1. ' S. NASIM HAIDER (SENIOR MEMBER).---The facts of this appeal, according to the appellant are that he is B:E. AgricultUre. He was appointed as Assistant Engineer (BPS-16) on ad hoc basis on 16-1-1978.
2. The said post was upgraded to BPS-17 on 1-2'4978 and the ad hoc appointment of the appellant was regularised on 13-8-1978 through Sindh Public Service Commission. While posted as Deputy Director, he detected a case of huge embezzlement/misappropriation of Government funds by a few officials of the Department which was duly reported to A.-G., Sindh on 21-2-1982 who subsequently confirmed the same through audit to the tune of about fifty lacy, which annoyed the officials concerned, who firstly got him transferred from that post on 22-2-1982 and later got him suspended which continued for about 3 years. He was also issued a show-cause notice, duly replied on 10-10-1982. The Secretary Agriculture/respondent No,3 passed orders for the removal from service of the appellant on 1-1-1985. He preferred a departmental appeal to the Chief Secretary and after waiting for the stipulated period filed Service Appeal No,22 of 1985 before S.S.T.
3. As a result of negotiation between the appellant and the respondents, the appellant withdrew the said appeal vide application dated 7-9-1988, stating therein that the department has assured the appellant that in case this appeal is withdrawn, favourable/sympathetic view will be taken on the representation of the appellant, pending before the Chief Secretary. Accordingly S.S.T. Dismissed Service Appeal No,22 of 1985 as. Withdrawn. Meanwhile and before the decision of the departmental appeal, the appellant was reappointed as Agriculture Engineering Specialist (BPS- 18) on the recommendations of Sindh Public Service Commission vide orders dated 26-3-1989. He was called upon to appear before the Chief Secretary on 24-10-1989, in connection with his departmental appeal and on 2-12-1989, the orders regarding his removal from service dated 1-1- 1985 were set aside with the following conditions:--
(i) Intervening period be treated as E.O.L. (Extraordinary Leave) without pay.
(ii) His reappointment in BPS-18, through Public Service Commission would neither be treated in continuation of his earlier appointment in lower grade, nor it should affect the seniority of other officers who were with him in Grade-17, before his removal. The-apparent benefit of setting aside the order of removal perhaps would be the length of service continuing towards retirement.
4. ' Being aggrieved with the orders dated 2-12-1989, the appellant, filed a representation to the then Chief Minister dated 21-7-1991, which bore the following orders:-- "Request allowed as per rules."
5. (Sd.) C.M., Sindh, ' dated 21-12-1992.
6. ' These orders were communicated to the Chief Secretary Sindh, vide letter dated 23-12-1992 of the C.M., Secretariat. However, there was no compliance. The appellant on 8-9-1997 addressed another appeal to the C.M. Who passed the following orders:-- "Restore his seniority as early as possible and let me know about this on priority."
7. (Sd.) C.M., Sindh, ' dated 26-12-1997.
8. ' These orders were forwarded to the Chief Secretary vide C.M., Secretariat letter dated 9-12-1997 without any results.
9. ' Further, on 18-12-1997 the then Chief Minister, Sindh passed the following orders:-- "Request allowed, seniority assigned at S.No, I in BPS-18 being senior most officer of Water Management."
10. ' Again, the orders were not complied with. Hence, this service appeal was filed before S.S.T. On 25- 4-1998. This appeal was admitted on 24-8-1998. On 23-2-1999 M/s. Naushad All and Agha Zafarullah who had requested through their Advocate to become a party in this case were ordered to be made respondents Nos.4 and 5. After submission of the written statement of the official and private respondents, this appeal was finally heard on 20-4-1999 and reserved for judgment.
11. ' The advocate for the appellant argued at great length. He opened his arguments with the contention that according to the provisions of C.P.C. As well as Sindh Service Tribunals (Procedure)
12. Rules, any pleadings--if not specifically denied rebutted with evidence at the disposal of respondents are taken to be true/admitted. According to him, the official respondents, in their written statement had admitted all the statements of the appellant in paras. 1 to 20 of the Memo.
13. Of Appeal and have de facto conceded the case of the appellant. He also contended that the C.M.
14. Sindh, thrice (3) had allowed the appeal/requests/prayers of the appellant, duly communicated to the Chief Secretary not only as the Government but also as the prescribed Appellate Authority against the orders of the Chief Secretary (C.S.) and respondents were legally bound to carry out these orders in letter and spirit--not done. According to him, the impugned appellate order of the.
15. C.S. Dated 2-12-1989 has already been set aside/modified/rectified by the Competent Authority viz. The Chief Minister, Sindh and appellant is only seeking a direction from the Tribunal for the implementation of the orders of the Competent Authority. He also said that he had not made private respondents Nos.4 and 5 as a party--because he was only seeking quashment of the orders of the Chief Secretary dated 1-1-1985 passed under E & D Rules--but he has not specifically claimed seniority over private respondents--but if the impugned order is set aside by S.S.T. And if the appellant gets his original seniority which according to him was his right, private respondents had no cause of action as the appellant was undoubtedly senior to the private respondents in BPS-
17. He asserted that the present appeal was not an appeal for seniority--but against a disciplinary action/final orders in respect thereof.
16. ' In support of his arguments, he placed reliance on the following citations:--
(i) 1989 PLC (C.S.) page 398;
(ii) 1988 PLC (C.S.) 441;
(iii) 1996 PLC (C.S.) 1106;
(iv) PLD 1981 SC page 172;
(v) PLD 1997 SC page 351 relevant page 362; and
(vi) PLD 1989 Kar. Page 404.
17. ' He, therefore, pleaded that the appeal may be allowed with all past financial benefits.
18. ' The A.-A.G. Stated that in the 'prayer' there are two prayers of the appellant viz.:
(i) to set aside the order dated 28-3-1998 (wherein the C.M. Had finally regretted the request of the appellant) on a summary (Annexure 'G') of the written statement of the official respondents.
(ii) Implement the orders of the Chief Minister. A.A.-G. Pointed out that an earlier summary too, dated 9-6-1997 (Annexure F) of the written statement the Chief Minister had regretted the request of the appellant. He, therefore, contended that the respondents had implemented the final orders of the C.M. On the subject and there was no violation of rules/regulations. He also submitted that under Rules of Business of Government of Sindh the C.S./Secretary of the concerned department, if he had any reservation about any order of the C.M. They could resubmit the matter to C.M. And seek revised orders.
19. ' Coming to the legal aspects, he pointed out that the impugned order of the C.S. Is dated 2-12- 1989. The prescribed period for filing of appeal before the C.M. Is 30 days as per Appeal Rules whereas the 1st appeal to C.M. Was filed on 21-7-1991--Annexure 'H' of the appeal, which was time- barred; second appeal was filed on 8-9-1997 i,e,. About 8 years after and was also time-barred.
20. According to him under appeal rules only one appeal is allowed. The order for removal from service of the appellant was issued by the Secretary to Government of Sindh Agriculture Department on 1-1-1985 and as such, appellant could file only one Departmental Appeal before the Chief Secretary. Therefore, if the appellant was aggrieved with the final appellate order passed by the Chief Secretary on 2-12-1989--he should have approached the S,S.T. Within 30 days--but instead he opted for the wrong forum. The present service appeal filed by the appellant on 25-4- 1998 i,e,. Almost 9 years is hopelessly time-barred. He, therefore, pleaded that it may be dismissed.
21. ' The counsel for the intervenors/private respondents Nos.4 and 5 firstly narrated the facts that the appellant was working in BPS-17 in Farm Management Department and was removed from service on 31-12-1984/ (1-1-1985). These orders were set aside in 1989--but the appellant never joined back in his original post in BPS-17 as he had already been reappointed against a BPS-18 post on the recommendations of S.P.S.C. As such, the appellant, according to him, could not reclaim his past seniority in BPS-17, by virtue of that failure. He stated categorically that as far as the past monetary benefits are concerned, it is between the appellant and the respondents and they are not affected one way or other if these are allowed to him. However, as far as the question of past seniority in.
22. BPS-17 is concerned or pro forma seniority in BPS-18 on that basis is concerned, the private respondents have serious objections because they were promoted, legally and by the competent forum, when the appellant was 'not in service'.
23. ' We have gone through the arguments of either side carefully, perused the citations and record' of this appeal with the help of the counsel/A.A.-G. Dispassionately.
24. ' We would like to state that the Sindh Civil Servants (E & D) Rules were framed in the year 1973 i,e,.
25. Almost 26 years before. The said rules have a definite, prescribed scheme of law. However, its delicacies and finer points are often not fully appreciated/understood by the bureaucracy.
26. According to Rule 4 of the said rules the prescribed penalties, in a disciplinary action, are classified as Minor and Major penalties, as detailed below:-- 4(a) Minor Penalties:
(i) Censure.
(ii) Withholding, for a specific period, promotion or increment.
(iii) Stoppage for a specific period or on efficiency bar in time scale.
(iv) Recovery from pay of the whole or any part of any pecuniary loss caused to the Government by negligence or breach of orders.
27. 4(b) Major Penalties:
(i) Reduction to a lower post or time scale or to a lower stage in time scale (popularly called forfeiture of service).
(ii) Compulsory retirement.
(iii) Removal from service.
(iv) Dismissal from service.
28. ' The appellant undisputedly was removed from service on 1-1-1985 under the orders of the then Secretary, Agriculture Livestock and Fisheries Department, Government of Sindh (through a show cause). No 'final show-cause notice' was issued to him. It is not mentioned nor brought in evidence by either side whether the show-cause notice dated 27-9-1992 was issued by whom (Authorised Officer or the Authority), what was the recommendation of the Authorised Officer i,e,. Whether the Authority viz. Secretary Agriculture agreed or disagreed with the same etc. Without prejudice to such serious legal questions that have remained unanswered, the appellant filed departmental appeal to the then Chief Secretary against the original impugned order dated 1-1-1985 which was decided on 2-12-1989 i,e,. Almost 5 years thereafter. Unfortunately the Appeal Rules don't provide a time limit for the disposal of departmental appeals, which needs to be filled in under the principles of natural justice, fairplay and, equity. If the appellant's appeal has to be filed within 30 days of the passing order, equity demands that the Appellate Authorities should also decide the same within a period of 30 days. Suffice it to say that in the absence of such a specific provision, in Civil Servants Act or Appeal Rules of Sindh the provisions of Article 181 of the Limitation Act, will apply which clearly provide that where no limitation is provided, it shall be 3 years. Therefore, the impugned appellate order passed almost 5 years after the original order, in our view is hit by the limitation and loses legal sanctity behind it. It is the established principle of limitation that any order which is hit by it, becomes non-enforceable at law. Without prejudice to these observations, if the impugned appellate order dated 2-12-1989 is read fully (sic) the then Chief Secretary has 'set aside the original impugned order dated 1-1-1985, subject to the following three (3) conditions i,e,.:--
(i) Intervening period is treated as Extraordinary Leave (E.O.L.) without pay.
29. ' When the original removal order is set aside normally the appellant is entitled to past service benefits i,e,. Arrears of his pay and allowances as well as restoration of his past seniority as contemplated and provided under Rule 13 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, whereunder even if a junior has been promoted in the meanwhile, the senior is allowed the benefit of pro forma seniority in the next higher grade. Whereas section 18 of the Sindh Civil Servants Act, 1973 (2nd proviso) the (Appellate) Authority, on setting aside a dismissal or removal from service order; is competent to determine, 'such' arrears of pay as (he or she) may determine to facilitate recovery of financial losses if any, there is no provision of law that enables the Appellate Authority to deny arrears of pay in toto. Further, no administrative order takes effect retrospectively--unless full justification for the same is spelled out in the body of the order itself, as contended in para. 3 of his appeal. In the written statement of the respondents it is recorded clearly as follows: "3. That the contents of paras (3, 4, 5 and 6) of the appeal need no comments."
30. ' It is rightly pointed out by the counsel for the appellant that as per provision of Rules 16(3), every issue or fact if not denied specifically or by necessary implication, shall be taken to be admitted by the respondents.
31. ' Unfortunately, in Pakistan, whenever, a case of big embezzlement is detected vested quarters ensure that the detecting officer is axed first. The net result is that detection of such crimes is avoided to escape the same. We would like to emphasise that ,if honesty is not to be appreciated for whatever reasons or not rewarded--at least it should not be condemned, for improvement in prevailment rampant corruption all around. The respondents should have actively recovered the said embezzlement of approximately .50 Lacs actively. Had they done so, payment of arrears of salary would have no adverse financial implications, for the Government as it would amount to peanuts.
32. "(ii) Your appointment in BPS-18 through Public Service Commission would neither be treated in continuation of your earlier appointment in lower grade, nor it should affect the seniority of other officers who were with you in grade-17 before your removal."
33. ' Condition No, (ii) is illogical/illegal as well as outside the scope of laid down law particularly the.
34. Said Rule 13 of the Sindh Civil Servants (Probation,. Confirmation and Seniority) Rules, 1975 as already discussed/quoted above, which entitles a senior to his pro forma seniority in the next higher grade, over his junior, as in lower grade on finalization of disciplinary action against him (resulting in his acquittal/setting aside of any impugned/adverse orders).
35. ' Perhaps, the respondents' confusion is evident from the last line of para. 1 of the appellate order dated 3-12-1989 as reproduced below:-- "The apparent benefit of setting aside the order of removal perhaps would be the length of service continuing towards retirement."
36. ' The use of the word "perhaps" shows "uncertainty" in the mind of the Appellate Authority. Counting of the past services for the purposes of retirement/pension and gratuity has a definite scheme.
37. Appellant is not entitled for the same because during the intervening period he did not earn such benefits intervening period being treated as E.O.L. Without pay, unless he deposit the corresponding amounts as may be determined by the office of A.-G. In cash in Government treasury. Hence the entire appellate order because of illegal/non-prescribed conditions, suffers from self-contradictions, ambiguities and lacunae which need to be rectified. As regards limitation on this point it is a settled principle of law that there is no limitation against a void order.
38. ' Perhaps the respondents were not fully aware of the actual problems consequent to the setting aside of the impugned order--resulting in restoration of the original seniority of the appellant such as non-writing of the A.C.Rs, for the long 5 years when the appellant was not in service and their consequent inability to ascertain the prescribed quantification of 60% made on the basis of those A.C.Rs, in mathematical tables in the absence of which the Provincial Selection Board concerned could not determine his fitness for promotion during that period. Had a little imagination applied, this problem could be solved. Section 24 of the Sindh Civil_Servants Act, 1973 is basically for such harship cases which are not covered 'under rules. As regards the fitness--of the appellant to hold BPS-18 post--it stands determined by the Sindh Public Service Commission which categorically proves that he had the prescribed qualifications and experience. Even otherwise under the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Rule 3(.1)(a) & (b), appointments have to be made either by promotion or transfer or to a higher grade recruitment Therefore, promotion is also an appointment. The only difference is that in initial appointments particularly of BPS-16 and above, it has to be through Public Service Conunission while in promotion, it has to be through Departmental Promotion Committee (DPC) i,e,. Either forum is competent to determine the eligibility. The private respondents' eligibility to BPS-18 was determined by DPC while that of the appellant was determined by Public Service Commission, a better, more esteemed and higher forum. The only question left for consideration of the Government was whether it was a fit case to be dealt under section 24 of the Sindh Civil Servants Act, 1973 and if so--orders by the Competent Authority viz. The then C.M., Sindh should have been obtained which has not been done.
39. ' The upshot of all the above discussion is that without going into the claim of the appellant and counter-claim of the respondents about the acceptance or refusal of his claims, by the then CM
(S) of debatable legality and propriety, we allow the appeal of the appellant partly by modifying the appellate order dated 2-12-1989 passed by the respondent No,2 and order that consequent upon setting aside of the penalty of removal from service the appellant is entitled to the payment of arrears of pay for the intervening period and restoration of his original seniority in BPS-17 vis-a- vis his the then colleagues as per spirit of Rule 13 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. However, consequent thereto, the question of his pro forma seniority in BPS-18 is to be decided by the Competent Forum viz. Government of Sindh under section 24 of the Sindh Civil Servants Act, 1974, keeping all the pros and cons in view such as non- writing of A.C.Rs, during the period appellant was out of service and consequent non-availability of quantification vis-a-vis the approval' of S.P.S.C. For appointment to BPS-18 though subsequently.
40. Needless to say that in the famous case of Ahsanullah Memon v. Government of Sindh and others their Lordships of the Supreme Court have clearly laid down that any exercise of power under the said section 24 should be just and equitable i,e,. In accordance with law and without injustice to others, Government may also consider the views of the private respondents, in the matter before taking a final decision in the matter.
41. ' Given under our hands and Seal of this Tribunal this 18th day of May, 1999.