H. SHEIKH NOOR-UD-DIN & SONS LTD. Versus ADDITIONAL SECRETARY, CUSTOMS (JUDICIAL), CENTRAL BOARD OF REVENUE
MALIK ABDUL AZIZ (MEMBER).-- Facts giving rise to the instant appeal are that Maimoona Sadiqa Hashmi appellant joined service as Assistant Lady Teacher with the Lahore Municipal Corporation on M-10-1975 and was confirmed as such on 6-2-1980.
2. Through a Press advertisement dated 18-1-1985, the Deputy Director Education, Lahore Division invited applications, through the respective District Education Officer, from in service teachers i.e., teachers already serving in Government Schools since 1977 or earlier who had passed B.Ed. Examination during 1977 or earlier, for appointment as Secondary School Teachers, against 50% quota reserved for them against vacancies occurring in the Education Department in pursuance of the Government of the Punjab, Education Department's letter No. SO(NG)10-74/'12, dated 24-4-1972. In response to the aforesaid advertisement, the appellant's application dated 8-3-1986 for the said post, was forwarded by the Lahore Municipal Corporation authorities under whom she was serving as confirmed Assistant Lady Teacher since 6-2-1980 to the Director of Education (Schools) Lahore Division. The appellant and fifty-five (55) other in service teachers already working against the lower scales in different (government Schools, were appointed as Secondary Schools Teachers, in BPS 15, by the Deputy Directress (Admn), Directorate of Education (Schools), Lahore Division/Respondent No. 3. vide consolidated Order No.2/7-86(P)24208(F)I, dated 19-11-1986.
3. The appellant was relieved of her duties from the L.M.C. Girls Middle School Factory Area, Shahdara Lahore on 20-12-1986 vide impugned order dated 20-12-1986 of the Respondent No.4, operative portion of which read as under:-
4. The appellant joined her new posting as S.S.T. at Government Girls High School, Ahdian, Sheikhupura on 21-12-1980 but about three months thereafter her services were terminated with immediate effect, and she was directed to report at her previous station of posting under the LMC vide impugned Order No. 4935/Admn (F)I, dated 18-3-1987 of the respondent No. 3, operative portion of which is reproduced below:-
'Directorate of Education (Schools), Lahore No. 4935/Admn (F)I, dated 18-3-1987. The services of Mst. Maimoona Sadiqa Hashmi, Government Girls High School, Ahdian (Sheikhupura) are hereby terminated with immediate effect. She is directed to report at her previous station a posting.
Sd/-Deputy Directress (Admn)
Directorate of Education (S)
Lahore Division, Lahore
5. Despite issuance of the impugned order dated 18-3-1987, the appellant continued serving as S.S.T. Government Girls High Schools, Ahdian Sheikhupura, up to 15-4-1987, when she was relieved of her, duties by her Headmistress, vide Order No. 208/A, dated 15-4-1987.
6. Thereafter the appellant addressed a representation dated 22-4-1987 t:: the respondent No. 3 against the impugned order dated 18-3-1987.
7. According to the appellant, she did not receive any reply to her aforementioned representation, from the respondent No. 3 during the next two months, and therefore, getting disappointed she submitted her joining report to the Education Officer LMC on 23-6-1987, but the Chief Corporation Officer L.M.C./respondent No.5 declined to allow her to resume duty against her previous permanent post under the L.M.C. and instead wrote a Letter No. 882 L.M.C./87, dated 27-6-1987 to the Respondent No.3, the relevant portion of which read as follows:-
"Mst. Maimoona Sadiqa Hashmi has submitted an application in thi office for permission to resume duty against her previous post as Asstt Teacher. In this connection it is intimated that the applicant was relieve, from this organization for joining duty as S.S.T. Teacher in Governmen t Girls High Schools, Ahdian, Distirct Sheikhupura under the condition s that her lien would not be retained in LMC.
Since the applicant is no more in the service of LMC it is not possible to allow her to resume duty against her previous post.
1n view of above it is requested that her case may kindly be reconsidered sympathetically and she may be absorbed in Government Education Department. -
Sd/- Waheed Ullah Goraya.
Chief Corporation Officer,
Lahore Municipal Corporation
8. With reference to the aforementioned letter dated 27-6-1987 of the Respondent No.5, the appellant again approached the Respondent No.3, through her letter dated 7-7-1981, but with no response.
9.The appellant then preferred a representation dated 12-10-1987 before the Director Public Instructions (Schools) Punjab, Lahore/respondent No.2 but to no avail.
10. It appears that subsequently the appellant addressed a petition to the Chief Minister Punjab, on which the Under-Secretary (NG-11) Education Department, Government of the Punjab, vide his letter No.SO (NG-II) 1-1/86, dated 23-12-1987 asked the Director of Education (Schools), Lahore Division to submit a report on the factual position of the appellant's case to the Government.
11. The Director of Education (Schools), Lahore Division vide his Letter No. 27575/Admn(F)I, dated 24-12-1987 submitted his reply to the Secretary Education but with no final outcome. The relevant portion of that reply read as follows:-
Subject:- PETITION OF MST. MAIMOONA SADIQA HASHMI, EX S.S.T. GOVERNMENT GIRLS HIGH SCHOOL AHDIAN (SHEIKHUPURA)
"It is submitted for your information that 50% of the vacancies of S.S.T. are filled in by initial/Direct recruitment and 50% from amongst in service teachers. Mst. Maimoona Sadiqa Hashmi who was working as S.V. Teacher in M.C. Girls Middle School, Factory Area, Shahdara also applied for the post of SST against in service quota. She along with other teachers working in Government Schools who had qualified their B.Ed. Examination and entered into Government service upto 3I-12-1982 was considered and posted at Government Girls High School, Ahdian, District Sheikhupura vide this Office Order No. 24208/Admn (F)I, dated 19-11-1986. It is brought to your kind notice that this action was taken considering this teacher as a Government employee through an oversight, otherwise she could be advised to compete with fresh candidates for the post of S.S.T.
On re-checking the fact that Mst. Maimoona Sadiqa Hashmi was and employee of the Lahore Municipal Corporation and could not be treated as Govt. Servant to award S.S.T. grade, her services were terminated and was directed to report to the Lahore Municipal Corporation Authorities to adjust her against her lien.
It is requested that the Corporation Authorities may be directed to have her back as she was a permanent employee of the said body."
12. The appellant also addressed another petition dated 5-10-1987 to the, Chief Minister, Punjab, which was forwarded by the Chief Minister's Secretariat to the Minister/Secretary LG&RD Department, Government of the Punjab under covering letter dated 12-11-1987 bit with no outcome.
13. Getting no final reply from any quarter till then the appellant addressed yet another petition dated 26-3-1988 to the Chief Minister Punjab upon which the Chief Minister's Secretariat vide their Letter No. US-1V/CMS/88/3666, dated 3-4-1988 issued the following directive to the Secretary LSG & RD Department, Government of the Punjab, but with no result:-
"Please refer to this Secretariat Letter No. SO IV/CMS/3666/87, dated 12-11-1987 on the subject noted above.
(2) This case was required to be put up which has not been done so far. The case may now please be put up for information/orders of the Chief Minister, at the earliest."
14. At last, on 11-5-1988, the appellant filed her present appeal, under section 4 of the Punjab Service Tribunals' Act 1974, before this Tribunal. Along with the appeal she also filed an application under section 5 of the Limitation Act for condonation of delay in filing the appeal.
15. Through her present appeal the appellant has impugned the order dated 18-3-1987 of the respondent No.3 and has prayed for declaring it as illegal and void with the direction to reinstate her in service with back benefits. She has also impugned the order dated 20-12-1986 of the respondent No. 4 and has prayed that the same be also declared illegal and void, simultaneously directing the respondents Nos. 4 and 5 i.e., the Mayor and the Chief Corporation Officer, Lahore Municipal Corporation to take her back in the service of the L.M.C. and grant her Scale No.15 to which she had become entitled.
16. Parties have been heard at some length and the record produced and relied upon by them, in connection with the appeal has been carefully perused.
17. During his arguments, learned counsel for the appellant has raised the following contentions:-
(i) That Order No. 2/ 7-86(P)24208/Admn(F) I, dated 19-11-1986 of the respondent No. 3 appointing the appellant as S.S.T. Government Girls High School, Ahdian, Shcikhupura had created a vested right in favour of the appellant, which could not subsequently be withdrawn through the impugned order dated 18-3-1987 of the said respondent -as _her services could not be terminated without issuing her any show cause- notice.
(ii) That the appellant being a permanent and confirmed employee of the LMC, her lien, with it, could not be legally terminated on 20-12-1986 through the impugned order dated 20-12-1986 of the respondent No.4
(iii) That against the two impugned orders the appellant had been pursuing her departmental remedy before the respondents quite vigorously, diligently and vigilantly throughout, but all her representations/ appeals/petitions remained undisposed of till the last, and her personal visits to all concerned too did not yield any result. As such the delay, if any, in filing the present appeal fully deserved to be condoned keeping in view the grave hardships undergone by the appellant, all along.
18. During his counter-arguments, learned District Attorney contended that being an employee of the L.M.C., the appellant was ineligible for being appointed as S.S.T. under the Education Department, Government of the Punjab, against 50% quota reserved for in service teachers already working under the Govern ment. Thus the mere appointment of the appellant as S.S.T., being ab initio void and contrary to Rules, did not create any vested right in her favour and, there fore, the patently wrong order dated 19-11-1986 issued through oversight was rectifiable by the respondent No.3, at any time without issuing any show-cause notice to the appellant. And due to these peculiar circumstances the impugned order dated 18-3-1987 of the respondent No3 was perfectly legal and in order.
19. Learned District Attorney and Mr. Sanaullah Oureshi, Superintendent, Legal Branch, L.M.C. representing the respondents, however, conceded that the impugned order dated 20-12-1986 terminating the lien of the appellant w.e.f 20-12-1986 was illegal, and of no legal consequence against the appellant, submitting further that lien of the appellant could not be terminated unless she had been confirmed against her new appointment as S.S.T. in the Education Department, Government of the Punjab.
20. It was further urged by them that on termination of her services as S.S.T. vide the impugned order dated 18-3-87, the appellant was rightly directed by the respondent No.3 to report back for duty to the L.M.C., and the L.M.C. was legally bound to take her back against her previous substantive, post of Assistant Lady Teacher.
21. During their counter-arguments, they did not oppose/contest application of the appellant for condonation of delay in filing the appeal.
22. Having heard the parties and on scrutiny of the relevant record, it is clearly established that the appellant being an employee of the L.M.C., could not be treated as an in service teacher under the Government, which was a pre condition for being appointed as S.S.T. Thus the appellant was ab initio ineligible for the post of S.S.T. It was, therefore, a mistake on the part of the L.M.C. Authorities to forward her application dated 8-3-1986 for the said post to the Director of Education (Schools) Lahore Division. It was never submitted through the District Education Officer concern as explicitly required in the Press advertisement dated 18-1-1986. Not only this, but the respondent No. 3, and her A office, also did not take any notice of that basic ineligibility in the appellant's candidature for the said post, and committed a still bigger irregularity of appointing her as S.S.T., Government Girls High School Ahdian, Sheikhupura, and the irregularity was too glaring and grave to be construed as a mere chance error. Obviously due to basic ineligibility of the appellant for the post of S.S.T. under the Education Department, Government of the Punjab, her appointment as such was ab initio void and contrary to Rules. Legally such patently wrong order was fully rectifiable by the respondent No3., which was accordingly done by the said respondent, vide impugned order dated 18-3-1987. Thus in the given situation, mere order of her appointment, as S.S.T., did not create any vested right in favour of the Appellant. Obviously in the foregoing circumstances there could be no legal bar on the respondent No. 3 to rectify the patently wrong order dated 19-11-1986 at any subsequent stage. While doing so, no doubt, no show-cause notice was issued to the appellant by the respondent No. 3 before issuing the impugned order dated 18-3-1987, but that technical omission would be of little avail to the appellant, for the simple reason that even if a show-cause notice would have been issued by the respondent No. 3, the appellant, that would not have wiped out the basic ineligibility in the appellant's candidature for the said post; and the appellant would have remained as much ineligible for the post of S.S.T. as she was to date; and the final consequence would have been no different from the one notified through the impugned order dated 18-3-1987.
23. Viewing the matter from yet another angle, in case the ab initio wrong appointment order dated 19-11-1986 would not have been rectified and allowed to perpetuate by the respondent No.3, it would have amounted to perpetuating of deprivation of the legally protected valuable rights of the next eligible in service candidate for the S.S.T. post, wrongly occupied by an ineligible incumbent, in the person of the appellant, in flagrant violation of the relevant rules. Moreover, permitting the perpetuation of such an ab initio void order would have provided a permanent opening for similar events to recur in future, which could not be allowed under any circumstance. As such the rectification of such an irregularity p would be better late than never. Thus we find that the learned counsel for the appellant has failed to make out any case for interference by this Tribunal in the impugned order dated 18-3-1987 of the respondent No.3 and resultantly the first contention of the appellant's counsel fails.
24. As stated earlier, facts relevant to the second contention of the appellant's counsel are, that the appellant joined service as Assistant Lady Teacher with the L.M.C. on 30-10-1975, and was confirmed as such on 6-2-1980. Consequently she acquired lien against her aforesaid permanent post w.e.f. 6-2 1980 which was terminated through the impugned order dated 20-12-1986 of the respondent No. 4, when she was relieved of her duties from the L.M.C. Middle School Factory Area, Shahdara, Lahore, to join her new posting as S.S.T. Government Girls High School, Ahdian, Sheikhupura, on 21-12-1986. She was, C however, relieved of her new assignment as S.S.T. on 15-4-1987, in compliance with the impugned order dated 18-3-1987 of the respondent No. 3, terminating her services with immediate effect, and also directing her to report for duty at her previous station of posting, under the L.M.C. Till then she had not been confirmed against her new assignment as S.S.T. The appellant accordingly submitted her joining report dated 23-6-1987 to the Education Officer, L.M.C. on 23-6-1987, but the Chief Corporation Officer L.M.C./ respondent No.5 declined to allow her to resume duty against her previous permanent post, under the L.M.C.
25. From the second contention of the appellant's counsel, the question arises; whether in the above-stated facts and circumstances of the appellant's case, could the respondent No. 4 legally terminate her lien vide his impunged order dated 20-12-1986? Rules 3.13 to 3.19 codified under the Civil Services Rules (Punjab) provide an answer to it.
26. A plain reading of these Rules of the C.S.R. (Punjab) would reveal, that it was illegal and incompetent for the respondent No.4 either to suspend, or to transfer or to terminate the appellant's lien (earned by her since 6-2-1980), even with her own consent, in the given facts and circumstances of the appellant's case. He could do so only if she had been confirmed against her new appointment as S.S.T. in the Education Department of the Provincial Government.
27. Consequently, for the foregoing reasons, the impugned order dated 20-12-1986 of the respondent No. 4, was ab initio void, illegal and of no legal consequence against the appellant. As a natural corrollary, on the basis of the impugned order dated 20-12-1986, the refusal of the respondent No.5 to take back the appellant in the service of the L.M.C. against her previous permanent post for which she still retained her lien, was also void and illegal.
28. As regards the question of Limitation, it has been already found above, that the impugned order dated 20-12-1986 of the respondent No. 4 and the point blank and arbitrary refusal of the respondent No. 5 to take back the appellant in the service of the L.M.C. against her previous substantive post, for which she still retained her lien were ab initio void and illegal. Thus it being a case in which the impugned order under adjudication was initially void and illegal, the provision of limitation would not apply.
29. The appellant, for getting her grievances redressed, addressed several representations to the respondents and three petitions to the Chief Minister, Punjab, but all in vain. With her appeal the appellant has appended as many as twenty-eight Gate-Entry-Passes of the Civil Secretariat, Punjab, covering her repeated visits to that august office, on different occasions, in pursuit of her objective. Furthermore, in spite of the intervention of an Authority not less than the Chief Minister of the Province, twice, the Education and LG & RD Departments, Government of the Punjab did not convey any decision to the appellant, regarding her service dispute. Thus abdundant material is avilable on record to, prove that the appellant pursued her case from pillar to post persistently with all diligence and vigilance at her command, throughout, before coming over to this Tribunal.
30. As such, in view of the quantum of ceaseless efforts put in by the appellant for getting her service dispute resolved through the respondent, it would not be a favour to the appellant, to condone the delay in filing the present appeal, and it is, therefore, condoned accordingly.
31. For the foregoing reasons the appeal is accepted, the impugned order dated 20-12-1986 of the Respondent No.4 is set aside, allowing all the consequential benefits to the appellant, treating her to be in service of the L.M.C. throughout the period she had been illegally kept out of employment. The appellant would be entitled to all the pay and allowances for the said period, as she remained actually in service of the L.M.C. The impugned order dated 18-3-1987 of the respondent No. 3 will, however, remain intact, with no order as to costs.
32. Parties to be informed.
M.Y.H./301/Sr. P Appeal accepted.