2001 PLP (C (PLC(CS))

S.M. Sayedain Zaidi, A.A.-G., Sindh fpr Respondents. Date of hearing: 22nd April, 1999. S. NASIM HAIDER (SENIOR MEMBER).

The facts of this appeal, according to the appellant are that he was appointed as Junior Clerk in the Directorate of Excise and Taxation, Karachi against a leave vacancy vide order, dated 20th " October, 1992. Subsequently, he was appointed against a clear vacancy called to appear before the Departmental Selection Committee (DSC), selected and regularized vide orders, dated 22nd December, 1992. He was allowed two advance increments for higher qualifications vide orders, dated 2-8-1995: According to the appellant he was performing his duties efficiently, diligently and to the entire satisfaction of his superiors when all of sudden his services were terminated vide orders, dated 31-8-1995, allegedly on the grounds that he was not selected by DSC. A departmental appeal against the impugned original order was filed on 14-9-1995 which remained undecided. He, therefore, filed Civil Petition No.2475 of 1995, before the Honourable High Court of Sindh and respondents were directed to decide the Departmental appeal within a period of two months vide orders, dated 15-8-1995. He was directed to appear for hearing of his Departmental appeal before respondent No.2. On 7-10-1996, which remain undecided resulting in legal notice to the respondents constraining the appellant to file the present service appeal. The Advocate- General, Sindh, was also contacted who was pleased to write a letter to respondent No.2 on 21-3-1998. The appellate order was communicated to the appellant under covering letter, dated 26-3-1998 by the respondent No.2, where under he was informed that copy of the appellate order was despatched through ordinary post. The appellant was constrained to obtain the copy of the appellate order, dated 9-10-1996, from the office of A.-G. Sindh through covering letter, dated '26-3-1998. Hence the appellant preferred this appeal, within 30 days of receiving the appellate order through covering letter (of A.-G. Sindh), dated 26-3-1998. The main contention of the counsel for the appellant was that the appellant's services had already been regularized legally through the prescribed forum of DSC on 22-12-1992. As such, he could not be legally compelled to appear before another DSC subsequently in the year 1995. Moreover, the appellant was treated as regularized, his name did appear in the seniority list, dated 24-5-1995 of Junior Clerks (at S.No.339). Therefore, his appointment cannot be termed as 'ad hoc'. The Counsel for the appellant emphatically denied the Constitution of DSC (in 1995) and alleged that the reason for termination of the service of the appellant according to him was 'Sham'. He also asserted that no opportunity for personal hearing was provided to the appellant before termination order was issued, therefore, he contended that the impugned termination order was in violation of the principles of natural justice, fair play equity/hence, void order. He, therefore, pleaded that the impugned original order as well as appellate order, may be set aside. He lastly stated that all similar appeals have been allowed by the SST and in particular invited attention to the decision of this Tribunal Service Appeal No.95 of 1995 and 3 others, dated 9-1-1998. The A.A.-G. remained confined to the written statement of the respondents. He stated that as per written statement of the respondents the minutes of alleged DSC that cleared the appellant, held on 22-12-1992 were not 'available' in the record of the respondents, therefore, disputed the regularization of the appellant earlier i.e. in 1993. He also submitted that this appeal is time-barred as such not maintainable/liable to be dismissed. We have gone through the arguments of either side carefully. The fact remains that the balance of convenience regarding regularization of appellant's appointment as JC is in favour of the appellant by virtue of orders, dated 22-12-1992 wherein, the Director (Adam.) has used the exact words:-- "Consequent upon the clearance from the Departmental Selection Committee the following Junior Clerks/Constables, working against the leave vacancies, are hereby regularized against the existing vacancies, shown against each with immediate effect." The name of the appellant is available at Serial No.5 of the officials mentioned in the above said letter/order, non-availability of the minutes of DSC concerned is entirely a different aspect. The respondents were required to ascertain the reasons for the same and as to who was responsible for non availability of the record. They were also required to refer the matter to the area police and Anti-Corruption Authorities if the order, dated 22-12-1992 was false, forged or fabricated and should have stated so specifically in their written statement. Therefore, their case is on weak footing and without proper foundations laid, corroborating evidence produced, in support of their pleadings. Moreso because the name of the appellant is also borne on the seniority list of junior clerks, dated 24-5-1995 issued by the Competent Authority i.e. of the very year in which the services of the appellant were terminated. The established rule of seniority, as contained in Rule 10(1) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 is that the seniority of a civil servant shall be reckoned from the date of his regular appointment. The use of word 'Shall' has a mandatory effect. As provided in Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 in Rule 6, a 2nd DSC can be convened only if the appointing authority does not accept the recommendations of (an earlier) DSC, records the reasons thereof and obtains the orders of the next higher authority. Nothing has been produced before us in evidence that the respondents prior to conveying the alleged DSC in 1995, complied with the above said procedure. Lastly, there is a prescribed procedure for Constitution of DSC as prescribed in Rule 5(1) and (2) of the abovesaid appointment rules. There have been score of appeals before us regarding the impugned original order, dated 31-8-1995 and the respondents have miserably failed to establish through any evidence the establishment of a properly constituted notified (with the concern of S&GAD) the DSC in E&T Deptt/its Directors in the year; 1995, even failed to mention the names of the concerned Chairman, its two other members, to produce evaluation/marking of the persons examined, selected and rejected on the basis thereof. In this appeal also, respondents have failed to add/produce any evidence in support of the validity, legitimacy or bona fides of the concerned DSC held in 1995. As regards the question of limitation, suffice it to say limitation to approach the SST is counted from the date of actual communication of the appellate/final order and the appellant has placed sufficient documents in this regard on record therefore, we have no option left, but to set aside the impugned original as well as appellate orders. Consequently, the appellant shall be reinstated as a regular junior clerk in service. The intervening period as per decision in other similar appeals shall be treated as 'Leave due'. There are no orders as to costs. H.B.T./6/K(Sr.Trib) Appeal allowed.