DIRECTOR, SOCIAL WELFARE, N.-W.F.P., PESHAWAR vs SADULLAH KHAN
This petition for leave to appeal arises from an order of the N.-W.F.P. Service Tribunal, which had set aside the termination of the respondent's services as a salesman. The respondent was appointed by the competent authority, but his services were later terminated on the ground that the appointment was irregular and violated procedural rules. The core legal question was whether an employee can be penalized and have their services terminated for procedural lapses or irregularities committed by the appointing authority itself. The Supreme Court held that an employee cannot suffer or be punished for the conscious or unconscious procedural lapses or irregularities of the competent authority, particularly when the employee possesses the requisite qualifications and was not at fault. The key principle laid down is that state functionaries and competent authorities cannot be permitted to take advantage of their own wrong or procedural violations to the detriment of a bona fide appointee.
- Can an employee's services be terminated due to procedural irregularities committed by the appointing authority during the appointment process?
- Whether an appointing authority can take benefit of its own lapses to terminate the services of a qualified employee?
- Should an employee suffer adverse consequences for a violation of appointment rules attributable solely to the competent authority?
- Rule 10(2), N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules 1989
ORDER
' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This petition for leave to appeal is directed against the order dated 16-2-1995 passed by the N.-W.F.P. Service Tribunal, Peshawar.
2. Sadullah Khan, respondent, was appointed on 19-5-1994 as salesman by petitioner No, 2 in the office of the Superintendent, Institute for Blind, Swabi. He assumed the charge on 1-6-1994. His services were, however, terminated with effect from 16-8-1994 on the ground that his appointment was irregular. After rejection of the respondent's departmental appeal/representation he filed an appeal before the N.-W.F.P. Service Tribunal. The gravamen of the respondent was that he was appointed by peitioner No, 2 who was Competent Authority; that no irregularity had been committed in his appointment, that he possessed the requisite qualification for the post, that the respondent could not be punished for any act or omission of the petitioners; that he had been condemned unheard and, that some . Favourites were being appointed against the post and thus the respondent was the victim of nepotism.
3. According to the stand of the petitioners, the services of the respondent were terminated on the ground that, besides being irregular, his appointment was violative of sub-rule (2) of Rule 10 of the N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 and Services and General Administration Department Circular Letter dated 11-2-1987.
4. The learned Tribunal, while conceding that the procedure laid down in rule 10(2) supra regulating the appointment of salesman had not been adhered to, yet the appointment of the respondent was made by the Competent Authority. The Tribunal further maintained that there was no dearth of the precedents of the Tribunal wherein the incumbents were not held to suffer merely due to the conscious or unconscious procedural lapses attributable to the Competent Authorities. The learned Tribunal then took notice of the case of Mst. Razia Sultana of Dir who was appointed as N.C.I. In BPS-8 on "irregular basis" like the respondent and her services were terminated alongwith the respondent but she was re-instated vide Zakat and Social Welfare Department Order No, SO(SW)II-3/93 dated 24-8-1994 and reached the conclusion that even irregular appointments, according to the practice of the petitioners, themselves, were regularized in cases exactly similar to that of the respondent. In this context, the learned Tribunal aptly observed:-- "If the irregular appointment of Razia Sultana could be rectified and she could be reappointed/reinstated, the learned counsel for the appellant contends that why the appellant should not be reinstated for the same reason.
' The appointment of the appellant is definitely temporary as given in Annexure-A on the file but the reason for termination of the services of the appellant is not that the services of the appellant were temporary but is that his appointment was irregular which the Tribunal has already held not to be the fault of the appellant but that of competent authority who appointed him in violation of the appointment rules."
' In this view of the matter, the learned Tribunal was persuaded to accept the appeal and to direct the reinstatement of the respondent from the date of termination of his service.
5. Mr. Saifur Rehman Kiyani, learned Advocate-General, had reiterated before us the contention that appointment of the respondent being purely temporary and having been found to be irregular could be terminated at any time and without assigning any reason by giving 15 days' notice. In this context, he invoked the provisions of rule 10(2) ibid and Circular Letters of the S&GAD dated 11-2- 1987.
6. It is disturbing to note that in this case petitioner No, 2 had himself been guilty of making irregular appointment on what has been described "purely temporary basis". The petitioners have now turned around and terminated his services due to irregularity and violation of rule 10(2) ibid. The premise, to say the least, is utterly untenable. The case of the petitioners was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointment. In the peculiar circumstances of the case, the learned Tribunal is not shown to have committed any illegality or irregularity in re-instating the respondent.
7. Resultantly, this petition is dismissed and the leave is refused.
Cited by 6 cases
- MUHAMMAD ZAMAN CHACHAR and others vs CHAIRMAN, PTCL, ISLAMABAD 2002 PLC (C.S.) 984
- FARRUKH HASSAN ZAIDI vs THE CHAIRMAN, WAPDA And 5 Other 2001 MLD 789
- KHALID MAHMOOD vs SUPERINTENDING ENGINEER, PROVINCIAL BUILDING 2000 PLC (C.S.) 1278
- MUHAMMAD RAMZAN and others vs DIVISIONAL ENGINEER, TELEGRAPH, SUKKUR DIVISION, SUKKAR and 2 others 2001 PLC (C.S.) 491
- AZIZ AHMAD vs CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY 1997 PLC (C.S.) 356
- KHALID PERVAIZ BUTT vs GENERAL MANAGER (OPERATION) POWER WAPDA 1997 PLC (C.S.) 348