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Cases Nos. 175 and 198 of 1983, decided on 31st July, 1983.

‑‑ Termination of service‑‑‑Ostensibly stating that "services no longer required"‑ Record indicating that impugned termination order passed after 3 years of service on ground that official was overage on date of appointment and juniors retained in service- Basis of impugned termination, in circumstances, held, not justified -Official (appellant), held, should not suffer for fault of appointing authority who should have taken necessary action for getting relaxation of age limit after appellant though overage had been appointed‑Punjab Service Tribunals Act (IX of 1974), S. 4.

Abdul Hamid Khokhar for Appellant No. 1.

Ch. Muhammad To‑fail Basra for Appellant No. 2.

A. G. Humayun, District Attorney for Respondents.

Messrs Misbah‑ul‑Hassan Kazmi and Zafar Iqbal Cheema had made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein Misbah‑ul‑Hassan Kazmi has impleaded the Punjab Province through the Secretary to Government of the Punjab, Communication and Works Department, Lahore, the Chief Engineer, North, Highway Depart ment, Lahore and the Superintending Engineer, Highway Circle, Lahore as respondents, while Zafar Iqbal Cheema has impleaded the Superinten ding Engineer, Highway Circle, Lahore and the Chief Engineer, Punjab Highway Department, Lahore as respondents.

2. These appeals are at the stage of preliminary hearing. However, the parawise comments were obtained from the respondent Departments to adjudicate these appeals. The law points involved and facts of these appeals are identical and similar in nature, hence these appeals are being disposed of by this single judgment.

3. By virtue of these appeals, Misbah‑ul‑Hassan Kazmi, has prayed that order No. 410/E, dated 14th February, 1983 of respondent No. 3 and Order No. 44‑E‑11/76/619/E (4), dated 9th April, 1983 of respondent No. 2, be set aside with ail back benefits. Similarly Zafar Iqbal Cheema has prayed that the impugned order, dated 14th February, 1983 passed by the respondent No. 1 and the order, dated 9th April, 1983 passed by the respondent No. 2 be set aside and he be treated in service from 14th February, 1983 with all back benefits.

4. Brief facts of the case are as under :‑

(1) Misbah‑ul‑Hassan Kazmi was appointed as Sub‑Engineer by respondent No. 3 vide his order No. 102/E, dated 27th April, 1980 on purely temporary basis as stopgap arrangement and his services could be terminated without assigning any reason and without notice. The appellant continued working in the Highway Depart ment, Punjab as Sub‑Engineer till February, 1983, when the Chief Engineer Punjab, Highway Department, Lahore vide his Order No. 44‑EII/76/36/EII (3), dated 7th February, 1983 ordered the transfer of the appellant from Highway Circle, Lahore to the Highway Mechanical Circle, Lahore against the vacancy caused due to the transfer of Mr. Liaquat Ali, Mechanical Sub‑Engineer from Lahore to Bahawalpur in the public interest, but the services of the appel lant were terminated vide order, dated 14th February, 1983 of Superintending Engineer, Highway Circle, Lahore that 'Your services are no longer required in this Circle, with immediate effect.' The appellant made an appeal to the Chief Engineer, Punjab, Highway Department which was rejected by the Chief Engineer (North), Highway Department, Lahore vide order, dated 9th April, 1983. Hence this appeal.

(2) Zafar Iqbal Abid Cheema son of Muhammad Bukhsh Cheema was appointed as temporary Sub‑Engineer vide Office Order No. 96, dated .17th April, 1980 of the Superintending Engineer, Highway Circle, Lahore with the same terms and conditions as mentioned above in case of Misbah‑ul‑Hassan Kazmi, that the appointment of the appellant was on purely temporary basis as stopgap arrangement and his services could be terminated without assigning any reason and without any notice. The appellant continued working in the Highway Department uptil 14th February, 1983, when his services were also terminated ride order, dated 14th February, 1983 of Superintending Engineer Highway Circle, Lahore that your services are no longer required in the Circle, with immediate effect'. The appellant made an appeal to the Chief Engineer, Punjab Highway, Department, Lahore which was rejected vide his order, dated 9th April, 1983. Hence this appeal."

5. I have heard the parties. It has been argued by Mr. Abdul Hamid Khokbar, the learned counsel for the appellant, Misbah‑ul‑Hassan Kazmi, that the appellant was transferred by the orders, dated 7th February, 1983 of the Chief Engineer, Punjab Highway Department, Lahore against the vacancy caused due to the transfer of Mr. Liaquat Ali, Mechanical Sub: Engineer from Lahore to Bahawalpur in the public interest ; but his services were terminated by the Superintending Engineer, Highway Circle, Lahore vide order, dated 14th February, 1983. These orders dated 14th February, 1983 of Superintending Engineer, Highway Circle, Lahore are unjustified and illegal as the appellant already stood transferred from 7th February, 1983 by the orders of the Chief Engineer and the Superintending Engineer. Highway Circle, Lahore was not competent to issue any other order in contravention of these orders after 7th February, 1983 and his orders, dated 14th February, 1983 which were issued after the receipt of the orders of the Chief Engineer by him, are unlawful and void ab initio. It was submitted by the learned counsel for the appellant that the orders of termination of the appellant by the Superintending Engineer. Highway Circle, Lahore are, thus, without jurisdiction, competency and be set aside.

6. It was argued by Ch. Muhammad Tofail Basraa, the learned counsel for Zafar lqbal Cheema that this appellant was appointed as Sub- Engineer in the year 1980 and he continued working as such till 1983, thus he bad acquired the status of a regular employee. This appellant's services were terminated, on 14th February, 1983 by the respondent No. 1, while Junior Sub‑Engineers to him were retained by the same respondent in service. This could not be done under section 10 of the Punjab Civil Servants Act, 1974. The particulars of the Junior Sub‑Engineers than the appellant as pointed out by the learned counsel for the appellant are as below :‑

It was further submitted by‑‑the learned counsel for the ‑ appellant that Messrs Pervaiz Akhtar and Liaquat Ali, Sub‑Engineers, when appointed against the post of Sub‑Engineers by respondent No. 1, were also overage at the time of their appointment, but they are continuing in service as such. It was brought to the notice of the Tribunal by the learned counsel for the appellant that though the services of Mr. Zafar Iqbal Cheema were termi nated with the remarks that "your services are no longer required in this Circle, with immediate effect", but actually the reason for the termination of services of the appellant is that he is overage. The appellant was appointed by the same respondent in the year 1980 after considering his age and other qualifications for the job. If he was overage and his age was got to be relaxed in due course of time, it was for the appointing authority to get it done and the appellant should not have been made a scapegoat for this after serving in the department for a long period of 3 years. This is also not justified, keeping in view that Messrs Pervaiz Akhtar and Liaquat Ali, though junior to the appellant, are continuing in service, although they are also overage. Concluding his arguments the learned counsel for the appellant has prayed that the termination order of Mr. War Iqbal Cheema is against the provision of the rules, is unjustified and unlawful. He prayed that these orders be quashed and set aside.

7. Controverting these arguments, the learned District Attorney assisted by the representative of the Department has submitted that both the appellants were appointed on purely temporary basis in stopgap arrangements with the condition that their services could be terminated at any time without any notice. As the services of the appellant were no longer required, hence their services were terminated in accordance with the terms and conditions of their appointments. Hence the appellants should have no grouse against these orders which are lawful and justified.

8. I have given my anxious thought to the arguments of the parties and have consulted the record of these cases. The file of the office of Superintending Engineer, Highway Circle, Lahore, Volume 19‑E‑2 Page 40 shows that the factual reasons recorded for termination of the services of both the appellants are "being overage", though their services have been terminated, being no longer required. I have also perused the proposals/ appointments made in the year 1980, of these appellants at pages 198 and 222 of the File of the Office of Superintending Engineer, Highway Circle, Lahore Volume 1 5, Est. 2, which show that they were cleared for appoint ment as such and no objection for their being over age was raised either by the office of the Superintending Engineer or by him when appointment of the appellants Mr. Zafar Iqbal Abid Cheema and Mr. Misbah‑ul‑Hassan Kazmi were ordered vide orders, dated 17th April, 1980 and 27th April, 1980 respectively. If later on some lacuna was found out, that the appellants were overage, the appointing authority should have got the age relaxed from the competent authority, as the appellants were overage by about 2 years only in each case at the time of their appointment. It is also interesting to note that though these officials were appointed as stop gap arrangement, they continued as such for full 3 years, Department trained them for the jobs, however, no efforts were made by the appoint ing authority or his office to issue the orders of their regular appointment. I have also consulted the record to see how the seven Sub‑Engineers, junior to them were appointed. A committee consisting of S. E., Highway Circle, Lahore, X. E. N. Highway Division, Gujranwala and X. E. N. (H. Q.). 1st Provincial Building Circle, Lahore, had interviewed some candidates for the posts of the Sub‑Engineers, on 12th May, 1981, but no recommendations were made in the form of the minutes by the Committee. However, on the basis of the interview sheets the following candidates ware appointed as Sub‑Engineers in two stages by the Superintending Engineer, Highway Circle, Lahore which are still continuing:‑---

(1) Ishfaq Ahmad Waheed---------------------1st stage

(2) Pervarz Akhtar---------------------1st stage

(3) Saif Ullah ---------------------1st stage

(4) Liaquat Ali---------------------1st stage

(5) Ihsan‑ul‑Haq---------------------2nd stage

(6) Aslam Pervaiz---------------------2nd stage

(7) Javaid Riaz---------------------2nd stage

Messrs Pervaiz Akhtar and Liaquat Ali were overage by about 2 years and 13 years respectively at the time of their appointments. Their ages were not got relaxed when their appointments were made and are still continuing in service, as such. Thus, the appointments of all the above 7 officials were made in a peculiar way and no sanctity to the procedure/ rules was given in their cases. Keeping the above facts in view, I consider that the basis for termination of services of the appellants, being overage, (as recorded on the file of Superintending Engineer, Highway Circle, Lahore mentioned in this para. above) are not justified. The appellants should not suffer for the fault of the appointing authority and his office. Other such junior Sub‑Engineers as mentioned above are also continuing, though no proper recommendations were made by the Departmental Selec tion Committee for their appointments.

9. I also agree with the learned counsel for the appellants Mr. Misbab‑ul‑Hassan Kazmi that this appellant was transferred, on 7th February, 1983 by the Chief Engineer, Punjab, Highway Department, Lahore, hence he should have been relieved and directed to join in the Highway Mechanical Circle as per his transfer orders. The Superintending Engineer, Highway Circle, Lahore was not competent to issue the order of the termination of the services of the appellant on 14th February, 1983 when the appellant had already been transferred by the Chief Engineer, Highway, Punjab, Lahore, on 7th February, 1983.

10. Keeping the above analysis in view, the cases of both the appel lants are remanded to the Chief Engineer (North), Highway Department, Lahore for scrutiny via‑u‑via their juniors keeping in view the facts given in this judgment and take a decision so that no injustice is done with the appellants. The appellants are directed to be re‑instated in service to bestow upon them the status of the civil servants so that the Chief Engineer (North), Highway Department, Lahore can proceed against them to decide the issue. The period for which the appellants remained out of service shall be treated as extraordinary leave, without pay.

As these appeals are being disposed off at the preliminary stage of bearing, there will be no order as to costs.

A. E. Case remanded.

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