1984 PLP (C (PLC(CS))

S. M. Raza Gardezi: The appellant was appointed as Labour Officer on 18th June, 1962 on ad hoc basis. Governor of West Pakistan issued notification regarding regularization of ad hoc appointment w.e.f. 28th February, 1970. His case was referred to the Public Service Commission for determination of his fitness. The Public Service Commission wrote a letter, dated 30th June, 1970 according to which they agreed to regularize him. Vide notification dated 1st July, 1971 other persons who had been recommended by the Public Service Commission, were regularized w.e.f. 1st January, 1970 but this notification did not contain the name of the appellant. He was subsequently retired from service under M. L. R. 114, but by a subsequent notification, dated 27th September, 1973 the notification of his retirement was rescinded and he was re‑instated in service. On his re‑instatement Government of the Punjab issued another notification, dated 12th October, 1973 whereby his appointment was regularized, but the date of regulariza tion was not mentioned in the said notification. By the impugned notification, dated 26th May, 1979 he was removed from service under sec tion 11‑A of the Punjab Civil Servants Act, 1974. He challenged this notification through Writ Petition No. 2900/S/79, which was admitted to regular hearing and stay order was also granted and the matter is still sub-judice. Realising the established fact that the ultimate jurisdiction in service matters lies with this Tribunal under Article 212 of the Constitution, therefore, the appellant filed this appeal before this Tribunal, without waiting for the decision of the High Court in his case. Hence this appeal. Ch. Nazir Ahmad: The appellant was appointed as Labour Officer on ad hoc basis on 17th April, 1963 subject to the approval of the the Public Service Commis sion. Thereafter on, 15th July, 1969 the appellant was allowed to cross Efficiency Bar and his pay was raised from Rs. 525 p. m. to Rs. 565 p. m. w.e.f. 17th April, 1969. The appellant's appointment was regularized by the Governor of the Punjab on 30th April, 1973. Thereafter on 28th January, 1974 on the recommendation of the Departmental Selection Board the appellant was promoted and appointed as Assistant Director Labour Welfare. Subsequent to his promotion the appellant was allowed to cross Efficiency Bar w.e.f. 1st December, 1975. The appellant w.e.f. 27th April, 1977 was promoted and appointed as Deputy Director Labour Welfare in Grade‑18. Thereafter vide order dated 29th August, 1978 sanction was accorded for the fixation of pay of the appellant in Grade‑18 on his promotion as Deputy Director Labour Welfare. While appellant was continuing in service he was removed from service vide impugned order, dated 26th May, 1979 passed by the Governor of the Punjab. Immediately thereafter he filed writ petition in the Lahore High Court which was admitted to regular hearing and a stay order was granted in his favour but the case is still sub judice. Realising that the ultimate jurisdiction in service matters lies with the Service Tribunal under Article 212 of the Constitution, as such the appellant has filed this appeal before this Tribunal, without waiting for the decision of the High Court in his case. Hence this appeal. 5. We have heard the learned counsel for the appellants as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance. 6. Learned counsel in these cases have only first highlighted the salient feature and that is, whether the impugned order falls within the ambit of section 11‑A or not. According to learned counsel section 11‑A only speaks about appointment and promotion and nothing else and has fixed period of its jurisdiction running only from 1st January, 1972 to 5th July, 1977. It has been argued that as both the appellants were appointed much earlier than the period so specified in the said section, so quoted above, therefore, the Governor was not competent to remove them from service under section 11 ‑A of the Act without giving them any notice. However, learned counsel on behalf of S. M. Raza Gardezi, the appellant, has further distinguished his case by submitting that his client was even regularized from 28th February, 1970, therefore, even if it is argued, that his regular appointment would be a subject of dispute, by no stretch of imagination, the case of the appellant would fall under that category also. 7. On the other hand learned District Attorney has submitted that by appointment, he would say regular appointment and not appointment as temporary or on ad hoc basis, and as the appellants were regularized in the year 1973, in service, therefore, the Governor was fully competent to exercise his powers so bestowed upon him under section 11‑A of the Punjab Civil Servants Act, 1974, and no exception could be taken to it. 8. We have given our anxious thought to the arguments so advanced by the parties before us and first of all reproduce section 11‑A as a matter of ready reference :‑ "Section 11‑A. Notwithstanding anything contained in his terms and conditions of service, a civil servant appointed or promoted during the period from the first day of January, 1972 to the fifth day of July, 1977 may be removed from service or reverted to his lower post or grade, as the case may be, without notice, by Governor of the Punjab or a person authorised by him in this behalf on such date as the Governor of the Punjab or, as the case may be, the person so authorised may in the public interest, direct." The language used in the abovesaid section is absolutely unambiguous. The words used are "appointed" and "promoted". We have to see the connotation of these two words with reference to the Act itself. In the Punjab Civil Servants Act, 1974, `appointment' means appointment of four categories i.e. regular, ad hoc, temporary and permanent. `Promotion' means promotion from lower grade to higher grade. With this established fact on the record, no deviation is possible. The word used `appointment' in section 11‑A would mean appointment of any of the said category. If the wisdom behind section 11‑A. would have been that the word 'appoint ment' was conditional and needed some elaboration, the Legislature would have certainly added the nature of the appointment to which section 11‑A would apply. As this has not been done so, therefore, we are fortified within our view to hold that `appointment' would mean an appointment as ad hoc as well. Both the appellants in this case, were appointed in 1962, on ad hoc basis therefore, they were appointed much earlier to the legislation of section 11‑A under which the authority has exercised in their cases. We are further pursuaded by the observation of learned Judge of the Lahore High Court while admitting the writ petitions filed by the appellants in which it was observed as under :

"It is, therefore, for the respondent to show that the case is covered by section 11‑A. The learned counsel relies on Full Bench case of Mujeebullah Aijaz P L D 1980 Quetta 58 to say that the petitioner is entitled to seek recourse to the constitutional jurisdiction of this Court in such a matter. It is further stated that mere confirmation of the petitioner within the specified period does not amount to appointment and so it shall not bring the appointment within the specified period. Reliance is also placed on the case of Abdul Majid Sheikh (P L D 1965 S C 208) that appointment till further period is not a temporary appointment. The question raised needs examination." Although the learned Judge has made these observations on the strength of the arguments so made by the learned counsel for the petitioner in that case, yet we have ourselves gone through the law cited as P L D 1965 S C 208 and are of the opinion that the same is fully attracted in the case of the appellants. However, we can draw inference that this argument prevailed upon the learned Judge Mr. Justice Gul Muhammad Khan, who issued stay order in respect of the appellant Nazir Ahmad and stay order was also issued in the case of S. M. Rata Gardezi by Justice Dilawar Mahmood. It will be important to mention at this stage that both the appellants are continuing in service on the strength of stay orders so granted by the High Court. We cannot also remain oblivious of another act which is a memorandum/advice to the Secretary, Labour Department Punjab by the Assistant Advocate‑General Mr. Khalil Ramday, in which he had clearly observed that the case of the appellants did not fall within the mischief of section 11‑A of Punjab Civil Servants Act, 1974.

9. We have also attended to the arguments so advanced by the learned District Attorney, but we are not impressed by the same and feel no hesitation to repel the same. His stand is that as regular appointment was made in 1973, therefore, the appellants fell within the ambit of section 11‑A. He has not taken into consideration a very very important factor in this case and this is the notification of the 28th February, 1970 by which all employees stood regularized w.e.f. date of issue of the said notifi cation. Due to this established fact, the argument of the learned District Attorney falls to the ground.

10. In view of the detailed analysis of the language of sec tion 11 ‑A of the Punjab Civil Servants Act, 1974, the notification of the 28th February, 1970 and the‑ connotation of word `appointment' as given in the Punjab Civil Servants Act, 1974, we are of the considered opinion that both the appellants do not fall within the ambit of section 11‑A, as they were appointed in 1962.

11. The result is we accept the appeals, set aside the impugned orders and hold that the appellants are continuing in service from the date of their removal. However, there will be no order as to costs. A. E. Appeal accepted.