' JUSTICE AMANULLAH KHAN (CHAIRMAN).---This Judgment will dispose of Service Appeal Nos.1 of 1999 and 2 of 1999, as the common question of law and facts are involved in both the appeals.
2. Briefly stated the facts of the case are that the appellants are posted as Deputy Ranger, Wildlife in Forest Department and the respondent No,3 was also working as Deputy Ranger who resigned from his service and his resignation was accepted by the Forest Department on 14-3-1990.
Thereafter, he made a representation against his resignation, which was accepted vide order dated 2-12-1990 and he was reinstated in service vide order dated 18-5-1991. Thereafter, the department issued a seniority list wherein the appellants have' been placed junior to respondent No,3. Being aggrieved from the same, the appellants have filed the instant appeals..
3. Malik Sher Muhammad, learned Counsel for the appellants contended that after resignation from service, the respondent No,3 was no more required in service, therefore, extraordinary leave could not have been granted to him. At the most, his services could have been termed as a fresh appointment, thus the respondent could not have been placed senior from the appellants. Learned counsel further contended that since the post of Deputy Ranger is not to be filled by direct appointment but the same is to be filled by promotion quota amongst the posts held by other lower ranking officials of the department, thus the appointment of respondent after resignation was ab initio, void and without jurisdiction, therefore, his service is liable to be terminated. Learned counsel has placed on record appointment rules of Balochistan Forest Department Executive (Grade 1 to 15) Service Rules, 1982.
4. Malik Manzoor Ahmed, learned counsel for the private respondent, vehemently opposed the appeal and contended that the order being in accordance' with law and besides; the appeals filed by the appellants are barred by time, therefore, the same are liable to be dismissed.
5. Mr. Ghulam Mustafa Mengal, learned Additional Advocate General, appeared on behalf of the official respondents, however opposed the appeal and contended that since the appeals are barred by time therefore, the same are liable to be dismissed.
6. We have heard Malik Sher Muhammad, Advocate, for the appellants and M/s. Malik Manzoor Ahmed, Advocate, and Ghulam Mustafa Mengal, learned Additional Advocate General, for the respondents and with their assistance, we have perused the recod
7. It may be observed here that the respondent No,3 submitted his resignation on 14-3-1990 and the same was accepted vide order dated 2-12-1990. Thereafter, he submitted an application that his resignation may be withdrawn and he may be reinstated in service. It is pertinent to mention here that after acceptance of the resignation, he was no more in service, thus there was no question for recalling his resignation and reinstating him in service. It may be relevant to refer the order passed by Secretary Forest Department, Government of Balochistan, regarding reinstatement of the respondent in service, which is reproduced herein-below:-- "The undersigned is directed to refer to your letter No,1570/PF, dated 18th May, 1991, on the subject cited above and to say that the competent authority has accepted the appeal of Mr. Mushtaq Ahmed Bajwa on compassionate grounds and approved his adjustment against the post of Deputy Ranger Wildlife, Hazarganji Chiltan National Part vacated on retirement of Mr. Behram Khan, Deputy Ranger. As regards the period of his absence the same be allowed to be regularized by way of granting extraordinary leave without pay in accordance with the provisions of Rules-12 from 8-7- 1989 to the date of his taking over as Deputy Ranger, Wildlife, Hazarganji Chiltan National Park.
Further action may be taken in the matter."
8. After issuance of seniority list, the appellants filed departmental appeal against the seniority list whereby they had been placed junior and the following reply was submitted by the Forest Department, which is reproduced hereinbelow:-- "The facts of the case are that the appeal of Mr. Mushtaq Ahmed Bajwa was accepted by the Secretary Forests, Government of Balochistan, Quetta (copy enclosed) and the period of his absence was regularized by granting extraordinary leave in favor of the official concerned.
Therefore, M/s. Abdul Khaliq, Din Muhammad and Moor Khan stand junior to Mushtaq Ahmed Deputy Ranger. So far as posting Acting Ranger Wildlife is concerned, it was done with the approval of the competent authority contained in the order No,SO(A)1-9/96- FST/2640-42, dated 23rd October, 1997 issued by the Administrative department. In view of the position explained above, the claim of the applicants is not correct. The applicants may be informed accordingly.".
9. It may be pointed out here that the respondent was out of service for a period of more than two and a half years, but he was reinstated in service by the then Secretary Forest Department, which is void, ab initio and without jurisdcition and there is no provision under the service rules to induct an employee into service after acceptance of resignation in the same post. Moreover, his absence could not have been treated as extraordinary leave without pay; specifically when he was out of service. In this regard reliance is placed on case of Mian Inayatullah versus Ministry of Education and two others (1984 PLC (C.S.) 537), wherein following observations have been made:- "As a consequence of this untenable act of the Establishment Division, respondent No,2 was not only "regularized as a lecturer w,e,f, 3rd May, 1977 against all rules, he was also deemed to be in continuous service including the period when he was a man in the street. He was, thus, shown to be continuous employment till his regular appointment through the F.P.S.C. On 25th April, 1979. We are not aware of any law whereby the Government could grant extraordinary leave to a man like respondent No,2, who did not hold any job in any Government department and was a man in the street. Even if the respondent No,2 had been in continuous employment, his seniority could not have reckoned before the date of his selection by the F.P.S.C."
10. As the dictum laid down in the afore-stated judgment that even if the respondent was inducted in service, but it could not have been done with retrospective effect placing him senior from the appellants. At the most, his appointment could have been made afresh. Reverting to the next contention of Mr. Malik Sher Muhammad, learned counsel for the appellants that even the appointment of the respondent as Deputy Ranger, was against the, rule 3(3) 5 & 7 (1) of the Balocistan Forest Department (grade 1 to 15) Service Rules, 1983, which reads as follows--- {{TABLE}} S.No, Nomenclature of Minimum qualifications Method appointment the post. /Experience prescribed for /promotion initial recruitment or promotion of the post.
1. Deputy Ranger (Grade-5) By promotion from amongst members of the Service holding post of Foresters on merit with particular reference to fitness for higher responsibilities.
2. Foresters. (i) Matriculation (i) 75% by initial Recruitment. In (2nd Division) From a recognized University of Board; And
(ii) Certificate Forestry from Forest a Recognized Forest School
3. Forest Guards (i) Ability read and write Urdu
(ii) Should possess physical measurements prescribed by the Government.
(ii) 25% of the vacancies by promotion from amongst Guards through selection on merit with reference to Fitness for higher responsibilities. By initial recruitment {{TABLE}} ' Admittedly, the appointment of Deputy Ranger can be made amongst officials by way of promotion and no direct appointment can be made. Thus the very order passed by the then Secretary Forest Department, Government of Balochistan, is in violation of said rule and is without jurisdiction, coram nonjudice and without legal effect. Reliance may be placed on PLD 1984 SC 75 (Nurul Haq versus Islamic Republic of Pakistan through Secretary, Establishment Division and another, wherein the Hon'ble Supreme Court of Pakistan, has observed as follows:-- "It follows these provisions that a Cooperative Society is not a corporation set up or established by any law for the time being in force. It is also not an institution set up or established by the Central Government or a Provincial Government or by any law. It becomes a body corporate under section 23 of the Cooperative Societies Act on being registered under section 10 of that Act. The word Corporation as used in Martial Law Regulation 114 refers to corporations formed by and under special statutes, Central or Provincial, Government department undertakings, government companies under the Companies Act with Special Articles and Memorandum. Establishments, institutions, companies and corporations not falling under the above categories but under some sort of statutory control of the Government or of functionaries fall outside the definition of Corporation as given in Martial Law Regulation 114. Thus the appellant as an employee or servant of the Frontier Co-operative Bank was not a person in the service of Corporation and hence not amenable to action under Martial Law Regulation No,114. It has already been held by this Court in Federation of Pakistan v. Saeed Ahmed PLD 1974 SC 151 that even under Martial Law Regulation 114 actions taken or order made without jurisdiction, mala fide or coram non judice would not be saved in spite of the various validating provisions of the Constitution."
' Coming to the objection raised by learned counsel for the respondents that the appeal was barred by time. Suffice it to observe that the letter dated 2-12-1997, whereby the appeal filed by the appellants was rejected, indicates that the appellant was informed about the order, but nothing has been shown that the letter was sent to them in time. On the contrary, the date on the letter shows that the appellants were informed about the decision of the appeal vide letter dated 5-12- 1990 and thereafter, the instant appeal was filed which is within time. Besides, the order as discussed hereinfabove has been passed without any jurisdiction, whereby the vested right accrued to the appellants have been taken away. Thus in such circumstances, even if the question of limitation is involved the same is to be ignored. In this regard, reliance is placed on case-law Amin Jan v. Secretary to Government of Pakistan and others PLJ 1997 Tr.C. (Services) 139, wherein the Federal Service Tribunal, Islamabad, has observed as follows:-- "It is against the principles of natural justice and fairplay to kill the vested right of a civil servant on the altar of limitation. In this regard the learned counsel for the appellant has quoted number of judgment of the Supreme Court in which it has been held that appeal be not dismissed on the ground of limitation, when the facts of the case have merits. And we subscribe to that view and condone the delay if at all caused under the circumstances."
Thus in view of the above discussion, the appeal is allowed and the appellants are placed senior to respondent No,3. Since the appointment of the respondent No,3 after acceptance of resignation was ab initio, void and against the service rules is without any legal effect. Thus the case is remanded back to the Secretary Forest Department, Government of Balochistan, to re-consider the appellant of respondent No,3, whether he has been reinstated in service legally or otherwise.
12. For the foregoing reasons, the orders dated 12-6-1991 and 2-12-1997, whereby the respondent has been reinstated in service are set aside and the impugned seniority list dated 1-7-1997 be corrected, while the names of the appellants be placed at proper place. Further, the name of respondent No,3 be deleted from the same. The application submitted by respondent No,3, for reinstatement in service, would be deemed pending before the Secretary Forest Department, who shall dispose of the same in accordance with law. Parties are left to bear their own costs. .