GULZAR HUSSAIN Versus CHAIRMAN, FEDERAL SERVICE TRIBUNAL, ISLAMABAD

RANA RIFAT SAEED (MEMBER).‑‑‑ As per brief history of the case, the appellant after getting one day casual leave sanctioned for 12‑9‑1985, had proceeded to his native town Renala Khurd, where he had fallen sick and he had sent a medical certificate for extension of two weeks. The leave had not been sanctioned and he had been informed to return to Headquarter and join his duties. Appellant had returned after 12 days, but competent authority/the respondent‑department i.e. Chairman, FST had terminated appellant's services vide Office Order dated 24‑9‑1985, which reads as under: ‑‑

No. F. 11 (12)/79‑FST

FEDERAL SERVICE TRIBUNAL

Islamabad 24th September, 1985

OFFICE ORDER

The services of Mr. Gulzar Hussain, a temporary Upper Division Clerk in Camp Office, Lahore, being no longer required, are terminated with immediate effect. He shall be entitled to 14 days' pay in lieu of notice.

(Sd.)

(SHAH ABDUR RASHID)

Chairman."

2. The learned counsel had stated that although the appellant had been appointed against a direct and temporary vacancy of UDC vide O.M. dated 19‑7‑1979, but since he had successfully completed the probation period of 2 years, his services could not be terminated by applying clause of 14 days notice, as he had by then served the Department for more than 6 years. He had further mentioned that according to Rule 20 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, a temporary vacancy was described as under: ‑‑

"20. Short‑term vacancies in the posts falling within the purview of the Commission and vacancies occurring as a result of creation of temporary posts for a period not exceeding six months, may be filled by the appointing authority otherwise than through the Commission on a purely temporary basis after advertising the vacancy." and as such after serving the Department for more than 6 years, the concept of appellants being temporary in service and nomenclature of the post as temporary could not in the real sense and according to the above rule be considered as a temporary appointment. He had further mentioned that after the appellant had successfully completed the probation period of 2 years, he was to be regarded as good as a regular/permanent employee of the Department. Although order issued on 24‑9‑1985 was termination simpliciter, but in the office record and on riles, there was enough indication to establish that the appellant's services had been terminated on account of his request for taking extension of 2 weeks in leave on medical grounds which had been refused to him. As such the termination order dated 24‑9‑1985 could not be considered as simpliciter termination. Further such a termination order could only under the Civil Servants (Appointment, Promotion and Transfer) Rules be issued within the probation period of 2 years of service. The learned counsel had also referred to the following judgments of the FST and Supreme Court in support of his contention and points of appeal:

(i) 1987 PLC (C.S.) 758 wherein the FST had passed/relied its judgment mainly on PLD 1956 SC 331, and

(ii) 1987 PLC (C.S.) 915 (Punjab Service Tribunal).

He had, therefore, pleaded that his services could not be terminated after 2 years of service in the Department and without observing the rules and legal requirements in the matter.

4. The learned counsel had clarified that neither any charge‑sheet, nor any show‑cause notice had been issued to the appellant and nor he had been given any opportunity for personal hearing by the respondent‑Department or competent authority. His termination from service had obviously been done in haste and without observing the relevant rules. Evidently the order was mala fide, ultra vires, not maintainable and unlawful. The appellant's representation of 3‑12‑1985 addressed to the Secretary Establishment and the President of Pakistan had not been accepted. Finally aggrieved on such account, he on 2‑4‑1986 had made the instant appeal to the FST, which should be accepted and appellant reinstated in service.

5. The departmental representatives M/s. Iftikhar Ahmad and Mahboob Khan had stated that competent authority could refuse medical leave applied by the appellant and could terminate the services under terms of his appointment letter issued on 19th July, 1979. But the representative of the Establishment Division, Mr. Zakaullah Jan, Section Officer had not agreed with this contention and had stated that termination of the appellant from services could not be done without observing the prescribed procedure and relevant rules. Since the appellant had successfully completed the probation period of 2 years, simpliciter termination order had been issued in violation of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. He had not supported the departmental action taken against the appellant.

6. Under the aforementioned circumstances and after hearing the parties, it is established that the departmental action for terminating the services of the appellant, after he had completed the probation period of 2 years, through a simpliciter termination order dated 24‑9‑1985 was violative of the relevant rules and devoid of any justification. There was enough material on the record to show that the appellant had requested for extension in his leave for 12 days on medical grounds which had been refused by the Department and consequently it ended up with the termination of his services by order dated 24‑9‑1985 issued by Chairman, FST thinking that the appellant was still as temporary as within the probation period and his services could be terminated by giving 14 days notice. The Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, particularly clause 20 did not support the departmental action, because the appellant had served the Department for more than 6 years. He was a regular employee and, after two years service i.e. after the probation period was over, could be regarded as good as a permanent employee; moreso when the post of UDC was borne on non‑development budget of the Department. The judgments of the FST and the Supreme Court, as mentioned in paragraph 3 did not support departmental action for p terminating of appellant's services. Competent authority had not followed the prescribed procedure, the termination of appellant's services had been done in haste and was violative of relevant rules, mala fide and unlawful.

We, therefore, accept the appeal, set aside the order of termination dated 24‑9‑1985, reinstate the appellant into service from the same date alongwith all consequential benefits and direct the respondent‑Department to settle his absence as per appellant's entitlement of leave.

8. No order for costs. Parties be informed.

H.B.T./798/Sr.F

Appeal accepted.