1. ' ABDUL MAJID KHANZADA (CHAIRMAN).---The appellant abovenamed who was serving in Irrigation and Power Department, Government of Sindh as Superintending Engineer (Mechanical) has challenged a Notification No,A-1/2-3/89(94)/3535, dated 27th March, 1998 issued by the Secretary, Irrigation and Power Department whereby he has allegedly been repatriated to Karachi Port Trust.
2. The appellant had filed a Departmental Appeal against said Order on 15-4-1998 but no decision was communicated to him by the competent Authority, therefore, has filed the above service appeal after waiting for 90 days.
3. ' The brief facts of the case are that the appellant is B.E. (Mechanical) having passed the same in 1st class in 1972 and was serving in different Semi-Government Organizations and gained sufficient experience and was appointed as Deputy Chief Engineer (Mechanical) in Grade-19 in Karachi Port Trust, Karachi on 3-5-1989, firstly on ad hoc basis and on completion of one year probationary period was confirmed, vide K.P.T. Board Resolution No,820. Dated 7-3-1990. His confirmation in K.P.T.
4. Was subsequently approved by the Federal Government, Ministry of Communication Ports and Shipping Wing vide Letter No,3(4)/90-1I, dated 24-12-1992.
5. ' The Government of Sindh through the Chief Secretary sent a Requisition No,SO-I(S&GAD)-3/54/93, dated 2-11-1993 to the Secretary, Ministry of Communications, Government of Pakistan Islamabad and to Chairman, Karachi Port Trust for placing services of the appellant at the disposal of Government of Sindh for posting him on deputation basis. In response to the said requisition and reference from Ministry of Communication and consent/NOC from K.P.T. The Cabinet Secretariat Establishment Division, Islamabad issued a Notification No,1/259/93-P-4, dated 15-11-1993 transferring the services of the appellant and placing the same at the disposal of Government of Sindh on deputation for a period of three years in his own pay and scale with immediate effect.
6. Consequently the K.P.T. (respondent No,3) relieved the appellant vide their Letter No,IRE & W/G.P.O.
7. (IV), dated 16-11-1993. Copies of correspondence between Ministry of Communication and K.P.T.
8. And the Notification of Establishment Division and K.P.T. Letter dated 16-11-1993 have been placed on record as Annexures "E, E/1, F, G". The appellant reported for duty in S&GAD Department, Government of Sindh on 16-11-1993 (A.N.). Subsequently, Government of Sindh S&GAD Department vide Notification No,SO-I (S&GAD)02/3/94, dated 5-1-1994 posted the appellant as Superintending Engineer (Mechanical Circle), Hyderabad. The intervening period between 16-11-1993 to 8- ..-1994 was also decided by S&GAD as compulsory waiting for posting vide Notification No,U.O.SO- I(S&GAD)-3/54/93, dated 24-1-1995. The copies of these Notifications have been filed as Annexures "G-1 and H".
9. ' It is further contended in the appeal that while appellant was posted as Superintending Engineer (Mech.) at Hyderabad, he performed his duties efficiently, honestly and completed major tasks assigned to him to the entire satisfaction of his superiors which was not only appreciated by the Department but even Major-General Muhammad Afzal Khan Janjua, Incharge of Military Operations during 1994 flood season at Sukkur Barrage appreciated his services (Annex. K). The appellant has pin-pointed his achievements and excellent work as under:--
(a) Remodelling of Khairthar Branch.
(b) Remodelling of Warah Branch.
(c) Remodelling of Salar System
(d) Closing of 32 Breaches in F.P. Bundin Dadu.
(e) Construction and fabrication of 2 steel folding bridges on Johi Branch in order to mend the branches of F.P. Bund.
(f) Repairing/replacing Dainstar Canal's washed away gates.
(g) Earned 3.5 million rupees from Whesso (British Company) by doing machinery work for them in Irrigation Workshop, Jamshoro.
(h) Earned 5.6 million rupees by manufacturing Floating Pumping Station for Forest Department Government of Sindh on turnkey basis.
10. ' The Irrigation and Power Department, Government of Sindh looking to the efficient performance of the appellant and to keep the appellant in the Department moved the competent authority for absorption of the appellant gave such approval in relaxation of provisions of Serial No,3 of Column 3 of Recruitment Rules and Secretary to Government of Sindh (Irrigation and Power Department) issued a Notification No,A-112-3189-(94), dated 7-7-1994 whereby appellant was absorbed as Superintending Engineer (Mechanical) in BPS-19 on permanent basis with immediate effect and it was further ordered to place his name at the bottom of the Seniority List of Superintending Engineers (Mech.). This decision was also communicated to the Ministry of Communication, Government of Pakistan and the Karachi Port Trust, Karachi. The said Notification is attached with the appeal as Annexure 1. On receipt of the said Notification -the K.P.T communicated it's N.O.C. To the absorption of the appellant in Irrigation and Power Department, Government of Sindh vide their Letter No,S-13(10)/89, dated 21-3-1995. The Ministry of Communication Government of Pakistan also gave the approval of the said absorption in consultation with the Establishment Division vide their Letter No,4(3)92-P&S-i(Vol-II), dated 27-6-1995 which are Annexures J & J-1 with the appeal. Since appellant was absorbed in Irrigation and Power Department, Government of Sindh on permanent basis, a Seniority List of the Superintending Engineers (Mech.) in BPS-19 was issued by the Secretary of the Department vide his Letter No:A-I/9-7/81, dated 2-7-1997 whereby the appellant was shown at Serial No,4 (at the bottom) of this Seniority List as on 1-7-1997. This list has been submitted with the appeal as Annexure I. The appellant has contended that his absorption in the Department and fixation of seniority was never challenged from any quarter. It is alleged in the appeal that after the political change in the Provincial Government in November, 1996 the appellant was specially targeted by the Caretaker Government and the appellant was transferred from the post of S.E.
11. (Mech.), Hyderabad and posted as Project Director, Scarp Khairpur by the S&GAD Department vide their Notification No,SO-I(S&GAD)-213/96, dated 9-12-1996 and again within 13 days the said Order Was rescinded and cancelled and he was directed to report at Head Office for further orders in order to harass and humiliate him and with the intention to remove him from service as he was brother of the Minister of former Government. The appellant aggrieved from this harassment and apprehension that he may not be removed illegally, he submitted a representation to his Department on 19-12-1996 as he was deliberately shifted from one post and after 13 days he was issued with another order so that he may be facing hardship and difficulties. The said representation was not replied but however, after about 15 months while he was without posting for entire period a Notification was issued by the Irrigation and Power Department vide their No,A-1/2- 3/89(94)13535, dated 27-3-1998. Whereby he was repatriated illegally to K.P.T. With immediate effect. This Notification being impugned order is Annex.
12. 0.
13. ' The appellant approached the K.P.T. But he was informed by the Secretary, K.P.T. Vide his Letter No, (M)/OP/2/1536, dated 14-4-1998 that they have already intimated the I & P Department, Government of Sindh vide their Letter No,S-13(10)/98, dated 28-5-1997 that on account of the absorption of the appellant in I & P Department on permanent basis, there is no lien of the appellant in K.P.T. And his vacant post has since been filled up. The appellant has attached the copies of the Notification as Annexures L, L/1, M, M/1. The reply of K.P.T. Addressed to the appellant is Annexure P whereby he was informed that he has no lien in K.P.T. On account of his permanent posting in Government of Sindh and his repatriation is uncalled for after about four years. The appellant being a permanent employee of Government of Sindh has been displaced in the above illegal manner.
14. ' The appellant has also alleged that since the change of Government as stated above, he was also deprived of his salary since December, 1996 which has not been paid to him. He has, therefore, prayed that the Notification dated 27-3-1998 regarding his repatriation from Government of Sindh to K.P.T. Issued by respondent No,2 is illegal, ultra vires, mala fide and against the principles of law and natural justice and that the same may be set aside and he may be allowed to continue in I & P Department, Government of Sindh with all his back benefits and payment of his dues.
15. ' We have also observed that impugned notification was issued rescinding the earlier notification of absorption without affording a chance to defend himself to be heard in person which is violation of the, principle of natural justice, fairplay and equity and therefore the appellant was condemned unheard.
16. ' The respondents Nos. 1, 2 and 3 have filed written statements and have further submitted the copies of the relevant summaries with the statements of the learned counsel. The main contention of the respondent No,3 (KPT) is that the lien of the appellant was terminated on his permanent absorption in the Government of Sindh and his vacancy has since been filled up which fact has been communicated to the Government of Sindh twice on 28-5-1997 and 14-4-1998 as well as to the appellant vide letter dated 14-4-1998. The learned counsel for KPT has also filed Board Resolutions No,571, dated 12-1-1994 and No,218 dated 23-10-1996 and letter dated 14-4-1998 addressed to the appellant Annexure P.
17. ' The respondents Nos.1 and 2 in his written statement has admitted the position that the appellant was actually placed at the disposal of Government of Sindh on deputation for the period of three years and subsequently he was absorbed as Superintending Engineer (Mechanical) BPS-19 in Irrigation and Power Department in relaxation of rules on permanent basis with the approval of the then competent authority vide Notification dated 7-7-1994 and his seniority was also fixed.
18. However, it has been denied that the appellant has been victimised and being harassed but has only been repatriated back to his parent department as his absorption was irregular.
19. ' The representative of the Department has brought the personal file of the appellant which has been perused by us and the copies of the correspondence and summaries have also been submitted by the learned A.A.-G., Sindh with his application under section 151, C.P.C. Which has been kept on record. According to the personal file of the appellant, the contents of the Memo. Of Appeal are fully corroborated so far the appointment and absorption of the appellant in Irrigation and Power Department, Government of Sindh on permanent basis is concerned. According to the Summary to Chief Minister dated 28-11-1993 which was moved by Secretary to Government of Sindh, Irrigation and Power Department through the Minister and Chief Secretary it was mentioned that there are three Superintending. Engineers (Mechanical) BPS-19 in the Department besides one Superintending Engineer (Civil) BPS-19 i,e,. Mr. Mewani Ramchand who is working as Project Director (SCARP) Sukkur against Mechanical post and, therefore, the appellant be accommodated by transferring him as Superintending Engineer (Mechanical), according to- the requirement of the Department. The Summary was approved by the Chief Minister on the recommendation of the Secretary and Chief Secretary. In the same application learned A.A.-G. Has submitted the summary dated 27-6-1994 wherein the approval of Chief Minister, Sindh was sought for absorption of the appellant in relaxation of recruitment rules and subsequently a Notification in this respect was issued. However, according to the summary dated 15-12-1996 after the change of the Government his case was taken up on 15-12-1996 by the officials of the new Government as well as by the Department for the purpose of his repatriation to his parent department. The Caretaker. Chief Minister had ordered that the matter be decided in consultation with the Law Department. When the matter was sent to the Law Department they solicited the opinion from the Advocate-General, Sindh and according to which the Advocate-General, Sindh vide his letter dated 9-4-1997 gave his opinion that it may be inquired from the K.P.T. Whether his lien of service is maintained there or not and if the answer is in negative then the rescinding Order of permanent absorption of the appellant will tantamount to terminating his service, which is not the intent of the law laid down by the Supreme Court of Pakistan in reported judgment 1992 SCM R p.435 (Mazhar Ali v. Federation of Pakistan) and 1996 SCMR p.
284. It appears that on the advice of the Advocate-General, Sindh the K.P.T. Was asked to confirm whether the appellant retains his lien of service on equivalent position or not. The reply of the K.P.T.
20. Is mentioned in Summary dated 2-8-1997 in which it has been reiterated by the K.P.T. Management that as soon as the appellant was absorbed as Superintending Engineer (Mechanical) BPS-19 in Irrigation and Power Department on permanent basis he ceased every connection with K.P.T.
21. Including retaining his lien of service and presently was not holding lien with K.P.T. And the said vacancy has already been filled up. The Law Department had agreed with the advice of the Advocate-General, Sindh that since there is no lien with K.P.T. Then rescinding of the orders of permanent absorption of the appellant would tantamount to terminating his services. However, the Secretary, Irrigation and Power Department had not agreed with the opinion of the Law Department as well as Advocate-General, Sindh and put a note "We want to send him back as we do not require his services but cannot do so as his lien is vacated by the K.P.T., we are bound to send him back whether there is lien or no lien". This note was approved by the Chief Minister for issuance of repatriation orders and consequently the Impugned Order dated 27-3-1998 was issued. The departmental record further transpires that the learned A.-A.G. Has further submitted that the appellant had filed a Departmental Appeal against the said Order and in response to that, the Secretary to Government of Sindh, Law Department sent a letter No,OP.V(93/98/62, dated 25-2- 1999 to the Services and General Administration Department that "On absorption of Pir Munawarul Haq in Irrigation and Power Department on permanent basis his lien with parent department was rightly terminated by K.P.T. On his permanent absorption to a permanent post of Superintending Engineer (Mechanical) in Irrigation and Power Department, Governent of Sindh and thus, he has acquired a lien on this post and ceased to hold his lien in K.P.T. Subsequently another Summary was put up by Secretary, Irrigation and Power Department on 12-10-1998 during the pendency of the above appeal whereby orders of approval of Chief Minister, Sindh were solicited for the withdrawal of .Impugned Notification of repatriation with the suggestion that he may be reinstated in service as Superintending Engineer (Mechanical) BPS-19. This Summary for withdrawal of the repatriation order was approved by the Chief Minister, Sindh on 16-10-1998 but no such order was issued. However, after removal of the Chief Minister this Summary was again put up to the Governor on 4-11-1998 with categorical note of the Law Department that the withdrawal of the repatriation order has already been approved by the then Chief Minister but the S&GAD Department put up note that it would not be desirable to again bring him back. Thus, the Governor had agreed with S&GAD.
22. ' The learned counsel for the appellant has submitted in his arguments that the absorption of the appellant in the Government of Sindh was on permanent basis by the competent authority thus, he was permanent employee of Government of Sindh and being a confirmed hand in Grade-19 cannot be repatriated as his vested rights are created and his lien having been terminated by the K.P.T. The appellant cannot be sent back to the K.P.T. Where his vacancy has already been filled up on his permanent absorption in Government of Sindh. The learned counsel has further submitted that his alleged repatriation to K.P.T. Is illegal, mala fide and against the principles of vested rights and the provisions of law laid down by the superior Courts and it is liable to be set aside. He has cited 1996 SCM R p. 284 and 1992 SCM R p. 435 on the point of termination of lien and have also drawn our attention to 1996 SCM R p. 1350 and has submitted that though the absorption of .The appellant was made after following all the necessary legal formalities but even if in case of irregular appointments in violation of rules, the Hon'ble Supreme Court has held that the Department cannot be allowed to take benefit of their lapses. It is further contended that there are number of instances in which Officers from outside have been absorbed in Government of Sindh but no such steps have been taken in their matters and only the appellant has malafidely been targeted. Copies of the Summaries will show how the efforts have been made to remove the appellant from Government of Sindh even ignoring the legal position as stated by Law Department.
23. He has further argued that the documents so supplied show that the impugned order was withdrawn by the same competent authority, subsequently realising the earlier illegality but it was an act of mala fide to obtain another contrary order from the successor authority after about twenty days against the routine office procedure.
24. ' We have heard the, learned counsel for the parties and perused the personal record of the appellant as well as the copies of the record submitted by the learned A.A.-G., Sindh and the counsel of the K.P.T.
25. ' The appellant was transferred to Government of Sindh on deputation for three years with the consent of his parent Department as well as with no objection from the Ministry of Communication as well as Estbalishment Division, Government of Pakistan and subsequently he was absorbed in Government of 'Sindh in a clear vacancy of Superintending Engineer (Mechanical) on permanent basis which was previously held by a person having no such qualification. The absorption of the appellant was also with the consent of his parent department as well as of Ministry of Communication and Establishment Division and thus, the appellant was confirmed in his post after relaxation of relevant rules by the competent authority as mentioned in the absorption order. We have found that subsequently after about four years of his continuous service in Government of Sindh, Irrigation and Power Department, his case was taken up by the successor Government which also passed contradictory orders. The Law Department as well as the Advocate-General had advised that the appellant cannot be repatriated in view of the fact that his lien no more exists in his parent department on account of his permanent absorption in Government of Sindh and that his vested rights are created and he cannot be disturbed at this stage. The competent authority did not agree with the legal opinion of the Law Department and on a very strange note by Secretary, Irrigation and Power Department that "We are bound to send him back whether lien or no lien", the repatriation orders were passed.
26. This observation of the Secretary, Irrigation and Power indicates as if he had taken up this as a personal matter ignoring the legal position. Subsequently it appears from the Summary that the same Chief Minister had rescinded the Impugned Order of repatriation while passing orders on Departmental Appeal of the appellant which was quite in according with the law under section 21 of General Clauses Act. These orders should have been complied with instead of putting up the case to the Governor and consequent upon the impugned order was not withdrawn and such practice is not supported by any law. The Department was bound to obey the revised orders of the Chief Minister on the Departmental Appeal who had withdrawn the repatriation order of the appellant. These documents of the subsequent events are part of the record produced before us and we have taken notice of it. We agree with the learned counsel of the appellant that if on permanent absorption of an officer in Government his lien is terminated by his parent department, he cannot be repatriated even if there was any alleged irregularity, the Authority cannot take benefit of it and the incumbent cannot be penalised after about four years. The appellant was absorbed and confirmed in Government of Sindh and the Seniority was also fixed without any objection from any quarter and suddenly taking up the matter and review it after about four years without any justification was uncalled for and discriminatory for which there could only apparently be some political reasons to harm the appellant. The repatriation order is also against the principles of law and natural justice as one-sided action was taken. The learned counsel for the appellant has rightly referred to the abovementioned authorities of the Supreme Court of Pakistan which are very much relevant in this case and the same were also pointed out by the Law Department in its Summaries and Notes. We regret to observe that the Department did not follow the principles laid down in these rulings, though the Law Department and the Chief Law Officer of the Province had repeatedly pointed out categorically that these principles are applicable to the appellant's case and he cannot be repatriated having no lien in his parent department and having been confirmed in Government of Sindh.
27. ' In view of the said above factual and legal position we hold that the repatriation Notification No,A4/2-3/89(94)13535, dated 27-3-1998 is illegal against the principles of law, natural justice and mala fide and, therefore, it is set aside and the appeal is allowed with the directions to reinstate the appellant in service with immediate effect with no orders as to costs. The appellant has not been paid his salaries from December, 1996 till 27-3-1998 for the period he was without posting prior to his repatriation order, which should immediately be paid to him if not paid so far and the appellant is also entitled to his legal remuneration for the period he remained out of service for no fault on his part.
28. ' This issue already stands decided by this Tribunal in Appeal No,64 of 1994, Akbar Hussain Rashdi v.
29. Government of Sindh and others. Judgment announced on 23-1-1997.
30. ' Given under our hands and Seal of this Tribunal this 1st day of October, 1999.