Syed SIKANDAR ALI SHAH vs AUDITOR-GENERAL OF PAKISTAN and others

' JAVED IQBAL, J.---This appeal with leave of the Court is directed against judgment dated 27-7- 2000 passed by learned Federal Service Tribunal, Karachi, whereby appeal preferred on behalf of appellant namely Syed Sikandar Ali Shah has been dismissed and order dated 13-5-1998 terminating his services by the Director-General, Commercial Audit and Evaluation has been kept intact.

2. Leave to appeal was granted vide this Court order dated 12-1-2001 which is reproduced hereinbelow to appreciate the legal and factual aspects of the controversy:-- ' "This petition is directed against the judgment dated 27-7-2000 passed by the Federal Service Tribunal (hereinafter referred to as the Tribunal) in Service Appeal No, 1630(K) of 1998).

2. Brief facts are that the petitioner was posted as. Senior Auditor under the Directorate of Commercial Audit, Karachi/respondent No,3, when he was appointed as Management Trainee by respondent No,4/Pakistan State Oil, vide order dated 19-34996 with effect from 1-5-1996 on certain terms and conditions of service. The petitioner applied for retention of his lien in his parent orgnization in case of his selection in PSO/respondent No,4 as Management Trainee and on selection his request for lien was acceded to. But his services were terminated during the training period by the PSO/respondent No,4 vide order dated 28-8-1997, whereupon the petitioner submitted his joining report to his parent department on 4-2-1998. It is pleaded that after 3-1/2 months of the submission of the joining report, respondent No,2 refused to accept the same by removing the petitioner from service under order dated 13-5-1998 with effect from 7-5-1996, the date on which the petitioner was relieved to join the PSO/respondent No,4.

3. The petitioner approached the Tribunal claiming that he had acquired a right to revert to his parent organization having already retained his lien by the competent Authority. The Tribunal dismissed the appeal of the petitioner vide the impugned judgment dated 27-7-2000, inter alia, relying on the provision of rule 6(2) of the Civil Servants (Confirmation) Rules, 1993.

4. We have heard Mr. M.M. Aqil, learned Advocate Supreme Court for the petitioner, Raja Haq Nawaz Khan, learned Advocate Supreme Court appearing for respondent No,4 and have perused the material available on record.

5. Leave is granted to consider whether in the facts and circumstances of the case, the petitioner had acquired a right to revert to his parent organization I e . Directorate of Commercial Audit, Karachi/respondent No,3 having already retained his lien by the competent Authority or whether in view, of rule 6(2) of the Civil Servants (Confirmation) Rules, 1993 read with clause (i) of subsection

(1) of section 11 of the Civil Servants Act, 1973, he had ceased to hold the lien."

3. Heard Mr. M.M. Aqil Awan, learned Advocate Supreme Court on behalf of appellant who mainly contended that the provisions as contained in rule 6 of the Civil Servants (Confirmation) Rules, 1993 (hereinafter referred to as the Confirmation Rules) were misconstrued and misinterpreted by the learned Federal Service Tribunal which resulted in serious miscarriage of justice. It is emphatically urged that various extraneous considerations such as the alleged use of political influence by the appellant at the time of his appointment as Senior Auditor, having no concern whatsoever with the appeal, prevailed, upon the learned Federal Service Tribunal resulting in serious prejudice. It is argued that a civil servant who is a regular appointee against a temporary post likely to become permanent is entitled for having his lien which cannot be terminated on flimsy grounds and without having recourse to the prescribed procedure as enumerated in the Civil Servants Act, 1973 and Rules made thereunder. It is also contended that the appellant could not have been removed from service as he was allowed to retain his lien for two years by the competent Authority by means of order dated 7-5-1996.

4. Sardar M. Aslam,. Learned Deputy Attorney-General appeared on behalf of respondent and strenuously controverted the view point as canvassed by Mr. M.M. Aqil Awan, learned Advocate Supreme Court for appellant by arguing that the appellant was still a probationer in his parent department and hence the question of lien does not arise. It is further contended that the provisions as contained in rule 6 of the Confirmation Rules have been interpreted correctly by the learned Federal Service Tribunal and no, illegality whatsoever has been committed and the appellant at his own had joined Pakistan State Oil (P.S.O.) and being its autonomous nature the question of retention of lien of the appellant in his parent department does not arise.

5. We have carefully examined the respective contentions as mentioned hereinabove in the light of relevant provisions of law and record of the case. We have minutely gone through the judgment impugned. The pivotal question which needs determination would be as to whether the appellant had acquired a right to revert to Directorate of Commercial Audit (Karachi) being his parent department where his lien was retained or the appellant had ceased to hold the lien in view of the termination of his services by P.S.O. Vide order dated 28-8-1997? It is an admitted feature 'of the case that appellant was appointed as Senior Auditor in the Directorate of Commercial Audit, Karachi in the year 1987 with one year probation period (clause (iii) of appointment letter) against a temporary post which was likely to become permanent and served as such for about eleven years. It is also an admitted feature or the case that prior to joining P.S.O. The appellant made an application for retaining his lien in his parent department which was allowed by means of order dated 7-5-1996 granting permission of retention of his lien for two years w.e.f, 7-5-1996. Before the services of appellant could be confirmed in P.S.O. He was terminated on 28-8-1997 who submitted his joining report to his parent department on 4-2-1998 which remained pending for about 3-1/2 months and thereafter the Director-General, Commercial Audit terminated his services vide order dated 13-5-1998 w.e.f, 7-5-1996. There is no denying. The fact that appellant had eleven years' service at his credit as Senior Auditor in his parent department and joined his new assignment as Management Trainee in PSO after having prior approval . Of the competent Authority of his parent department and retention of his lien vide order dated 7-5-1996 which is reproduced hereinbelow for ready reference:-- "ESTABLISHMENT OFFICE ORDER NO.130 ' The Director, Commercial Audit, Karachi has been pleased to relieve Mr. Sikandar Ali Shah, Senior Auditor from his duties for two years' lien w.e.f, 7-5-1996 as per contained in the Director-General, Commercial Audit Letter No,1503/Admn/E-2/96, dated 5-5-1996.

' (Authority Dy. Director Commercial Audit orders dated 7-5-1996)

(Sd.)

(ZAFAR AHMAD), AUDIT OFFICER.

' Office of the Director of Commercial Audit Karachi. No, 962/DCA/ADMN/217-St.Ar/87 dated"

6. A bare perusal of the said order would reveal that his lien was retained for two years w.e.f, 7-5- 1996. The services of appellant were terminated on 28-8-1997 who submitted his joining report to his parent department on 4-2-1998 within a period of two years for which his lien was retained. The learned Deputy Attorney-General could not furnish any plausible justification that how the services of a civil servant having eleven years' service at his credit could be terminated without adhering to the prescribed procedure as enumerated in the Civil Servants Act, 1973, Government Servants (Efficiency and Discipline) Rules, 1973 and the Confirmation Rules. Even the termination order dated 13-5-1998 is vague and no specific rule of the Confirmation Rules has been mentioned on the basis whereof the services of appellant were terminated. It is worth mentioning that retrospective effect was given in the termination order which is not sustainable under law as termination could not be with retrospective effect unless the competent Authority is expressly empowered in this regard by some statute or rules made thereunder. No, such statute or rules could be pointed out and accordingly the removal of the appellant with retrospecive effect is unalwful. In this regard we are fortified by the dictum laid down in cases titled Noor Muhammad v. Member, Election Commission (1985 SCM R 1178), Noor Muhammad v. Muhammad Abdullah (1984 SCM R 1578), Dr. Muhammad Abdul Latif v. The Province of East Pakistan (PLD 1964 Dacca 647), Nawab Syed Raunaq Ali v. Chief Settlement Commissioner (PLD 1973 SC 236). The learned Federal Service Tribunal erred while relying exclusively on rule 6(2) of the Confirmation Rules which cannot be read in isolation and the provisions as contained in sub-rules (3) and (4) cannot be ignored. The learned Federal Service Tribunal has misconstrued and misinterpreted the provisions as contained in rule 6 of the Confirmation Rules. We have also observed that various extraneous considerations having no nexus with the controversy prevailed upon the learned Federal Service Tribunal while deciding the appeal and being artificial and superfluous hardly deserve any consideration. The competent Authority should have been bold enough to face political influence allegedly exerted by the appellant but the competent Authority surrendered and obeyed the capricious and arbitrary directions of their political Bosses without raising the slightest protest which depicts a cowardly and condemnable trend. The rectification of wrong by the competent authority after lapse of eleven years that too without following the prescribed procedure cannot be appreciated. It appears from the scrutiny of record that the appellant was never absorbed permanently in P.S.O.

And thus not severed his connection with the parent department and accordingly his lien cannot be terminated. In this regard we are supported, by the principles as enunciated in cases titled Secretary Education v. Viqar-ul-Haq (2000 SCMR 1978) and Mazhar Ali v. Federation of Pakistan (1992 SCM R 435).

' In the light of foregoing discussion the impugned judgment is hereby set aside with the direction that appellant should be reinstated as Senior Auditor in the Directorate of Commercial Audit w.e.f, 4-2-1998 when the appellant has submitted his joining report with all back benefits. The appeal is accordingly accepted.