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Petitioner: ATIQUR REHMAN, ASSISTANT ACCOUNTS OFFICER, OFFICE OF ACCOUNTANT-GENERAL SINDH, KARACHI VS Respondent: FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, IslamabadHonorable Justice Qazi Muhammad Hussain SiddiquiM.M. Aqil Awan
2007 P L C (C.S.) 1125
[Federal Service Tribunal]
Before Qazi Muhammad Hussain Siddiqui and Rashid Ali Mirza, Members
ATIQUR REHMAN, ASSISTANT ACCOUNTS OFFICER, OFFICE OF ACCOUNTANT-GENERAL SINDH, KARACHI and others
Versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Islamabad and others
Appeals Nos.189(K)(C.S.), 190(K)(C.S.), 194(K)(C.S.), 195(K)(C.S.'), 196(K)(C.S.), 200(K)(C.S.), 202(K)(C.S.), 204(K)(C.S.), 206(K)(C.S.) and 208(K)(C.S.) of 2003, decided on 23rd December, 2004.
(a) Words and Phrases---
----"Void" and "nullify in the eye of law"---Meaning, scope and connotation of.
1975 SCMR 457; PLD 2002 SC 101; 2002 PLC (C. S.) 136 J ; 1975 SCMR 457; 1976 SCMR 48; 2000 SCMR 36; 1996 SCMR 850; 1994 PLC (C.S.) 46; PLD 2002 SC 101; PLD 1973 SC 236; PLD 1976 SC 258; PLD 1973 SC 236, 1985 CLC 1411; PLD 1987 Lah. 1012; PLD 1996 Kar. 429; 1978 SCMR 367, PLD 1977 SC 599; PLD 1975 Kar. 28 and PLD 1964 SC 97 ref.
(b) Civil Servants Act (LXXI of 1973)---
----S. 6---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.3(2) & 21---Appointment---Passing of prescribed examination---Under subsection (3) of S.6 of Civil Servants Act, 1973, passing of an examination, could be a condition for satisfactory completion of probation period but such examination, must be prescribed and Authority for prescribing conditions of such examination was Ministry of the Division concerned in consultation with the Establishment Division under sub-Rule (2) of Rule 3 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.
(c) Estoppel---
----No estoppel against law.
(d) Service Tribunals Act (LXX of 1973)---
----S. 4---Civil Servants (Appeal) Rules, 1977, R.4---Delay in filing appeal, condonation of---Failure to file departmental appeal---Effect---Delay in filing appeal could not on condoned, even if impugned condition of departmental examination was void or nullity in the eyes of law---Appellants having failed to file departmental appeal as provided under proviso (a) to S.4 of Service Tribunals Act, 1973 read with R.4 of Civil Servants (Appeal) Rules, 1977, their appeals were not maintainable under the law---Defect of non-filing of departmental appeal was not curable.
1996 SCMR 856; 1985 CLC 1411; 1988 MLD 1341; 1988 MLD 341; PLD 1970 Lah. 6; 1989 AD 283; PLD 1988 Lah. 184; 1987 SCMR 154; PLD 1974 SC 139; 1989 PLC 638; 1991 PLC (C.S.) 689; PLD 1959 SC 104; 1993 CLC 255; PLD 1977 SC 599; 1978 SCMR 367; 1989 CLC 937; PLD 1993 Quetta 121; 2002 PLC (C.S.) 1282 and PLD 2004 SC (AJ&K) 1 ref.
(e) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---
----R. 21---Period of probation---Completion---Scope---Period of probation of a Government Servant was one year extendable to another year to be terminated by specific order and in absence of such order period of probation would be deemed to have been successfully completed after expiry of the extended period of one year.
(f) Civil Servants Act (LXXI of 1973)---
----S. 6(3)---Service Tribunals Act (LXX of 1973), S.4---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.3(2) & 21---Condition of holding departmental examination---Appeal---Appellants without airy objection appeared in departmental examination thrice, but failed to clear said examination---Contention of appellants was that condition of examination embodied in the terms and conditions conveyed to appellants was ab initio void and nullity in the eye of law---Validity---If appellants were given relief on said technical grounds holding conditions of examination as void, then serious problems were likely to crop up; for instance, all failures of present and past, would seek the same relief provided to appellants, which might cause lot of disturbance in various departments putting departments in an embarrassing position---No relief as prayed for by the appellants could be granted to them.
M.M. Aqil Awan for Appellants (in Appeals Nos.196, 204 and 206(K)(C.S.) of 2003).
Jahangir Shah for Appellants (in Appeals Nos.189, 190, 194, 195, 200, 202 and 208(K)(C.S.) of 2003):
Asif Mangi, Standing Counsel.
Date of hearing: 23rd December, 2004.
JUDGMENT
QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).--- All the above mentioned appeals, based on identical facts and law, will be disposed of by this single common judgment.
2. Briefly the facts leading to these appeals are, that in the year 2001, consequent upon their selection by the Federal Public Service Commission, the appellants and other successful candidates were offered appointment as Assistant Accounts Officer in the office of Auditor-General of Pakistan vide offer letter No.ADMN-II/Prob-AAO/1103, dated 7-4-2001, inter alia, on the following terms and conditions:--
"(viii) Your period of probation shall be governed under section 6 of the Civil Servants Act, 1973 read with Rule 21 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 as reproduced below:
"6. Probation.--- (1) Au initial appointment to a service or post referred to in section 5, not being an ad hoc appointment, shall be on probation as may be prescribed."
(2) Any appointment of a civil servant by promotion or transfer to a service or post may also be made on probation as may be prescribed.
Where, in respect of any service or post, the satisfactory completion of probation includes the passing of a prescribed examination, test or course or successful completion of any training, a person appointed on probation to such service or post who, before the expiry of the original or extended period of his probation, has failed to pass such examination or test or to successfully complete course or the training shall, except as may be prescribed otherwise:--
(a) if he was appointed to such service or post by initial recruitment, be discharged; or
(b) if he was appointed to such service or post by promotion or transfer, be reverted to the service or post from which he was promoted or transferred and against which he holds a lien or, if there be no such service or post, be discharged."
(x) Your appointment on regular basis shall be made to the post of Assistant Accounts Officer/Assistant Audit Officer (BPS-16) after you have completed five months training at the Audit and Accounts Training Institute, Central Government Offices Building, Gulberg-III, Lahore and passed the P.I.P.F.A. (Public Sector) or S.A.S. (New Syllabus) Examination (B-16) for which three chances will be allowed to you during the period of probation.
(xii) If you fail to qualify P.I.P.F.A. (Public Sector) or S.A.S. (New Syllabus) Examination (B-13-16) mentioned in para.(viii) above during the period of probation your services will be liable to termination.
(xiii) No increment shall be admissible to you during the period of probation unless you have qualified the P.I.P.F.A. (Public Sector) or S.A.S. (New Syllabus) Examination (B-16).
The appellants and other accepted the terms and conditions contained in the above mentioned letter and joined the A.A.T.I. (Audit and Accounts Training Institute), Lahore. After completing the five months' training, the appellants availed of all the three chances of passing in S.A.S. (New Syllabus) Examination, but failed to qualify the same in three attempts. Due to their such failure, they were liable to be terminated, but the competent authority i.e. the Auditor-General of Pakistan (respondent No.2) allowed them another chance to qualify the said examination and for that purpose extended the probation period from 1-7-2003 to 31-12-2003 as special case. It appears that the appellants did not take the examination fourth time and made an undated representation to the Auditor-General of Pakistan. The said representation of the appellants is reproduced as under:--
Through Proper Channel.
The Honourable Auditor-General of Pakistan Constitution Avenue, Islamabad.
Subject: Request for consideration.
Respected Sir,
With profound reverence I feel honoured to submit that I have been selected as an A.A.O.(D.R.) by Federal Public Service Commission and am currently going under training at A.A.T. Lahore. I deem it appropriate to express my gratitude because I think it is only through your visionary leadership that the whole conventional scenario of the department has been revolutionized. It has been made possible only by your dynamic leadership that the right people have been included for the right job for the very first time in the history of the department. You have chosen very highly qualified professionals in the Field of audit and accounts.
Sir, I had received an office letter of yow~ esteemed department and accepted it. In due course of time a judgment has been passed by the Federal Service Tribunal, Islamabad, dated 25-6-2001. According to that judgment para. 5(v), "The issue regarding terms and conditions of the .accounts, who joined service as direct recruits, was examined by establishment division and that the Federal Public Service Commission had already adjudged their fitness for appointment through test and interview and upon successful completion of departmental training they were not required to take accountant promotion examination meant for clerical staff", para.5(vi) "under rule 3(1) of the Civil Servants (Appointment, Promotion and Transfer Rules, 1973, direct recruitment and promotion are two independent methods of appointments and a direct recruit, selected through F.P.S.C., cannot be subjected to Departmental Promotion Examination for appointment to the same post. The Establishment Division by its O.M. dated 7-9-1990, impugned in the appeal declared that the conditions for passing the departmental examination have no relevance to the probationers appointed through initial recruitment.
I humbly request your kind attention on the matter for sympathetic re-consideration of the para.____ of my letter.
Thanking you in anticipation.
Yours obedient servant A.S.O. (D.R.), A.A.T.I., Lahore
The above representation was rejected vide letter, dated 1-1-2002 of the Director-General, Audit and Accounts Training Institute, Lahore. It is reproduced as under:---
Subject:-- Representation made by the A.A.O.(D.R.) against their terms and conditions of appointment.
Please refer to your representations made against the Terms and Conditions of Appointment.
(2) The competent authority has reviewed your representation and passed following comments on them:--
(i) In the Establishment Division's letter No.13/2/84-R-5, dated 7-9-1999, enclosed with your representations, it is laid down that the condition of passing of a departmental examination prescribed in any rule for promotion has no relevance to the issue of termination of probation through initial recruitment. The above referred memo does not bar the concerned authority from holding departmental examination, rather it indicates towards the departmental examination, under any rule, for promotion.
(ii) You had accepted appointments according to the terms and conditions in the offer of appointment letters, wherein it is mentioned that you have to receive 5 months training at A.A.T.I., Lahore and have to pass P.I.P.F.A./S.A.S. new Syllabus Examination of Pakistan Audit Department.
(3) In view of the above there is no case in the representations, as the officials have accepted the offer of appointment containing condition of passing the departmental examination.
(4) This issues with the approval of the competent Authority.
(Sd.) (Nasir Mehmood C.I.D.) Accounts Officer (Admn.).
3. After rejection of representations of 73 Audit and Accounts Officers including the present 10 appellants, five appellants. namely S. Imtiaz Haider, Atiqur Rahman, Miss Rizwana Solangi, Sahnan Qutbi and Rafique Ahmed Channer (five others do not appear to have filed) filed Constitution Petition No.D-1898 of 2002 before the Honourable High Court of Sindh on 5-10-2002; seeking relief, inter alia, to restrain the respondent No.2 from calling/directing the petitioners to appear and qualify the departmental/examination for terminating their probationary period and from taking airy adverse action against the petitioners for not appearing or not qualifying the said examination. The above mentioned petition was dismissed by the Honourable High Court vide order dated 25-4-2003 observing, ".... The petitioners may exhaust remedy before the proper forum provided under the law...."
4. Appellants Atiqur Rehman and Imtiaz Haider then filed separate appeal before the Tribunal on 24-5-2003 whereas rest of other eight appellants filed their respective appeals before the Tribunal on 26-5-2004. The appeals were filed under section 4 of the Service Tribunals Act of 1973 against the rejection of their departmental appeal dated 1-2-2002, praying as under:--
(a) declare that the condition of passing a departmental examination prescribed in any rule for promotion has no relevance to the issue of termination of probation period of petitioners appointed on probation through initial recruitment particularly whose suitability had already been adjudged by the Federal Public Service Commission;
(b) declare that the terms and conditions contained at Serials Nos.VIII, X, XII and XIII of the offer of appointment, thereby the petitioners have to qualify the Departmental Promotion Examination to be confirmed in Government Service and/or to Execute Personal Bond for further period of 5 years in case of confirmation are unlawful, illegal, inoperative, malicious in law, corum non judice, without jurisdiction and ultra vires to the Civil Servants Act aid Rules made thereunder and thus, void ab initio and have nullity in the eye of .law and also inapplicable in the case of direct recruitment as Assistant Accounts/Audit Officer in BPS-16, through Federal Public Service Commission;
(c) restrain the respondent No.2 his subordinate employees and servant from calling/directing the appellant to appear and qualify the departmental examination for terminating their probationary period and from taking any adverse action against the appellant for not appearing or not qualifying the said examination; and
(d) any other relief which this Honourable Court may deem fit and proper in the circumstances of the case."
5. In the identical written comments filed on behalf of respondents, it has been stated that for filling in the post of Assistant Accounts Officer/Assistant Audit. Officer lying vacant in various field offices, the Federal Public Service Commission held examinations and recommended the successful candidates for appointment against the vacant posts; that on the recommendation of the .Federal Public Service Commission a batch of 193 recommendees anal then another batch of 26 recommendees were inducted in the service of the respondent. They joined the Training Institute Lahore on 3-7-2001 for five months in service training as per terms and conditions of offer of their appointments Nos.VIII, X, XII and XIII (already reproduced above). The appointment of the appellants and others was to be regularized on the post of A.A.O. (B-16) only on (a) successful completion of five months training at Audit and Accounts Training Institute, Lahore and (b) on passing of Departmental Examination i.e. P.I.P.F.A, (Public Sector) or S.A.S. (New Syllabus) Examination (B-16) for which three chances were to be allowed to them during the period of probation. It has been further stated that in case of non-qualifying the said examinations during the period of probation their services were liable to be terminated and that no increment was admissible to them during the period of probation unless they qualified the said examination. It has been stated that immediately on termination of the five months training at Audit and Accounts Training Institute, Lahore, the appellants along with others appeared in S.A.S. (New Syllabus) Examination (B-16), but appellants namely (1) Atiqur Rehman (2) Syed Imtiaz Haider, (3) Imam Bux Malik, and (4) Ejaz Ahmed Memos availed three chances to qualify the departmental examination, but failed to qualify the same be spite of that the Controller-General of Accounts, Islamabad, under letter No.931/Estt.-AAO/111/71-2002, dated 5-7-2003 extended the probation period of these persons/appellants for further six months from 1-7-2003 to 31-12-2003 in order to provide them another chance to qualify the S.A.S. Examination.
6. We have heard the learned counsel for the appellants namely Mr. M.M. Aqil Awan and Mr. S. Jehangir H. Shah and- Mr. Asif Hussain Mangi, learned Standing Counsel for the respondents. Besides arguing the appeals at length, Mr. M.M. Aqil Awan and Mr. Asif Mangi filed their written Holes also. Mr. S. Jehangir Hussain Shah adopted the arguments of Mr. Aqil Awan.
7. Mr. M.M. Aqil Awan, built up the edifice of his arguments, inter alia, mainly on the premise that the conditions. Nos.VIII and X of the offer of appointment regarding passing of P.I.P.F.A. (Public Sector)/S.A.S. (New Syllabus) Examination are ab initio void and nullity in the eye of law and for that he has referred to us to section 6 of the Civil Servants Act of 1973 read with section 21 of the Civil Servants (Appointment Promotion and Transfer) Rules, 1973. These sections are reproduced as under:--
"6. Probation.--- (1) An initial appointment to a service or post referred to in section 5, not being an ad hoc appointment, shall be on probation as may be prescribed.
(2) Appointment of a civil servant by promotion or transfer to a service or post may also be made on probation as may be prescribed.
(3) Where, in respect of any service or post, the satisfactory completion of probation includes the passing of a prescribed examination, test or course or successful completion of any training, a person appointed on probation to such service or post who, before the expiry of the original or extended period of his probation, has Palled to pass such examination or test or to successfully complete course or the training shall, except as may be prescribed otherwise:.--
(a) if he was appointed to such service or post by initial recruitment, be discharged; or
(b) if' he was appointed to such service or post by promotion or transfer, he reverted to the service or post from which he was promoted or transferred and against which he holds a lien or, if there be no such service or post, be discharged:
Provided that, in the case of initial appointment to a service or post, a civil servant shall not be deemed to have completed his period of probation satisfactorily until his character and antecedents have been verified as satisfactory in the opinion of the appointment authority."
21 of Civil Servants (Appointment, Promotion and transfer) Rules, 1973:--
"21. (1) Persons appointed by initial appointment promotion or transfer shall be on probation for a period of one year.
(2) The period of probation may be curtailed for good and sufficient reasons, to be recorded, or, if considered necessary, it may be extended for a period not exceeding one year as may be specified at the time of appointment.
(3) On the successful completion of probation period, the appointing authority shall, by specific order, terminate the probation.
(4) If no order is issued under sub-rule (3) on the expiry of the first year of probation period, the period of probation shall be deemed to have been extended under sub-rule (2):
Provided that subject to the provisions of proviso to subsection (2) of section 6 of the Civil Servants Act, 1973, in the absence of an order under sub-rule (3), the period of probation shall, on the expiry of the extended period under sub-rule (2); be deemed to have successfully been completed."
8. The learned counsel for the appellants emphatically argued that the condition of examination embodied in the terms and condition conveyed to the appellants, is ab inito void and nullity in the eye of law for the reason that the examination envisaged is a prescribed examination and "prescribed" has been defined under section 2(f) of Civil Servants Act of 1973 as "prescribed means prescribed by rules; for the reason that such examination was neither prescribed in the statutory notification (S.R.O.) published in the Gazette of Pakistan dated 22-1-2000 nor was it prescribed under any Rules of the respondents unlike the rule for such examination made by Ministry of Defence in connection with such examination of the identical probationary Assistant Accounts Officer/ Assistant Audit Officers; for the reason that condition of such departmental examination was laid down in the notification dated representation was tune-barred, the Service Tribunal of its own could not hold the appeal to be incompetent in view of the said bar of limitation. For such contention the learned counsel relied on 2000 SCMR 36. The learned counsel further argued chat the appeal before the Tribunal against the order, dated 1-1-2002 was to be filed within 30 days from the communication of the said order, but neither party pleaded when such order was communicated to the appellants, as such, the respondent could not plead the bar of limitation. Reliance was placed on 1996 SCMR 8S0 and 1994 PLC (C.S.) 46. The learned counsel further argued that the service appeals had been filed by the appellants against the appellate order dated 1-1-2002 on 24th and 26th May, 2003 and the delay can be condoned by keeping in view the aggregate situation viz. the appellant filed the C.P. No.D-1898 of 2002 before the Honourable High Court which was dismissed on 25-4-2003 and the appellants had, thereafter, filed the present appeals within time. Lastly the learned counsel for the appellants urged that the appellate order being illegal and the condition of passing the examination being void, supperfluous and von-existing, the question of limitation had to be considered sympathetically as held by the Honourable Supreme Court in a case reported in PLD 2002 5C 101 in the famous case of Dr. Anwer Ali Saheto. On the basis of above arguments, the learned counsel for the appellants urged that the appellants be extended the relief, prayed for.
10. In rebuttal of the above mentioned arguments of the learned counsel for the appellants, the standing counsel relying on the judgment of this Tribunal in Appeal No.2361(R) of 1999, contended that the passing of the examination had no relevance to the issue of termination of probation through initial recruitment. He stated that iv dealing with the cases of the appellants, the competent authority took compassionate view and had shown the grace to allow the appellants to take the examination once more after their having failed to qualify the said examination in three attempts, but the appellants abused the relaxation and dragged the respondents into unwarranted litigation by filing the constitutional petition before the Honourable High Court and then these appeals before the Tribunal. The learned standing counsel argued that if the appellants had been successful in the passing the said examination, they would have, perhaps, not termed the condition of examination as void and nullity in the eye of law; that they had not raised any objection to the terms and conditions embodying the condition of examination on receipt of the letter of terms and conditions, but it was only. after the failure to clear the departmental examination in three attempts, they rushed to the Honourable High Court and this Tribunal to prevent them from the impending action against them necessitated by their inefficiency to clear the said examination. The learned counsel argued that the appellants were, therefore, estopped from challenging the condition of examination as laid down in the letter of terms and conditions. Regarding bar of limitation the learned counsel for the respondents stated that the delay in filing the petition before the Honourable High Court was obvious and patent from the record and admittedly for such delay at application for condonation had also been filed by the appellants. The order of reflection of the representation was passed on 1-1-2002 and the petition was filed before the Honourable High Court on 5-10-2002 without filing departmental appeal against said rejection order. No reason has been assigned for filing the petition with a delay of nine months and tour days. The learned counsel for the respondents argued that the appellants must have known that the service matters could not be challenged before the Honourable High Court even then they resorted to dragging the respondents unnecessarily in litigation before the Honourable High Court instead of coming to the Tribunal if they had any genuine grievance against the respondents. The Learned counsel for the respondents argued that 1'or these: reasons the appellants did not deserve any sympathy for condonation of delay and the time spent by them in obvious litigation before the Honourable High Court of Sindh could not be excluded under section 14 of the Limitation Act as it was…
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