1999 PLP (C (PLC(CS))

(ii) Consequent upon clearance by the D.S.C. his services were regularized against a permanent/existing vacancy vide orders No.9(31) of 1987 Estt. 3815, dated 22‑12‑1992, by the appointing authority. (iii) His name appears at S.No.312 of the final seniority list of Constables, bearing No.10(6) of 1981 Estt 1767, dated 17‑8‑1994 issued by the Competent Authority not attached inadvertently. (iv) Without recalling/cancellation of the earlier regularization order and without assigning any reasons therefore, the services of the appellants were terminated through impugned order bearing No.8(141) of 1983 Estt. of 1974, dated 31‑8‑1995 on the same grounds as mentioned in earlier orders bearing No.8(141) of 1983 Estt/1964, dated 30‑8‑1995 i.e. failure to clear D.S.C. not recommended by it. Appeal No.26 of 1996, (Noon? Muhammad Ghanchi) (i) Appellant was originally appointed as Junior Clerk on ad hoc basis against a leave vacancy, vide orders, of Mr. Shafiq Ahmad Khoso, the then Director, Excise & Taxation (Adorn.) Karachi. (ii) Consequent upon clearance by the D.S.C., the appointment of the appellant was regularized against a permanent/existing vacancy, vide orders bearing No.9(31) of 1987 Estt./3815, dated 22‑12‑1992 issued by the appointing authority and his name is available at S.No.3. (iii) The name of the appellant is available at S.No.337 of the final seniority list of the junior clerks bearing No.10(5) of 1981 Estt./012/13, dated 24‑5‑1995, issued by the competent authority. (iv) Without recalling/canceling his earlier regularization orders and without assigning any reasons, therefore, the service of the appellant, were terminated by impugned orders, bearing No.8(141) of 1983 Estt. 1974, dated 31‑8‑1995 on the similar grounds, as mentioned in earlier orders bearing No.8(141) of 1983 Estt./1964, dated 30‑8‑1995 i.e. failure to clear D.S.C. not recommended by it. Mr. Awan therefore, argued that these appeals were somewhat similar in nature to appeals Nos. 6, 22, 32, 34 of 1996 and 95 of 1995 heard on 12‑12‑1997 and appeal No.45 of 1996 heard on 9‑1‑1998 and judgments announced on 15‑1‑1998, wherein this Tribunal has already allowed the same and held that without specifying the reasons/recalling or canceling the earlier regular appointment of the appellants, as could be deducted and by the appearance of their names on the final seniority list issued by the competent authority the respondents same as in these appeals had no authority or jurisdiction to terminate their services on the alleged grounds that they were not cleared/recommended by another D.S.C. convened in 1995, for which there was no justification/rhyme or reasons. Mr. Abdul Latif Shaikh, counsel for Jamal Nasir Samoo in appeal No.47 of 1996, adopted the arguments o: Mr. M.M. Aqil Awan, in toto. The brief facts of this appeal are as under:‑‑ Appeal No.47 of 1996 (Jamal Nasir Samoo): (i) The appellant was appointed as Excise & Taxation Constable on ad hoc basis, against a leave vacancy, vide order, dated 30th November, 1992, by Mr. Shafiq Ahmed Khoso, the then Director, Excise & Taxation (Adorn.) Karachi. (ii) Consequent upon clearance by the D.S.C. the appointment of the appellant was regularized, against a permanent/existing vacancy vide orders bearing No.9(31) of 1987 Estt. 3815, dated 22‑12‑1992 by the appointing authority and his name is available at S.No.16. (iii) His name is available at S.No.514 of the final seniority list of constables bearing No.10(6) of 1981 Estt/1767, dated 17‑8‑1994, issued by the competent authority not attached inadvertently. (iv) Without recalling/canceling his earlier regularization order and without assigning any reasons therefore, the services of the appellant were terminated vide impugned order bearing No.8(141) of 1983 Estt 1974, dated 31‑8‑1995 on the same grounds as mentioned in earlier order bearing No.8(141) of 1983 Estt./1964 dated 30‑8‑1995 i.e. failure to clear D.S.C. not recommended by it. Mr. Ghulam Mustafa Lakho, advocate for Mst. Aneela Betool in appeal No.60 of 1996, also adopted the arguments of Mr. M.M. Aqil Awan, but added that the services of the appellant, were terminated without notice, i.e. in contravention of the principles of natural, justice, fair play and equity such orders have been repeatedly set aside by the superior Courts in Pakistan. Since the appellant at the time of termination of her service was a regular employee her services could not be dispensed with except in accordance with the Sindh Civil Servants (Efficiency & Discipline) Rules 1974 i.e. without resort to show‑cause notice/departmental inquiry in lien thereof. The brief facts of this appellants appear are:‑‑ Appeal No.60 of 1996 (Mst. Aneela Betool): (i) Appellant was originally appointed as Junior Clerk on ad hoc basis, against a leave vacancy by Mr. Shafiq Ahmad Khoso, the then Director Excise & Taxation (Adorn.) Karachi vide orders, dated 19th September, 1992. (ii) Consequent upon clearance from D.S.C. her appointment was regularized vide orders bearing No.9(31) of 1987 Estt./3815, dated 22‑12‑1992, issued by the appointing authority and her name is available at S.No.2 therein. (iii) Her name appears at S.No.636 of the final seniority list of the junior clerks, bearing No.10(5) of 1981 Estt. 1213, dated 24‑5‑1995 issued by the competent authority not attached with the appeal inadvertently. (iv) Her services were terminated vide impugned orders, bearing No.8(141) of 1983 Estt./1974 dated, 31‑8‑1995, without recalling/canceling her earlier regularization or assigning any reasons therefore on the same grounds as mentioned in earlier orders bearing No.8(141) of 1983 Estt./1964, dated 30‑8‑1995 i.e. failure to qualify/clear the D.S.C. not recommended by it. Mr. S.M. Sayedain Zaidi, A.A.‑G. Sindh argued that the case of the respondents was that all the appellants were appointed purely on temporary basis and as per clauses Nos. 1 & 2 of the their appointment orders, their services could be terminated without assigning any reasons. When the Senior Member Sindh Service Tribunal pointed out that is it not a fact that even if such clauses were incorporated, all the superior Courts in Pakistan have repeatedly held the same to be against the principles of natural justice fair play and equity? He replied in affirmative. He further stated that according to the respondents the appointment of the appellants, till the termination of their services, in 1995 was ad hoc because according to their written statement in para. 2, the appellants were not cleared by the D.S.C. and there are 'no such minutes' available on the record' (of the respondents). The Chairman, Sindh Service Tribunal observed that if it is so that the minutes of D.S.C. are not available with the respondents how are the appellants responsible for the same? On further query from the Chairman S.S.T., whether the regularization orders of the appellants produced in their appeals are false or forged, he replied in 'Negative'. On yet another query by the Chairman, S.S.T. whether these regularization orders of the appellants were ever recalled/cancelled in writing and reasons, if any communicated to the appellants, his reply was in 'Negative'. On a query from Member (11), that if the appointments of the appellants were not approved by the D.S.C. as per W.S. of the respondents how their names appear on various final seniority lists of (Constables & Junior Clerks)? His reply was 'due to ignorance of law'? but it is established principle of law that ignorance of law is no excuse. On yet another query from the same Member, why the services of the appellants were not terminated, if they were not approved by the D.S.C. on 22‑12‑1994 till 31‑8‑1995, his reply was due' to the lethargy of the Deptt./its concerned officers. According to the A.A. ‑G. as per para. l (Grounds of the W. S. of the respondents and the appellants appointments were irregular without observance of the prescribed procedure of going through the D.S.C. in pursuance of the decision of the Hon. Supreme Court of Pakistan in Human Rights Case (No.104 of 1992), dated 26‑12‑1992, attached with their W.S. When it was pointed out to him by the Senior Member Sindh Service Tribunal that those orders were ad interim orders and the copy of the final orders has not been produced by the respondents, his reply was in affirmative. The senior member S.S.T. pointed out that the orders were communicated to A.‑G. Sindh Provincial Government through him on 14‑1‑1993 and the words used therein were 'forthwith' i.e. with immediate effect, he confirmed the same. Elaborating this point further Sr. Member asked A.A.‑G. could these orders be applied to the cases of the appellants, who were appointed prior to that order i.e. with retrospective effect, when not so ordered specifically by the Honourable Supreme Court of Pakistan his answer was 'No'. According to A.A.‑G., the appellants were originally appointed without advertising the posts and as such their appointments were irregular. Even if for the sake of arguments it is taken to be true the big question is how were the appellants responsible for the same? being at the lowest ladders of constables and junior clerks? The fault, if any was that of the appointing authority who should have been put to task. Further the established legal position is that none can be punished for the fault, error or omission of another person: Hence, this ground is also not available to the respondents. According to us the factual accepted position is tat all the appellants were regularized, consequent upon their clearance by D.C.S. in 1992, against a permanent existing vacancy.? Therefore, there was no question whatsoever, of holding a 2nd D.C.S. in 1995 for the appellants Rule 6 of the Sindh Civil Servant (Appointment, Promotion & Transfer) Rule, 1975 reads as under:- "(6)????? Where an appointing authority for Grade‑15 and below does not accept the recommendation, of a Departmental Selection or Departmental Promotion Committee, it shall record, reasons therefore, and obtain orders of the next higher authority." In view of this clear provision of law and the fact that the recommendations of the D.S.C. held in December, 1992 were accepted by the appointing authority in case of the appellants i.e. the Director Excise & Taxation (Adorn.) Karachi, who regularized their services/against existing vacancies, a 2nd D.S.C. could hot‑be‑convened by the respondents, in the cases of the appellants legally. Even if so held/convened it had no locus standi because the recommendations of the lst D.S.C. were agreed/approved by the appointing authority and not disargued by him in 1992 i.e. at the appropriate time. For all the reasons mentioned above, specially the last one, we are unable to maintain the impugned orders bearing No.8(141) of 1983 Estt./1974, dated 31‑8‑1995 issued in continuation of 8(141) of 1983 Estt/ 1/4 1964, dated 30‑8‑1995 (already set aside vide our judgment, dated 28‑1‑1998 is respect of twenty appeals. We allow these appeals with full past, back benefits with no order as to cost. Given under our hands and the seal of this Tribunal this 28th day of January, 1998 at Karachi. H.B.T./34/ST.K?????????????????????????????????????????????????????????????????????????????????? Appeal allowed.