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Appeal No. 125 (K) of 1982, decided on 10th May, 1984.

‑‑ Termination of service‑Regular employee cannot be removed on ground that appointment was wrongly, made‑Appellant appointed as clerk after due selection by Departmental Selection Committee and completing probation period acquiring right of being confirmed Services terminated on ground that he was over‑aged at time of appointment‑Date of birth mentioned in initial application consider, ed by Selection Committee and department fully aware of age of appellant at time of offering appointment ‑Impugned termination order, in circumstances, held, illegal and void‑Service Tribunals Act (LXX of 1973), S. 4.

Pir Shahroz Ahmed for Appellant.

Zia Pervaiz for Respondent.

Date of hearing : 30th .'April, 1984.

.‑The appellant was appointed as Lower Division Clerk under WAPDA, vide Order, EDD/SHP/EC/6842, dated 3rd May, 1980 issued by Executive Engineer, Operation Division (E), Shikarpur. The appointment was made after selection by a Depart mental Selection Committee. According to the terms of the letter of appointment issued to him, he was to be on probation for a period of one year. He successfully completed his probationary period and was allowed to continue in his appointment thereafter. But, on 6th June, 1982, a letter was issued to him stating that, at the time of his appointment, he was over‑age, from the prescribed limit of 25 years, by 3 years 5 months and 14 days. He was, therefore, called upon to explain his position as to way his services should not be terminated without any notice. The appellant submitted his explanation, in which he stated, inter alia, that, in his appli cation, for the post of L. D. C. in WAPDA, he had clearly stated the date of his birth, according to which he was over‑age; that he appeared before the Departmental Selection Committee, who not only interviewed him for oral and written tests but also checked/ verified all the relevant documents produced by him in support of his academic qualifications, age etc. and that, having been found fit for appointment and being given the letter of appointment by the competent authority, the question of termination of his service did not arise, since he had already qualified for retention, after the satisfactory completion of the period of probation. He also submitted that, since he had been appointed by the Authority without any condition rela ting to his age, and since he had already completed the prescribed period of probation, he had acquired a vested right, of which he could not be deprived without any justifiable cause. Nevertheless, by an order, dated 24th August, 1982, issued by the Executive Engineer, Opera tion Division (E), Shikarpur, the appellant's services were terminated with immediate effect, on payment of one month's pay, in lieu of the notice period, on the ground stated below :‑

.......as he has been proved the over‑age at the time of his appointment and have failed to produce the documentary evidence for his service experience prior to joining WAPDA in 1980 for his over‑age."

Against this order, the appellant served a grievance notice under section 25(A) of the Industrial Relations Ordinance, 1969 on 14th September, 1982 and followed it up by an application to the Sind Labour Court No. 7, Sukkur, on 24th October, 1982. The said Court dismissed the petition for want of jurisdiction, by its order. dated 30 November, 1982. Thereafter, the appel lant preferred the present appeal on 19th December, 1982. Alongwith the appeal, be submitted an application, under sections 5, 12 and 14 of the Limitation Act, for condonation of delay in the filing of this appeal. The appeal was admitted for hearing on 25th January, 1983, subject to limita tion, and, after full hearing of the parties on 30th April, 1984, it is being disposed of by this order.

2. The main ground, on which the appeal has been preferred, is that, since the Authority had appointed him to the post in question, with full knowledge. of the fact that he was over‑age, it was obvious that they had condoned the over‑age, without requiring him to furnish any information or particulars about any previous service under Government. The question of his being over‑age and, therefore, liable to the termination of his service, could not arise particularly when he had completed the period of probation and, thus,‑earned the right to confirmation in the appointment. As against this the respondents, in their written objections, have contended that the appellant's services were terminated because no appointment could be made of persons beyond 25 years of age, without condonation of over‑age by the competent authority. Since, in the case of the appellant, the relevant authority did not condone the over‑age, he could no longer be retained in service.

3. We have heard the parties at length and also perused the relevant documents. Admittedly, the appellant was appointed as far back as 3rd May, 1982 and the appointing authority knew full well, at that time, that he was over‑age. Since they did not state, in the letter of appointment, that the appointment was subject to the condonation of the over‑age, the appellant was justified in assuming that the over‑age had been condoned. Moreover, wheit he completed the period of probation of one year, and his services were neither terminated nor the period of probation extended, he was right in pesumping that he stood confirmed in his appointment and there could be no question of termination of service on the ground of his exceeding the age limit, at the time of appointment. The employing department knew full well, at the time of offering the appointment, that the appellant was over‑age. They offered him the appointment and kept him on probation for one year. Having completed the period of probation and served the Organizatoin for more than two years, the appellant had acquired a. vested right, which could not be taken away, except through operation of law. There is no rule under which a regular employee could be removed on the ground that the appointment had been wrongly made. The appointment letter was in the nature of an agreement between the two parties and it was not open to one of the parties to rescind the agreement, except in terms of the agree ment itself. That being so, in our opinion, the order of termination of service passed by the Executive Engineer Operation Division (E), Shikarpur, is illegal and void and cannot be sustained.

4. In the result, the appeal is allowed and it is ordered that the appellant be reinstated in service, with effect from the date of the impugned order, with all the consequentional benefits thereof.

A. E. Appeal allowed.

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