M. SALEEM CHAUDHARY (CHAIRMAN.-- The appellant in this case was initially appointed as a Deputy Forest Ranger in the Forest Department with effect from 23-9-1925, promoted as Forest Ranger with effect from 1-2-1931 and confirmed as such on 1-9-1931. He has since retired after attaining the age of 60 years with effect from 23-12-1966. The plea of the appellant before us is that he should have been promoted as an Extra Assistant Conservator of Forests Class II with effect from 2-10-1950 (the date of promotion of his junior) in obedience to the advice of the Public Service Commission dated 21-2-1951 and thus sub--sequently he should also have been promoted to Class I service from 9-12-1958.
2. The appellant alleges that his non-promotion to Class II service, despite aforementioned advice of the P. S. C. In his favour was due to the ill-will harboured against him by Mian Mushtaq Ahmad P.
F. S-1 under whom the appellant had the occasion to work during his long career in the Department when the former was the D. F.O., Lahore from 1933 to 1935, D. F. O. Murree Hills in 1944, Conservator of Forests, Lahore and Multan Circle from 19-8-1947 to 3-10-1951 and finally Chief Conservator of Forests from 7-6-1952 till the appellant retired in 1958. Allegations of the appellant against the aforesaid officer commence from the year 1934 when he allegedly refused to submit to his designs to embezzle Government forest wood. The second incident narrated by the appellant relates to the year 1947 when Mian Mushtaq Ahmad as Conservator of Forests had ordered one wagon load of 200 maunds of firewood to be sold to a friend of his, namely, Mr. Tayyabji who was D. T. O. In the P.
W. Railways, half of which wood was meant for the then Commissioner, Lahore Civil Division. The appellant states that since the transaction was illegal, the matter was taken up by the Special Police Establishment and an Inspector of the said Establishment directed the appellant (who at that time was Range Forest Officer, Tramway Changa Manga Forests) through a written note dated 18-3-1948 to supply certified copies of the official letter regarding the aforesaid transaction of firewood and to keep the relevant papers in his personal safe custody. According to the appellant Mian Mushtaq Ahmad was extremely annoyed with the appellants on account of handing over copies of the record to the Special Police Establishment without his permission. Another incident which according to the appellant became the source of irritation occurred when the appellant was posted in Lyallpur Canal Range in 1950 and Mian Mushtaq Ahmad was the Conservator of Forests and M. I. R. Khan was the D, F. O. And the latter---s uncle namely Ch. Niaz Ali Khan of Nathu Chak No. 59 of Lyallpur allegedly cut illicitly three shisham trees of Government plantation and the matter was taken up by the Anti-Corruption Department. The appellant avers that when an Inspector of Anti-Corruption Police came to enquire from him about the incident, he, in view of his earlier experience with Mian Mushtaq Ahmad, did not disclose the name of Ch. Naaz Ali Khan as the offender. Notwithstanding this it is alleged that he was immediately transferred by Mian Mushtaq Ahmad first to Kamalia Range and then shortly thereafter to a remote corner of District Muzaffargarh in Alipur Range. The appellant alleges that the D. F. O. In collusion with the Anti- Corruption Department got the case of illicit cutting of trees registered against the appellant rather than the uncle of Mr. M.
1. R. Khan. On further enquiry in this direction the appellant states that he gave full facts about the involvement in the matter of Ch. Riaz Ali Khan before the Inspector Police on 15-6-1951 at Lahore with the result that nothing was heard of the case thereafter. Still on another occasion in 1950 the appellant alleges that Mian Mushtaq Ahmad involved him in a shortage of 1,8?,000 of . Of firewood 24 years after the alleged incident relating to the period of his posting in Changa Manga Forest. He was relieved of his charge of Lyallpur Canal Range and directed to account for the alleged shortage which on his explanation was found to be a false charge as there was no shortage, the matter was dropped.
3. According to the appellant due to the malice and hatred harboured by Mian Mushtaq Ahmad (who had risen to the position of a Chief Conservator of Forests), while forwarding his recommendations to the Public Service Commission for filling a vacancy of Extra Assistant Conservator of Forests in Class II in 1949, he excluded the name of the appellant who was at serial No. 2 in the seniority list. The Commission approved for promotion as Extra Assistant Conservator of Forests the name of Ch. Khan Mohammad who was senior to the appellant but did not recommend Kh. Muhammad Afzal who was next junior to the appellant. Despite this adverse advice it is contended that Kh. Muhammad Afzal was promoted to Class II and repeated attempts were made to have his name approved by the P. S. C. For promotion to Class II. The appellant states that the P.
S. C. Suo moto took cognizance of the arbitrary exclusion of appellant's name from the list sent by Mian Mushtaq Ahmad to the Commission so that the appellant as .Per directions appeared before the Commissioner for an interview on 23-1-1951 and the aforesaid Kh. Muhammad Afzal was also interviewed by the Commission on 25-1-1951. The Commission in their resultant advice dated 21-2- 1951 while observing that record of both the persons interviewed (the appellant and Kh.
Muhammad Afzal) "is mixed --good entries as well as bad and the latter had been interviewed in 1949 and declared unsuitable", advised that they did not consider Kh. Muhammad Afzal suitable for promotion as temporary EACF and that the appellant being senior to Kh. Muhammad Afzal should not be superseded by the latter so that the appellant was expressly advised to be promoted as temporary E. A. C. F. It is this advice of the P. S. C. For the implementation of which the appellant has been striving all along without success and this is now the subject-matter of the appeal before us.
According to the appellant Mian Mushtaq Ahmad with malicious intents caused the case to be referred back to the P. S. C. Twice but the Commission vide their letters dated 11-6-1951 and 21-8- 1951 (Annex. K & L on record) stuck to their original advice and refused to alter their advice in favour of the appellant and give favourable advice in the case of Kh. Muhammad Afzal. Such references according to the appellant were made in violation of the rules on the subject which required that in case of difference of opinion with the P. S. C., the case should have been referred to the Governor, and admittedly no such reference was made to the Governor and the case was returned to the P.
S. C. At departmental level. Appellant contends that failing in his attempts to persuade the Commission to change their advice, Mian Mushtaq Ahmad, managed to get the appellant compulsorily retired on completing 25 years service vide order dated 3-10-1951, but the representation against this retirement was accepted by the Government and the appellant was re-instated on technical grounds as the procedure adopted was not in conformity with section 240(3) of the Government of India Act, 1935 and fresh proceedings against the appellant were ordered. Consequently a fresh show-cause notice dated 8-9-1952 for retirement was served upon the appA1ant in which it was alleged that the appellant had been earning adverse reports since January 1934 and a list of adverse remarks was also enclosed therewith. The appellant vehemently alleges that due to the machinations of Mian Mushtaq Ahmad with the help of Mr. M. I. R. Khan, D. F.
O., a number of adverse entries had been forged and interpolated in his record. The appellant submitted reply to the show-c4use notice and also represented against the adverse remarks on the grounds that the remarks were mala fide and had never earlier been conveyed to him. Reply to show-cause notice and the representation against the adverse remarks were not given proper considera--tion due to the influence of Mian Mushtaq Ahmed and when he took over as Chief Conservator of Forests, Punjab, on 8-8-1953, the appellant was again retired from service compulsorily for the second time with effect from 7-10-1953. The appellant again represented against this retirement, Inter alla, on the grounds that the adverse entries in his record were forged and were fake but no action was taken till Mian Mushtaq Ahmad retired from service in 1956 and was succeeded by Mian Tasadiq Hussain who took up the matter with the Government and it was ordered to constitute a committee consisting of three senior officers of the Department, L e., Mian Tasadiq Hussain, Chief Conservator of Forests; Mr. Muhammad Ihsanur Rehman, Conservator of Forests; and Mian Manzoor Ahmad, D.F.O. Gujrat Forest Division, to give its recommendation in respect of appellant's retirement. The Committee re-examined the case and gave the opinion that the record contained adverse remarks which according to the rules should have been communicated to the appellant but since this was not done and he was not provided an opportunity either to defend himself or to improve his work and conduct, it was recommended that the adverse remarks should be ignored. With these observations the Committee recommended re- instatement of the appellant with effect from 14-10-1953, the date on which he was relieved of his charge. The appellant was subsequently reinstated vide order of the C. C. F. Dated 17-9-1955 with the observation that the period from 14-10-1953 to the date of his re-instatement will be treated as leave with pay and suitable action will be taken to have this period condoned for the purpose of pension. The appellant vehemently submits that his re-instatement was the result of impartial consideration of his case after Mian Mushtaq Ahmad was removed from the scene and his influence became extinct. The appellant on his re-instatement started re-agitating the case of his promotion to class II based upon the earlier advice dated 21-2-1951 of the P. S. C. It may be observed that during' the period of compulsory retirement of the appellant, another advice from the P. S. C. Dated 13; 8-1954 was obtained in which it was stated that the appellant along with two Forest Rangers was interviewed earlier but there was nothing on record to show what had transpired at the interview and on what basis the previous Commission decided to recommend the appellant for promotion. It was observed by the Commission that the record of the officers was chequered and that "the present Commission have however no hesitation in saying that on the basis of his record alone they would not have recommended S. Ghazanfar Ali for promotion".
4. The appellant vide his representations dated 3-12-1958 and 4-4-1961 continued to claim promotion to Class II from 2-10-1950, the date from which his junior Kb. Muhammad Afzal was so promoted, and consequent promotion to Class I service with effect from 9-12-1958, the date on which his next junior was promoted to that class. Further representations of the appellant which appear to have been made, were rejected by the Government through letter dated 21-12-1965 (Annex. 'S' on record) on the ground that the P. S. C. Had not considered him fit for promotion presumably in their subsequent advice of 13-8-1954. It was further mentioned that his name had again been referred to the P. S. C. And, therefore, he should await the outcome of the same. The appellant having failed to obtain Departmental redreas, appears to have filed a complaint in the Complaint Cell on 27-9-1971 and the case was examined in the Department by the Cell in a number of sessions in which apart from the appellant the representatives of the Agriculture Department and the P. S. C. Also participated and the Cell finally observed that there was hardly any justification for not promoting the appellant to Class II immediately after the advice of the P. S. C.
Dated 21-2-1951 in his favour. The Agriculture Department was directed to re-examine the case and send a final reply. The Department, however, stuck to their view that the appellant had an unfavourable record of service and did not deserve promotion and they relied upon the advice of the P. S. C. Tendered in 1954 being later in point of time and so had the effect of superseding the earlier advice of 1951.
5. The appellant was, however, eventually promoted to Class II firstly on ad hoc basis under notification of 11-7-1966 and later on regular basis with effect from 22-6-1965 vide notification dated 7-9-1972 (it may be observed that the appellant in the meantime had retired from service on superannuation on 23-12-1960. Receiving no reply from the Complaint Cell to his complaint, he represented to the Government on 7-4-1975 in reply to which he received a letter dated 22-5-1975 from the Forestry & Wild Life Department with which a copy of letter dated 21-8-1974, addressed to the Complaint Cell, was enclosed. He also served a legal notice on the Government on 10-9-1975 pressing for a decision on his representation dated 7-4-1975 but without any response. The appellant impugns before us the letter dated 19-1-1973 of the Agriculture Department endorsing a copy of their letter to the Complaint Cell (S. & G. A. D.) stating that in view of the unsatisfactory record the appellant "did not deserve more than what has already been given to him. So far as this department is concerned the case of Mr., S. Ghazanfar Ali may be, taken as a closed chapter" lie also impugns the letter dated 22-5-1975 of the Forestry & Wild Life Depart--ment enclosing a copy of their letter dated 21-8-1974 addressed to the Complaint Cell- holding the view that the advice of the Commission tendered in favour of the appellant in February 1951 stood superseded by their subsequent adverse advice in 1954 and could not be now invoked in favour of the appellant.
6. It is argued on behalf of the appellant that but for the mala fides on the part of his departmental superiors as narrated above, he would have been promoted as E. A. C. F. In Class II on the advice of the P. S. C. Tendered in his favour on 21-2-1951. Thus it is pleaded that the refusal of the Department to promote him is vitiated by mala fide. It is also alleged that the adverse reports in his record have been introduced illegally on subsequent dates by forgery and interpolation and any decision based on such reports is illegal. With regard to the advice of the P. S. C. Dated 13-8-1954 it is submitted in the first place that the earlier advice in favour of the appellant was the result of an interview in which the qualities of the appellant other than his record were also assessed and the same advice was re-affirmed in categorical terms twice thereafter vide their letters of 11-6-1951 and 21-8-1951 so that the subsequent advice of 13-8-1954 which was expressly the result of a perusal of record only stating that there was no record of what had transpired in the interview, could not be relied upon in preference to the earlier advice. Secondly, it is argued that having once tendered an advice in favour of the appellant the P. S. C. Had no locus standi to recall its earlier advice which was thus illegal and without any jurisdiction. For this proposition the Lahore High Court case reported as NLR 1978 L & 'S L R 111 is relied upon, which has also been followed by this Tribunal in Case No. 164/547 of 1975 (Muhammad Ashraf v. Secretary, to Government of Punjab, Agriculture Department).
7. In reply, it is vehemently argued by the respondents that the advice of the P. S. C. Dated 13-8- 1954 was subsequent in point of time to the advice tendered by the Commission on 21-2-(951. And the Commission was quite aware of its earlier advice while tendering the same and was thus in super session of the earlier advice and it was perfectly legal to act upon the same advice. While conceding that authentic copies of the A. C. Rs. Of the appellant were not available beyond 1933, it is argued that the appellant had an unwholesome record and was not fit for promotion and was thus rightly not promoted.
8. It is also stated that the record regarding the alleged incidents qua Mian Mushtaq Ahmad on which the appellant bases his allegations of mala fide is not now' available as the incidents are very old and moreover there are some oral assertions which are not a matter of record. Similarly the allegations of introducing adverse reports by forgery and interpolation by and at the behest of Mian Mushtaq Ahmad and of non-communication of adverse remarks are neither admitted nor denied on the ground that the record of A. C. Rs. Is not available. It is also submitted that the case involves determination of fitness for promotion and thus the jurisdiction of this Tribunal to adjudicate upon this issue is barred by section 4 of the Punjab Service Tribunal Act. ,
9. We have heard the parties at length. Admittedly, the advice, favourable to the appellant for promotion to Class II was tendered by the P. S. C. On 21-2-1951. The Department have not been able to advance any cogent reason for not acting upon the advice and instead making back reference to the Commission. The allegations of mala fide against Mian Mushtaq Ahmad have neither been defined nor admitted by the Department due to lack of record and on the ground that the incidents are quite old. From the conduct of the Department in dilly dallying in the case of promotion of the appellant despite the advice by the P. S. C. Which was reiterated twice thereafter on back references of the Department, we feel that same are not wholly unfounded though lacking in proof positive. In this context we find considerable weight in the observation of the Complaint Cell in their letter of 7-11-1972, after thorough examination of the case in a number of sessions in the presence of all the parties, i. e., the appellant, the representatives of the P. S. C. And the Department, which we may reproduce below - "It is felt that had the Administrative Department taken action on the advice/recommendations made by the Commission in 1951 S. Ghazanfar Ali Shah would have been promoted and the question of withdrawal of Commission's recommendations of 1951 in 1954 could not arise.
This Cell is, therefore, constrained to observe that there was hardly any reason for not promoting the complainant immediately after 21-2-1958. Syed Ghazanfar Ali Shah deserved promotion to class II from the date of first vacancy occurring after the advice of the Commission dated 21-2- 1951."
It has been conceded by the Department that the A. C. Rs. Of the appellant are not now available.
This was also noted by the Complaint Cell in their letter of 2-3-1975. It was observed that "character roll now furnished by the Agriculture Department contains cards from pages 1 to 59 which have not been signed by the competent authority nor they have been authenticated by any responsible officer ......The original record from which these cards were prepared, are neither available with the Chief Conservator of Forests, Lahore Region, nor in the Agriculture Department and has, therefore, shown its inability to authenticate the cards placed in the Character Roll of the retired officer." The Complaint Cell further goes on to state in the same letter as below:- "It appears that the service record of Mr. Ghazanfar Ali was almost satisfactory in 1951, when the Public Service Commission recommended his promotion to W. P. F. S-II on the basis of his qualifications, experience and service record as indicated in Commission's letter No. 8412-P. S. C. S. A. P. 51/568-C, dated 21-6-1951. This induces to a suspicion that the service record produced before the Commission in 1954, has been altered to the detriment of the complainant with a view to depriving him of his legitimate right of promotion in 1951. The administrative Deptt. Has gone out of its way to effect withdrawal of thrice repeated advice of the Public Service Commission recommen--ding the promotion of the complainant."
10. In view ' of the circumstances narrated above, we find considerable weight in the plea of mala fide raised by the appellant. In this context it will not be out of place to appraise .The advice tendered by the Commission on various dates. The first advice dated .21-2-1951 runs as under :- "I am directed to state that the Punjab and N.W. F. P. Joint Public Service Commission interviewed Messrs Ghazanfar Ali and Muhammad Afzal 1, on 23rd January, 1951, and Kh. Muhammad Afzal II, on 25th January, 1951. They do not consider Muhammad. Afzal I. Suitable for promotion as temporary E.
A. C. Forests.
As regards Messrs, Ghazanfar Ali and Kh. Muhammad Afzal II, their record is mixed-good entries as well as bad and the latter had been interviewed in 1949, and declared unsuitable.
S. Ghazanfar Ali is senior to Kh. Muhammad Afzal 11, and the Commission consider that he should not be superseded by Kh. Muhammad Afzal TI. They accordingly advise that S. Ghazanfar Ali may be promoted as temporary Extra Assistant Conservator of Forests."
The above advice was re-affirmed in very positive terms by the Commis--sion in their references dated 11-6-1951 and 21-8-1951 and it would be relevant to produce them below:- "Commission still not clear about the suitability of Kh. Muhammad Afzal 11, they advised that the Senior Forest Ranger S. Ghazanfar Ali should not be superseded by Kh. Muhammad Afzal II. They accordingly recommended him for promotion as E. A. C. Forests."
That their advice was given after duly considering the qualifications, experience and the record of Messrs S. Ghazanfar Ali and Kh. Muhammad Afzal 11 and they reiterated their previous decision, that Ghazanfar Ali who is senior to Kh. Mohammad Afzal 11, be promoted as temporary E. A. C. Forests.
The Commission do not consider Kh. Muhammad Afzal 11 on his present record, suitable for promotion as E. A. C. Forests."
The above advice was rendered quite obviously after a thorough reconsideration of the matter on the basis of personal interview with the appellant. Subsequent advice of 13-81954 on which respondents rely for denying promotion to the appellant runs as under:- "I am directed to inform you that the relevant record in the Commis--sion's office shows that S. Ghazanfar Ali was interviewed by the then Commission along with two other Forests Rangers.
There is however nothing to show what transpired at the interview and on what basis the previous Commission decided to recommend S. Ghazanfar Ali.
The Commission consider that the words 'Their record is mixed-good entries as well as had' do not mean that the record of the officers got mixed up. They only mean that these officers had earned both good and bad reports.
The present Commission have, however, no hesitation in saying that on the basis of his record alone, they would not have recommended S. Ghazanfar Ali for promotion."
11. It is quite clear from the above advice that it was tendered without the advantage of the impressions gained by the Commission earlier by a personal interview with the appellant and was expressly based entirely upon the record of the appellant. Evidently the first advice was more comprehensive and more reliable than later one as it was based upon assessment of qualifications, experience in addition to the record. On this account the subsequent advice is liable to be ignored.
12. We also find substance in the arguments of the appellant that having once tendered advice the P. S. C. Had no locus standi to recall the same and tender a fresh advice to the detriment of an individual. We feel e that the ratio of case cited as PLD 1978 Lah. 1 Iis attracted to this case.
It was observed by his Lordship that "The only ground disclosed is that the Commission happened to examine the Character roll of the petitioner subsequent to .The making of the recommendation. In the first place, if there had been an omission to examine the record which was germane or relevant to the decision that a note should have been recorded that the decision communicated or the recommendation made were tentative subject to the examination of the record of service of the petitioner. No such reservation having been made or condition indicated and the service record being already in the office of the Commission the reason given out for altering a formal advice duly communicated does not hold good."
The above ratio is applicable in the instant case before us with all the more force as here the Commission tendered a second advice without any additional data before them but rather with the disadvantage of absence of a personal interview with the appellant. In respectfully following the above ratio we hold that after tendering the first advice dated 21-2-1951 the Commission had become functus officio thereafter and their subsequent, advice dated 13-8-1954 had no legal basis and was illegal, void and of no effect.
13. We also do not find any force in the contention on behalf of the recondents that the jurisdiction of this Tribunal is barred in this case by proviso (b) to section 4 of the Punjab Service Tribunal Act, 1974 as it related to the determination of the fitness for promotion of an individual. In this case we are of the view that the determination of fitness of the appellant had already taken place on 2 [-2- 1951 through the advice of the Commission and did not remain as issue thereafter. The intransigence of the Department in accepting and implementing the determination do not have the effect of rendering the determination once made as null and void. We, therefore, repel the aforesaid arguments of the respondents.
14. The upshot of the above discussion is that the appeal is allowed to the extent that the department shall process the case of the appellant in light of the Public Service Commission's advice dated 21-2-1951 and ignoring the subsequent advice dated 13-8-1954 and all subsequent orders to be contrary are set aside. The appellant will be entitled to all consequential benefits.
Parties may be informed accordingly.