Rashid Mahmood Ansari, Member--By this single judgment, we intend to dispose of 'both the captioned appeals as they involve similar questions of law and facts.
2. Appeal No, 303(R)/CS/2000 has been' filed against Memorandum dated 7.1.2004 whereby request of the appellant for actualization of Selection Grade (BS-18) w,e,f, 15.2.1995 has not been acceded to by Respondent No, 1 against which appellant's departmental appeal dated 26.1.2000 remained unresponded.
3. Appeal No, 563(R)/CS/2001 has been filed against Narcotics Control Divisions Notification dated 3.5.2001 whereby the appellant has been reverted from the post of Deputy Director (BS-18) to the post of Assistant Director (BS-17) w,e,f, 15.4.1999 against which his departmental appeal dated 26.5.20001 was not responded to.
4. Briefly stated, the facts of the cases, as given in the aforementioned appeals, are that the appellant joined the Government of Balochistan as Veterinary Officer (BS-17) on ad-hoc basis w.e.f 17.3.1982 and his services were regularized w.e,f. 14.6.1982. At the request of the Administration of Islamabad Capital Territory, his services were placed at the disposal of the said Administration w,e,f, 29.7.1986 vide Notification dated 10.8:1986. He was then posted on deputation to Section Officer on 7.6.1989 in the Livestock Division. Subsequently the Establishment Division initiated the process of induction of a number of office including the appellant in the Office Management Group but before the appellant's induction could be finalized, the Establishment Division in response to the Narcotics Control Division's request dated 20.10.1994 placed the services of the appellant at the disposal of the Narcotics Control Division for further posting as Assistant Director (BS-17) in the Anti Narcotics Task Force (ANTF) vide Notification dated 16.1.1995. It was further clarified in para 2 of the said Notification that he served all connections with OMG and that his terms and conditions for posting in ANTF would be settled with the Government of Balochistan by the Narcotics Control Division. Being aggrieved by this condition in the aforementioned Notification, the appellant filed Appeal No 193(R)/1995 in this Tribunal which was decided vide judgment dated 25.7.1995 whereby the case was remanded to the Establishment Division for considering the case of the appellant for induction in the OMG without discrimination. It was appealed against by the Establishment Division vide Civil Petition No, 574/1995 which was decided vide order dated 13.5.1996 of the Apex Court whereby the judgment of this Tribunal was set aside and the case was remanded to this Tribunal to decide the jurisdiction issue in the first instance as to whether the appellant had a right to approach the FST for redressal of his grievance. This Tribunal vide judgment dated 24.10.1996 ruled that the appellant, not being a civil servant within the meaning of proviso (b) to sub-section (1) of Section 2 of the Civil Servants Act 1973 could not invoke the jurisdiction of this Tribunal and the appeal was accordingly dismissed. The appellant challenged the FST's judgment ibid before the Apex Court vide Civil Petition No, 03/1997 which was dismissed as withdrawn vide Order dated 15.1.1998 since the petitioner had in the meanwhile been absorbed in the ANF and had therefore requested for permission to withdraw the petition.
5. The appellant was granted Move Over from BS-17 to BS-18 w,e,f, 1.12.1994 vide the Narcotics Control Division's letter dated 30.8.1995. Subsequently, pursuant to the approval of the competent authority as conveyed vide Establishment Division's Office Memorandum and 25.10.1997, the appellant was appointed by transfer as Assistant Director, ANF on regular basis w.e.f 25.10.1997 vide Narcotics Control Division's Notification dated 29.10.1997. Incidentally, the Livestock and Dairy Department (Government of Balochsitan) granted Selection Grade (BS-18) in absentia to appellant w,e,f, 15.2.1995 vide Notification dated 30.10.1997. Accordingly the AG PR issued the revised pay slip dated 8.11.1997. On this basis the appellant reached the maximum of pay scale in BS-18 w.e.f 1.12.1995 and therefore the Selection Committee in the Narcotics Control Division recommended grant of Move-Over from BS-18 to BS-19 w.e.f 1.12.1996 to the appellant vide minutes dated 27.5.1999.
However it has not been actualized till date.
6. Consequent to the grant of Selection Grade (BS-18) in absentia w,e,f, 15.2.1995, by the Government of Balochistan, the appellant requested the respondents vide application dated 26.11.1997 that he may be given the charge of the post of Deputy Director (BS-18) on regular basis to actualize Selection Grade (BS-18) granted by Government of Balochistan in absentia. The ANF recommended to the Narcotics Control Division vide UO Note dated 25.6.1998 that the appellant be adjusted as Deputy Director instead of Assistant Director w.e.f: 25.10.1997 (i,e, The date of his permanent absorption in ANF). It was also mentioned therein that one Mr. Bashir Alam Gandapur was also inducted by permanent transfer as Deputy Director. The Establishment Division advised vide UO Note dated 18.9.1999 that the Selection Garde granted to the appellant by the Government of Balochistan can be actualized if the ANF upgraded with the approval of the competent authority the post of Assistant Director from BS-17 to BS-18 w,e,f, 15.2.1995 as personal to the appellant and his pay may be protected vide FR-22 (a) (ii) read with proviso to Section 10 of the Civil Servants Act, 1973 initially as Assistant Director (BS-17)' w,e,f, 25.10.1997 (i,e, The date of his induction in ANF) and consequently in BS-18 w,e,f, 15.2.1995 (i,e, The date on which he was granted BS-18 as Selection Grade in his parent department i,e, Livestock and Dairy Development Department. However the Narcotics Control Division turned down the request of the appellant vide Memorandum dated 17.1.2000. He filed a departmental appeal dated 22.1.2001 which has remained unresponded.
However the appellant was eventually granted BS-18 by way of promotion as Deputy Director on acting charge basis with immediate effect vide Narcotics Control Division's Notification dated 15.4.1999.
7. The appellant was reverted from the post of Deputy Director (BS-18) to the post of Assistant Director (BS-17) w.e..f 15.4.1999 vide Narcotics Control Division's Notification dated 3.5.2001 against, which his departmental appeal dated 26.5.2001 has not been respondent within the statutory period of 90 days. Hence Appeal No, 563(R)(CS)/2001. Incidentally the appellant had been promoted on acting charge basis with immediate effect vide Notification dated 15.4.1999 wherein it had been stipulated that the appellant's promotion on acting charge basis will be subject to reversion in case of decision of the Hon'ble Supreme Court of Pakistan in favour of Syed Iftikhar Hussain Gillani (Respondent No, 5) and approval of the competent authority to his appointment as Assistant Director (BS-17) followed by his promotion and non-availability of vacancy of Deputy Director for promotion of Syed Iftikhar Hussain Gillani.
8. Since the appellant's revision to the post of Assistant Director had a nexus with the promotion of Syed Iftikhar Hussain Gillani to the post of Deputy Director (BS-18) it would be apt to briefly recapitulate the background of the latter's case. Syed Iftikhar Hussain Gillani had joined the Pakistan Narcotics Control Board as Field Investigating Officer (BS-11), was subsequently posted as Junior Instructor (BS-14) vide Office Order dated 22.10.1984 and then promoted as Senior Instructor (BS-16) vide Notification Dated 17.11.1986. On up-gradation of the post of Senior Instructor to BS-17, he was appointed against the upgraded post vide Notification dated 3.10.1994. Incidentally, one, Mr. Siddique Gohar Khan, was also in BS-16 being a regular nominee of ,FPSC, but was not considered for posting against the upgraded post. The latter filed an Appeal (No, 25(R)/1998) in this Tribunal which was decided vide judgment dated 10.6.1998 whereby the appointment order of Syed Iftikhar Hussain Gillani in BS-17 was set aside and the case of Mr. Siddique Gohar Khan as well as those who were eligible for appointment against the upgraded post in BS-17 was remanded to the departmental authority. Mr. Iftikhar Hussain Gillani filed CPLA No, 944/1988 in the Apex Court which was decided vide judgment dated 5.5.1999 whereby leave to appeal was not granted since the matter had stood remanded to the departmental. However there was no further progress in the matter and Mr. Siddique Gohar Khan therefore filed a Writ Petition No, 1478/2000 in the Hon'ble Lahore High Court (Rawalpindi Bench) for implementation of the FST's judgment, upon which report and comments were called from the respondents. Eventually vide Narcotics Control Division's Notification dated 3.5.201,1 Syed Iftikhar Hussain Gillani was regularized as Assistant Director (BS-17) w,e,f, 13.9.1994 and his promotion as Deputy Director BS-18 was also approved w,e,f, 15.4.1999.
Resultantly the appellant. in Appeal No, 563 (R)CS/2001 (Dr. Iftikhar Ahmad) was reverted to the post of Assistant Director from the date of the promotion of Syed Iftikhar Hussain Gillani as Deputy Director (BS-18) w.e.f 15.4.1999.. The appellant filed the departmental appeal dated 26.5.2001 which remained without any response.
9. The appellant was transferred and posted to Regional Directorate ANF, Quetta vide Ministry of Interior and Narcotics Control's Notification dated 10.9.2001.. Subsequently vide Narcotics Control's Notification dated 7.12.2001 the appellant was repatriated to the Establishment Division. However in compliance with the Chief Executive Secretariat's OM No, 445-15/SO-A-I dated 20.1.2002, the Narcotics Control Division issued another Notification dated 20.2.2002 whereby the earlier Notification dated 7.12.2001 was cancelled and the appellant was appointed as OSD in the Narcotics Control Division. Eventually the Establishment Division vide Notification dated 6.3.2002 posted the appellant under Section 10 of the Civil Servants Act, 197a as Section Officer in the Kashmir Affairs Division for a period of 3 years.
10.In the meanwhile Mr. Siddique Gohar Khan filed an appeal (No, 495(R)CS/2000) in this Tribunal against the promotion of Syed Iftikhar Hussain Gillani as Deputy Director (BS-18) which has been decided vide judgment dated 24.4.2007 whereby the respondents were directed to palce the case of Mr. Siddique Gohar Khan before the DPC for consideration of promotion to BS-17 against the upgraded post in BS-17.
11.Mr. Abdur Rahim Bhatti, Advocate argued for the appellant. He submitted that the advice of the Establishment Division as contained in their UO No, 32/4/97-CP-4 dated 18.9.1999 supra for actualisation of Selection Grade (BS-18) w,e,f, 15.2.1995 had been ignored by Respondents No, 1 and 2 even though the said advice had been given under Rule 11 of the Rules of Business. The learned counsel also submitted that significantly in the written comments submitted by the Establishment Division (Respondent No, 3), they have again reiterated their view as contained in their UO Note dated 18.9.1999 ibid. The learned counsel pleaded that it was for Narcotics Control Division to resolve this issue on the basis of the advice of the Establishment Division and the Finance Division.
12.As regards the case of the appellant against his reversion from the post of Deputy Director (BS-18) to the post of Assistant Director (BS-17)) vide Notification dated 3.5.2001, the learned counsel for appellant submitted that in the light of this Tribunal's judgment dated 24.4.2007 in Appeal No 495 (R)CS/2001, whereby the promotion of Syed Iftikhar Hussain Gillani against the upgraded post of Senior Instructor (BS-17) had been considered as questionable, it can be inferred that the Respondents No, 1 and 2 were biased in favour of Syed Iftikhar Hussain Gillani and had acted with mala fide towards the appellant. He also referred to the advice of the Establishment Division contained in the Establishment Division's Office Memorandum No, 32/4/97-CP-4 dated 11.1.2002 wherein it was advised that after the dismissal of Civil Petition No, 944/1998 of Syed Iftikhar Hussain Gillani by the Hon'ble Supreme Court of Pakistan and completion of 5 years service as Assistant Director in ANF by the appellant, his promotion as Deputy Director (BS-18) may be notified on regular basis w.e.f 16.1.2000 in accordance with therein earlier advice dated 14.4.1999. The learned counsel pleaded that according to the statement of Manpower, Regional Directorate, ANF (Region) for the month of August 2001, one post. of Deputy Director was vacant and instead of reversion, Syed Iftikhar Hussain Gillani could have been adjusted against the vacant post. He also argued that it had been the consistent view of Establishment Division that it was necessary for the Narcotics Control Division to formally cancel/supersede the Narcotics Control Division's Notification dated 3.5.2001 and issue a fresh Notification restoring the rights and status of the appellant. The learned counsel further argued that reversion to a lower post is a major penalty which was imposed on the appellant without issuance of show-cause notice, nor was he given a personal hearing which meant that he had been condemned unheard. He also argued that the Notification dated 15.4.1999 regarding his promotion to the post of Deputy Director (BS-18) on acting charge basis could not be withdrawn since under the principle of locus poeintentiae, the said Notification had created certain rights for the appellant which could not be legally taken away.
13.Mr. Javed Aziz Sandhu, Advocate argued on behalf of Respondent No, 3 and submitted that the Establishment Division had consistently supported the case of the appellant formally and referred to Rule 11 of the Rules of Business which provides inter alia that no Division shall without consultation with the Establishment Division issue or authorize to issue any order other than orders in pursuance of any general or special delegation made by the Establishment Division which involves a change in the terms and conditions of service or change in the statutory rights and privileges of a civil servant. According to him the advice of the Establishment Division in both the cases of Dr. Iftikhar Ahmad was binding on the Narcotics Control Division.
14.Hafiz S.A. Rehman, Advocate argued on behalf of Respondents No, 1 and 2. Referring to this Tribunal's judgment dated 24.10.1996 in.Appeal No, 193(R)/1995, he stated that the appellant had never been permanently absorbed in the OMG and therefore the appeal filed by the appellant had been dismissed due to lack of jurisdiction as the appellant was not a civil servant in terms of the Civil Servants Act, 1973. Even the Civil Petition No, 03/1997 filed by the appellant in the Apex Court had been dismissed as withdrawn vide order dated 15.1.1998. He further contended that the lien of the appellant to a post in the Government of Balochistan had never been terminated, nor even the terms and conditions of the appellant for his absorption in the Federal Government ever settled between Federal Government and the Government of Balochistan. Accordingly, the learned counsel contended that the instant appeal is not maintainable since the appellant remains an employee of the Government of Balochistan as his lien has not yet been terminated. He further argued that the appellant had been promoted as Deputy Director (BS-18) on acting charge basis vide Notification dated 15.4.1999 which does not confer a vested right in favour of The appellant as according to Rule 8-B(6) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the acting charge appointment does not amount to appointment by promotion on regular promotion basis for any purpose including seniority. He also contended that in terms of the FPSC (Functions) Rules, 1978, also, the appellant's promotion could not be termed as promotion on regular basis. Nor had the promotion been regularised through the FPSC. As regards the applicability of the rule of locus poenitentiae, the learned counsel stated that if the order is illegal, no perpetual rights could accrue and relied on the ruling of the Apex Court in the case reported as 2005 SCM R 1814. According to him the appellant had not been promoted on regular basis and therefore his reversion to a lower post did not warrant prior issuance of show-cause notice or giving of personal hearing. Mr. Mushtaq Ahmad Bhatit, Advocate who appeared on behalf of Respondent No, 5 adopted the arguments of Hafiz S.A. Rehman.
15. In rebuttal, the learned counsel for appellant stated that for appointment by promotion or transfer, it was not necessary to refer the case to the FPSC as per Rule 3(1)(a) of the Civil Servants
(APT) Rules 1973. He further argued that according to Section 8(4) of the Civil Servants Act 1973, seniority in a post of service or cadre to which a civil servant is promoted takes effect from the date of regular appointment to that post and according to him since the appellant was absorbed in ANF vide Notification dated 29.10.1997 his seniority shall be counted as Assistant Director w.e.f 25.10.1997.
Referring to the consultation between the Narcotics Control Division and the Establishment Division in regard to the cases of the appellant, the learned counsel stated that the.advice of the Establishment Division was binding and relied on the case reported as PLD 1981 Supreme Court 172 and 1995 SCM R 1647. He also stated that the reversion of the appellant was penalty mala fide and cited the ruling of the Apex Court in the case reported as 1990 SCM R 999.
16.We have heard the learned counsel for the appellant and the respondents. We have also carefully perused the record.
17.The appellant has two grievances. The first grievance arose when his request dated 26.11.1997 for actualization of Selection Grade (BS-18) granted to him in absentia w,e,f, 15.2.1995 vide notification dated 30.10.1997 by the Government of Balochistan while he was serving on deputation in the ANF/Narcotics Control Division as Assistant Director (BS-17), was turned down by Respondent No, 2 vide Memorandum dated 7.1.2000. Hence Appeal No, 303 (R)CS/2000. The appellant was eventually prompted to the post of Deputy Director (BS-18) in ANF on acting charge basis on 15.4.1999. His second grievance is that he was reverted from the post of Deputy Director (BS-18) to the post of Assistant Director retrospectively w.e.f 15.4.1999 vide Notification dated 3.5.2001 issued by Respondent No,
2. Hence Appeal No, 563(R)CS/2001.
18.As regards the first grievance i,e, non-actualization of Selection Grade (BS-18) w,e,f, 15.2.1995, it may be mentioned here that the appellant who had been posted on deputation in the ANF as Assistant. Director (BS-17) vide Establishment Division's Notification dated 16.1.1995, was in fact already drawing salary in BS-18 by virtue of the Move-over from BS-17 to BS-18 w,e,f, 1.12.1994 granted by the Narcotics Control Division vide its letter -dated 30.8.1995 addressed to the AGFR Islamabad. Incidentally his parent department i,e, Livestook and Dairy Development Department, Government of Balochistan granted him Selection Grade (BS-18) in absentia w,e,f, 15.9.1995 vide Notification dated 30.10.1997. It meant that the appellant was deemed to be in Selection Grade (BS- 18) w,e,f, 15.2.1995 while he was still sarong in his parent department. According the appellant had earned a right for fixation of his salary in Selection Grade (BS-18) w.e.f 15.2.1995, no matter whether he served in his parent department in the Government of Balochistan, or in the Federal Government.
19.As regards the question of actualization of the Selection Grade (BS-18) w,e,f, 15.2.1995, the Establishment Division gave an explicit advice in consultation with the Finance Division vide UO Note dated 18.9.1999 that the post of Assistant Director in ANF by upgraded from BS-17 to BS-18 w,e,f, 15.2.1995 as personal to appellant and his pay may be protected vide FR-22 (a) (ii) read with proviso to Section 10 of the Civil Servants Act 1973 But the Narcotics Control Division ignored that advice and arbitrarily turned down the request of the appellant vide memorandum dated 7.1.2000.
'We find weight in the argument of the learned counsel for appellant that the Narcotics Control Division's refusal to allow actualization of grant of Selection Grade w.e.f 15.2.1995 was in violation of Rule 11 of the Rules of Business whereby the Divisions of the Federal Government have been forbidden to issue or authorize to issue any order without consulting the Establishment which involves a change in the terms and condition of service or change in the statutory rights and privileges of a Federal Civil Servant. In case the advice of the Establishment Division was not a acceptable to the Narcotics Control Division, then the only course open to them was to refer the matter to the Prime-Minster in accordance with Rule 8(2) of the Rules of Business. The Narcotics Control Division did not follow this course and instead, arbitrarily ignored the advice of the Establishment Division and thus denied an invaluable right which in our opinion had lawfully accrued to the appellant.
20.It is also significant that the order contained in the Narcotics Control Division's Memorandum dated 7.1.2000 is not a speaking order which is in contravention of Section 24-A of the General Clauses Act w hereunder authority, office or person issuing an order is obliged to record necessary or appropriate reasons for such an order. Since the order dated 7.1.2000 is not a speaking order it can be set aide. Reliance is placed on the case reported as 1999 SCM R 2419.
21.The examination of the Notification dated 15.4.1999 regarding the promotion of 6 Assistant Directors (Bs-] 7) including the appellant to the post of Deputy Director (BS-18) reveals the following facts:-
(1) whereas 5 Assistant Directors whose names were shown above the appellant in the Notification ibid, were approved for promotion without any pre-condition, the appellant was prompted on acting charge basis since he had put in 4 years and 2 months service in ANF against the 5 years experience required for promotion from BS-17 to BS-18. Promotion on acting charge was therefore in line with Rule 8-B(1) of the Civil Servants (APT) Rules, 1973. It was indicated in the Notification ibid that the promotion on acting charge basis was till he completes the requisite length of service whereafter his promotion would stand regularized subject to satisfactory record. The words that "promotion will stand regularized" implies that the DPC had approved him for promotion on regular basis which was to take palce after he completed 5 years of service as Assistant Director (BS-17) and thus his case was not required to be resubmitted to the DPC for confirmation of his promotion.
Incidentally the respondents have at no stage expressed any reservations about his service record which meant that ipso facto his promotion to the post of Deputy Director (BS-18) stood regularized with effect from. the date he completed five years of service in January 2000 as Assistant Director (BS-17).
(ii)Appellant's promotion on acting charge basis was subject to reversion in case of decision of the Hon'ble Supreme Court of Pakistan in favour of Syed Iftikhar Hussain Gillani and approval of the competent authority to his appointment as Assistant director (BS-17) followed by his promotion to the post of Deputy Director (BS-18). Syed Iftikhar Hussain Gillani had filed CPLA No, 944/1998 against the FST's judgment dated 10.6.1998 in Appeal No, 25(R)/1998 whereby the case of promotion to the upgraded post of Senior Instructor had been remanded to the department. The Hon'ble Supreme Court of Pakistan decided CPLA No, 944/1998 vide judgment dated 5.5.1999 whereby leave to appeal was not granted since the matter had been remanded to the department. Since Syed Iftikhar Hussain Gillani had not succeeded at the forum of the Apex Court, the reversion of the appellant from the post of Deputy Director (BS-18) to the post of Assistant Director (BS-17) to make room for the promotion of Syed Iftikhar- Hussain Gillani was not called for. In fact the Establishment Division had advised the Narcotics Control Division vide Office Memorandum No, 32/P-97-CP-4 dated 11,1.2001 that after the dismissal of CPLA No, 944/1998 and completion of 5 years service as Assistant Director (BS-17) in ANF, the promotion of Dr. Iftikhar Ahmad as Deputy Director may be notified on regular basis w,e,f, 16.1.2000. Respondents No, 1 and 2 ignored this advice.
(iii)Another precondition for reversion of the appellant was that in the event of the decision to promote Syed Iftikhar Hussain Gillani to the post of Deputy Director (BS-18), a vacant post was not available. The factual position was that according to the Statement of Manpower, Regional Directorate, ANF, Rawalpindi for the month of August 2001 there were 2 authorized posts of Deputy Director, out of which one post was vacant. It means that in the presence of a vacant post, Syed Iftikhar Hussain Gillani could have been adjusted against that vacant post with the result that the reversion of the appellant to the, post of Assistant Director (BS-17) was not warranted.
22. Syed Iftikhar Hussain Gillani's services were regularized as Assistant Director (BS-17) w.e.f 13.9.1994 and he was also promoted as Deputy Director (BS-18) vide Notification dated 3.5.2001 which was assailed by Mr. Siddique Gohar Khan in this Tribunal through Appeal No, 495(R)CS/2001 which has been decided vide judgment dated 24.4.2007 whereby the respondents have been directed to place the case of Mr. Siddique Gohar Khan before the DPC for consideration of promotion to BS-17 against the upgraded .post. It can be inferred that Syed Iftikhar Hussain Gillani's regularization as Assistant Director (BS-17) w.e.f 13.9.1994 and even his promotion as Deputy Director (BS-18) w,e,f, 15.4.1999 were questionable. The obvious corollary is that the reversion of the appellant to the post of Assistant Director (BS-17) was not called for.
23.Respondents No, 1 and 2 have contended in their parawise comments that the services of the appellant were not placed at the -disposal of ANF in public interest and that in ANF he was promoted to the post of Deputy Director (BS-18) on acting charge basis inadvertently. This contention is contrary to the factual position. The appellant had not requested for posting in ANF but it was the Narcotics Control Division which had requisitioned his services vide Office Memorandum dated 20.10.1994. in fact at the time, the case of the appellant was being processed by the Establishment Division in consultation with the Government of Balochistan for his induction in the Office Management Group. However subsequent to the Narcotics' Control Division's requisition, the appellant's induction in the Office Management Group was dropped and his services were placed at the disposal of the Narcotics Control Division for further posting in ANF as Assistant Director (BS-17) vide Establishment Division's Notification dated 16.1.1995. The deficiency of officers in ANF was being made up under the directive of the Prime Minister dated 4.7.1994 for filing the posts in ANF in the minimum possible time. It is therefore obvious that the, posting of the appellant was done in public interest. We cannot also subscribe to the view of Respondents No, 1 and 2 that the appellant was promoted to the post of Deputy Director on acting charge basis inadvertently. He had been prompted pursuant to the approval of the competent authority on the basis , of the recommendation of the Promotion/Selection Committee. The appellant's promotion to the post of Deputy Director (BS-18) cannot therefore be termed as inadvertent since the same had been approved in consultation with the Establishment Division.
24.We find weight in the contention of the learned counsel for the appellant that the action of the Respondents No, 1 and 2 was patently mala fide. The respondents declined to actualize his Selection Grade w,e,f, 15.2.1995 on the ground that there was no provision of Selection Grade in ANF notwithstanding the fact that in order to remove the anomaly the Establishment Division had given their advice vide UO Note dated 18.9.1999 in favour of actualizing the Selection Grade w,e,f, 15.2.1995.
Contrary to the Rules of Business 1973, Respondents No, 1 and 2 arbitrarily ignored the advice of the Establishment-Division. The obvious purpose of reversion of the appellant Was to make a post available so as to facilitate the promotion of Syed Iftikhar Hussain Gillani. It is a pointer to the mala fide of Respondents No, 1 and 2.
25.The learned counsel for Respondents No, 1 and 2 had contended that the captioned appeals are, not maintainable since the appellant did not have the status of civil servants in terms of the Civil Servants Act 1973. He had relied on this Tribunal's judgment dated 24.10.1996 in Appeal No, 193(P)/1995 wherein it had been ruled that appellant, not being a civil servant, within the meaning of proviso (b) to sub-section (1) of Section 2 of the Civil Servants Act, 1973 could not invoke the jurisdiction of this Tribunal. However much water has since flowed under the bridge. The appellant had been absorbed in ANF on regular basis w,e,f, 25.10.1997 vide Narcotics Control Division's Notification dated 29.10.1997, by virtue of which he now comes under purview of Civil Servants Act, 1973. We therefore hold that the captioned appeals are maintainable.
26.It was also contended by the learned counsel for Respondents No, 1 and 2 that the terms and conditions of the appellant for induction in ANF l not been settled between the Narcotics Control Division and the Government of Balochistan and his lien on a post in his parent department had never been terminated. The appellant had a right of keeping lien on the post of Veterinary Officer in the Livestock and Dairy Development Department (Government of Balochistan) as long as he was serving on deputation to a post in the Federal Government. Consequent to his regular absorption in the ANF w,e,f, 25.10.1997, the post of Assistant Director (BS-17) became his substantiate post and therefore his lien on the post of Veterinary Officer in the Provincial Government lapsed. We hold that it was not necessary for the Provincial Government, to formally terminate his lien since with his absorption in ANF on regular basis, the appellant ipso' facto ceased to remain entitled to keep lien on the post in the Provincial Government.
27.The appellant has also pressed into service the principle of locus poenitentiae. He contends that invaluable rights had accrued. to him consequent to his promotion, even if on acting charge basis, to the post of Deputy Director (BS-18) vide Notification dated 15.4.1999 which . had been acted upon and therefore could not be subsequently withdrawn as locus poenitentiae is the power of receding till a decisive step is taken. It was controverted by the learned counsel for Respondents No, 1 and 2 who relied on 2005 SCM R 1814 in which it was held that if the order was illegal, then perpetual rights could not be gained on the basis of such an illegal order. Now the question is whether the order of promotion of the appellant on acting charge basis was illegal. We hold that the principal of locus poenitentiae was not available to the Respondent No, 1 and 2 since the appellant had been promoted on acting charge basis in accordance with the prescribed procedure and law. He had been absorbed against a substantive post in ANF where he had been posted vide Establishment Division's Notification dated 16.1.1995 and had put in more than 4 years of experience and therefore his promotion on acting charge basis was completely in order in terms of Rule 8-B(1) of the Civil Servants (ATF) Rules, 1973. In fact the appellant had completed the requisite 5 years of experience in January -2000 and should have been notified to have been promoted on regular basis from that date as advised by the Establishment Division vide their UO Note dated 11.1.2001 supra. In short there was nothing illegal about the promotion of the appellant on acting charge basis and the principle of locus poenitentiae was accordingly not available to Respondents No, 1 and 2. The fact of the matter is that the appellant's reversion could have been justifiable only if the conditions precedent to the promotion of Syed Iftikhai Hussain Gillani to the post of Deputy Director (BS-18) as laid down in the impugned Notification dated 15.4.1999 had materialized, the most crucial of which was the Hon'ble Supreme Court's judgment in CPLA No, 944/1998. The said judgment had gone against him whereafter the only course open to the respondents was to proceed in the matter as per judgment dated 10.6.1998 of this Tribunal in Appeal No, 25(R)/1998.
28. Pursuant to the above, the captioned appeals are disposed of in the following terms- (i)the order captioned in the Narcotics Control Division's Memorandum dated 7.1.2000 is set aside and the Selection Grade (BS-18) granted to the appellant by the Government of Balochistan (Livestock and Dairy Development Department) w.e.f 15.2.1995 shall be actualized in accordance with the advice contained in the Establishment Division's U0 No, 32/4/97-CP-4 dated 18.9.1999; (ii)Narcotics control Division's Notification dated 3.5.2001 is amended to the extent that the appellant's reversion to the post of Assistant Director (BS-17) is set aside and he stands promoted to the post of Deputy Director (BS-18) on regular basis with effect from the date he completed 5 years of service as Assistant Director (BS-17) in January 2000; and (iii)the appellant is entitled to the consequential benefits on account of (i) and (ii) above.
29. No order as to costs. Parties be informed.