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Petitioner: REHAN SAEED KHAN and others VS Respondent: FEDERATION OF PAKISTAN and others
Court Name: Supreme Court of Pakistan Judge(s): Irshad Hasan Khan, Muhammad Arif, Qazi Muhammad Farooq Title: REHAN SAEED KHAN and others vs FEDERATION OF PAKISTAN and others Case No.:Civil Appeals Nos. 1582/97 Civil Appeals Nos. 1582/97 to 1633/97, 664/98 to
JUDGMENT
Reported As: 2001 PLC (C.S.) 1275 Result: petitions dismissed Judgment JUDGMENT ' IRSHAD HASAN KHAN, C J.---Through this common judgment we intend to dispose of the above appeals/petitions for leave to appeal, which have arisen out of the judgment dated 3-10-1997 passed by the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal). 2. Brief facts are that the appellants/petitioners herein were inducted into service on different dates during the year 1996 in Intelligence Bureau in different pay scales i,e, as Assistant Sub-Inspectors, Sub-Inspectors, Inspectors and Assistant Directors. Their services were terminated during the currency of probationary period without assigning any reason. 3. The appellants/petitioners, being aggrieved with their termination of services filed separate appeals before the Tribunal, which were dismissed through the impugned consolidated judgment, inter alia, for the following reasons:-- "(i) That the above posts were created for a period of one year; (ii) that the appointments were made not on the basis of merit but on the recommendations of the Ministers and other Government functionaries en bloc; (iii) that since the appellants/petitioners' services were terminated during probationary period, they had no justiciable grievance to agitate before this Court in view of the judgments of this Court
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inter alia in the case of Syed Tathir Hussain Shirazi v. The Governor of the Punjab and others (1990 SCM R 1510), in the case of Amir Ahmed v. Secretary, Finance Division, Islamabad and another (1993 SCM R 114) and in the case of Munawar Khan v. Niaz Muhammad and 7 others (1993 SCM R 1287)." 4. Leave to appeal was granted.By this Court in different bunches of petitions in the following terms: (i) Whether the petitioners who were inducted as Assistant Directors in the I.B. Were appointed against permanent posts or against temporary posts created for a period of one year (i,e, the petitioners in Civil Petitions Nos.1330, 1334, 1335, 1342, 1328, 1329, 1336, 1344 and 1345 of 1997)? (ii) Whether at the time of termination of services of the Assistant Directors on the ground that they were on probation, there existed 79 vacancies of permanent Assistant Directors or any, if so, what is its effect? (iii) -What is the effect of the Public Notice published in the newspapers in which it was not disclosed that the above posts were temporary? (iv) Whether the petitioners who were inducted as Assistant Sub-Inspectors, Sub-Inspectors and Inspectors were appointed against temporary posts and if so, what is its effect? (v) Whether any permanent vacancies existed at the time the termination notice was served in the posts of Assistant Sub-Inspectors, Sub-Inspectors and Inspectors, if so, what is its effect? (vi) What is the effect of the words "on regular basis" used in some of the appointment notifications? (vii) Whether the petitioners were entitled to a show-cause notice before passing of the termination orders in terms of section 11(1) of the Civil Servants Act, 1973? (viii) Whether the termination orders should have contained the reasons for termination of services of the petitioners in view of section 24-A of the General Clauses Act, 1897 (incorporated by Act XI of 1997 with effect from 2-6-1997)." Hafiz S.A. Rehman, learned Senior Advocate Supreme Court appearing on behalf of Abdul Hameed-appellant in Civil Appeal No,1585 of 1997 vehemently argued that services of his client could not be terminated on the strength of section 11 of the Civil Servants Act, 1973, inasmuch as, he was holding permanent lien in his parent department and ought to have been repatriated, therefore, no question of termination from service arose even if he had consented to forego his lien in his parent department i,e, Quetta Development Authority. In support of his plea he relied on Mazhar Ali v. Federation of Pakistan (1992 SCM R 435), wherein it was observed: "The law applicable to such an admitted position on facts finds mention in the Rules 3.13 to 3.17 of the Civil Services Rules (Punjab), Volume I, and Fundamental Rules Nos.13, 14 and 14-A. According to these, the lien of the permanent civil servants cannot be terminated, even with their consent. It can be terminated only when the civil servant is confirmed against some other permanent post..." 6 Hafiz S.A. Rehman next contended that in any case his client was entitled to show-cause notice, in that, the termination order was passed without assigning any reason and no opportunity of hearing was afforded to him before terminating his services. In support of his plea, he placed reliance on the following unreported judgments of this Court, C.Ps. Nos.979 to 1012 of 2000. ' In the above cases, the Tribunal, took the view that termination of the employee was wholly arbitrary. This Court declined to interfere with the findings of the Tribunal as no substantial question of law of public importance was involved in those petitions. Here, the Tribunal came to the conclusion that the impugned termination from service was a termination simpliciter and was made during the probationary period. . ' C.P. No,1062 of 1998. . ' In this case, the Tribunal set aside the orders of termination from service of employees of Pakistan International Airlines Corporation, inter alia on the ground that the termination order was passed without any show-cause notice, inquiry or charge-sheet. This Court upheld the order of the Tribunal
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setting aside the order of termination from service of the employee in view' of violation of principles of audi alteram portent. This case is also distinguishable, as services of the employees involved therein were not terminated during probationary period . ' C.P. No,573 of 2000.. ' In the above case, the Tribunal set aside the termination order of the employee and remanded the case to the Departmental Authority for conducting a detailed probe on the lines suggested in the impugned order therein. This again was not a case of a probationer and, therefore, distinguishable, ex facie. . ' C.As. Nos.330 to 337, 436 and 1999. . ' In these cases. The Tribunal reinstated into service certain employees of Pakistan International Airlines Corporation (PIAC). The appeals filed by PIAC against the said order were dismissed by this Court on the ground that the services of the employees were terminated without disclosing reason, without issuing show-cause notices and without providing them an opportunity of being heard. These cases too are distinguishable, as the services of the reinstated employees were not terminated during their probationary period. 7. Hafiz S.A. Rehman next argued that the impugned judgment is based on erroneous assumption that his client was a political appointee. At this stage, Mr. K.M.A. Samdani, learned Advocate Supreme Court for the respondent-department made a statement at the Bar that he is not defending the findings of the Tribunal to the effect that the appellants/petitioners were appointed under political pressure. The main thrust of his arguments would be that the services of the appellants/petitioners were terminated within the probationary period of their appointments, therefore, not liable to be interfered with in terms' of section 11 (ibid). 8. Mr. Abdul Ghafoor Mangi, learned Advocate Supreme Court appearing on behalf of, appellants in Civil Appeals Nos.1586 to 1591 of 1997, 1595 to 1598, 1600 to 1602, 1605, 1610, 1611 of 1997 and Civil Appeals Nos.678 and 679 of 1998 argued that the respondent-department cannot be allowed to blow hot and cold in the same breath by taking contradictory pleas, inasmuch as, reasons had not been assigned, in the orders of termination from services of the appellants but when the appeals ere filed before the Tribunal the respondent-department stigmatized the employees by alleging that their appointments were irregular and politically motivated. He further contended that the termination orders were not made by a competent authority but it was the command performance of the then Caretaker Government, therefore, ineffective in law. It was finally contended that the impugned orders of termination from service were violative of the principle of audi alteram partem. 9. Khawaja Muhammad Farooq, learned Senior Advocate Supreme Court appearing on behalf of the appellants in Civil Appeals Nos.1599, 1603 and 1604 of 1997 adopted the submissions made by Hafiz S.A.Rehman and Mr. Abdul Ghafoor Mangi and argued that the Government took the plea before the Tribunal that the summary' for the abolition of the posts sent to the then Prime Minister was approved and posts were abolished with the result that the Tribunal converted the termination of services from section 11(1) to section 11(2) (ibid) directing the respondent-department to pay 14 days' salary in lieu of notice. It was next contended that the appellants/petitioners have not been afforded adequate opportunity to defend their cases, as material placed on record was not brought to their notice nor they were enabled to rebut the same. Further, the respondent- department was wrong in contending that these posts were, temporary in nature, in that, the same were being advertised since 1990 and the last advertisement came about in March, 1995. According to him, although advertisements were published in-between yet no appointments were made. The precise submission was that neither the advertisements referred to above nor the letters of appointment issued to the employees indicated that 'the posts were temporary in nature. It was next argued that it was a case of discrimination, in that, the summary sent to the then Prime
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Minister was for abolition of 120 posts of Assistant Directors and 25 posts of Deputy Directors. This summary was approved in its entirety but the posts of Deputy Directors were not abolished and only Assistant Directors' posts were abolished by the respondent-department. Furthermore, it was contended that six persons are working in the respondent-department as ad hoc employees but their services were not terminated and there are six other persons whose services had been borrowed from other departments and, they have also not been repatriated to their respective parent departments. 10. Mr. Jan Muhammad, learned Advocate-on-Record appearing on behalf of appellant in Civil Appeal No,669 of 1998 adopted the arguments of Khawaja Muhammad Farooq. 11. Mr. Talat Farooq Sheikh, learned Advocate Supreme Court appearing on behalf-of appellants in Civil Appeals Nos.1612, 1614 to 1624 of 1997 adopted the arguments of Mr. Abdul Ghafoor Mangi and Hafiz S.A. Rehman. However, he further argued that the question of legal expectancy of confirmation should have been considered by the Tribunal. Besides, it was contended that after insertion of section 24-A in the General Clauses Act, 1897, it was mandatory for the authority to give reasons for passing the impugned termination orders. 12. Mr. Shehenshah Hussain, learned Advocate Supreme Court for the appellants in Civil Appeals Nos.562 and 563 of 1998 reiterated the arguments addressed by the learned counsel for other appellants/petitioners. 13. Chaudhary Naseer Ahmed, learned Advocate Supreme Court appearing on behalf of the appellant in Civil Appeal No,689 of 1998 also adopted the arguments of the learned counsel who preceded him. He, however, added that the Tribunal did not apply its independent mind to the facts of the case of his client. 14. M/s. Javed A. Khan and Rana Abdur Rahim, also adopted the arguments of the learned counsel who preceded them. 15. Mr. M. Sardar Khan, learned Senior Advocate Supreme Court who appeared on behalf of the appellant in Civil Appeal No,2009 of 1998, while adopting the arguments of Khawaja Muhammad Farooq, added that his client was not appointed under any political pressure; he is still in service and working as Assistant Director having been granted interim relief by this Court and that throwing him out at this stage would be highly unjust. 16. Mr. Saeedur Rehman Farrukh, learned Advocate Supreme Court appearing for the appellant in Civil Appeal No,822 of 1998 also adopted the arguments addressed by the learned counsel representing other appellants/petitioners. He added that grave injustice had been done to his client, as he had not been allowed to go back to his original post in spite of the fact that he was holding permanent lien in his parent department. 17. Mr. Anwar H. Mir, learned Advocate Supreme Court appearing on behalf of the appellants in Civil Appeals Nos.674, 676, 677 and 691 of 1998 also adopted the arguments of his predecessors. 18. Mr. Muhammad Ikram Chaudhry, learned Advocate Supreme Court appearing for the appellants in Civil Appeals Nos.1609 of 1997, 692 to 695 of 1998 reiterated the submissions made by the other learned counsel to the effect that the appointments were not made on political recommendations and in any case the employees were condemned unheard. Reliance was placed on Pakistan v. Public at Large (PLD 1987 SC 304) to contend that the impugned action against him cannot be sustained. 20. Mr. M.S. Khattak, learned Advocate-on-Rxord appearing for the appellant in Civil Appeal No,680 of 1998 and Civil Petition No,1369 of 2000 also adopted the arguments addressed at the Bar by other learned counsel. However, to meet the objection that his appeal as well as petition are barred by time, he placed reliance on Mahreen Zaibun Nisa v. Land Commissioner, Multan (PLD 1975 SC 397), to contend that since his case also involves the same questions of law and facts which, in any case, are to be decided by this Court in other connected cases, delay in both the above cases may
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be condoned. Shah Abdur Rashid, learned Advocate Supreme Court appearing on behalf of the appellant in Civil Appeal No, 670 of 1998 argued that before induction and appointment as Assistant Director on regular basis his client was already serving in the respondent-department and held a permanent lien against his former post, therefore, a show-cause notice was required to be served upon him as it was not a termination from service simpliciter and that the power vested in the competent authority under section 11(1) (ibid) was not exercised judicially but arbitrarily and was, in fact, a colourable exercise of power. He further argued that an order under section 11(1) (ibid) can be passed only if the conduct of the employee is not satisfactory; that the Tribunal being conscious that the termination from service was improper had converted the same from section 11(1) to section 11(2) (ibid) and that a duly sanctioned post cannot be abolished without concurrence of the Finance Division. 21. Mr. K.M.A. Samdani, learned Advocate Supreme Court appearing on behalf of the respondent- department vehemently argued that all the appellants/petitioners were on probation for a period of one year and their services were terminated during the currency of the said period without any show-cause notice, in that, such a notice was expressly excluded by section 11(1) (ibid). He further submitted that the provisions of section 24-A of the General Clauses Act, 1897 were not attracted as the same had come into force on 2-6-1997 whereas the orders terminating the services of the appellants/petitioners were passed before the said date. It was next submitted that although the rights of those having lien against a post in their respective parent departments were protected in their orders of termination yet the question of lien could not be blown out of proportion in these matters as none of the appellants/petitioners was appointed by transfer and their appointments were "initial" within the meanings of section 11 (ibid). Adverting to the question of discrimination, Mr. Samdani took the stance that such a plea was not available to the appellants/petitioners as services of all of them were terminated during their probationary period. On Court's query, he submitted that though some posts were abolished but services of those employees, who were working on probation against permanent posts, were also terminated during the probationary period. He concluded his arguments by submitting that none of the appellants/petitioners was put under the vestige of a stigma in any manner and the apprehension of some of them that they were stigmatized and as such a show-cause notice was necessary, was more imaginary than real. The appellants/petitioners ' can participate in the tests and processes pursuant to current advertisement in regard to the posts against which they were serving in the past. It was also contended that the case of his clients throughout was that being a matter of termination of services simpliciter, assigning of reasons or issuance of show- cause notices was not required and that if the Tribunal has converted the termination from subsection (1) to subsection (2) of Section 11 (ibid), his clients had no objection to the payment of 14 days' salary to the appellants/petitioners. Mr. K.M.A. Samdani submitted a Chart showing the list of appeals/petitions filed by the appellants/petitioners against their termination from services pursuant to the impugned judgment of the Tribunal. For facility of reference the above Chart is reproduced below:-- .LIST OF PETITIONS FILED BY THE IB TF,RMINAYEb EMPLOYEES IN THE SUPREME COURT OF PAKISTAN.AGAINST THE JUDGMENT OF F.S.T. DATED 03-10-1997. {{TABLE}} S. NO CP NO/CA NO. NAME OF PETITIONER S/APPEAL NO OF EST. DES G REC OMM END ATIO NS MODE OF APPL1CAT ION EDI : APPOI NT AIENT DATE/MODE OF OF TERM. REM RKS C'P- 1297,97 Relict Sneed Kben A.D. - Undated. Without mentioning MSc 25-08.96 . 5-02-9' Nor aophod agaitit! The ad or AD. CA-
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1582/97 418(L)/97 411y addressee. WIth011l ReguLo 1995 stEn. 2. CP- Ahmed A.D. - Throogh M Sc 25-08-96 15-02-97 - 1299/97 CA- Fornaleet P 0.Box according to ad. Regular 1584/97 417(LIPS7 3. CP- 1301/97 CA- (514/97 M. Hissers Akins 473 L 'I k.S.1 JOG 1A) Through P.O.Bou witluno reference of any ad. 11-03-96 Adhoc 7-02-97 Appointed by JDO (A) Witilool. test. d. CP- 1304/97 Abdul FInirnd Insp. Addressed to DO 18, dated M.A. 3 )6-96 18.02-97 Appeared Ads ten but selected CA- 1595/97 Ski Amir %eh Khontalc 21.12-95 Regular Inspector a t red for - 09(0V97 Against the arl of Mc 95 for B-I8. AD Scheele BPS-18 apaitst the ad appeared in Dec. 1995 S. CP- 1310/97 CA- 1586/97 Faisal Ritz 266(LE97 Insp. JOG( A) Without addresses. undated. B.A. 02-07.96 Regular (Direct) 17-02-97 Coauthor'sedly appointed by irxim A) without test. . Cp- 1311/97 CA- 1587/97 Mute nrmseJ Shafa(ne 268(L)097 Insp. JOG( ft.) Without addressee. Post and sign. . 21-10-96 Regular (Direct) 17-02-97 l nalithoriserily appointed by JDO(A) without lest. 7. CP- 1312/97 CA- tette/97 Feast Abase Shah 271(L)/97 Insp. 10(7( A) Undated, without addressee. Reference of ad not B. 6 22-10-96 Adhoc 17-02-97 Unauthoriredify appointed by .106(A1 without mentioned. Test x ( P. Allow Nadeem Imp PM Without B A. 30-06.96 18-02-97 PM Sectt. 1313/97 Senn addressee. Recommen post epplied for. . Regular AD dee 158907 27511_107 reference of ad. Scheme 9 (.1' fIlturshid S I PM WII110111 B A. 10.07-97 26-02-97 PM Sect,.
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131-1 97 CA- Ahmed Scott. Addressee, post, applied for. Regular AD Recommen dee. 1590,97 2180:1/97 reference of ad Scheme Ill. ('P- Irian Nome Imp 11x.21 Without D.A. 16-07-97 17-02-97 Unsuthorts- 1315/97 Warinch A) addressee, post applied of Regular (Direct) edly appointed by JDO(A) 159! 97 265(1).97 ad without test. II. ( I"- Roof Illisson A.D. Undated M A 25-08.96 15.02-97 Not through 111697 purtshi addressed to 1)(3 111 Regular P.O. Butt against the CA- ed. 1592/97 513(1).97 12. CP- Zulgarnain A.D. According nts, 25-011-96 15-02-97 1317/97 Sandi to au of A D. Regular CA- 1593/97 609(,L1/97 13 CP. Mellowed A D. Addressed M.A. 25-08.96 15.02-97 Not through 1118/)7 Alain to 31)(3. P.O. Box Punjab Regular !Against the CA- ad. 159.697 514j1197 74. Cl'- Dinar Mouth A.D .According B.F. 25-08-96 15-02.97 1327.97 to ad of (Eke A I) / Regular CA. 620(k197 1596/97 _ ('P- Ilium I.:Web A.D. According ft Sc 25-08-96 11-02-97 Allowed to 1327/97 to ad of A.D. Regular appear in the test on CA- 620f R1:'97 ' providing 1196/97 bio data only, being ft.S0 not eligible - CF M. Igbal A.D. AO :0111111V (I Sc 25-08.96. 15.02.97 1.128/97 Mimi to ad of March 95. Regular CA- 1507/97 6611(141/97 CF- Jevaid khan A.G. No M.A. 25-08.96 15-02.97 Allowed to 1329/97 application, only Rio- appear in the test on CA- Data Regtf.Sr providing 1591117 671(8)/97 evadable bio data OnlY. 18 CP- Shark' Zainan A 'through B A 25-08.96 15-02.97 IB 1310/97 .4noari .IDO(A) on 10-12-95 Regular employees. Bemg BA CA- eller lest not eligible. 1599,97 427(1407 , date. 19. CP. " (Adam limp Addressed II. A. 30-08-96 18.02-97 Appeared 1331'97 Maim to IX) IR, for post of in the AD's hut, but CA AD. Without Regular AD selected as 1600/97 24783/97 any ref of ad Scheme 4 Inspector. CP
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1332,97 CA 1602/97 Zahid Islam 247(L4/97 Insp. PM Seen List Addressed to PM. Without mentioning any post. Ref of ad M A 30.08.96 Regular AD Scheme 18-02.97 I'M Seen Recommen ded CP. Munawar A.D. Undated. Ti A 30-08-96 18-02.97 PM Saco 1333/97 Ahmed Gondol without addresiee. . Recommen ded. CA. 270(L)/97 post applied Regular AD 1602/97 for any ref of ad. ' Scheme ' CP- Safdar Shah A.D. - According M.A. 27.08-96 15-02.97 LH 1334/97 to ad of employee Mach 95 Regular CA- 7711(R)/97 1603/97 CP. Ashiq Hussain A.D. Aciording MA 25-07.96 15-112.97 IR 1335/97 to ad of AD. Employee Regular CA 579(R)97 1605,95 rP Manionr , A.D. No, 8 li 26.0E96 17.02.97 Allowed to 1336/97 Ahmed application, Only Rio. Regular appear so the test Olt CA Data tlitec pro. Iding 1605/97 66600/97 evailehle Not applied spinet the ad. 1 Inodsts only CP- Muheminad Insp. - Updated, for M.A. 30.06-96 18-02.97 Ag(eared 1340/97 Ries 0.17 without ref. Regular AD nt AD's last, hut CA. Of ad - Scheme selected as 1616/97 2238-1/97 itoseiloL 26, CP. Abdul Reitman Insp. For 0.17, M 30-06.96 do - Appeared (341/97 Akhtar +stilton'. Rer of any ad. Si; Reinder AD ', so Al) tee but CA Scheme *elected as (607/97 223414/97 In issivr. 27 was Noted A.D. CP- According M A. 27.00.96 302.97 1342/97 Shahaed to ad of AO Regular CA 1.60//97 CP. Seitilt Sultan A.D. AccOrdinti MSc 15-98-96 13-02.97 1343/97 to ed or AD. Reinder CM 555(11/97 1609/97
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eP Mod A.D. No M.A. 25-9146 15.02.97 Alli,eitil to " 1344/97 beekm004 Mupltal application. Only No- ' appear to the test on CA- dawn Regular provIding 1610/97 424(R)417 availehle. Not applied against the ad. Bin data only A. 04 RON 90,414111 A.D. Addraieed le Se 2549146 15402.97 MNA 1345/97 Ishim lo PM without ref (Eng RcPnlar recornownd cc CA- of ad pool 1) 161097 413(10/97 ill 20.09-93 after clueing tkil Cl'- 1148/97 CA- 1312/97 Muhammad Aft! Adams 2461(1)/97 hap PM Seen List. For 9.17 without ref deny id. M Sc ' 30.06- Regular AI) Scheme III.02-97 PM Seca recommend ee. Being B.Si: not eligible to appear in test of Al). CP. 1339/97 CA- Abdul Hamad Insp. According to id or A.D. M.Sc 30-06-97 Regular AD 18-02-97 Appeared in AD's test but selected is 1313497 S/o Abdul Scheme Inspector Wahid 3116(R)t97 CP- Masood S.I. Undated. 13 A 07-09-96 26-02-97 1362/97 Alstned Khan without addressee Adhoc CA- and post 1614197 336(1)497 :applied for. CP. Sadao.. Ali 194P Undated. B.A. 07-07-96 17-02-97 PM Seen 136197 Dope without addresses Adhoc Recommen dee. CA- and post 1615/97 337(11'97 applied for. Cl'- Syed ;bier (rap Undated. B.A. 01-07.96 17-02-97 Appeared 1364/97 Hussain addressed to PM Sr the Regular AD in AD's lest but selected CA- post of AD. Scheme as 1617/97 240 L /97 Inspector. CP M. Amir Khan Insp. )DG( Undated. B.A. 22-04-96 17-02-97 Unauthoris- 1.363f77 A) addressed to 0618 Adhoc idly appointed CA- 345(1)/97 by JOG (A) 1617197 without test. CP- Al. I ()ay= hue: JOG Undated, B.A. 06-03.-96 117-02-97 Unauthoris- 1 Khan . 4/0 sddresse.d tit DU (0 . Adhoc edly appointed CA- by JOG !At
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1611097 . Without test. Al. t CP- Imams Miner S 4- - Undated BA 21-07-96 26-02-97 Appeared 1167/97 without - addressee. In AD's test but selected CA- 262)1(97 post applied Regular AD as Si. 1619/97 - " for and lips Scheme ' CP- Shah Zeman loop JOG Undated. P-A. 05-0816 17-02-97 LInatithoris- 1369/97 Shah ' (Al addressed to DG IN. Adhoc edit' appointed CA- by JDG (A) 1.6J.0/97 342(1)/97 without test. CP- Muhersinad Insp Appro Undated, B.A A 3.06-96 17-02.97 4inauthorts- 1369/97 Munk Ahmed ved by JOG addressed to DRIB. Adhoc edty appointed CA- 1A). By 10G (A) )621/97 339(1)197 Pot-ore mende d by without test Ran M. Maths In Khan MNA CP-…
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