2005 PLP (C (PLC(CS))

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This petition has been filed by the petitioners against the judgment, dated 11-11-2002 passed by the Punjab Service Tribunal, whereby the respondent Zulfiqar Ali has been reinstated in service. Concluding paragraph of the impugned judgment is reproduced hereinbelow for convenience:

"With all above discussions E&D Rules have been floated. Appellant has been proceeded against in a hasty manner simply on the basis of liking and disliking. Mala fide of the Department is proved as the same officer who appointed him held his order to be illegal which were not pointed out during 11 years, he was confirmed and promoted. With these observations appeal is accepted. The above-said impugned' orders are set aside. He is restored in service. Intervening period would be treated as the leave kind due."

2. Precisely stating the facts of the case are that respondent was appointed as Junior Clerk against the post of Stenographer vide letter dated 10-11-1990 in the office of the Senior Subject Specialist (Agronomy) by Bashir Ahmed Sabir, Director of Agriculture (A.R.) Punjab, Lahore. Contents of which reads as under thus:

"Director of Agriculture (Adaptive Research) Punjab, Lahore Mr. Zulfiqar Ali son of Muhammad Rafique is hereby appointed as Junior Clerk in Basic Pay Scale No.5 viz. Rs.700-25-1200 with usual allowances as admissible under the rules on ad hoc basis for the period of six months or till the regular selection of a candidate is made by the Authority against a vacant seat of stenographer, in the office of the Senior Subject Specialist (Agronomy), Adaptive Research Farm, Chakwal, from the date of joining. The terms and conditions of the appointment are as under:-- (1) The appointment is only ad hoc basis for a period of six months from the date of joining. After expiry of this ad hoc period, the services will stand automatically terminated. In case he remains absent for seven days without prior permission, the services will stand automatically terminated. (2) He will have to, join duty at his own expenses. (3) In case he wishes to resign at any time, one month's notice will be necessary or in lieu thereof one month's pay will be forfeited. (4) The services are liable to be terminated at any time without assigning any reasons. If he accepts the post with the above conditions he should report for duty in the office of the Senior Subject Specialist (Agronomy), Adaptive Research Farm, Chakwal within 15 days, failing which this appointment will be treated as cancelled. He should also produce original certificates in connection with his qualification/domicile and age, etc. to the Senior Subject Specialist (Agronomy), A.R. Farm, Chakwal before joining. (Bashir Ahmad Sabir), Director of Agriculture (A.R.) Punjab, Lahore."

3. Later on vide letter dated 18th May, 1993 the service of the respondent was regularized w.e.f. 10th November, 1990. Subsequently on 20th March, 1995 respondent was shifted/posted as Stenographer against a vacant post at Senior Subject Specialist (Agronomy). Adaptive Research Farm, Chakwal w.e.f. 1st March, 1995 till further orders.

4. On 18th January, 2001, Bashir Ahmed Sabir, Director Agriculture who had originally issued his appointment letter dated 10th November, 1990 (reproduced hereinabove) issued show-cause notice to him which reads as under:-- "No.272-73/DA/(AR)/PA Directorate of Agriculture (A.R.) Punjab, Lahore To Mr. Zafar Iqbal Ali, Stenographer C/o Deputy Director of Agriculture (Ext.) Sahiwal. Subject. Show-Cause Notice. An enquiry was got conducted as regard your ad hoc appointment as Junior Clerk as well as Stenographer in Agriculture Extension Wing. It has been observed that your appointment as Junior Clerk and Stenographer is illegal and irregular without any competency. The enquiry report has been thrashed out in detail and the Authority has decided to take action against you on the above-mentioned grounds as provided under Rule 6(3)(a)(b), E&D Rules, 1999. Your services are required to be terminated from the date of initial recruitment and recovery would be effected. You are hereby offered the opportunity of personal hearing before the undersigned (Authority) for this purpose. You are hereby further advised in your own interest to appear before the undersigned on 12-2-2001 at 10 a.m. to offer your defence if any during the said personal hearing. Otherwise ... be presumed that you have nothing to say in your defence and the decision would be taken in the light of the available record of enquiry and the recommendations of the Enquiry Officer. Your reply should reach to the undersigned within a period of fourteen days from the date of receipt of this letter. (Bashir Ahmed Sabir) Director of Agriculture (A.R.) Punjab, Lahore (Authority)."

5. Surprisingly, the Director of Agriculture (A.R.) Punjab, Lahore namely Bashir Ahmed Sabir without realizing that he himself had appointed the respondent as Junior Clerk on 10-11-1990 terminated his service vide order, dated 17th August, 2001. The respondent being dissatisfied from the order of termination of his service approached to the Punjab Service Tribunal for his reinstatement. The appeal filed by him had been allowed by means of impugned judgment as such instant petition for leave to appeal has been filed.

6. Learned counsel for the petitioner contended that as the appointment of the respondent was not made in accordance with the rules, therefore, the same Officer i.e. Bashir Ahmed Sabir, Director Agriculture rightly terminated his service and the Service Tribunal may have not perpetuated an illegal appointment.

7. We are afraid that the contention so raised by him is not correct as the Director Agriculture appointed him on 10-11-1990 and thereafter his service was regularized w.e.f. the same date in the year of 1993. He served the department for about 11 years as a regular employee and during course whereof, there was no complaint of whatsoever nature against him, calling for action under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. It may be noted that these rules contemplate an action against an employee who is guilty for the breach of good service order, indiscipline, misconduct etc. but it does not contain any provision on the basis of which appointment of an employee can be cancelled on the ground that it has been made illegally. In other words in such-like situation instead of taking action against an appointee it is appropriate if an action is taken against the Appointing Authority who apparently committed a misconduct by making such appointment, as it has been observed by this Court in the case of Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034. Relevant para. Therefrom is reproduced hereinbelow for convenience: "(15) We have noted in number of cases that Departmental Authorities do show haste at the time of making such appointments when directives are issued to them by the persons who are in the helm of affairs without daring to point out to them that the directions are not implementable being contrary to law as well prevalent Rules and Regulations. In fact such obedience is demonstrated by the concerned officers of the Departments to please the Authorities governing the country just to earn their time being pleasures but on the change of regime they do show speed in undoing illegal actions which they themselves have accomplished in the previous regime and due to their such illegal acts the employees who were appointed suffer badly without any fault on their part and then even 'nobody bothers for their future career. Therefore, we are of the opinion that in such situation besides proceedings against the beneficiaries of so-called illegal appointments the officers who were responsible for implementing illegal directives should also be held equally responsible and severe action should be taken against them so in future it may serve as a deterrent for other like-minded persons. This Court in an identical case declined to grant leave to appeal in the case of Secretary to Government of N.-W.F.P. (1996 SCMR 413) and observed that 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 service 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 in .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 respondent merely because they have themselves committed irregularity in violating the procedure governing the appointments".

8. Keeping in view the observation made in the above judgment which has been authored by one of us (Justice Iftikhar Muhammad Chaudhry) qua the facts and circumstances of the case in hand, we are constrained to note with concern that it was Bashir Ahmed Sabir, Director' Agriculture who appointed respondent as Junior Clerk as back on 10th November, 1990 and because he was the Senior Officer holding the post of Director, therefore, presumably the rules and regulations should have been on his sleeves at the time of appointment of respondent if he was of the opinion after 11 years that he had committed violations B of rules and regulation in making respondents' appointment as Junior Clerk then instead of terminating his service, he should have blamed himself and should have decided whether he is capable to remain in service or otherwise morally and legally instead of claiming premium of his own wrongs. Thus, the competent Authority of Provincial Government i.e. Chief Secretary had a legal burden upon his shoulders to take action against Director of Agriculture (Bashir Ahmed Sabir) not only for making alleged illegal appointment as per his own admission, without prejudice to the case of respondent but also engaging the Provincial Government in litigation upto this Court at the cost of public exchequer.

9. A perusal of record so made available before us indicates that Director of Agriculture i.e. Bashir Ahmed Sabir had contemplated action of termination of service against respondent perhaps for some differences with the uncle of respondent who is also serving in the same department. If it is so, it is unfair on his part as well as against the principles of good governance, justice, equity and law.

10. A careful scrutiny of the impugned order of Service Tribunal at the touchstone of settled principles of law on the subject persuades us to hold that impugned order being legal and valid needs no interference by this Court. Thus, for the foregoing reasons, petition is dismissed declined. S.A.K./P-31/S Leave refused. ***