2002 PLP 904 (SCMR)

SYED DEEDAR HUSSAIN SHAH, J.‑--‑‑By this consolidated judgment we intend to dispose of Civil Petitions Nos.868‑K and 870‑K of 2001, which are directed against a common judgment of the Sindh Service Tribunal, Karachi, dated 7‑9‑2001, passed in Appeal No. 71 of 1998.

2. The facts, in brief, are that petitioner Syed Abdul Qadir ‑Shah, while working as XEN (BS‑18) in Asian Development Bank, Sukkur, was transferred and posted as Project Director, ADB Engineering Cell, Sukkur, in his own pay and scale, vide S&GAD Notification dated 23‑10‑1993. In the meanwhile recruitment rules for the post of Project Director (BS‑10) were framed and notified on 20‑3‑1995 in consultation with Recruitment Rules Framing Committee in Sindh Public Service Commission allocating this post for initial appointment besides fixing other related criteria. Later on, the then Chief Minister Sindh vide his order dated 12‑4‑1995 not only took out this post from the purview of SPSC under Rule 5 of Sindh Public Service Commission (Functions) Rules, 1990, but also approved the appointment of the petitioner on regular basis against that post. Accordingly. S&GAD under its communications dated 20‑4‑1995, while advising the C&W Department to advertise the said post through Press to be published on 21‑4‑1995 as well as held interview on 26‑4‑1995, also constituted a Departmental Selection Committee under Secretary, C&W as Chairman with three Chief Engineers and Deputy Secretary (Adorn.), C&W as Members. The post was advertised in national Press and resultantly eleven candidates including the petitioner appeared for interview before the said Departmental Selection Committee. On the recommendations of the D.S.C. Syed Abdul Qadir Shah petitioner was offered the post of Project Director vide C&W letter dated 26‑4‑1995. On acceptance of the terms of offer of appointment, the petitioner was appointed as Project Director (BS‑19), Asian Development Bank, Project Engineering Cell, Sukkur, on regular basis. Subsequently, Mr. Akbar Hussain Rashdi (respondent No.5 in C.P. 868‑K of 2001 Superintendent Engineer (BS‑19) C&W Department, was posted as Project Director, ADB, Project Engineering Cell, Sukkar vide Syed Abdul Qadir Shah petitioner, who was transferred and directed to report to C&W Department for further orders vide S&GAD Notification dated 28‑2‑1997. As he failed to submit his arrival report in C&W Department in spite of various communications from the department, therefore, with the approval of Competent Authority he was suspended vide S&GAD Notification dated 14‑5‑1997 fixing his headquarter in Communication & Works Department during the period of suspension. Thereafter vide order dated 18‑6‑1997 and Enquiry Officer was appointed to conduct enquiry against the petitioner and also charge‑sheeted him on account of his alleged non‑handling over of the charge of the post of Project Director as well as unauthorized possession of Project vehicle. Later on, with the approval of the competent Authority, the petitioner was terminated from service vide order, dated 17‑12‑1997. On 30‑12‑1997 he filed a departmental appeal against the said termination order, and after waiting for statutory period of 90 days filed service appeal in the Sindh Service Tribunal, Karachi, which was accepted reinstating him in service in BS‑19 with all back and consequential benefits. However, his request for reinstatement in, service as Project Director, Asian Development Bank, Project Engineering Cell, was declined because the said post had been upgraded in BS‑20 on which post respondent No.5 was already posted. Hence, these petitions.

3. We have heard learned counsel for the parties at length and perused the material available on record. Admittedly, the learned Law Office, who appeared before the Tribunal, rightly did not support the case of the petitioner for his posting as Project Director, ADB, Project Cell Farm Market Road, in his own pay and scale, and according to him, it smacked favourtism. It would be advantageous to reproduce the relevant paragraphs of the impugned judgment, which reads as under:‑‑

34. The learned counsel for the appellant vehemently argued that since the termination of the appellant from the post of Project Director was illegal, ultra vires and without lawful authority, he may be reinstated and posted as Project Director the post which was held by him and now upgraded to BS‑20, his contention that only the appellant can be posted there and none else, has no force. No doubt that the termination of the appellant is not proper and legal as discussed earlier but this does not mean that he will be allowed to be posted against upgraded post of BS‑

20. Since at the time of his termination he was in BS‑19 as such he on his reinstatement will be entitled for his posting in BS‑

19. The Project in question though financed by the Asian Development Bank but its other functions i.e. appointment, administration and other control remain with the Government of Sindh and in fact it is the case of all the parties here. In such circumstances, the Government of Sindh is very much competent to post the appellant anywhere against the post of equivalent scale/grade.

35. Upshot of the above discussion is that the impugned termination order, dated 17‑12‑1997 being not sustainable in law is hereby set aside and the appellant be reinstated in service in BS‑19 with au back and consequential benefits.

36. As far as the prayer of the appellant to reinstate the appellant in service as Project Director, Asian Development Bank Project Engineering Cell is concerned the same cannot be granted as the post has been upgraded in BS‑20 on which post the respondent No. 5 is posted.

37. The department concerned is, therefore, at liberty to issue posting order of the appellant any where against the equivalent post of BS‑

19. Looking into the circumstances of the case there shall be no order as to cost."

4. For the foregoing reasons, in our considered view, the impugned judgment is based on the law laid down by this Court as well as equity, fair play and justice, which does not call for interference by this Court. Moreover, we do not find any illegality, irregularity or misconstruction of law in the impugned judgment. Besides above, no R question of public importance, as contemplated under Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973, is involved herein.

5. Resultantly, both the petitions are without merit and substance, which are hereby dismissed and leave to appeal is declined. Q.M.H./M.A.K./A‑183/S Petition dismissed.