.M. Recruitment Cell through the Establishment Division containing the names of the appellants and the posts to which they had been ordered to be appointed. Learned counsel furnished details of these appointments which are given hereunder:-- Name/cadreQualificationsRecommended by Nasir Aziz Memon/UUGTF.A:Education Minister Muhammad Ramzan/TUGTD.Com/C.TPM Rectt. Cell Zareen Shal/TUGTM.A./B.Ed.do Mrs. Lubna Manzoor/TUGTB.A.B.Ed.do MstSamina Sheikh/TUGTB. A. /C.T.do Mst. Shaheena Sheikh/TUGTB.A./C.T.do .
Shahnila Veryamani/UUGTB.Sc.Education Minister Mst. Ghazala Shaheen/MUTTB.A.do Mst. Shazia Shaheen/MUTTMatricdo Mst. Ghazala Yasmeen/MTTF. A. C. T.do Nasrullah Khan Nasir/AccountantB.Com.PM Rectt. Cell Muhammad Iqbal Sajid/LDCF. A.Education Minister Masal Khan/LDCMatricdo Khalid Mehmood/Naib QasidMiddleD.G.(Edu)
8. Arguing further Mr. khalid Abbas submitted that since the appellants had been appointed on political pressure their appointments were cancelled/withheld by the competent Authority soon after Caretaker Government took over in November 1996. The action, it was said, had been taken on the directions of the Government and since the action was in accordance with the law, the cancellation of the appointments were said to be not open to any challenge specially in view of the terms and conditions of their appointment contained at Serial Nos.2 and 10 of the letters providing that the appointment was temporary terminable on a fortnight notice without assigning any reason and that the appointment orders were subject to revision/modification or cancellation as and when found necessary. Mr. Khalid Abbas stated that all the appellants had accepted these terms and the appointments now having been cancelled in accordance with these terms, could not be challenged.
9. It is an admitted fact that the appointment letters had been issued to the appellants with the approval of the competent Authority. The appointment letters show that all these appointments were made on, the recommendations of the Departmental Selection Committee after interviewing the candidates and examining their academic qualifications etc. All the appellants, joined duties in pursuance to these appointment letters and' as such, as pleaded by the counsel for the appellants, got a vested right to continue with it unless and until the appointments were terminated in accordance with the law. According to the settled law, the appointment made by an authority could be terminated only by the same authority and not by anyone else. In the present case it is said that the appointments were cancelled withheld on the directions of the Secretary Education. Before committing on this aspect we would like to reproduce hereunder the so called directions of the Education Secretary and one of the orders with-holing the appointments: "It has been given to understand that a number of irregular appointments have been made in the Federal Directorate of Education during the last week in different cadres without observing the proper procedure and without observing the criteria laid down of minimum required academic and professional qualifications. All such appointments should be withheld cancelled till they have been approved by ES/EM and detailed procedure for these appointments has been indicated.'
(Sd.)
(Dr,Akhtar Hasan Khan), Education Secretary.
5-11-1996 DG.FDE And "Subject: Appointment As Accountant.
The appointment made in respect of Mr. Nasrullah Khan Nasir, Accountant vide Office Order No.F.l- 2/96(A-II) FD, dated 23-9-1996 and 9-9-1996 is hereby withheld/cancelled as per directive of the competent Authority."
(Sd.) Director (Schools)."
The cancellation/withholding order on the face of it shows that though the appointment was withheld/cancelled by the Directorate of Education but on the directions of the Secretary Education contained, in his note, dated: 5-11-1996. Admittedly the Secretary Education was not the appointing authority and could not direct termination/cancellation of any appointment competently made by the D.G. It appears that the D.G. acted mechanically without applying his mind on the directions of the Secretary Education while cancelling the appointments which is absolutely illegal and cannot be maintained.
10. It was argued on behalf of the respondent department that the Secretary Education had issued the directions to the D.G. Federal Director Education to withhold/cancel the appointments on a decision of the Care Taker Government as the appointments were considered irregular having been made without observing proper procedure and without observing the criteria of minimum required academic and professional qualification etc. These arguments are negated by the directive of the PM. Sectt., dated 12-2-1997 whereby the Caretaker Prime Minister directed the Secretary Education and the D.G. Federal Directorate of Education to reinstate four lady teachers namely M/s Ghazala Yasmeen, Ghazala Shaheen, Shazia Shaheen and Kausar Parveen. In the directive it was said that these school teachers had been appointed in the Federal Directorate of Education through normal process and after fulfilling the requirements. The directive of the P.M.
Seat. is reproduced below: "Subject:REINSTATEMENT IN SERVICE OF SCHOOL TEACHERS IN FEDERAL DIRECTORATE OF EDUCATION, ISLAMABAD Kindly findenclosed herewith petitions of the following four School Teachers addressed to the Prime Minister for reinstatement in service. These School Teachers were appointed in the Federal Directorate of Education, Islamabad through normal process and after fulfilling the requirements for the same:-- S.NoName of TeachersAppointment Order No. 1.Ms. Gazala YasmeenF.1-17/96(SA) FDE, dated 31-10-1996 2.Ms Gazala ShaheenF.1-17/96(SA)FDE, dated 31-10-1996 3.Ms. Shazia ShaheenF.1-17/96(SA) FDE, dated 31-10-1996 4,Ms Kausar ParveenF.1-17/96(SA) FDE, dated 29-10-1996
2. In their petitions, the abovementioned school teachers have requested for their reinstatement in service as their services were terminated illegally.
3. The competent Authority has directed that the abovementioned school teachers may kindly be reinstated in service immediately and compliance report sent to this Seat.
(Sd.)
(Brig. (R) M. Akhtar Khan), Joint Secretary (SS).
The Secretary. M/o Education, Government of Pakistan, Islamabad P.M.'S Sectt:. U.O.No. 197/DS(SS- 1/97 dated: 12-2-1997 Copy to;-------- The Directorate Federal Directorate of Education, Islamabad (Sd.)
(Brig. (R) M. Akhtar Khan).--- Had it 'been the desire of the Caretaker Government to terminate the appointments made in the Federal Directorate of Education allegedly on political pressure, such directive would not have issued. We are, therefore, f the opinion that the note, dated 5-11-1996 had not been issued by the Secretary Education on the directions of the Caretaker Government but that it was solely an individual decision of the then Secretary Education who was not even otherwise authorised to order cancellation of appointments made by an authority competently. However, we agree with Mr. Khalid Abbas that Secretary Education in his note, dated 5-11-1996 had directed- the D.G. the of Education to withhold all irregular appointments till Federal Directorate were a approved by the Education Secretary /Education Minister and detail they procedure for those appointments was indicated. That is to say that all such appointments which were said to be irregular and made under political pressure were to be reviewed and till such time they were to be withheld. In these circumstances we without going further into the merits/demerits of the case, accept the appeals and remand them to the Secretary Education with the directions to review all these appointments in accordance with the laid down procedure and pass appropriate speaking order in accordance with the law.
12. Before parting with this judgment it may be mentioned that applications for condition of delay have also been filed to Appeals No.247, 249, 250, 260, 261, 273 and 274-R of 1997 but since there has bean no objection from the other side as to the limitation and we propose to decide all these cases involving common question of law and facts, on merit, we refrain from making any comment on this aspect of the matter. No orders formed. as to costs. Parties be informed.
ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---I agree with the proposed judgment of my learned brother Mr. Aftab Ahmed, and would like to add that this Tribunal is the only legal forum wherefrom the aggrieved to civil servants can seek legal remedy in case their `terms and conditions of service are violated. The then secretary, ministry of Education, without sere his mind issued arbitrary directions whereby the appointments of applying the appellants were withheld/cancelled. It may be noted that all the appellants took charge and worked against their posts and there is no law under which the order could be withheld or cancelled while it had been acted upon and had taken legal effect but without realising the legal position, the Secretary, Ministry of Education with one stroke of pen issued directions for which he was absolutely not competent to do. Let us refer to the Civil Servants Act, 1973. There is no provision in the Act with regard to withholding or cancellation of an appointment order which had taken place and acted upon. No doubt, service of a civil servant could be terminated or reverted in case of abolition or retrenchment of a post, as provided in Section 11 of the Act, which is not the case here; and in case of removal etc., such order could not be passed without following the prescribed procedure of notice. The directions of the Education Secretary to withhold/cancel the appointment orders had no force of law in any statute. Moreover, in the orders, dated 5-11-1996 passed by the Education Secretary (as reproduced by my brother), it was directed that all such appointments to be withheld/cancelled till they have been approved by ES/EM and detailed procedure for these appointments had been indicated, meaning thereby that further exercise was to be done in order to regularise such appointments and the aforesaid action, as appears, has no 'sanction of the Caretaker Government or the Cabinet to terminate the services of those appointees, and it is clear that the orders of the Government had been misconstrued by misapplication of mind. Some of the appellants approached the Caretaker Prime Minister who directed the Ministry to reinstate those persons and those orders were also not complied with. The letter of Prime Minister's Secretariat, dated 12-2-1997 has already been reproduced at paragraph 10 of the judgment. The proper course was that if some appointments were not made in regular manner, the cases of all such appointments ought to have been examined thoroughly and after issuing due notice and affording opportunity of hearing by the competent Authority, the proper orders should have been passed, and not by a single word, the appellants could not be relieved of their duties, as done in this case. During the course of arguments, it was also pointed out that in the case of appellant, Nasrullah Khan Nasir, who was over age, the Ex-Education Secretary had himself relaxed his age, but simultaneously the same Secretary passed the order whereunder the appointment of Mr. Nasrullah was cancelled. All this happened on the first day when the Care-taker Government took over, but we are not here to protect the illegal appointments, but we cannot approve the illegal actions of the Education Secretary. To supplement the argument, my brother has referred to a letter, dated 12-2-1997 of the Prim Minister's Secretariat whereby the Prime Minster had directed reinstatement of four teachers, out of which three are appellants before us, and thus, it is clear that it was never the intention of the Caretaker Government to have terminate, the services of all employees without scrutiny and the Education Secretary, at it appears, acted at his own, without lawful authority and without any sanction. Without hesitation, I would rather say that some functionaries of the Government play double role which, on one hand they do wrong things and on the other hand want to give a bad name for the Government and also put civil servants to mental torture. It is for the competent Authority to take cognisance of such a state of affairs and conduct of the officers and take action. It is also a matter of record and this fact has not been denied by the respondents that the appointments of the appellants were made in pursuance of the advertisement; letters of interview were issued; departmental selection committee examined the qualifications and other allied matters of the appellants, and' it was thereafter that on their recommendations, the appellants were appointed to the posts to which they were selected, with the approval of the competent Authority against permanent posts. It was brought to our notice that the posts against which the appellants were appointed to, are still lying vacant and after termination, the appellants have been put to jobs against casual vacancies. For the sake of arguments even if there was any deficiency or irregularity in the appointments of the appellants, the Secretary Education should have formed an inquiry committee to scrutinise each case, and had there been any violation of rule, then action should have been taken, but in the present case no such irregularity has been pointed out. In case there was any short-coming in selection process, the officers responsible for doing so were to be penalised. On this we refer to 1996 SCM R 59, (Syed Mazhar Hussain Bukhari v. Secretary to Government of Punjab, Local Government and Rural Development Department and others). This Tribunal is not inclined to give undue favour to any person who has come from back-door by exerting political pressure, but we have to follow the law of the land and have to work within the fore-corners of law. The department has produced a list which is not even signed and it is averred that this list also came from the Education Secretary. The same Secretary who condoned the age limit in the case of Nasrullah Khan Nasir, appellant, a few days back issues direction to the Director-General to terminate the services of the appellant, without any competency, and there is no such sanction from the Caretaker Government and such orders cannot sustain. In similar circumstances, the Supreme Court has taken serious note of the conduct of the bureaucracy in the case of Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, reported in PLD 1995 SC 530, and the observations of their Lordships are reproduced hereinbelow: "Tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely depended on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat therefore, is to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order of direction of such elected functionaries without bringing to their notice, the legal infirmities in such in these appeals the Ex- Secretary Education did not point out to higher authority about any discrepancy. It was stated by the departmental representative that in spite of cancellation orders, the appellants. are still continuing in service and due to vacations, they have been relieved, and it means that the order of cancellation/withholding had never taken effect. All these points need review/probe by an independent authority as the Government consider fit in the circumstances of the case. It has been informed that the Education Secretary who had passed the impugned orders has since been transferred. We, therefore, while setting aside these orders, suggest that the new Education Secretary may appoint a high power Committee to scrutinise each case, according to law, and thereafter the competent Authority may pass appropriate order after hearing the view point of the appellants.
14. My brother Mr. Aftab has dealt with the applications for condonation of delay filed in some appeals but he has not specifically and in clear words made any observations and from his judgment it is understood that he has condoned the delay. It is necessary to pass an order with regard to these applications. As stated by my brother that there was no objection from the other side about the limitation, we therefore, allow the applications and condone the delay, if any.