2000 PLP (C (PLC(CS))

‑‑‑‑‑. 11(3)‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑ Appointment, cancellation of‑‑‑Appointment of civil servant as Primary School Teacher, was cancelled by Competent Authority on directions of Government on ground that it was made in violation of Government order and without adopting procedure of recruitment‑‑‑Validity‑‑‑Appointment of civil servant was not only made in violation of Government instructions, but was made during the period when ban was imposed on appointments‑ Appointment of civil servant was ab initio void and of no legal consequence‑‑‑Appointment of civil servant, which was not made in a legal, appropriate and transparent manner, was rightly cancelled. 1998 SCMR 1404; 1998 CLC 921; 1998 PLC (C.S.) 448; PLD 1990 SC 504 and 1999 PLC (C.S.) 190 ref. ABDUL RASHEED MEMON (MEMBER‑II).‑‑‑The appellant being aggrieved and dissatisfied by order, dated 2‑12‑1998 passed by Respondent No.3 on the instructions of respondent No.2 whereby Appointment Order No.16 dated 24‑9‑1998 of the appellant had been cancelled came before this Tribunal. Appellant's departmental appeal filed before Respondent No. l was also rejected on 11‑2‑1999. The facts of the case are that appellant applied for appointment as Primary Teacher to Respondent No.2; was called for interview and after being qualified; was appointed as Primary School Teacher vide order, dated 23‑9‑1998. He was medically examined and found fit, thereafter his posting order was issued by the Respondent No.3 on the usual terms and conditions vide order, dated 24‑9‑1998. The appellant served at Dongro Primary School Qasimabad, Hyderabad and was serving at the same school when received an order, dated 2‑12‑1998 from the Respondent No.3 whereby he was informed that on receipt of instructions from higher‑ups his appointment had been cancelled forthwith. He filed an appeal with Respondent No. l on 9‑12‑1998, but was informed on 11‑2‑1999 that his appeal had been filed and no other order was passed. He has further challenged the wires of the cancellation of his appointment and rejection of his appeal as illegal, void, in excess of their jurisdiction and mala fide and liable to be set aside. He has prayed that the. Tribunal may declare that order, dated 2‑12‑1998 of Respondent No.3 and order, dated 11‑2‑1999 passed by Respondent No. I be declared as illegal, ex parte, based on mala fide and void and therefore, may be declared of no legal consequences and thus be may be allowed to continue against the appointment made vide order, dated 24‑9‑1998. The appeal was admitted and respondents were ordered to file their written statements. Respondent No.3 has filed written statement on his own behalf as well as on behalf of Respondents Nos. l and 2 wherein he has narrated the facts that the Government had relaxed ban on fresh appointment in BS‑1 to 15 in Education Department as a special case vide order, dated 7‑9‑1998. However, the posts of Primary School Teachers which were already advertised in the month of June, 1997, the eligible candidates were advised through electronic media as well as print media to appear for the interview before the Selection Committee headed by the District Education Office; (Male) Primary, Hydeabad. Interviews were conducted from 30‑7‑1997 to 2‑8‑1997 by Late M. Rasheed, District Primary Education Officer, Hyderabad but as the relaxation had been allowed later on, hence no appointments were made before the date. However Mr. Wazir Ahired Jafri, District Education Officer issued appointment letter to 399 Primary School Teachers without adopting the procedure of recruitment. This irregularity came to the notice of the Government, which directed that all appointments made in violation of the prescribed procedure be cancelled forthwith, vide order, dated 28‑11‑1998. Thus in pursuance of the above Government directives the appointments made for District Hyderabad during the incumbency of Mr. Wazir Ahmed Jafri were cancelled by the S.D.E.O. being competent authority. The D.E.O. at that time has given in writing that he made appointments in violation of Government orders, as such appellant has no case. His appeal was not maintainable as he was offered the post of Primary School Teacher illegally by Respondent No.3, without adopting procedure as laid down by the Government. Hence he was informed accordingly. It has also been stated that Respondent No.2 not being the Appointing Authority in respect of Primary School Teachers had issued the orders illegally, as the appointing authority of PSTs was S.D.E.O. of the area as per Sindh Civil Servants Appointment Rules 1974. The authority which issued the orders inherits the right to cancel it as per provisions existing in the General Clauses Act. As the appellant's services were not recognized as such his very appointment was withdrawn and cancelled, being mala fide, he cannot claim termination of his services. It has also been contested that the orders dated 2‑12‑1998 and 12‑2‑1999 are legal, valid, appropriate and imperative in the matter. As such, they have prayed that based on the above facts, wherein an illegal attempt had been done away with may be allowed to be maintained, otherwise it would have a bad precedent in the Department. Hence they have claimed that the appellant who is not a bona fide employee of the Education Department nor his services are recognized, and all his papers with regard to as induction to the post of Primary School Teacher have been cancelled, therefore, his appeal merits no consideration and consequently may be rejected. While arguing the case the Advocate of the appellant stated that the orders of appointment of the appellant, were issued by the competent authority under rule 11(3) of Sindh Civil Servants (Appointment Promotion and Transfer) Rules hence these are valid and were issued after fulfilment of the requirement of advertisement, interview, therefore, they cannot be cancelled without giving an opportunity to the appellant of hearing in person, or issuing him a show‑cause notice, so as to prove the mala fide of the appointment. On the other hand, the A.A.G. while contesting the case stated that the appointments having been made in violation of Government instructions and during the period when there was ban on appointments were ab initio void and of no legal consequence, hence they were rightly, cancelled. He has cited the following judgments of the Superior Court in his support of the arguments: 1998 SCMR 1404; 1998 CLC 921; 1998 PLC (C.S.) 448; PLD 1990 SC 504 and 1999 PLC (C.S.)

190. From the foregoing arguments, averments and the facts brought on the record of this Tribunal we are of the opinion that as the appointments were not made in a legal, appropriate and transparent manner and such fact has been admitted by the officer issuing such void orders, hence they cannot be sustained in the eyes of the law. We, therefore, are left with no alternative but to dismiss this appeal with no order as to costs. Given under our hands and Seal of the Tribunal this 6th day of March, 2000 at Karachi. H.B.T/57/K Appeal dismissed.