1. ' S. NASIM HAIDER (SENIOR MEMBER).---Being aggrieved by the orders passed by the then Chief Minister, dated 28-9-1997 rejecting the request of the appellant 'for re-employment on contract basis, which allegedly was not supplied to the appellant even on a written reference, on 6-1-1998 by the Additional Advocate-General, Sindh and despite written reference made by the appellant's counsel dated 9-1-1998. Hence the appellant filed this appeal on 12-5-1998 which was admitted on 20-7-1998, subject to all just exceptions including the point of limitation at the time of final hearing by a divisional Bench of this. Tribunal.
2. ' The facts of this appeal, according to the appellant are that he was appointed as the Managing Director, Karachi Water and Sewerage Board (KWSB). He would have retired from service, on 8-1- 1994, on attaining the age of superannuation. On 1-12-1992 the appellant requested for sanction of 12 (twelve months) leave preparatory to retirement (LPR). The appellant contends that he was called by the then Additional Chief Secretary, Local Government that instead of allowing the appellant to proceed on LPR he should continue to work at least 3 years after his retirement on the same terms and conditions, as the Government, allegedly, was not in a position to find an effective replacement--there being a considerable difference in work between the petitioner and his next in command. In view of the alleged pressure brought on him by the Government with emphasis on public interest.' the appellant gave his consent to continue to work as the Chief Executive of the Board for a period of at least 3 years, after his date of retirement. A summary dated 6-6-1993 was floated and approved by the then Chief Minister on 18-7-1993. On 20-7-1993 the appellant received a letter from M/s. Balfour International Consulting Engineers Ltd. Of UK offering him a post requiring him to work on their projects in and around Assia (except Pakistan) on a salary of Rs,40,000 p.m.
3. Plus Rs,10,000 p.m. On account of expenses (Annexure P/17). The respondents allegedly were so curious to engage the appellant that a notification dated 25-7-1993 was gazetted re-employing the appellant w,e,f, 9-1-1994 based on the approval of the then Chief Minister (Annexure P). The appellant by his letter dated 23-4-1993, therefore, regretted the abovesaid offer of M/s. Balfour for his employment for 5 years w,e,f, 9-1-1994. On 25-10-1993 the earlier gazette notification of the re- employment of the appellant dated 25-7-1993 was cancelled by the respondents without a prior show cause and personal hearing to the appellant, allegedly, due to political change in .The office of the Chief Minister/but not in the public interest, hence 'mala fide' and without any lawful authority and caused denial of a vested right already created. The appellant, therefore, filed C.P.
4. 3083 of 1993 before the Hon'ble High Court, which was admitted for regular hearing. The only plea of the Advocate reportedly (verbal)/not recorded was that the matter was of a policy decision though the appellant contended otherwise quoting several cases of reemployment ordered by the new Chief Minister. On 6-1-1994, the Advocate-General gave undertaking that 'in the meanwhile, the Government of Sindh will not implement the impugned order i,e, notification dated 25-10-1993 (Annexure P/18). The respondents allegedly pressurised the appellant including threats to harm the appellant and his family members, allegedly demoralising the appellant resulting in a statement before the Hon'ble High Court that the 'parties had decided to reconcile their differences outside the Court, resulting in the dismissal of the abovesaid C.P. Being dismissed as withdrawn. The appellant continued to work as Managing Director KWSB beyond 10-1-1994. On 23-1-1994, the respondents issued a notification that the contract of the appellant shall automatically terminate after six months. The terms and conditions of his re-employment were finally notified on 9-4-1994 (Annexure P/8) with the words 'contract of Mr. Abdul Baqi Siddiqui shall automatically, terminate after 6 months' were allegedly 'dropped' and replaced with Condition No,11, Termination of contract: The contract shall be liable to termination after six (6) months, for the following three condition:- (11-a) If post is retrenched for any reason whatsoever.
5. (11-b) If it is found that he is guilty of misconduct, inefficiency or failure of duty; and (11-c) If the Government is satisfied on medical evidence that he is unfit or is likely for a considerable period (the decision of the Government as to what constitute such as considerable period being conclusive to continue to remain unfit by reasons of ill-health or physical disability to discharge his duties." (Annexure P/8)."
6. ' On 24-5-1994, the appellant was transferred with immediate effect and directed to report to Local Government Department. 'until further orders' (Annexure P/9). The appellant did comply with that order--but his posting order, was never issued, allegedly because of the mala fides and ulterior motives. The appellant was thereafter involved in a false criminal case alleging misappropriation of KWSB money to get rid of him vide F.I.R. No,79 of 1994 to circumvent condition 11(b) of the terms and conditions of his removal. The Case No,6 of 1996, however, resulted in the acquittal of the appellant with the observation that 'there was no iota of evidence at all and even the prosecution witnesses produced could not and did not implicate the appellant directly or indirectly in the said criminal case.'
7. ' On 5-3-1997, the appellant submitted a Departmental Review/Appeal to the Chief Minister-- through the Additional Chief Secretary and Chief Secretary--which was not decided compelling the appellant to file C.P. No,1545 of 1997 in the Hon'ble High Court of Sindh seeking direction for judicious disposal, of his Departmental Review/Appeal--which was ordered to be disposed within a period of 'One month', yet the respondents did not decide the same for about four (4) months. On 6-1-1998, the Additional Advocate-General, informed the Court that the appellant's appeal had been rejected on 28-9-1997 on the ground that neither the post. Of Managing Director, KWSB nor any other equivalent post was vacant for reemployment. It is alleged that copy of the order dated 28-9-1997 was never served nor supplied to the appellant. The appellant pleaded that the rejection/dismissal of his appeal on the aforesaid grounds was 'mala fide', 'irrational', 'illegal', 'unilateral', 'arbitrary', 'dictatorial' 'violative' and discriminatory.
8. ' This appeal was argued at great length by both the counsel of the appellant and the respondents.
9. ' The counsel for the appellant initially narrated the undisputed facts of appellant being the Managing Director, KWSB, his application dated 1-1-1992 for LPR--not allowed, summary moved by the concerned department for 3 years' extension in service, approved on 18-7-1993. The Senior Member observed that under the provision of section 14 of the Sindh Civil Servants Act, 1973, the date of superannuation is 60 years' and the use of the words 'shall' has a mandatory effect.
10. Therefore, no civil servant can be given any extension in service, beyond the date of his superannuation legally by anyone. He can only be re-employed for specific period. The counsel for the appellant submitted that the Tribunal should look into the spirit--not the actual words, coined/used by the lower formations of the Section Officer who draft the summaries-generally not of the required calibre and legal acumen. According to him the date of retirement of the appellant was 8-1-1994 and the appellant, with the approval of the competent Authority was re-employed w,e,f, 9-1-1994--despite his wishes as the appellant had received a lucrative offer from a foreign firm M/s. Bafour, whose offer dated 20-7-1993 is on record. The Senior Member asked whether the said firm was having a contract with KWSB at that time? The counsel after ascertaining the factual position from the appellant who was present during the hearing replied in affirmative-but contended that the appellant was re-employed by the respondents in public interest. He being a highly qualified person which led to yet another query by the Senior Member about the academic qualifications of the appellant. The appellant who was present during the course of hearing replied 'B.Sc., B.E'. He, however, stated that by virtue of his long distinguished career, his experience/expertise specially about the required formalities of the World Bank/Asian Development Bank for their on-going projects was 'invaluable'. The counsel stated that the 1st notification of the re-employment of the appellant was published in official Gazette (Annexure P/6) which did not mention 'erroneously' his period of re-employment as approved by the then Chief Minister/competent authority for a period of 3 years which was perhaps a typographical or clerical 'omission' to say the least, if not mala fide. The respondents as per notification dated 25-7-1993-- part 2 were required to notify the terms and conditions of his re-employment but failed to do so.
11. On 25-10-1993 the respondents, cancelled the earlier notification of 25-7-1993 without assigning any reason thereof or communicating the same to the appellant (Annexure P/5)--which was challenged in C.P. No,3084 of 1993 resulting finally in notification dated 23-1-1994--wherein the period of his re-employment is mentioned as 6 (six) months. They also notified the terms and conditions of re-employment (Annexure P/8) wherein the period of reemployment was again mentioned as six months from 9-1-1994. He was directed to report for further orders (vide Annexure P/9) 24-5-1994. He complied with the orders--yet his salary was stopped as mentioned in the memo, of appeal not denied by the respondents. He contended strongly that the appellant was re- employed under the order of the Chief Minister/Competent Authority for a period of 3 years and his re-employment cannot be cancelled nor the period of his re-employment can be curtailed by any authority lesser than the Chief Minister himself--but the respondents have miserably failed to submit any summary containing the orders of the Chief Minister Sindh either for the cancellation of the contract of the appellant or any reduction in the period of his re-employment of 3 years from the date of his superannuation of the appellant. The respondents' mala fides against the appellant, according to him are obvious from the fact that the appellant was involved by the respondents in a false criminal case--which could not be proved in a Court of law, Contrary to that--the appellant was acquitted honourably by the Competent Court.
12. ' On acquittal the appellant filed Departmental appeal on 5-3-1997--which remained undecided forcing the appellant to file another civil petition seeking the directions from the Hon'ble High Court of Sindh to the respondents for its disposal. During the hearing of that civil petition the Advocate- General made a statement that the departmental appeal of the appellant was dismissed incorporated in the order of the Hon'ble High Court dated 6-1-1998. The counsel of the appellant requested A.-G. To provide him a copy of the impugned appellate order as well as to the Secretary concerned, which was never supplied to him. He, therefore, obtained a copy through his own effort.
13. He argued that according to the provisions of Limitation Act, the period of limitation is counted from the date of the communication of the impugned order. The respondents in their written statement have not specifically taken 'time-barred' plea. He argued that the main defence of the respondents was notification dated 23-1-1994, wherein the period of the reemployment of the appellant is shown as six months is contrary to the actual orders of re-employment of 3 years without showing any summary orders of the Chief Minister Sindh to curtail the same as six months- -hence it was without legal sanctity/orders of the competent Authority and, therefore, illegal. The mention of 6 months' duration, as period of appellants reemployment, in the terms and conditions notified was also illegal for the same reasons. He also argued that the re-employment of the appellant was against a particular post in a particular department and. Therefore, he could not be transferred to another post. He also pointed out that the original notification of July, 1993 was published in official Gazettee--but the curtailment notification was, in contrast, not published in official Gazette. The counsel further argued that the respondents have not pleaded that the reemployment was due to favouritism or nepotism, in their written statement that leads to only conclusion that it was on 'merit'. The appellant was forced to decline the very lucrative offer of M/s. Bafour and the action of the respondents to dispense with the re-employment contract was malicious and unfair because the appellant had acquired a vested right. He, therefore, strongly pleaded that the impugned order may be set aside, which issued in violation of the principles of natural justice, fairplay and equity. In support of his arguments he placed reliance on: ' 1980 SCMR page 607 rel. Page 608; 1985 CLC 2754 rely. Page 29, para. 3-A (which in brief related to grant of exemption from import duty for certain items--shipment ordered-notification for exemption was withdrawn/cancelled held incorrect).
14. ' 1997 SCMR page 1228 rely. Pages 1232/1233 pt. 'B', 'C' and 'D' (Octroi schedule amended notification not published--held void).
15. ' A.A.-G. Stated that the notification dated 25-7-1993 was withdrawn on 25-10-1993 once; the appellant and the respondents decided to settle outside Court the matter ended i,e, the notification dated 25-7-1993 lost its validity. The 3rd notification dated 23-1-1994 issued after mutual settlement clearly states the duration of re-employment contract as six months. It, further states that the contract shall automatically stand terminated after 6 months and therefore, did not require a notice for termination of the same. The appellant accepted it--did not protest or challenged it. He argued that the appellant's employment with the respondents was 'contractual' after his retirement/superannuation and, therefore, the appellant did not fall within the definition of civil servants as per definition in Sindh Civil Servants Act, 1973 or in the amended Act of 1995. He contended that the services of contractual employers can be terminated without notice in public interest. He also contended that the appeal of the appellant was hopelessly time-barred in view of Annexure P/20. He, therefore, pleaded that the appeal may be dismissed.
16. ' We have gone through the arguments of either side very carefully, perused the written statement and citation alongwith the record of the appeal/with the written statement. At the very outset we would like to deal with the subject of re-employment after superannuation. Historically and till the framing of Civil Servants Act(s) of 1973, there was a provision for extension in service beyond the prescribed age of retirement. However, after independence there was frequent misuse of this provision which resulted in re-employment of 'favourites' of various dictators. Therefore, in the Civil Servants Act(s) of 1973 it was specifically incorporated that all civil servants shall stand retired on attaining the age of superannuation. The generally accepted legal position of this provision is that even the issuance of a notification to that effect is a mere formality-because the civil servant-- attaining the age of superannuation, stands retired by 'operation of law'. Despite this provision of law, as is common, this country is full of jugglers who specialise finding a way how to by pass the law, rules and regulations particularly in the fields of taxation and administration. Further, like an evil spirit haunting David as per Old Testament, Pakistan is haunted by the doctrine of necessity--a cover up for all the obvious misdeeds. So, the wizards of administration in Pakistan, despite the specific provisions about retirement, continued to provide re-employment to the favourites of the political masters of the day under the doctrine of necessity, on flimsy excuses--without realising the gravity of such misdeeds. The disease became a national disaster specially during the days of late President Ziaul Haq who considered armed forces as his only lobby and resorted to emass reemployment of the retired armed forces officers in BPS-20 and above believing in their personal loyalty to him. The net result of re-employment of a BPS-22 officer is that promotion due to 20 officials is held up and the recruitment of one person is also denied. Can anyone call such a favour to one (1) person and disfavour to 21 (twenty-one) persons an action in the larger public interest whereas all administrative actions have to be in larger public interest? Since no recruitment was possible against retirements successive Government were forced to resort to creation of paper vacancies--not actually required, even by crude methods because, in developing countries- Government is the biggest provider of jobs/ the private sector cannot take its proportionate share- -resulting in abnormal expansion of administration--excessive over heads and resultant should waves of downsizing, to reduce the national deficit of the exchequer. It is high time that re- employment of retired civil servants should be totally banned except for persons like Dr. Abdul Qadeer Khan because it is definitely difficult to find his replacement. Yet another adverse aspect of it is the financial implication thereof. Previously, on re-employment, the pension drawn by a retired civil servant used to be deducted from the salary of re-employed job. Now the rules have changed and a retired employee is a double beneficiary i,e, he draws full salary as well as the pension. The non-promotion of huge numbers also results in financial losses because they have to be granted move-over. However, the retired, re-employed official is usually on the maximum grade or higher ladder than one due for promotion. We would not have touched this aspect--but it was asserted vehemently before the Tribunal that the re-employment of the appellant was in public interest whereas we are of the considered view that it was in the personal interest of the appellant. The way it was prima facie was that an offer from M/s. Balfour was managed, engaged as consultants in one of KWSB--who naturally had to keep the Managing Director of KW&SB in good humour casts a heavy shadow that the re-employment of the appellant was prima facie or for considerations other than merits, specially because he is a simple B.E.--prescribed qualification for every engineer from the rank of Assistant Engineer (BPS-17) onwards. According to the notification of transfer/for reporting to the A.D. (Administrative Department) his successor-in-office was Mr. M.M. Mehdi a Chief Engineer--obviously had the same academic qualification. We are strengthened in our thinking by a Policy Circular bearing No,SOIXREG(S&GAD)2/C/12-74 issued as far back as 11th March, 1976 available at page 167 of the Book captioned Administrative Reforms in Sindh, published by S&GAD which reads as follows:-- "RE-EMPLOYMENT OF RETIRED CIVIL SERVANTS ' Section 14(i) of the Sindh Civil Servants Act, 1973 provides that a retired civil servant shall not ordinarily re-employed under Government, unless such re-employment is necessary in the public interest and is made with the prior approval of the authority next above the appointing authority.
2. In order to solve the problem of re-employment, it has been considered necessary to discourage re-employment of such civil servants as can be easily substituted and replaced. Government of Sindh has, therefore, decided not to re-employ retired civil servant of Grades 1 to 15.
3. These orders may kindly be brought to the notice of all concerned. It may also be ensured that no recommendations or orders for reemployment of any retired civil servant of Grades 1 to 15 are made in future. Any violation of these orders is required to be reported to the Chief Minister Sindh through S&GAD for disciplinary action.
17. ' No, SOIX-REG(S&GAD)2/C/12-74 , dated 11-3-1976."
18. ' What is significant to note here is that re-employment of retired civil servant is to be made with the approval of authority-next above the appointing authority. In case of a retired civil servant of BPS-20, in whose case the Chief Minister is the appointing authority, in our view it would require the approval of the Governor--the next higher authority in the provincial set-up or the Prime Minister of Pakistan, in national set-up.
19. ' Notwithstanding the above observation--policy of re-employment of retired civil servants is applicable only where he cannot be easily substituted and replaced which was not so in the instant appeal.
20. ' We are also of the view that the original (1st) summary for Chief Minister is captioned "Grant of extension in service to Mr. Abdul Baqi Siddiqui, Managing Director, Karachi Water and Sewerage Board". The recommendations are incorporated in para. 5 which reads as under: "5. In view of the above it is recommended that Mr. Abdul Baqi Siddiqui may be granted at least three years' extension in service, in the best public interest and to ensure that the Boards performance levels are raised up to a certain level of excellence before he leaves.
21. (Sd.) A.C.S. (L.G.), dated 5-6-1993.
22. ' May be approved.
23. (Sd.) C.S., dated 15-7-1993.
24. ' The views of the Chief Secretary are endorsed.
25. (Sd.) C.M. (undated) file received back by C.S. On 18-7-1993."
26. ' This summary is marked Annexure P/15 of the appeal--produced by the appellant himself. We have already recorded above that because of the provisions of section 14(1) of the Sindh Civil Servants Act, 1973--after superannuation--no extension in service, can be granted, by any authority (including the Chief Minister) but of course a retired civil servant can be reemployed subject to the prescribed basic two conditions i,e, of non-availability for a suitable substitute and the approval of the next higher authority than the appointing authority. We are of the considered view that this Tribunal has authority legally, to remove the Patent Defects if any in any order.
27. Moreover, the established legal practice is that any order without proper authority and jurisdiction is a void order. Therefore, we do not subscribe to the views of the counsel for the appellant that the orders of the then Chief Minister may be treated as orders for the re-employment of the appellant, after his retirement, instead of extension in service for 3 years, as per 'spirit' behind the proposal and approval. Therefore, we agree with the submission of the A.A.-G. To the extent that the orders on 1st summary are of no legal consequence and consequently any Government Notification based on these orders is also of no legal consequence including Notification dated 25-7-1993.
28. Moreso, because the appellant was still in service, had not retired such notification amounted to putting the cart before the horse and re-employing authority did not know whether appellant would he alive on 8-1-1994 i,e, the date of his retirement. The appellant's re-employment was by Notification dated 23-1-1994 with mutual agreement as stipulated/undertaken in C.P. No,3084 of 1993 and in that notification it is mentioned categorically that the contract period shall automatically stand terminated after 6 months. The same duration is incorporated in the terms and conditions of his re-employment notified on 10-4-1994. The appellant's pleading that all other terms and conditions are 'acceptable' except the term of his contract are--devoid of his legal acumen. It is not possible for him to take advantage of Condition No,11--relating to the procedure of his removal because it is advantageous to him and reject the tenure of 6 months which is disadvantageous to him in the very first para. ' Without prejudice to the above, anyone having a little knowledge of civil law, which includes Contract Act--the provision of which governs contractional appointments--being a contract, knows fully well that there are 3 basic requirements for a valid contract viz:-- ' -offer by one party.
29. ' - acceptance by the other.
30. ' - consideration (Legal).
31. ' If the tenure of 6 months was not acceptable to the appellant--he could have rejected it--waited till amended by the party offering the reemployment viz. Provincial Government. His joining is sufficient proof of his acceptance of the offer on terms and conditions as notified on 10-4-1994 as he continued to work on the notified terms and conditions till 24-5-1994-- i,e, the day he was directed to report to his Administrative Department.
32. ' In view of the typical nature of his appointment, on contract, this Tribunal has no power to direct the respondents to offer re-employment to the appellant for a period of 3 years w,e,f, the date of his superannuation if they did not/do not wish to do so because the offer has to be free from coercion and voluntary, which is also against duly notified incorporated policy of the Government.
33. The matter that every past Chief Minister had flouted the same more or less does not create a vested right in the appellant because the legal maxim is that 2 wrongs do not make one right and an incorrect order cannot be quoted as procedure in law.
34. ' Perhaps the desired objectives of the appellant could be agitated in a civil suit for specific performance. Similarly if the appellant was prosecuted vexatiously--the appropriate remedy was the suit for defamation and damages. Unfortunately, Sindh Service Tribunal is not the appropriate forum for the same.
35. ' This Tribunal cannot order for the re-employment of any one--for which we have no legal authority.
36. ' However, we would like to observe that the appellant has stated that he has not been paid any salary since his transfer to the Administrative Department. If so, he is entitled to the payment of his due salary and allowances up to the period of his contract. We do not accept the plea that the appellant being re-employed for a specific post could not be ordered to report to his Administrative Department prima facie justified because of registration of criminal cases against him subsequently. Often in departmental proceedings involving criminal liability the officer inquired against, is removed from the post held by him so that the evidence against him may not wither away or may not be tampered.
37. ' Subject to the above observations, the appeal is dismissed with no orders as to the cost.
38. ' Given under our hands and the seal of this Tribunal this 2nd day of June 1999 at Karachi.