SECRETARY TO GOVERNMENT OF N.W.F.P. ZAKAT/SOCIAL. WELFARE

ORDER

' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This Petition for Special Leave to Appeal is directed against the order dated 16-2-1995 passed by the N.-W.F.P. Service Tribunal, Peshawar.

2. Saduallah Khan, respondent, was appointed on 19-5-1994 as Saleman 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 appeal before the N.-W.F.P. Service Tribunal. The gravamen of the respondent was that he was appointed by petitioner 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 favorites 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 violate 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 Saleman 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 along with 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 services.

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 Letter 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 retardant 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 reinstating the respondent.

7. Resultantly, this petition is dismissed and the leave is refused.