2001 PLP (C (PLC(CS))

MUHAMMAD RAZA KHAN (MEMBER).

This judgment will also dispose of identical. Appeals Nos.4-K to 26-K of 1997, as the identical questions of law and facts are involved in all, these cases.

2. The appellants alleged that they joined the service of the respondent department as Telephone Operators in 1991 and they had been performing their functions satisfactorily and suddenly vide impugned order, dated 1-3-1995, their services were "terminated as no more required." After seeking their departmental remedy ineffectively the present appeals have been filed on 4-1-1997. '

3. The case of the appellants is that initially they joined the service as Telephone Operators either on ad hoc or against the leave vacancy, however, they continued without any break for almost 4 years satisfactorily and without any cause or notice they have been removed from service. It is, further stated that they had also passed the required examination and hive been declared successful in the training required for Telephone Operators in the year 1992. Thus, allegedly they were regularised and were working against the regular vacancies, when their services were terminated without affording any opportunity of being heard.

4. The respondent department contested the appeals on three grounds; firstly , that the, appeals are barred by time secondly, that the appellants were ad hoc employees and their services could be terminated at any stage and thirdly, that the appointments of the appellants were irregular as they were appointed in a period when the Government has imposed a ban on recruitment and thus, their appointments were not in accordance with the procedure and so liable to be undone.

5. At the very outset, the issue of limitation has to be dealt with being of primary nature. The appellants were aggrieved by an order, dated 1-3-1995 and they have filed the departmental appeals within a period of 30 days. These appeals have not been decided till 7-2-1997. This final order of rejection was not based on the ground of limitation but it was decided on merits and, therefore, the objection of limitation stood condoned. The appellants were entitled to have challenged the original or appellate order and they could either file the service appeals within 120 days of the date of filing departmental appeals or within 30 days from the communication of the appellate order. The appellants did not agitate the original order -within 120 days. In the meanwhile 12 others similarly placed Telephone Operators, filed Service Appeals in 1995 bearing' Nos.99, 110 and 120(x) of 1995.' These appeals were accepted on 4-3-1996 and the order of termination of service was declared to be ultra vires and illegal and by setting aside the said order the. appellants were directed to be reinstated in service with all back benefits. This judgment was issued on 4-3-1996 and the respondent-department filed civil appeal for leave to appeal before the Supreme Court alongwith application for suspension of the operation` of the said judgment. The Supreme Court had granted leave to appeal only for the determination of the status of the appellant as civil servants and not on any other ground and the application for suspending the operation of the judgment was refused. Under the principle of consistency, the respondent-department should have reinstated all the Telephone Operators, whose services were terminated in 1995, on similar grounds but it appears that the said 12 appellants have been reinstated and the present 23 appellants were not allowed to join despite their requests in this regard.

6. The issue of termination of services of ad hoc employees after satisfactory service for a couple of years has already been discussed in the previous appeals in detail and we adopt the similar arguments herein as well. Further, it may be added that the ad hoc appointment is made only under special circumstances as a stop gap arrangement and for the restricted period only. Such appointments continue till the availability of regular selectees and the ad hoc appointment is, therefore, ordered to handle the day to day orders pending finalisation of selection process. The ad hoc, appointment has to be extended after the expiry of the original period. In the instant case the appointment was, though called ad hoc, but no period was prescribed and no process of selection was initiated rather the appellants were required to undergo certain examinations and they qualified the same. Thus, the selection process stood completed and the appellants were eligible to be regularised after being declared successful in such examination They were also imparted regular training required for the job and they succeeded in such training as well. They have continuously performed service for more than 4 years apparently to the satisfaction of the department. As stated earlier the ad hoc appointment cannot continue indefinitely and their appointments stood regularised and as such the service could not be dispensed with by a single stroke of pen without any cause of grievance against them and without affording them an opportunity of being heard.

7. A ground was taken in the written objections that the services of the appellants were dispensed with for the reasons that they were appointed during the period when the Government imposed ban on the recruitment. This ground is repelled on two counts; firstly, this ground was not mentioned in the impugned original or appellate order and secondly, the appellants cannot be penalised for any irregularity committed by any other officer or authority. If somebody has violated instructions of the Federal Government appropriate action can be initiated against him but the appellants cannot be penalised as they were not at fault for violation of any such instructions. They have been selected, qualified the examinations, participated in the training and satisfactorily performing functions for sufficient length of time, they cannot be removed by an administrative order without following a proper procedure. The learned counsel for the respondent-department did not press the question of jurisdiction of the Tribunal and status of, the appellants as a civil servants. This issue was discussed in detail in the earlier judgment in Appeals Nos.99-K of 1995 etc. and galaxy of judgments of the Supreme Court have been reported thereafter, whereby the scope of definition of civil servant has been liberally interpreted and widened. To summarise the numerous judgments in this regard, it can be stated that any employee who performed functions in a body or a organization which is created or controlled, administratively and financially, by the Federal Government and the employees thereof are engaged in the functions of such institutions whereby they render that service exclusively for and on behalf of the Federal Government, such employees would be deemed to be acting in connection with the affairs of Federation arid, therefore; they will be deemed to be civil servants under the Civil Servants Act, 1973.

8. Thus, in the light of above discussion and by following the policy judgment in Appeals No.99-K of 1995 etc., we accept these appeals set aside the impugned order and direct that the appellants be reinstated in service with all back benefits.

9. No order as to costs.

10. Parties be informed. ABDUL RAZZAQ A. THAHIM (CHAIRMAN).

I agree with the proposed judgment of my learned brother Mr. Muhammad Raza Khan, but would like to add that this Tribunal has already allowed twelve identical Appeals Nos. 99-K of 1995, 110 to 120-K of 1995 (Muhammad Younus etc. v General Manager, Southern Telecommunication Region, Karachi) by a comprehensive judgment, dated 4-3-1996. This judgment was challenged by the respondents (PTC) in the Supreme Court by filing Civil Petitions Nos. 119 to 130-K of 1996 and Their Lordships granted leave to appeal only to consider the question whether the petitioners therein we civil servants or not for the purpose of jurisdiction of this Tribunal. The prayer for suspension of judgement of Tribunal was refused, and those appellants were reinstated. Such a question of jurisdiction came up for adjudication before Their Lordships in the Supreme Court in the case reported as PLD 1996 SC 222 (Pakistan Telecommunication Corporation v. Riaz Ahmed), and it was held that irrespective of their en bloc transfer to the Pakistan Telecommunication Corporation, the employees of the T & T who were transferred to the Corporation were civil servants and their appeals were competent before the Tribunal. Not only this, but the law has developed from time to time and the ratio decidendi of the judgments of the Supreme Court is that the employees working in the autonomous bodies being run by the Federal Government and working in connection with the affairs of the Federation, are civil servants and their remedy lay before the Tribunal. Reliance is placed on PLD 1990 SC 612 (Mrs. M.N. Arshad v. Miss Naeema Khan); PLD 1994 SC 123 (Saeed Rabbani v. Leather Industry Development Organisation); 1995 SCMR 1593 (Chairman, PBC v. Nasir Ahmed). In another case reported in 1996 PLC (CS) 1061 (Abid Mahmood v. Government of Pakistan), the petitioner therein was an Engineer in the PTC and had filed Constitutional Petition before the Lahore High Court for promotion. The High Court dismissed the petition for want of jurisdiction. The Supreme Court held that since the appellant was a civil servant, the jurisdiction of High Court was ousted under Article 212 and his remedy lay before the Tribunal. In view of the above enunciation of law, the appellants are civil servants and these appeals are competent before the Tribunal. Let me also refer to judgment of the Supreme Court reported as 1996 PLC (C.S.) 927 (Director, Social Welfare, N.W.F.P., Peshawar v. Sadullah Khan) wherein it was held that the Department itself appointed certain persons in violation of rules but terminated their services, they could not be allowed to take the benefit of their lapses because they themselves committed irregularity in violating the procedure governing the appointments. The relevant paragraph of the judgment is reproduced hereinbelow:-- "

6. It is disturbing to note that in this case Petitioner No.2 had himself been guilty of making irregular appointment on what has been described 'purely temporary basis'. The petitioners have now turned around and terminated his services due to irregularity, and violation of rule 10(2) (ibid). The premise, to say the least, is utterly untenable. The case of the petitioners was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis to violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondents merely because they have themselves committed irregularity in violating the procedure governing the appointment. In the peculiar circumstances of the case, the learned Tribunal is not shown to have committed any illegality or irregularity in re-instating the respondent," I would also allow these appeals and order that appeal was be reinstated in service with all back benefits. H.B.T./186/ST/F Appeals allowed.