NAZIR AHMAD PANHWAR vs GOVERNMENT OF SINDH through Chief Secretary, Sindh and others

' SAIYED SAEED ASHHAD, J.--- The petitioner vide this civil petition for leave to appeal has assailed the order of Sindh Service Tribunal,. Karachi dated 24-7-2003 dismissing Appeal No,26 of 2000 filed by him. This appeal was filed by the petitioner against the order dated 23-8-1999 whereby his absorption as Director (Administration) in BPS-19 of Sindh Seed Corporation vide order, dated 24- 11-1997 was cancelled and he was repatriated to Sindh Sugar Corporation.

2. The facts requisite for disposal of this petition are that the petitioner was appointed in Sindh Sugar Corporation on 17-12-1977 as Chief (Recovery) in BS-17. On 8-11-1995 he was made Acting General Manager in Thatta Sugar Mills in his own pay and scale. On 21-4-1996 he was posted as Acting General Manager, Dadu Sugar Mill, also in his own pay and scale. Subsequently, on 13-3- 1997 he was posted as Deputy Secretary on deputation in the Chief Minister Secretariat. On 24-11- 1997 his services were placed at the disposal of Agriculture Department for his absorption against the post of Director (Admn.) in BS-19 in Sindh Sugar Corporation (hereinafter referred to as the "SSC"). This order was given effect to and he assumed the charge of Director (Admn.) in SSC.

However, vide order dated 23-8-1999 his absorption was cancelled and he was repatriated to Sindh Sugar Corporation. As SSC was under the process of being disbanded as such he was absorbed as District Zakat Officer (BS-17) in the Zakat and Ushar Department on 16-11-1999.

Notification dated 23-8-1999 by which his absorption was cancelled and he was repatriated to SSC was assailed by him by way of departmental appeal. The said appeal was not decided within 90 days, therefore, he filed appeal before the Sindh Service, Tribunal. The appeal of the petitioner was dismissed by the Sindh Service Tribunal by impugned judgment, dated 24-7-2003. Hence this petition for leave to appeal.

3. We have heard Mr. M.M. Aqil Awan, Advocate Supreme Court on behalf of petitioner and Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh on behalf of the respondents.

4. Mr. Aqil Awan vehemently attacked the order of the Tribunal and submitted that it had completely failed to take note of the fact that the order/notification dated 23-8-1999 was passed or issued without giving an opportunity to the petitioner for explaining his view point, before taking action of cancellation of his absorption; his repatriation to his parent corporation/department namely Sindh Sugar Corporation; and reverting him to BPS-17 whereas by virtue of his posting as Director (Admn.) in SSC he was working in BPS-19. He further submitted that order, dated 24-11-1997 ordering his absorption and posting as Director (Admn.) in SSC was acted upon and he performed duties of Director (Administration) for about one year and 9 months, as a result of which he had acquired a vested right to continue to serve as Director Administration as well as to BS-19 and could not have been legally reverted to his original post in a lower scale. He further submitted that order dated 23-8-1999, in view of the settled principle that an order without a show-cause notice or without providing an opportunity of hearing to the person who would be affected by the same is to be treated as an order in violation of fundamental right and would be a void order. In support of his above contention he placed reliance on the case of Mrs. Anisa Rehman v. P.I.A.C. And another 1994 SCMR 2234.

5. Dr. Qazi Khalid Ali, learned Additional Advocate-General on the other hand supported the order of the Tribunal and submitted that the order, dated 24-11-1997 was an illegal order which was procured by the petitioner due to the influence and favorable position which he was enjoying on account of his posting in the Chief Minister's Secretariat as was claimed by the respondent in the written statement filed by Mr. Aijaz Hussain Kazi, Secretary (Services) Services and General Administration Department, Government of Sindh. He further submitted that the order of absorption of the petitioner as Director (Administration) in Sindh Seed Corporation was in contravention of the Rules as it was a cadre post and could not be filled in by an officer other than a civil servant as defined under section 2(b) of Sindh Civil Servants Act, 1973 as firstly he was not a civil servant and secondly at the relevant time neither he was rendered surplus nor the post held by him in corporation was abolished.

6. We have considered the arguments of the learned counsel of the parties and have perused the material on record specifically the judgment of the Tribunal. It transpires that during the course of his service the petitioner had been enjoying some extra favor and support. He being an officer of BPS-17 was allowed on two occasions to serve as Acting General Manager of Thatta Sugar Mills and Dadu Sugar Mills in his own pay and scale. This clearly established that the petitioner on no occasion was placed in BS-18 and even when performing duties as AGM he continued to draw salary/emolument in BS-17. No doubt that he was subsequently posted on deputation as Deputy Secretary in Chief Minister's Secretariat but again there is nothing on record from which it can be gathered that he was promoted/placed in BPS-18. This fact had not been specifically urged by the petitioner at any stage during the F course either in his departmental appeal or in his appeal before the Service Tribunal. It was the Tribunal, which had presumed that as Deputy Secretary in Chief Minister's Secretariat he would be working in BPS-18, which presumption is not substantiated by any material on record. From the material brought on record the respondents have succeeded in establishing .That post of Director (Administration) was a cadre post and could not be filled in by a non-cadre officer meaning thereby that only an officer who belonged to a regular service and who was a civil servant as defined in Sindh Civil Servants Act, 1973 and Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 could be posted. As such the order, dated 24-11- 1997 was in violation of the Rules and could not be treated as a valid and proper order. The contention on behalf of the petitioner that the order, dated 24-11-1997 had been acted upon, therefore, a vested right had been conferred on the petitioner to continue on the post of Director (Administration) in Sindh Seed Corporation, in view of the principle of locus poenitentiae is misconceived as this principle can be invoked only A in respect of an order which is, legal and not in respect of an order which is contrary to and in contravention of any provision of law or the rules made thereunder or a settled provision of law. If any authority is required in support of above proposition the same is available from the judgments in the cases of (i) The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 and (ii)

Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCM R 907. In both the above referred cases this Court had categorically stated that principle of locus poenitentiae would be applicable in respect of an order passed by an authority who was competent to pass an order in accordance with law and that the order so passed was not in violation or contravention of any law and/or rules made thereunder. In the case of Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others (supra) this Court categoriCally pronounced that the concept of locus poenitentiae is the power to recede till a decisive step is taken but it is not a principle of law that order once passed become irrevocable and a past and closed transaction. It was also laid down that if the order was illegal then perpetual right could not be gained on the basis of such an illegal order.

7. Great emphasis was laid by Mr. Aqil Awan on denial of the right of personal hearing to the petitioner before passing/issuing the order/notification dated 23-8-1999 and it was submitted that denial of the right of hearing amounted to violation of fundamental right as held by this Court in the case of Mrs. Anisa Rehman v P.I.A.C. And another (supra) rendering the same as a void order.

He further submitted that as the order/notification dated 23-8-1999 was void the petitioner's cancellation of absorption; his reversion to his original post; and refusal to allow him BS-19 would have no legal sanction necessitating a presumption that he continues to hold the post of Director Administration in BS-19 in Sindh Seed Corporation.

8. This contention is misconceived. There can be no denial that right of personal hearing to a person against whom an adverse order is to be made to be equated with fundamental right and an adverse order made without affording him an opportunity of personal hearing is to be treated as a void order. However, application of this principle has its limitations. In cases where the person against whom an adverse order is made has acted illegally and in violation of law for obtaining illegal gains and benefits through an order obtained with mala fide intention, influence, pressure and ulterior motive then the authority would be competent to rescind/withdraw/cancel such order without affording an opportunity of personal hearing to the affected party. This Court in the case of Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others (supra) while dilating upon the application of maxim audi alteram partem observed that though this principle was always deemed to be embedded in the statute and even if there was no such specific or express provision it would be deemed to be one of the parts of the statute because no adverse action can be taken against a person without providing right of hearing to him. It was further observed that at the same time this principle could not be treated to be of universal nature because before invoking/applying this principle one had to specify that the person against whom action was contemplated to be taken prima facie had a vested right to defend the action and in those cases where the claimant had no basis or entitlement in his favor he would not be entitled for protection of the principles of natural justice.

The above observations/ views were reiterated by this Court in the case of Abdul Waheed and another v. Secretary, Ministry of Culture, Sports, Tourism and Youth Affairs, Islamabad and another 2002 SCM R 769. In this case the Officiating Authority had promoted some lower Division Clerks to some higher posts without following the procedure prescribed for appointment of civil servants to such posts. When the above irregularity came to the notice of the Competent Authority, the said promotions were cancelled and the concerned civil servants were reverted to their original posts without providing them opportunity of hearing. The concerned civil servants agitated their cases before the department and the Service Tribunal wherein they raised the contention of denial of right of personal hearing; being violative of the fundamental right rendered the order of reversion as illegal and void did not find favor. The matter came before this Court and this Court while maintaining the judgment of the Service Tribunal categorically pronounced that the promotions/appointments made by the Officiating Authority without following the prescribed procedure would not be legal and consequently the petitioners would neither have any right to hold such posts nor were entitled to the salaries and other benefits attached to the said posts.

Then reversion to the lower post in their own salary and benefits was not found to be suffering from any illegality or violative of any rule and principle. In view of the categoric pronouncement to the above effect this contention has no force.

9. For the foregoing facts, reasons and discussion this petition for leave to appeal is found to be without any substance and does not merit consideration. Accordingly, it stands dismissed and leave to appeal is refused.