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Cases Nos. 282/1755, 323/1872 and 338/1873 of 1982, decided on 14th June, 1983.
‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑Limitation‑‑Delay condoned on counsel's certifying that it was caused due to his bona fide mistaken advice to approach a wrong forum.
‑‑‑ Termination of service‑‑Civil servants on probation‑‑Appointed on political considerations‑‑Unfit to be retained in service for lack of basic knowledge/and on ground of misconduct‑‑Termination under Governor's order‑‑Tribunal refused to interfere.
Syed Muhammad Akram Shah Appeal No. 136/1001 of 1981 and Shahid Latif's case Appeal No. 419/1509 of 1981 distinguished.
Masud Ahmad Riaz for Appellant No. 1.
Riaz Anwar Asadi for Appellants Nos. 2 and.3.
A.G. Humayun, District Attorney for Respondent.
‑‑Messrs Nazar Abbas Qureshi, Muhammad Akram and Zafar Yasin have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, against the impugned order, dated 4‑7‑1979, by which their services were terminated. The appellants have impleaded the Commissioner Multan Division, Multan, Member (Revenue), Board of Revenue Punjab and Governor of the Punjab through Secretary to Government of the Punjab, Revenue Department, Board of Revenue, Punjab, Lahore, in Appeal No. 282/1755 of 1982, and the Commissioner, Multan Division, Multan and Government of Punjab through Secretary to Government of the Punjab Revenue Department Board of Revenue Punjab, Lahore in Appeals Nos. 323/1872 of 1982 and 338/1873 of 1982, as respondents.
2. By virtue of these appeals, it has been prayed that the impugned order, dated 4‑7‑1979, be set aside and appellants be re‑instated in service as Naib‑Tehsildars with all back benefits.
3. As all the appeals arise out of the one and the same impugned order and the point of law is identical in nature, we will dispose of these appeals with our this single judgment.
4. Brief facts leading to these appeals are as under:‑
Appellant submitted an application for initial appointment as Naib‑Tehsildar and was called for interview by the respondent No‑1 He appeared before the Selection /Promotion Committee, Multan Division, Multan, for interview which selected him for training/appointment as "A" class Naib‑Tehsildar. The appellant passed the Departmental Examination which was notified on 15‑5‑1976, and completed his revenue and settlement training, a fact which also was notified vide letter, dated 4‑8‑1976. After fulfilling all these prescribed conditions, he was appointed as Naib‑Tehsildar (Recovery) Leiah, vide order, dated 25‑8‑1976. The appellant was again required to appear before the Selection Committee which held the interview. Ultimately he was informed vide impugned order, dated 4‑7‑1979, that his services had been terminated. He filed writ petition in the Lahore High Court but the same was disposed of as being without jurisdiction. Hence this appeal.
The appellant applied for the post of "A" Class Naib‑Tehsilda:‑
He was interviewed alongwith other 32/33 candidates and was selected as Naib‑Tehsildar, by the Divisional Selection Committee, Multan vide order, dated 31‑7‑1975, issued by respondent No. 1. Appellant went through the necessary revenue training and also passed the Departmental Examination. After completion of revenue training, he was appointed as Naib‑Tehsildar in the Housing and Physical Planning Department, Multan Circle vide order, dated 25‑8‑1976. Later on he was posted at Jampur district Dera Ghazi Khan in the Revenue Department. In January, 1979, the appellant received a letter No. EB‑2‑833/77, dated January. 1979, to appear before the Departmental Selection /Promotion Committee on 24‑1‑1979. After the said order, he subsequently received the impugned order, dated 4‑7‑1979, wherein it was stated that the services of the appellant were terminated with immediate effect. The appellant then filed writ petition before the Lahore High Court against the said impugned order, which was ultimately disposed of as the said Court had no jurisdiction to hear matters pertaining to the terms and conditions of civil servants. Hence this appeal.
The appellant applied for the post of 'A' Class Naib‑Tehsildar. He was interviewed alongwith other 32/33 candidates anal was selected as Naib‑Tehsildar by Divisional Selection /Promotion Committee, Multan vide order, dated 31‑7‑1975. He went through necessary revenue training and also passed the Departmental Examination which were notified vide letters, dated 15‑5‑1976 and 16‑12‑1976, by the Secretary (Revenue), Board of Revenue Punjab, Lahore. The appellant was appointed as Naib‑Tehsildar (Recovery) Multan vide order, dated 28‑12‑1976, and was posted as Naib‑Tehsildar (Revenue) Kot Adu from 1‑9‑1977 to 28‑8‑1978 and then as Naib‑Tehsildar WAPDA at Kot Adu from 28‑8‑1978 to 8‑7‑1979. In January, 1979 the appellant was asked to appear before the Departmental Selection /Promotion Committee on 24‑1‑1979, in compliance to which he appeared before the said Committee. He however, received impugned order, dated 4‑7‑1979, whereby his services were terminated with immediate effect. The appellant filed a Writ Petition No. 3855 of 1979, before the Lahore High Court against the impugned order, which was disposed of as being without jurisdiction. Hence this appeal.
5. We have heard the learned counsel for the appellants 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.
6. The arguments advanced in the case of Messrs Muhammad Akram and Zafar Yasin are identical in nature through their learned counsel Mr. Riaz Anwar Asadi, Advocate. It has been submitted that the impugned order, dated 4‑7‑1979, was without jurisdiction for the reason that MLI‑21 was not applicable to the appellants. Learned counsel elaborated his arguments by submitting that para. 3 of the MLI‑21 applied to those persons who were appointed otherwise than the prescribed method of recruitment, whereas the appellants were appointed by the competent authority a method prescribed by West Pakistan Tehsildari and Naib- Tehsildari Services Rules, 1962, read with the provisions of Punjab Civil Services (Appointment and Conditions of Service) Rules 1974. Learned counsel has challenged the status so attributed to the appellants as Naib‑Tehsildar candidates whereas according to him, the appellants were permanent members of Naib‑Tehsildar cadre and were holding substantive posts in the cadre, therefore, they could not be treated as candidates and their services could only be terminated after taking proceedings under the Efficiency and Discipline Rules. Learned counsel has also vehemently challenged the appointments of the appellants as being political. Learned counsel has relied on two judgments of the Tribunal delivered in the case of Syed Muhammad Akram Shah Appeal No. 136/1001 of 1981 and Shahid Latif Appeal No. 419/1509 of 1981.
7. With regard to the case of Nazar Abbas Qureshi learned counsel Mr. Masud Riaz, advocate, has submitted that besides making his submission so earlier made by Mr. Riaz Anwar Asadi, Advocate, he further submits that the second interview by the Selection and Promotion Committee was although illegal yet the Departmental Promotion /Selection Committee had recommended the case of the appellant, as a person to be retained in service. According to the learned counsel this fact stands fully established on the record by the admission of the respondent before the Lahore High Court. It has been submitted that once the case of the appellant had been recommended for retention in service by the Divisional Selection /Promotion Committee, the Governor of the Punjab was not competent to terminate his services on the grounds which were exterial and did not pertain to the real issue involved in this case. According to the learned counsel if the appellant was found guilty of misconduct by the Selection Committee, the only course open for the Governor was to order for enquiry under the E&D Rules and not to terminate the services of the appellant in this arbitrary manner.
8. On the other hand learned District Attorney has submitted that all the three appeals are hopelessly time‑barred and are liable to be dismissed on this score alone. According to the learned counsel the impugned order dates back to the year 1979, whereas the appeals were filed in the year 1982, therefore, on the face of it, these appeals have been filed almost three years after the impugned order.
9. With regard to the time spent before the Lahore High Court in writ petitions filed by these appellants it has been submitted that by going to a wrong forum, they are not entitled for condonation of delay as the Punjab Service Tribunal was very much in existence at the time of filing of said writ petitions.
10. With regard to the merits of the case it has been submitted that all the three appellants appeared before the Selection /Promotion Committee but with the exception of Nazar Abbas Qureshi (appellant), the cases of other two appellants were not recommended as they were found highly deficient in knowledge about the revenue work as well as their appointments were on political basis. Regarding the case of Nazar Abbas Qureshi, learned District Attorney has submitted that although his case has been recommended for retention in service by the Selection /Promotion Committee yet all powers vest in the Governor who did not agree with the recommendation of the Committee and terminated the services of the appellant, keeping in view his misconduct which was found to have been committed by him during short tenure of service.
11. We have given our anxious thought to the arguments so advanced by the parties and first of all advert to the legal point so raised by the learned District Attorney as well as learned Commissioner through him, that all the appeals are liable to be dismissed as being hopelessly time‑barred. In all these three cases, the learned counsel for the appellants have filed affidavits on behalf of the counsels who filed writ petitions in the Lahore High Court against the impugned order of their removal from service, in support of the fact, that these writ petitions were filed by the appellants on their advice. According to law laid down in this behalf by the Supreme Court of Pakistan that if a person acts on the advice of a counsel and chooses a forum, which ultimately is found having no jurisdiction in the matter, the time spent in the said exercise, can be condoned. We have also in our various judgments followed the verdict of the Supreme Court and have condoned the delay wherein we found that the lawyers have given certificates that the appeals were filed by the appellants under their bona fide mistaken advice. In view of the above we have no hesitation to condone the delay so caused in this case on the mistaken advice of the counsel who at that relevant time thought that the correct forum for this matter was the High Court and not the Service Tribunal.
12. With regard to the merits of the case, what we find is that the appellants' earlier selection as Naib‑Tehsildars was made in view of the orders of the ex‑Chief Minister. Muhammad Akram is a son of ex‑M.P.A. and Messrs Nazar Abbas Qureshi and Zafar Yasin were found well- connected with the ex‑P.P.P. regime through their relations. All the three appellants were interviewed again by the Divisional Selection/ Promotion Committee to review the cases of those Naib‑Tehsildars whose selection were made on political consideration, which finally declared that Messrs Muhammad Akram and Zafar Yasin were found recruited on political consideration. The minutes of the meeting further show that the appellants were put certain questions of revenue and agriculture matters and they did not give the answer except a superficial knowledge of this most important branch of Revenue Department. We have seen the extracts from the Divisional Selection /Promotion Committee's meeting, which was held in the office of the Commissioner Multan and it was held as under:‑
"All the candidates were put questions on Revenue Law/Rules; Girdawri, Land Measurement; Field Map; Procedure of Ejectment of unauthorised persons on state land; simple questions on Inheritance; Registration of documents; Attachment Proceedings in Satisfaction of Land Revenue Arrears; Appraisement of Standing Crops; 'Seh‑Hadda'; Procedure of recovery of land Revenue arrears; Ceiling of holdings fixed under Land Reforms of 1977; Ejectment Suits; Distinction between subsistence and Economic Holdings; Kharif and Rabi Crops; use of fertilizers; and also question on the subjects of their study in the College and Current Affairs."
It was found that Messrs Muhammad Akram and Zafar Yasin did not exhibit even a superficial knowledge of Revenue/ Agriculture. In this manner it cannot be said that the appellants were not given opportunity to be heard in person at the time when their case was considered for retention in service, therefore, it was within the ambit of Divisional Selection /Promotion Committee to assess the eligibility for being retained in service of the Revenue Department. We have also carefully examined the aspect of their initial appointment of these three candidates and find that all of them were selected not in accordance with the method of recruitment as Tehsildar/Naib‑Tehsildari Rules, 1962, but were merely taken as Naib‑Tehsildars on the recommendation of ex‑Chief Minister. In this manner their case fully fell within the purview of MLI‑21 and the recommendations were sent to the Secretary, Board of Revenue for seeking orders of the Governor, and it was only when the recommendations of the Departmental Selection /Promotion Committee, were fully accepted by the Government their services were terminated under orders of the Governor of the Punjab.
13. With regard to the contention of the learned counsel for the appellants that the appellants were not Naib‑Tehsildar candidates but were regularly appointed as Naib‑Tehsildars, we are afraid, we cannot accept this contention, as there is nothing on the record to show that they were confirmed in service but on the contrary it has been found that they were treated as Naib‑Tehsildar candidates throughout till their services were terminated. As observed in the earlier part of our judgment we have no hesitation to concur with the learned District Attorney that the case of the appellants fell in para. 3 of MLI‑21 as it was found that appointments were made under political pressure and not through the prescribed manner. It is also on the record that the appellants were still on probation and their services could be terminated as the period of probation was not yet over and they have not yet been confirmed. In view of the above, we do not find any reason to interfere with the impugned order, which we consider as unexceptionable.
14. We have also taken care to the arguments of the learned counsel for the appellants that this Tribunal was pleased to accept the appeal of Shahid Latif and Muhammad Akram Shah, which according to them, were identical with the case of the appellants. We have examined our judgments in both the cases and find that the facts in case of Muhammad Akram Shah are different than the case of the appellants and in no manner can be called a case identical with the case of the appellants. The principle settled down in the case of Shahid Latif is audi alteram partem that he has not given any chance to be heard in person before his services were recommended for termination. This fact has been proved on the record of the case which we consulted with the help of the representative of the department, who in a statement made on oath, confirmed that the said Shahid Latif was not heard by anybody before his services were so terminated. In the present case, as we have observed in the earlier part of our judgment, that all the appellants appeared before the Departmental Promotion /Selection Committee and two of them were considered unfit to be retained in service because they did not exhibit superficial knowledge of the matters relating to the revenue branches, as well as it was found that their appointments were on political consideration under the orders of the ex‑Chief Minister.
15. With regard to the case of Nazar Abbas Qureshi, we do find that he was recommended by the Departmental Promotion /Selection Committee, for being retained in service, the file reveals that at the same time the said Committee found that the appellant was hauled up in drunken condition in the red light area of Multan and a case was registered against him by the police. This was taken notice by the Committee and the Committee recommended that he may be proceeded under the Efficiency and Discipline Rules as he had already been placed under suspension. We have consulted the record of this case and find that Lt.‑Genl. Sawar Khan the then Governor/M.L.A. Zone 'A', did not agree with the recommendation of the Committee and straightaway ordered to terminate the services of the appellant. According to the record of his case, he was still on probation and had not yet beer confirmed as Naib‑Tehsildar, therefore, the Governor being the ultimate authority, was fully competent to terminate his services, when he found that the appellant had proved himself, highly unfit for retention in service in which he was earlier inducted as a candidate and had not yet been confirmed as such. If the appellant would have been a confirmed Naib‑Tehsildar then of course his termination should have been processed by action under Efficiency and Discipline Rules against him, but as we have observed earlier, that according to the record of this case, so consulted by us, we do not find that he was ever confirmed as such and at the time of termination of service by the Governor he was till on probation.
16. In view of the above detailed analysis of all the three appeals, we are of the considered opinion that the impugned order passed against them by the Commissioner, Multan Division, Multan, dated 4‑7‑1979 was a justified order passed by him, as the same was passed under the orders of the Governor so communicated to him by the Secretary to Government of the Punjab, Revenue Department, vide his Memo. No. 3528‑79/1779‑E(F)IV, dated 24‑6‑1979. Resultantly all the appeals are dismissed as being without any merit. However, there will be no order as to costs.
M. I.
Appeals dismissed.
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