PRINCIPAL, PINE HILLS COLLEGE And Others vs MOHARRAM ALI And 2 Other

ORDER

SHAFIUR RAHMAN,. J.--The Principal, Pine Hills College, Ghora Gali, seeks leave to appeal under Article 212(3) of the Constitution against the judgment of the Service Tribunal, dated 31-1-1965, whereby accepting the appeal of respondent No.1, the Service Tribunal has declared him to be in service under the petitioner from the date the impugned order of termination of his service was passed.

2. The respondent-No. 1 was a civil, servant,being an employee of the Education Department. He was serving the petitioner Institution when the West Pakistan Government Educational and Training Institution Ordinance, 1960 (hereinafter referred to-as the Ordinance), came to be promulgated.

The employees of the Government were, under section 9 of the Ordinance, made liable to serve in the Institutions governed by it "on such terms and conditions as Government may determine provided that such terms and conditions shall not be less favorable than those admissible to him under Government provided further that no such persons shall be dismissed, removed from service or reduced in rank by an authority subordinate to that by which he was appointed." By an order passed on 9-1-1978 the services of respondent No. 1 were terminated on the grounds of unsuitability for further retention in service. The question whether the respondent was a civil servant and had a remedy before the Civil Service Tribunal was a matter which was decided earlier by this Court in favor of the respondent, with the result that the Tribunal examined the merits of, his claim and came to the conclusion that such a termination order as was passed by the petitioner was without lawful authority and notwithstanding that the respondent continued to be in service.

3. Mr. Mujeeb-ur-Rehman, the learned counsel forthe petitioner, contended that the Board. Of Governors was thecompetent authority to frame rules governing the terms and conditions of the respondent, that it had his administrative charge and could competently pass such an order. Even if it could not, it had the effect of terminating the deputation and reverting back respondent No. 1 to the Provincial Government whose employee he originally was. It was also contended that this retirement had taken place on completion of 23 years of service and the order was immune from scrutiny before the Service Tribunal. These were the questions which had to be attended to.

4. Qazi Abdur Rashid, Advocate; has informed us that respondent No. 1 has died and the question of his taking up the appointment does not arise. What is now in dispute is the right of the respondent and his heirs to receive emoluments for the period after the 9th of January 1978 and it is not very material whether it is made payable by the petitioner or the Provincial Government as long as the payment is made soon enough to the heirs.

5. On an examination of the order terminating the service of respondent No. 1. We find that on its plain wording it amounts to an order of removal, for, it is termination of service with a stigma. The competent authority to remove the respondent No. 1 from service was, in terms of the Ordinance, the Provincial Government, and the) Government not having passed that order, it would not affect this legal status. As regards the question of termination of service after completing 25 years qualifying service, that question does not arise because the order does not say so and it is a question of fact whether he had in fact completed 25 years of service or not. In any case such an order should have been passed by his competent authority and not by the petitioner. The alternative plea that this order should be treated as an order terminating deputation and reverting him to the Government is equally untenable because we find that the order does not say so and unless the Government agrees to such a termination of deputation, it could not unilaterally take effect because his deputation was under Government's order and under the Ordinance. On such a prima facie view of the contentions advanced by the petitioner arid in view of the fact that the responders No. 1 is dead and no useful purpose would be served by admitting this appeal, we consider it not to be a fit case for rant of leave to appeal, which is hereby refused.