2004 PLP (C (PLC(CS))

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑This appeal by leave of the Court is directed against the judgment, dated 16th December, 1998 passed by Federal Service Tribunal, whereby service appeal filed by the appellant has been dismissed.

2. Precisely stating the facts of the case are that appellant was appointed as Vice‑Chancellor, Quaid‑e‑Azam University, Islamabad for a period of four years. The appointment order was followed .by a letter, dated 11th June, 1995, containing terms and conditions of his service. Appellant resumed the charge, thereafter, by means of another notification, dated 3rd January, 1995, earlier appointment letter was partially modified incorporating condition therein that he shall complete his term of four years, notwithstanding the superannuation and the date of expiry of term of office of Vice‑Chancellor. However, before the expiry of his tenure of four years, vide letter, dated 13th May, 1997, the Chancellor, Quaid‑e‑Azam University appointed Dr. Muhammad Tariq Siddiqui as Vice‑Chancellor for a period of four years with immediate effect and terminated the service of appellant forthwith. The contents of letter for convenience in extenso are reproduced herein-below:‑‑ "Subject:‑‑Appointment to the post of Vice‑Chancellor Quaid‑e -Azam University, Islamabad In exercise of the powers under section 12(1) of the Quaid‑e -Azam University Act, 1973, the Chancellor, Quaid‑e‑Azam University is pleased to appoint Dr. Muhammad Tariq Siddiqui as Vice‑Chancellor, Quaid‑e‑Azam University for a period of four years with immediate effect vice Dr. M. Arsalan whose services stand terminated forthwith. (2) The terms and conditions of Dr. Muhammad Tariq Siddiqui would be settled later on. By Orders of Chancellor Quaid‑e‑Azam University" Appellant agitated against termination of his service initially by invoking the jurisdiction of Lahore High Court, Lahore under Article 199 of the Constitution of Islamic Republic of Pakistan but relief so claimed by him was not granted to him as vide judgment, dated 12th May, 1998, learned High Court concluded that a section 2‑A has been inserted in the Service Tribunal Act, 1973, therefore, now he can challenge his termination order before the Service Tribunal.

3. It is important to note that Constitution petition filed by him was considered to have abated under the provisions of section 6 of the Service Tribunal Act, 1973 with effect from 10th June, 1997 when section 2‑A was inserted in the Act, 1973. Thus for such reasons, appellant invoked the jurisdiction of Federal Service Tribunal by instituting Appeal No.381(R) of 1998. The Service Tribunal also declined to grant relief to him vide judgment, dated 16th December, 1998 mainly for two reasons i.e. firstly the appeal filed by him is barred by time and; secondly without filing departmental appeal/representation appellant cannot approach the Service Tribunal for redressal of his grievance.

4. Leave to appeal was granted to examine the contentions raised by learned counsel, which have been incorporated in the following para. of the leave granting order. "Mr. Gul Zarin Kiani, learned Advocate Supreme Court for the petitioner contends that the Tribunal was wrong in, holding that the petitioner has already completed his tenure of four years service, inasmuch, the petitioner's statutory tenure of office was to expiry on 26‑12‑1998, therefore, respondent No. 1 on 13‑5‑1997, illegally issued an order under section 12(1) of the Act appointing respondent No.3 as Vice‑Chancellor of the University of a term of four years in place of the petitioner, whose services were terminated, without assigning any reason. He further states that the Tribunal was wrong in dismissing the appeal being time‑barred, inasmuch as the petitioner was entitled to avail of period spent bona fide and in good faith, prosecuting proceedings in and before the High Court, under section 5 read with section 14 of the Limitation Act, 1908. It is submitted that the Tribunal passed the impugned order by misconstruing the above provisions. It is further contended that the Tribunal was wrong in holding that departmental representation under section 4 of the Service Tribunals Act, 1973, should have been filed before invoking the jurisdiction of the Tribunal, inasmuch as, qua the period of limitation prescribed for appeal on the retrospective operation of, section 2‑A the petitioner was deemed to be a civil servant for availing of remedy in appeal before the Service Tribunal and filing of departmental appeal was not a sine qua non for approaching the Tribunal. Reliance was also placed on order, dated 16‑12‑1998, passed in 'Civil Petitions No.483 of 1998 and 658 of 1998, in the case of Lt.‑Col. (Retd.) Muhammad Siddique v. Allama Iqbal Open University, Islamabad to contend that after retrospective operation of section 2‑A of the Act, question of limitation should have been decided by the Tribunal in the light of the special circumstances since the provisions of section 4 of the Service Tribunals Act provided departmental appeal, were applicable only to civil servants and not to a person, like the petitioner, to invoke the jurisdiction of the Tribunal by virtue of section 2‑A. Finally, it is contended that the petitioner is not seeking reinstatement but only arrears for the unexpired period of his statutory term of four years." Leave to appeal is granted to consider the above questions.

5. In support of appeal, learned counsel for appellant contended that under the provisions of Quaid‑e‑Azam University Act, 1973 (hereinafter referred to as `the Act') against the termination of services of Vice‑Chancellor, holding tenure post, no further representation or appeal is competent, and as far as departmental representations are concerned those are required to be filed under section 4 of the Service Tribunals Act, 1973 by the employees who are the Civil Servants for the purpose of the Civil Servants Act, 1973 whereas the employees who had been given the limited right to approach the Service Tribunal for the purpose of redressal of their grievance in terms of section 2‑A of the Service Tribunal Act, are not obliged to file departmental representation or appeal against order of termination of services.

6. Learned counsel for respondent when confronted with proposition argued that under section 34 of the Act, an appeal or review was competent before the Syndicate.

7. A perusal of this section envisaged that against the order passed by Vice‑Chancellor, punishing any officer, an appeal or review is competent before the Syndicate but as far as Vice‑Chancellor himself is concerned, he has no remedy even to approach the Syndicate for the redressal of his grievance. In this behalf, this Court in the case of M.D. Sui Southern Gas Co. Ltd. v. Ghulam Abbas and others PLD 2003 SC 724 while attending to an identical proposition has ruled that the employees whose cases are covered by section 2‑A of the Service Tribunals Act are not obliged to file departmental appeal before approaching the Service Tribunal for the redressal of their grievance, therefore, in such view of the matter we are of the opinion that the non- filing of appeal/representation by appellant before approaching the Service Tribunal would not be fatal.

8. It is next contended by learned counsel that appeal filed by appellant before Service Tribunal was quite in time as he without wasting time instituted appeal after the judgment of learned High Court holding that his remedy lies with the Service Tribunal.

9. In this behalf it is to be noted that in a number of cases this Court has held that on account of change in the forum, as far as the question of limitation is concerned, it would not be considered seriously because insertion of section 2‑A in the Service Tribunals Act created confusion about its applicability, therefore, it would be deemed that the has been diligently pursuing his remedy before the wrong forum and period of limitation shall be extended in the interest of justice if appeal is barred by time. Reference in this behalf can be made to the judgments reported as Muhammad Afzal v. Karachi Electric Supply Corporation 1999 SCMR 92, Aftab Ahmed v. K.E.S.C. 1999 SCMR 197 and Rehmatullah Khan v. Postmaster‑General 2003 SCMR

705. Thus following the dictum laid down in these judgments, we are of the considered view that proceedings instituted by the appellant before the Service Tribunal were quite in time and should have not been non‑suited for this reason.

10. Now turning towards the merits of the case learned counsel appearing for appellant vehemently argued that in case where tenure of a post has been fixed by the statute, competent authority, if desired to dispense with the service of an employees on any ground, he is required to show anything adverse against him, by way of issuing show‑cause notice, so he may explain his position but without offering him opportunity of hearing before dispensing with his service, firstly he is entitled for the reinstatement on the post or in alternate salary should be paid to him for left over period of the tenure.

11. Learned counsel for respondents contended that four years was not the tenure of the appellant's service as it was the outer limit and the competent authority had jurisdiction to dispense with the service at any moment. In addition to it, he stated that appellant was to hold the post during the pleasure of the Chancellor, who could dispense with his services w offering any reason, even during the period of tenure.

12. It is to be noted that perusal of the termination order of the appellant, dated 13th May, 1997 indicates that Chancellor has not dispensed with the service of appellant after issuing show‑cause notice to him. It is correct that such powers can be exercised at any moment but fact remains that when a person has been appointed by a competent authority with the condition to retain the post for a specific period, such period becomes statutory period in terms of section 12 of the Act. Since in instant case, respondent‑Chancellor himself had granted the tenure of four years to appellant to retain the post as Vice‑Chancellor, therefore, before dispensing with his services, he had to exercise such powers judiciously and could not have terminated the services of the appellant merely for the reason that another person has to be accommodated at his place. It is to be noted that as far as such appointments are concerned, those are to be made in the interest and welfare of the institution, therefore, whenever a change is to be made, the competent authority is required to record certain reasons while dispensing with the service of earlier officer and appointing a new one at his place.

13. We inquired from the learned counsel for respondents as to whether there was any reason behind the replacement of appellant he could not answer satisfactorily except saying that it was the prerogative of the competent authority to terminate the services of appellant. Be that as it may, we are of the considered opinion that as far as such powers are concerned, those are required to be exercised fairly, justly and transparently because statutory functionary is not supposed to act arbitrarily and against the canons of natural justice. For such reasons, we are of the opinion that without assigning any reasons termination order of the appellant from service vide order, dated 13th May, 1997, when the appellant had a period of 1 year 7 months and 13 days at his credit to complete the tenure of four years, is illegal and void in the eye of law, thus not sustainable in law as such is accordingly set aside. However, instead of reinstating appellant into service as Vice‑Chancellor, in order to avoid any administrative problem, which the University might face, we would direct that he, should be paid arrears of his pay for the period of 1 year 7 months and 13 days at the rate of his pay scale which he was drawing at the time of termination of his service i.e. 13th May, 1997. In view of above discussion, appeal is allowed in above terms, leaving the parties to bear their own costs. M.H./M‑110/S Appeal allowed.