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Case No. 550/423 of 1983, decided on 12th March, 1984.

‑‑ S. 14‑Filing of appeal‑Condonation of delay‑Civil servant on horns of dilemma on receipt of termination orders rushing to civil Court on legal advice of counsel to declare such orders void ab initio and civil Court entertaining petition issuing temporary injunction‑District Judge in appeal also upholding above orders considering same a case within cognizance of civil Court and it was only in revision that High Court declared subject‑matter relating only to Service Tribunal‑Civil servant held, acted diligently in purusing matter in wrong forums and as such entitled to condona tion of delay in filing appeal before Service Tribunal.

‑‑‑ R. 13‑‑Maxim: Audi alteram partem‑Application‑‑‑Letter issued calling civil servant for interview or offer of appointment nowhere mentioning his appointment against leave vacancy on ad hoc basis as a temporary arrangement‑Civil servant not provided opportunity of personal hearing while effecting modification in his appointment order‑Civil servant remaining on probation for two years as provided in Rules and vacancy to which appointed belonging to his own region having preferential right over such vacancy Civil servant, held, having vested right to be provided opportunity of personal hearing‑Order of termination of service set aside.

M. M. Rahim for Appellant.

A. G. Hurnayun, District Attorney for Respondent.

‑‑Ghulam Rasool Zahid, Chief Officer, Municipal Committee, Sadiqabad District Rahimyar Khan, has filed this appeal under section 4 of the Punjab Service Tribunal Act. 1974, against the order dated 29th January, 1979 passed by the respondent whereby the services of the appellant have been terminated. He has impleaded the Secretary to Government of the Punjab, Social Welfare and Rural Development Department, Lahore, as respondent.

2. By virtue of this he has prayed that the impugned order be set aside and he may be declared as confirmed in L. C. S. (Grade‑16) w. e. f. 26th November, 1978 the date on which probationary period had expired. He has also made further prayer that he may be assigned due seniority in L. C. S. (Grade 16) keeping in view the date of his continuous appoint ment in the cadre.

3. Brief facts of the case are that the appellant was appointed in Grade‑16 of the Local Councils Service (Administration Branch) and posted as Chief Officer, Municipal Committee, Sadiqabad, District Rahimyar Khan, vide Order No. L. C. S. (Admn) 8 (2)/76 dated 26th November, 1976. The respondent issued Order No. L. C. S. (Admn.) 1 (63)/76, dated 29th January, 1979 whereby the services of the appellant were terminated without assigning any reason. Aggrieved against the said order, the appellant instituted a civil suit in the Court of Senior Civil Judge, Rahimyar Khan, seeking a declaration to the effect that the order dated 29th January, 1979 passed by the respondent whereby the services of the appellant were terminated, was illegal and void and as such in effective on his rights to continue in service as a member of Local Councils Service (Grade‑16). He also sought temporary injunction from the said Court. The Court vide its elaborate and detailed judgment dated 3rd April, 1979 issued injunction in his favour against the respondent. The respondent Government aggrieved against the said injunction filed an appeal before the District Judge, Rahimyar Khan, who vide his judgment, dated 26th March, 1980 maintained the order of trial Court by observing that the Court was within the four corners of law in granting the stay. However, the matter did not end there and the Provincial Government, once again went into a civil revision before the Lahore High Court Bahawalpur Bench. Learned Judge of the High Court vide his judgment, dated 2nd November, 1983 found that the learned Civil Judge was not within his power to allow temporary injunction to the appellant as the same was without jurisdiction. It was held in the said judgment that as the matter related to the terms and conditions of service of the appellant, the same was within the exclusive jurisdiction of the Service Tribunal and he should seek remedy from the said forum. Hence this appeal. The appellant has also filed an application for condonation of delay under section 14 of the Limitation Act, on the ground that he had been pursuing legal remedy in the Civil Court and High Court diligently and bona fidely, and the time spent before the said forum may be condoned.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.

5. It has been submitted on behalf of the appellant that the appellant was appointed to L. C. S. (Grade 16) against a substantive vacancy in the cadre and as such in accordance with the provisions of rule 13 of the Municipal Committees Service Rules, 1963, he was on probation for a period of two years and was entitled to confirmation in the L. C. S. cadre after the expiry of the period of probation therefore, the respondent has exceeded his jurisdiction in converting the appointment of appellant against a substantive vacancy into a temporary vacancy by modifying earlier order of his appointment unilaterally. It was vehemently urged that the appellant was subjected to an interview by the Provincial Selection Board alongwith other candidates and it was on account of his suitability for the job, that the appellant was appointed to L. C. S. (Grade 16). It was further submitted that for the temporary appointment or for stop‑gap arrangements the method of recruitment through Provincial Selection Board was never adopted and thus the appointment of appellant to L. C. S. (Grade 16), was against a substantive vacancy and could only be terminated in accordance with rule 13 of the West Pakistan Local Councils and Municipal Committees Service Rules, 1963, published vide Notification No. BD‑lI‑6, (14) 61 dated 14th October, 1963. It was further pointed out that the appellant has been working in L. C. S. cadre continuously since 27th November, 1976 for a period of more than seven years and in this manner stood confirmed automatically in his appointment. A grievance was made to the effect that after the appointment of the appellant in L. C. S. (Grade‑16) a good number of persons have been recruited in the cadre against available substantive vacancies. Learned counsel for the appellant has submitted that appellant has a brilliant record of service at his credit and has won appreciation from his superiors for his work and conduct. It was urged that the appellant has secured lot of commendation certificates and the learned Commissioner, Bahawalpur vide his Memo. No. LBA/PF/7211 dated 12th June, 1978 recommended the case of the appellant for confirmation in the L. C. S. to the respondent.

6. On the other hand respondent Secretary, Government of the Punjab, L. C. and R. D. Department has resisted the appeal as being hopelessly time‑barred as the same, according to him was against an order of termination dated 29th January, 1979. With regard to the merits of the case, it was submitted that the appellant was appointed against a leave vacancy, therefore, his services were terminated when the leave vacancy no longer existed,

7. We have given our anxious thought to the arguments so advanced by the parties and first of all we will dispose of the preliminary objection raised by the respondent with regard to the maintainability of the appeal, which according to him was hopelessly time‑barred.

8. We have examined this point carefully and find that the appellant was on the horns of dilemma, when he received the Government order as he considered the said order as void ab initio and according to the legal advice rendered to him, he rushed to the civil Court to get it declared as void. We have seen the lengthy judgment of the Civil Judge and find that the said Court did entertain the appeal on this law point and finding it a prima facie case in favour of the appellant, issued a temporary injuction against the respondent. Similarly, when the Govern ment went in appeal against the said order, the Additional Sessions Judge, also upheld the judgment of the Civil Judge and was of the considered opinion that the appellant's case was a case within the cognizance of the Civil Court. It was only when the learned Judge of the Lahore High Court accepted the civil revision filed by the Government and that the controversy was resolved against the appellant and in favour of the respondent that the appellant's case was not a subject‑matter of Civil Court and it was the Tribunal which had to decide the matter conclusively. In view of these two judgments of the subordinate judiciary in favour of the appellant, it cannot be said that the presumption of the appellant was whimsical and he was not justified in any manner to think that his case was a case against an order, which he wanted to be declared as coram‑non -judice and void ab initio. However, he had to bow before the final verdict o, the judiciary i.e. the High Court and in this manner his case will be fully covered under section 14 of the Limitation Act, which permits a litigant to take advantage of the period which he had spent with a bona fide belief and under the advice of a counsel before a forum other than the ultimate forum to which he was directed to appear. We therefore, accept the prayer as made by the appellant that the period spent by him before the two civil Courts as well as High Court be counted towards the filing or ultimate appeal before this Tribunal. The delay so caused before the said forum, is hereby condoned.

9. With regard to the merits of the case it is observed that through an established fact on the record, the appellant was summoned through letter No. L.C.S. (ADMN) 3‑2/76, dated 28th November, 1976 for interview for the post of Chief Officer in L.C.S. (Grade‑16). The said letter no where mentioned that he was to be appointed against leave vacancy on ad‑hoc basis as convassed by the learned District Attorney. On his appointment vide letter No. L.C.S. (Admn.) 3(2)/76 dated 26th November, 1976, the appellant was posted as Chief Officer, Municipal Committee, Sadiqabad and in the said letter the appellant's appointment was not stated to be an appointment against leave vacancy or on ad‑hoc basis. Even in the original appointment order of the appellant, which would be the mainstay of the appellant, as well as of respondent's case, there is no mention of the fact that the appointment shall be deemed to be temporary appoint ment against any leave vacancy. With regard to the second letter dated 28th August, 1977, which has been heavily relied upon by the respondent.

we produce the same as under

" In partial modification of this Department's order bearing same number, dated the 26th November, 1976, the appointment of Mr. Ghulam Rasul Zahid son of Muhammad Hussain, Hussain Manzil. Fort Abbas, District Bahawalpur, in Grade‑16, in the Local Council Service, Administration Branch will be treated as temporary against a leave vacancy till the same exists."

It is on the strength of this letter that the learned District Attorney has claimed that appointment of the appellant was temporary against leave vacancy and the same being no more existing the services of the appellant had to be terminated. We have no hesitation to bold that was a vested right of the appellant to be afforded an opportunity of personal hearing before such modification was made in order to allow him to plead his case. His earlier terms and conditions of services were being heavily affected by such modification therefore, passing the same unilaterally without affording any opportunity to the appellant or defence, it would be a case of audi alteram partem.

10. With regard to the plea of the respondent that appellant's appointment was on ad hoc basis only, we also do not find any force in the same. It is crystal clear from the record that when the appellant was asked to appear for interview before appointment, he was not informed that the appointment which was being accepted by him was on ad hoc basis. Even if it is assumed for argument sake that the appointment was made on ad hoc basis, the same cannot help the case of the respondent because the services of the appellant have not been termi nated on the ground that he was on ad hoc basis, as is evident from the impugned order itself. The ad hoc appointment has been a controver sial subject and the present Martial Law Regime taking notice of the same, issued instructions for regularization of the ad hoc appointments and, laid down a uniform procedure for the same. It was required under M.L.I. No. 21 dated 8th August, 1977, that cases of persons appointed on ad hoc basis, were to be reviewed by the appropriate authorities and according to this, those who were found suitable, their services were to be converted into regular service, but what we find in the present case. is that even imperative instructions of M.L.I.‑21, were not observed in the case of the appellant and we can safely infer that this was done so as the appellant was never considered as ad hoc appointee by the respon dents.

11. The appointment of the appellant was admittedly under the West Pakistan Local Councils and Municipal Committees (Service) Rules, 1963. which provides that person or persons so appointed will remain on pro bation for a period of 2 years. If no orders are made by the day on which the said period of probation had to expire the probationer has to be deemed to have been confirmed in his appointment from the date of the completion of the probation period. In the instant case the appellant has put in more than 2 years service and the period of his probation has not been extended by the appointing authority and as such he shall be deemed to have been confirmed in his service. In this way the appellant's services could not be terminated as such like service was not liable for termination. Even the vacancy against which the appellant was appointed was a vacancy belong ing to Bahawalpur Region and undoubtedly the appellant belonged to the same region in this manner the appointment of the appellant against such vacancy would be his preferential right over others, and it will be an act high injustice if he is relieved after he had put in 7 years of service with un-blemished record at his credit.

12. 1n the light of the above discussion, we accept the appeal, set aside the impugned order dated 29th January, 1979 and hold that the appellant was regularly appointed through a prescribed manner and after serving in 2 years probation period, stood automatically confirmed in the said service. There will be no order as to costs.

M.Y.M.

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