1994 PLP (C (PLC(CS))

JUSTICE ABDUL RAZZAQ A. THAHIM (CHAIRMAN).‑‑‑Mr. Najeebullah Khan has preferred this appeal against the order of his termination passed by the Collector of Customs and Central Excise, Customs House, Peshawar on 26‑12‑1990.

2. The brief facts of the case are that the appellant, who is a Graduate, applied for appointment as Customs Inspector to the Special Cell created by the Prime Minister's House for providing jobs to the unemployed persons. His request was forwarded to the Central Board of Revenue. The C.B.R. accordingly ordered the appointment of the appellant as Inspector in the Customs Department on ad hoc basis and the appellant was appointed by an order dated 16‑2‑1989 issued by the Collector of Customs and Central Excise, Peshawar. The appellant joined his duty and was deputed for the basic training course meant for the Inspectors, at the National Institute of Customs, Karachi vide letter dated 11‑1‑1990. He completed the course and obtained highest marks amongst his batch of trainees. In the meantime, the CBR vide Telex dated 19‑5‑1990 directed the Collectors and Directors of the Customs Department to regularise the services of the ad hoc appointees. The CBR also issued guidelines for regularisation of services of such ad hoc appointees by letter dated 21‑5‑1990. However, the Collector by order` dated 4‑10‑1990 terminated the services of the appellant on the ground that he was over‑age by about five years at the time of initial appointment. The appellant filed appeal to CBR claiming that he was not over‑age V he belonged to Federally Administered Tribal Areas (FATA) and there was relaxation in age, and secondly his appointment was made by the CBR in relaxation of the Recruitment Rules. His appeal was accepted by CBR vide letter dated 29‑10‑1990 and the Collector was directed to reinstate the appellant into service from the date of his termination. Accordingly, the appellant was reinstated in service by order dated 1‑11‑1990. Soon after the dissolution of Assembly and change of Government, the services of the appellant were again terminated by the Collector of Customs by order dated 26‑12‑1990. He preferred departmental appeal on 12‑1‑1991 and could not get any relief departmentally, as such he filed Writ Petition No. 39 of 1991 before the Peshawar High Court which was dismissed on 27‑1‑1991. The appellant against the judgment of the Peshawar High Court went in appeal before the Supreme Court and filed Civil Petition No. 104/105‑P/1991. The appellant's Advocate made a statement that the appellant being a civil servant, his terms and conditions were to be regulated under the Civil Servants Act, 1973 and he will approach the Service Tribunal for relief and withdrew the civil petition with permission to file appeal before the Tribunal. The Hon'ble Supreme Court accordingly disposed of the petition by order dated 27‑5‑1992. Thereafter, he filed the present appeal before the Tribunal on 29‑6‑1992. Along with the memo of appeal, the appellant has also filed application for condonation of delay.

3. Mr. Qazi Muhammad Anwar, the learned counsel for the appellant has assailed the impugned order on various grounds. It is contended that the appellant possessed the requisite qualification and belonged to FATA and he was within age limit and further he having completed the requisite training, his appointment could not be termed as ad hoc and the appellate authority, i.e. the Central Board of Revenue on acceptance of his appeal, set aside the impugned order and reinstated him, therefore, the subsequent order dated 26‑12‑1990 of termination could not be passed by the Collector of Customs and the order is ab initio illegal.

4. The respondents have resisted the appeal and have filed comments in which it has been stated that there was no vacancy against which the appellant could have been appointed and as such his appointment was ad hoc which could be terminated without notice. Mr. Sheikh Riazul Haq, learned Standing Counsel also raised the question of limitation and submitted that appeal may be dismissed.

5. The services of the appellant Mr. Najeebullah Khan, who was appointed on ad hoc basis, were terminated by the Collector of Customs by order dated 4‑10‑1990 on the sole ground and reason that he was over‑age by more than five years at the time of appointment. The Central Board of Revenue being the appellate and competent authority accepted the appeal of the appellant and ordered his reinstatement. The order of reinstatement into service dated 29‑10‑1990 is reproduced as under:‑ CENTRAL BOARD OF REVENUE C.No.16/40/90‑ACE.II Islamabad, the 29th October, 1990 From: Mr. Abdul Jameel, Second Secretary. To: The Collector, (Customs & Central Excise) Peshawar. Subject: APPEAL OF MR. NAJEEB ULLAH KHAN EX‑INSPECTOR AGAINST THE ORDER OF HIS TERMINATION FROM SERVICE. Please refer to your letter No. II(22)(ii) 74‑Admn/89/7117, dated 17th October, 1990 on the above subject.

2. The competent authority has been pleased to accept the appeal of Mr. Najeeb Ullah Khan, Ex‑Inspector of your Collect orate on the basis of the fact that the appellant belongs to Federally Administered Tribal Areas where the upper age limit already stands extended upto 28 years and as such further relaxation of age involved in his case is not more than five years. It is accordingly requested that the appellant may be reinstated in service from the date of his termination, under intimation to the Board. (Sd.) Abdul Jameel Second Secretary. In pursuance of order of the CBR dated 29‑10‑1990, the Collector of Customs and Central Excise, Customs House, Peshawar by order dated 1‑11‑1990 reinstated the appellant into service from the date of his termination. The order of the Collector is also reproduced below:‑ "No, C.No. II(22)(ii)74‑Admn/89/7342 Dated: 1‑11‑1990. Dated, Peshawar the 30th October, 1990. Appeal lodged by Mr. Najeeb Ullah Khan, Ex‑Inspector (on ad hoc basis) of Customs and Central Excise Collector ate, Peshawar has been accepted by the Board. The Board has ordered for reinstatement in service from the date of his termination. Mr. Najeeb Ullah Khan, Inspector is accordingly reinstated into Government service from the date of his termination. (Sd.) AHMED SIBTAIN FAZLI, COLLECTOR." After reinstatement of the appellant into service, the services of the appellant were again terminated by the same Collector of Customs by order dated "6‑12_1`)op and the order reads as under: "No. C.No. II(22)(ii)74‑Admn/89/8582 Dated 26‑12‑1990 Dated, Peshawar the 26th December, 1990. After careful consideration, it has been decided that since the ad hoc appointment of Mr. Najeebullah Khan son of Habibullah Khan, Inspector made vide this Collect orate letter C.No. II‑A(5)(ii)10 Admn/89/1373, dated 16‑2‑1989 was in violation of the prescribed procedure, his services are no longer required and are, therefore, terminated with immediate effect. He is however, allowed 14 days pay in lieu of 14 days notice as admissible under the rules. (Sd.) AHMAD SIBTAIN FAZLI, COLLECTOR." The abovementioned facts do bear out that the appellant's appointment was made on ad hoc basis by the competent authority on the recommendations of the Prime Minister Secretariat (Public) and the appellant completed the requisite training and obtained highest position amongst his batch. However, his services were terminated on the ground of his being over‑age, but on his appeal the appellate authority i.e. the Central ‑ Board of Revenue after considering the case thoroughly decided to reinstate the appellant as he belonged to FATA and according to the rules his upper age limit stood extended upto 28 years and he was within age. Accordingly, the Collector of Customs issued the reinstatement order dated 1‑11‑1990, but the same Collector of Customs again terminated the services of the appellant by order dated 26‑12‑1990, and it amounted to revocation of the earlier order dated 29‑10‑1990. The only infirmity noticed by the Collector of Customs in the appointment of the appellant was that of age limit which was due to lack of knowledge of the rules and regulations of the respondent department and that controversy stood resolved by the appellate authority, i.e. the Central Board of Revenue and there being no other illegality in the appointment of the appellant, not pointed out by the Collector of Customs to the appellate authority, on reinstatement of the appellant into service it amounted to regularisation of service of the appellant . Therefore, subsequent order of termination of service of the appellant made by the same Collector on 26‑12‑1990 could not be passed as power of revocation was not available to him, anti as such is void ab initio and without lawful authority, and cannot sustain in view of the view taken by the superior courts. Reliance is placed on the decision of the Supreme Court reported in 1992 SCMR 1420 on the proposition that once an order passed has taken legal effect it could not be rescinded. In our view, the Collector of Customs having passed the order of reinstatement of the appellant into service, the same authority was acquiesced of the power to have passed order of termination of the appellant again, and the order so passed in these circumstances, is not sustainable.

6. Adverting to the objection of limitation raised by the respondents, it may be observed that the appellant challenged the order of his termination firstly by making a departmental appeal within thirty days and secondly by filing Writ Petition No. 39 of 1991 before the Peshawar High Court, which was dismissed in limine by order dated 27‑1‑1991. The appellant went to the Supreme Court and filed Civil Petition No. 104‑P and 105‑P of 1991. The learned counsel appearing for the appellant made a categorical statement before the Hon'ble Supreme Court that it was on wrong advice that the appellant approached the Peshawar High Court and the remedy lay before the Service Tribunal and that fact was taken notice of by the Peshawar High Court in the impugned judgment and as such he requested to withdraw the petition. The Supreme Court acceded to his request and disposed of the petition as withdrawn. As regards limitation, the Hon'ble Supreme Court observed as under:‑‑ "Regarding the limitation, the petitioners may rely on Muhammad Hasham Khan v. The Chairman, Balochistan Service Tribunal (PLD 1983 SC 262), this Court order dated 19‑5‑1992 in C.P. No. 168‑P of 1991 (Government of N: W.F.P. v. Dr. S.M. Jamal). The observations on merits made by the High Court shall not influence the Tribunal if and when an appeal is filed." In all fairness and in the interest of justice, we feel inclined to accept the argument of the learned counsel for the appellant that the appellant had been pursuing his remedy in good faith before the Peshawar High Court and also before the Supreme Court and it is a fit case where condonation of delay may be allowed. We accordingly accept the application and condone the delay in filing the appeal before the Tribunal.

7. For the reasons recorded above, we accept the appeal, set aside the impugned order dated 26‑12‑1990 and reinstate the appellant into service with all back benefits. No order is made for costs. H.B.T./881/Sr.F. Appeal accepted.