2002 PLP 769 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.‑‑‑Leave to appeal is sought, through the abovementioned two petitions, against a common judgment of Federal Service Tribunal, dated 27‑7‑2000 through which two Service Appeals Nos.301 (R) of 1999 and 304(R) of 1999 filed by the petitioners alongwith 23 other appeals, were dismissed.

2. Brief facts of the cases are that Abdul Waheed (Petitioner in C.P. No. 1521 of 2000) was employed in National Institute of Historical and Cultural . Research, Islamabad, as Stenotypist while Khalid Mahmood (Petitioner in C.P. No. 1522 of 2000) was employed as Lower. Division Clerk in that organization. Later on, Abdul Waheed Khan was promoted/appointed as Stenographer whereas Khalid Mahmood was promoted/appointed as Stenotypist vide order dated 17‑7‑1997. However, the competent Authority having found the promotions/appointments of the petitioners as irregular, cancelled the same vide orders dated 5‑12‑1998 and the petitioners were, accordingly, reverted to their original posts. The reversion order, dated 5‑12‑1998 (C. P. 1522 of 2000) is reproduced hereunder:‑‑ "NATIONAL INSTITUTE OF HISTORICAL AND CULTURAL RESEARCH No.NIHC‑Adnm‑102‑140/3823 ???????????????????????????????????????????? December 5, 1998 In pursuance of the Culture, Sports. Tourism and Youth Affairs Division's `U.O.No..9‑7/97‑CO‑11, dated 26‑11‑1998, it is to inform you that the Competent Authority has been pleased to, cancel your irregular appointment as Stenotypist made in violation of the standing instruction of the Government of Pakistan, with effect from the date of your appointment i.e., 17‑7‑1997 vide NIHCR's Office Order No.102‑140/2491, dated 17‑7‑1997. The Competent Authority has further directed to recover the over‑payment made to you as salary and allowances on account of the said appointment during the period from 17‑7‑1997 to 31‑7‑1998. You are, therefore, directed to deposit Rs.22,843,47 in the Accounts Section of NIHCR immediately, failing which the same would be recovered from .your monthly salary of December, 1998 to be paid in January 1999 @ Rs.1,903.62 per month. (Sd.) The petitioners having availed the remedy of departmental appeal, challenged the orders of their demotion/reversion before the Federal Service Tribunal through service appeals, which were dismissed alongwith 23 similar appeals vide a consolidated judgment, dated 27‑7‑2000. Raja Muhammad Ibrahim Satti, Advocate Supreme Court representing the petitioners, has contended that the petitioners were promoted by the Competent. Authority through the prescribed procedure and that the officer concerned, who was holding officiating charge of director, would neither be incompetent to make such appointments and exercise the powers of the Competent Authority nor there was any legal defect in the appointments/promotions of the petitioners. The learned counsel submitted that the petitioners were qualified to be appointed as Stenographer and Stenotypist respectively, therefore, their appointments/promotions were not questionable and in any case the petitioners being qualified to hold the respective posts had actually served and discharged their functions as such, therefore, notwithstanding any technical defect in exercise of jurisdiction by the appointing authority, they were entitled to the payment of salaries and other fringe benefits attached with their post and the order of recovery of the same was without lawful authority and legal justification. The learned counsel emphasized that the officer while holding officiating charge as Director of NIHCR would be deemed to be enjoying all the powers available to the permanent incumbent of the post of Director/Competent Authority ' We have considered the contentions raised by the learned counsel and found that same are without any substance. We may observe that despite there being no specific bar for exercise of powers of Competent Authority by an Officiating Director, still he would not be supposed to exercise such powers of appointment/promotion of the employees without the proper sanction and allocation of budget besides observing the prescribed procedures including 'advertisement of the posts in the newspaper. The appointments made by the Officiating Director without following the prescribed procedure would not be legal and consequently the petitioners would neither have any right to hold such posts nor were entitled to the salaries and other benefits attached with the said posts. The Tribunal having considered all aspects of the matter and the pleas taken oh behalf of the petitioners in the appeals, held that the orders of appointments/promotion of the petitioners were illegal and void ab initio. The learned counsel for the petitioners has not been able to convince us that the view taken by the Tribunal was violative of any law to be interfered by this Court. In any case, the submissions made by the learned counsel have no substance acid further these petitions do not involve any importance. The same are, therefore; dismissed and leave is refused. Q. M. H. /M. A. K./A‑187/S ????????????????????????????????????????????????????????????? Petition dismissed.