RASHID ALI MIRZA, MEMBER - This appeal is directed against the original impugned Notification dated 25.5.2004 whereby appellant was reverted from the post of Assistant Director (B-17) to the post of National Savings Officer (B-17 Selection Grade). Feeling aggrieved, appellant preferred departmental appeal on 8.6.2004 which evoked no response within statutory period of 90 days.
2. Relevant facts for the purpose of disposal of the instant appeal are that appellant joined National Savings Organization in the capacity of National Saving Officer (B-11 in 1973) and gradually promoted to the post of Assistant Director (B-17) as per Notification dated 12.9.1984 subject to passing departmental examination. The appellant passed such departmental examination during probation period, however, during probation period appellant was reverted to the post of National Saving Officer vide order dated 10.9.1986, without assigning any reason, against which' appellant preferred Appeal No. 7(K)(CS)/1987 before this Tribunal, but could not succeed as the reversion order was passed during probation period without stigma. Appellant was then proceeded against departmentally on petty charges of over payment of Rs. 2,400/.- for the. Period of last twelve years at different National Saving Centres, vide charge-sheet dated 22.2.1987. The said proceedings remained pending for quite long period of 8 years and finally appellant was exonerated from the charge vide order dated 31.5.1995. Thereafter, appellant was awarded. Selection Grade-17 ' (w.e.f, 13.6.1995 vide Notification, dated 12.9.1996). He was also granted move-over from B-16 to El- 17 w.e.f.
1.12.1993 vide letter dated 28.2.1998. He was, however, not considered for regular promotion to the post of Assistant Director (B-17) because of pendency of departmental proceedings.
3. After more than 14 years, appellant was again considered and found fit for promotion and thus promoted to the post of Assistant Director (B-17) vide Notification dated 19.9.2000 but again the promotion was made subject to passing departmental examination, which in fact, appellant had already cleared and passed. Appellant while on probation was granted move-over from B-17 to B- 18 w.e.f. 1.12.1998 vide letter/order dated 1.2.2002. Appellant was, however, forced to appear and pass/clear the departmental examination, which he had already passed and cleared in 1986. On 18.9.2002 appellant's probation period was also over, but suddenly he was served with a show- cause notice dated 7.8.2003 (i.e. Much after the expiry of probation period) alleging that appellant failed to pass/clear departmental examination, which the appellant replied on 30.8.2003 explaining each and every detail and stated that since he had already passed/cleared the, departmental examination, therefore, he was not required to pass/clear the same once again. His reply was not found satisfactory arid ultimately by order dated 25.5.2004 he was awarded penalty of reversion from the post of Assistant Director (B-17) to that of National Saving Officer (B-17).
4. In support of appeal, learned counsel for the appellant vehemently argued that the impugned Notification is illegal, mala fide, passed in utter violation of the principles of natural justice. He submitted that appellant had already passed the requisite departmental examination in the year 1986 and was thus not required to pass/clear the same again and that the very condition imposed in the promotion order dated 19.9.2000 was in violation of the law/rules. He further contended that impugned action was taken at a very belated stage after completion of probationary period inasmuch as the action was initiated after nearly two years thereof, which was not warranted by law. He also stated that impugned notification of reversion was in conflict with Fundamental Rule 29 which provides that period for which the reversion would remain effective must be mentioned in the order, but no such, period has been mentioned in the impugned notification. Lastly he submitted that appellant was discriminated as several of his colleagues namely M/s. Ejaz Ahmed Qureshi, Agha Najeeb-ur-Rehman and Mrs. Shahida Waseem who too were promoted as Assistant Directors like appellant but neither they had appeared in the departmental examination nor cleared the same and no action of whatsoever nature has been taken against any of them, which means that respondents with ulterior motives adopted policy of pick and choose. He relied upon (i)
PLD 1986 SC 837 (ii) 2000 PLC (C.S.) 413 (iii) 2002 SCM R 775 and (iv) 2004 SCM R 647.
5. In rebuttal, learned Standing Counsel appearing for the respondents while referring and relying upon the written comments filed on behalf of the respondents/department contended that appellant was supposed to pass the departmental examination when he was promoted afresh but he without any reason failed to appear and clear the departmental examination, as such, the' department was very much justified to revert the appellant to lower rank of National Savings Officer. He submitted that other employees were granted exemption from passing the departmental examination by the competent authority but no such relaxation/exemption was ever granted to the appellant.
6. We have carefully considered the above submissions, minutely perused the case papers and have gone through the case-law referred to by appellant's learned counsel.
7. There is no denial of the fact that appellant was earlier promoted to the post of Assistant Director (B-17) subject to passing necessary departmental examination during probation period, which' he successfully passed. However, during that probation period appellant was reverted back. He challenged such order but failed to succeed in his earlier Appeal No. 7(K)(CS)/1987 before this Tribunal. Appellant was then proceeded against departmentally in 1987 which proceedings remained pending for pretty long time of 8 years and ultimately culminated in favour of the appellant as he was not guilty and thus exonerated in 1995. Despite such exoneration and clean service record appellant was not considered for promotion but at least appellant's efforts became fruitful and he was promoted to the post of Assistant Director (B-17) vide Notification dated 19.9.2000. This time too a condition was imposed that he should pass departmental examination which in fact he had already , cleared. He resisted the pressure of the department and successfully completed the probation period on 18.9.2002. However, much after the expiry of said probation period, appellant was served with a show-cause notice and finally he was reverted back to the post of National Savings Officer vide impugned Notification dated 25.5.2004.
8. A. Careful scrutiny of the record made available before us clearly reveals that some interested elements with certain ulterior motives were behind the appellant to oust him from service on one or other pretext, which finds support from the fact that earlier appellant was dragged into disciplinary proceedings for about eight years on a very petty charge of over payment of meager amount of Rs. 2,400/- for the period, of last several years at different National Savings Centres. This time he was reverted on ill-founded ground that he had failed to pass the departmental examination which as a matter of record he had already passed and Cleared and under the Rules he was not supposed to pass/clear the same once again. In this regard Section 6 of Civil Servants Act, 1973 is very much dear on the point of probation and passing of departmental examination.
"PROBATION Persons appointed by promotion or direct recruitment or by transfer shall be on probation for a period of one year. This period may be curtailed for good and sufficient reasons, to be recorded; or, if considered necessary it may be extended for a period of not exceeding one year as may be prescribed at the time of appointment or during the probation period. Appointment on probation shall be subject to - the provisions of Section 6 of Civil Servants Act, 1973, read with Rule 21 of Civil Servants , (Appointment, Promotion and Transfer) Rules, 1973.
Section 6 of the Civil Servants Act, 1973 is reproduced as under:-- SECTION 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) Any appointment of a civil servant by promotion or transfer to a service or post may also be made in 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 of successfully 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: Provided that, in the case of initial appointment to a service 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 appointing authority."
There is nothing in the rule to say that the incumbent has to pass/clear the examination twice.
9. It is pertinent to point out here that appellant was highly discriminated. As Mis. Ejaz Ahmed Qureshi, Agha Najib-ur-Rehman Mrs. Jamila Azhar and Mrs. Shahida Waseem who were promoted to the post of Assistant Director (B-17) like appellant, but appellant was reverted on flimsy ground that he failed to pass the requisite examination, although he had passed the same earlier and was not supposed in any way and manner to clear/pass the same once again. Such acute discrimination meted put to appellant was clearly in violation of the provisions of Articles 4 and 25 of the Constitution of 1973. Reference in this regard is invited to the cases reported as PLD 1996 SC 837 and 2000 PLC (C.S.) 413. Besides, fundamental Rule 29 has also been violated which prescribes that in case of reversion to a lower post, the period for which such reversion remain in field must be specified. In this connection reference is made to 2002 SCM R 775 and 2004 SCM R 647. Admittedly, in the case of appellant no such period has been specified.
10. The upshot of the above discussion is that Notification dated 25.5.2004 being illegal and ultra Vires is hereby set aside and appeal is accepted. Resultantly, the appellant is directed to be restored to the post of Assistant Director (B-17) from the date of reversion with all back and consequential benefits.
11. Copies of judgment be sent to the parties under registered cover and to the relevant quarters under Rule 21 of Service Tribunal (Procedure) Rules, 1974.