MUHAMMAD JAVED ASHRAF HUSSAIN, MEMBER - This is an appeal under Section 4 read with Section 2 of the Service Tribunal Act, 1973 against the impugned order dated 26.1.2004 reverting the appellant from the post of Assistant Director (BPS-17) to that of National Savings Officer (BS-17 Selection Grade) w.e.f. 16.1.2004 in terms of provisions contained in Rule 6 of the Recruitment Rules for the posts in National Savings Organization read with Section 6(2) of the Civil Servants Act, 1973. The appellant submitted departmental representation dated 9.2.2004 for setting aside the reversion order and for restoration to the post of Assistant Director which remained un responded. After waiting for the statutory period of 90 days which expired on 9.5.2004, the appellant has filed this appeal dated 18.5.2004 before this Tribunal.
2. Briefly, the facts of the case are that the appellant was selected as National Savings Officer (BPS- 11) w.e.f. 28.11.1974 vide Government of Pakistan, Directorate of National Savings Southern Zone memorandum dated 4.1.1975. The appellant accordingly joined duty as National Savings Officer w.e.f. 28.12.1974. The appellant was promoted in the year 1978 to BPS-14 and in this scale she worked as Officer In-charge at various National Savings Centres. She was promoted to BPS-16 on 1.11.1979 and continued to remain In-charge of various National Savings , Centres in Karachi Region. The appellant was allowed move-over to BPS-17 vide Central Directorate of National Savings, Islamabad Memo, dated 9.7.1995. The appellant was promoted to BPS-17 on selection grade basis on 12.9.1996 but made effective from 13.6.1995 vide Central Directorate of National Savings notification dated 12.9.1996.
3. The appellant was promoted to the post of Assistant Director (BPS-17) vide Government of Pakistan, Finance Division Notification No. F.11(71)-Admn.I/2002, dated 30.1.2002. This notification also specified that the appellant shall be on probation for one year in terms of Rule 21 of the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973. The Central Directorate of National Savings, Islamabad issued letters dated 12.9.2002, 18.3.2002 and 12.12.2003 notifying the holding of departmental examination and the appellant alongwith others was directed to appear in the said examination. The appellant failed to qualify in the departmental examination. The appellant failed to qualify in the departmental examination in the first attempt ' as directed vide letter dated 12.9.2002. She failed to qualify the departmental examination in the next two chances also allowed vide letters dated 18.3.2002 and 12.12.2003.
4. The appellant was reverted from the post of Assistant Director (BPS-17) to the post of National Savings Officer (BS-17 Selection Grade) according to the department notification dated 26.1.2004 in terms of provisions contained in Rule 6 of the Recruitment Rules for the posts in National Savings Organization read with Section 6(2)(b) of the Civil Servants Act, 1973, apparently for having failed to clear the departmental examination. The appellant aggrieved on account of the reversion preferred a departmental representation dated 9.2.2004 which remained un responded when after completion of 90 days statutory period, the extent appeal dated 18.5.2004 has been filed before this Tribunal.
5. The learned counsel for the appellant argued that reversion from a higher post to a lower post can be ordered under Section 12 of the Civil Servants Act, 1973 during the probationary period only.
He further argued that the appellant was promoted on 30.1.2002 to the post of Assistant Director and was on probation for a period of one year w.e.f. 30.1.2002 to 30.1.2003 whereas the order of reversion has been passed on 26.1.2001 effective from 16.1.2004. He, therefore, argued that the reversion order having been passed after completion of one year probation period is not tenable in law and is liable to be set aside. The learned counsel also argued that under Section 12(3) of the Civil Servants Act, 1973 no adverse order cart be passed till the civil servant has been issued show- cause notice against the action proposed to be taken against him. He stated that the appellant was not issued any show-cause notice by the respondent No. 2 before passing the reversion order.
He, therefore, maintained that the reversion order is illegal and placed reliance on NLR 1987 TD 56, 1993 PLC (CS) 308, 1990 SCMR 1414 and 1999 TD (Service)
21. The learned counsel further argued that the order of reversion dated 26.1.2004 was passed without providing the chance of personal bearing to the appellant. He further argued that the appellant having been punished without being heard such punishment would be un-lawful arid placed reliance on SBLR 2001 SC 26, SBLR 2003 SC 1697 and 2004 PLC (CS) 47.
6. The learned counsel for the appellant also stated that the impugned order of reversion was issued on 26.1.2004 while it was given effect from 16.1.2004 He argued that an executive order cannot operate, retrospectively and therefore the reversion was ultra vires, ab initio wrong and liable to be set aside and placed reliance on 1985 SCMR 1178, 2003 PLC (CS) 1027 and 2004 PLC
(CS) 453. The learned counsel for the appellant further argued that the reversion is in violation of Section 24-A of the General Clauses Act in that the order is non-speaking and stereotyped and therefore not sustainable in the eyes of law as it does not disclose the reasons which led the authority to pass such order. He, therefore, argued that such order is liable to be set aside and placed reliance on 2003 PLC (CS) 1249, 1991 SCMR 2330 and 2003 TD (Service) 247/410.
7. The learned counsel for the appellant further argued that the appellant has been discriminated against as certain officers including one Mrs. Shahida Wasim was not reverted although she had failed to clear the departmental examination also. He further stated that Mr. Ejaz Qureshi and Mr. I.U. Umair who had also failed to clear the departmental examination in three attempts were not reverted. He further stated that Mrs. Jameela Azhar, Miss Saima Khatoon and Mrs. Shamim Nazim were given four chances to clear the departmental examination but that the appellant was not provided the fourth chance. The learned counsel therefore argued that the appellant has been discriminated against and therefore the revision order on the score of discrimination also is not tenable in law and placed reliance on 2001 TD (Service) 255, 2002 PLC (CS).330 and 2004 PLC (CS)
598.
8. The learned counsel for the appellant argued that the appellant was promoted to the post of Assistant Director (BS-17) on the basis of seniority-cum-fitness and that in the said letter of promotion no mention was made about the requirement of undergoing any training or clearing examination and therefore she could not have been reverted on account of failure in the departmental examination. He further argued that the appellant had completed her probationary period on 30.1:2003 and as such was deemed to have been confirmed against the post of Assistant Director (BPS-17) on completion of the one year probationary period.
9. The learned counsel for the appellant concluded his arguments by stating that the reversion order passed by the respondent No. 2 is arbitrary, vague and ill- motivated and therefore liable to be set aside with all consequential benefits.
10. The learned Standing Counsel stated that the record of service of the appellant was not unblemished as during her posting as In-charge at National Savings Centre, Arambagh, Karachi a fraudulent withdrawal of Rs. 3,18,084/- had taken place for which her explanation was called vide letter No. F.1(179)ZIAO(K)Admn/87-1584-87, dated 22.4.1987. She was also given adverse remarks in her ACR for the year 2002 which was duly conveyed to her Vide Central Directorate of National Savings, Islamabad D.O. No. F.1(5)CO/2002, dated 2.4.2003. The learned Standing Counsel stated that the appellant was promoted on her turn as Assistant Director (BS-17) and that she was on probation for a period of one year in terms of rule 21 of the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973. The learned Standing Counsel further stated that as prescribed in Rule 6 of the Recruitment Rules of National Savings Organization notified vide SRO No. 1271 (1)/90, dated 6.12.1990, persons initially appointed-or promoted as Assistant Director (BS-17) are required to qualify the departmental examination in maximum three attempts during the probationary period.
He further stated that the department had issued letters on 12.9.2002 and 18.3.2003 to different officers including the appellant to appear in the departmental examination of Assistant Directors.
He clarified that the third letter dated 12.12.2003 as referred to by the appellant related to the announcement of result of the departmental examination held on 25,9.2003. He stated that the third letter for appearing in the departmental examination notifying the list of Assistant Directors required to appear in such examination and which, included the name of the appellant was actually dated 15.9.2003.
11. The learned Standing Counsel further. Argued that officers remained on probation for a period of one year from the date of promotion extendable for a further period of one year and that if no specific order for the termination of probation is issued before the expiry of the first year, the probation is deemed to have .Been extended for another one year in terms of Rule 21 of the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973. He further argued that as the appellant could not qualify the departmental examination in three attempts she was rightly reverted within the extended period of probation upto 30.1,2004 vide order of reversion passed on 26.1.2004. The learned Standing Counsel further stated that the Departmental Recruitment Rules were notified in 1990 and thereafter no relaxation whatsoever on any score has been granted to any person whether initially appointed or promoted and clarified that officers offered a fourth chance were so allowed before the Rules of 1990 were made effective. The learned Standing Counsel stated that prior to the issuance of Departmental Rules, 1990, some relaxation of Rules were made under the relevant Departmental Instructions. He reiterated that after issuance of Recruitment Rules notified in 1990 no relaxations have been allowed and cited the example of Mr. I.H. Usmani, who was reverted on account of not clearing the departmental examination in three chances and he was not allowed fourth chance for which he had approached the Establishment Division.
12. The learned Standing Counsel argued that as the appellant was on probation she could be reverted without assigning any reason and that Section 12(3) of the Civil Servants Act, 1973 is not applicable in her case. He further averred that the requirement of issuing show-cause notice and affording personal hearing are applicable to only such officers/officials who successfully complete the probation period.
13. The learned Standing Counsel also stated that the appellant cannot claim relief simply on account of a technical point in that the date of reversion was notified as effective from 16.1.2004 while the orders were issued on 26.1.2004. He stated that a technical lapse cannot change or alter the facts of a case. However, he conceded that if this Tribunal deemed fit the date of reversion can be ordered to read as 26.1.2004 instead of retrospectively i.e. From 16.1.2004.
14. The learned Standing Counsel stated that the provisions of General Clauses Act, 1897 are not applicable in view of the statutory provisions of Civil Servants (Appointment, Promotion & Transfer)
Rules, 1973.
15. The learned Standing Counsel concluded his arguments by stating that the appellant having been promoted as Assistant Director on seniority-cum-fitness basis and required to qualify the departmental examination during the probationary period and having failed to qualify the examination during the probationary period was rightly reverted from the post of Assistant Director to that of National Savings Officer and stated that the appeal being devoid of any merit is liable to be dismissed.
16. Heard the learned counsel for the appellant as well as the learning Standing Counsel for the respondents and perused the record.
17. The point that requires careful examination is whether appellant could have been reverted from the post of Assistant Director to that of National Savings Officer on account of not qualifying the departmental examination. Also the point to be considered is whether the appellant could be reverted without the issuance of show-cause notice and affording the opportunity of personal hearing. Yet another point which needs consideration is whether the appellant was discriminated against in not being extended opportunity of appearing in the departmental examination beyond three chances. The appellant has also invoked Section 24-A of the General Clauses Act in that the order of reversion was nonspeaking and stereotyped and therefore was in violation of Section 24-A of the General Clauses Act.
18. We shall first take up the issue of reversion of the appellant for not qualifying the departmental examination. It is an accepted fact that the appellant failed to qualify the departmental examination within the three chances that she availed herself. These three chances were duly notified to the appellant vide Central Directorate of National Savings, Islamabad's letter dated 12.9.2002, 18.3.2003 and 15.9.2003. It is also a fact that the appellant having been promoted as Assistant Director w.e.f. 30.1.2002 was required to be on probation for a period of one year in terms of Rule 21 of Civil Servants (Appointment, Promotion & Transfer) Rules, 1973. The period of probation could be extended for a period not exceeding one year in terms of paragraph-6 of S.R.O. 1271(l)/90, dated 6.12.1990 issued by the Finance Division. Para-6 also states that a person initially appointed or promoted as Assistant Director (BPS- 17) will have to qualify a departmental test in maximum three attempts during the period of probation. The crucial point to be decided here is whether the appellant was still on probation when she was reverted from the post of Assistant Director (BPS-17) to her original post of National Savings Officer Vide letter dated 26.1.2004. The first year of probation of the appellant terminated on 29.1.2003. During this one year of probation the competent authority had not certified the successful completion of probation. The period of probation under paragraph-6 of S.R.O. 1271 (l)/90, dated 6.12.1990 could have been extended for another one year.
From the record it does not appear that the extension of period of probation by another one -year was notified by the competent authority. The learned counsel for the appellant has argued that in the absence of notifying the extension of the period of probation by another one year, it would be deemed that the appellant stood confirmed as Assistant Director. The learned Standing Counsel on the other hand argued that if no specific order for the termination of the period of probation is issued after the expiry of the first year, the period is deemed to have been extended for another one year in terms of R. 21 of Civil Servants (Appointment, Promotion & Transfer) Rules, 1973. With regard to the period of extension of probation beyond one year rule-21 of the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 reads as under:- "21. (2) The period of probation may be curtailed for good and sufficient reasons, to be recorded, or if considered necessary, it may be extended for a period not exceeding one year as may be specified at the time of appointment.
(3) On the successful completion of probation period, the appointing authority shall, by specific order, terminate the probation.
(4) If no order is issued under sub-rule (3), on. The expiry of the first year of probation period, the period of probation shall be deemed to have been extended under sub-rule (2): Provided that subject to the provisions of proviso to sub-section (2) of Section 6 of the Civil Servants Act, 1973, in the absence of an order under sub-rule (3), the period of probation shall, on the expiry of the extended period under sub-rule (2), be deemed to have successfully been completed."
19. Rule 21(4) makes it clear that if no order is issued terminating the period of probation on expiry of first year of probation, the period of probation shall be deemed to have been extended by another one year. In the case under consideration the first year of probation of the appellant was completed on 29.1.2003. On completion of the first year it appears from the record, the termination of the period of probation was not notified by the competent authority. In the absence of such notification, rule 21(4) of the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 takes the field whereby if no such successful completion of period of probation on expiry of first year is notified the period of probation is deemed to be extended for a further period not exceeding one year. In the case of the appellant therefore the second year of probation period would extend upto 29.1.2004. During the first year of probation and the second year of extended period from 30.1.2002 to 29.1.2004, the appellant was required to qualify the departmental examination in maximum three attempts as per para-6 of paragraph-6 of S.R.O. 1271(l)/90, dated 6.12.1590, which is reproduced as under:-- "The persons initially appointed as National Savings Officer (BPS-16) and those initially appointed or promoted as Assistant Director (BPS-17) will have to qualify a departmental test in maximum three attempts during the probation period."
Having failed to qualify the departmental examination during the period of probation which included the extended period the competent authority was authorized to take suitable action against the appellant. The action taken by the competent authority was her reversion from the post of Assistant Director (BPS-17) to that of her original post of National Savings officer (BPS-17 Selection Grade). Therefore, this punitive action is duly supported by various provisions of the relevant rules which include rule-6 of the Recruitment Rules of National Savings Organizations read with Section 6(2)(b) of the Civil Servants Act, 1973 and para- 6 of S.R.O. 1271(l)/90, dated 6.12.1990 and Rule 21 of Civil Servants (Appointment, Promotion & Transfer) Rules, 1973.
20. As regards the plea of the appellant that she has been discriminated against, the department has clarified that after the promulgation of the Departmental Recruitment Rules notified in 1990, no relaxation has been granted to any person.
21. The learned counsel for the appellant has invoked Section 12(3) of Civil Servants Act, 1973 in that no order resulting in punishment of a, civil servant can be passed till the civil servant has been issued show-cause notice against the proposed action to be taken against him. The learned counsel for the appellant has also invoked the dictum that no punishment can be effected without affording personal hearing. The learned Standing Counsel on the other hand has argued that Section 12(3) of the Civil Servants Act, 1973 is not applicable in the case of the appellant as she was on probation and could be reverted without assigning any reason, The notification dated 30.1.2002 promoting the appellant alongwith others to the post of Assistant Director (BPS-17) only states that the promotes i.e. The appellant would be on probation for a period of one year in terms of Rule 21 of the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973. It does not mention that on the failure to complete the period of probation successfully the appellant was liable to be reverted without assigning any reason. Ordinarily, in the case of initial appointment where such appointees are kept on probation appointment orders do mention that on failure to complete the probation period satisfactorily the service of the appointee would be liable to be terminated without assigning any reason. The case of the appellant is not of initial appointment but is one of promotion from the post of National Savings Officer to that of Assistant Director. Therefore, where the promotion notification did not specifically mention that on the failure of completion of probation period satisfactorily the Assistant Director would be liable to be reverted to the original post of National Savings Officer without assigning any reason, we are of the view that the appellant was entitled-to a show-cause notice as envisaged under Section 12(3) of the Civil Servants Act.
1973. This omission in our view is of a serious nature and is enough to vitiate the order of reversion of the appellant. This to our mind is a case which on- the ground of a technical flaw, the departmental action which otherwise appears to have been taken on merit is rendered null and void.
22. In view of the above serious lapse on the part of the department in that a show-cause notice was not issued to the appellant before taking the punitive action of reversion, we are of the considered opinion that the appellant is entitled to relief. Therefore, we direct that the notification reverting the appellant to the post of National Savings Officer be withdrawn and the appellant restored to the post of Assistant Director with effect from the date of reversion. However, the department will be within its rights to proceed against the appellant by issuing show-cause notice under the provisions of Section 12(3) of the Civil Servants Act, 1973 and also afford her an opportunity of personal hearing as per dicta laid down by the superior judicial fora. The payment of back benefits would depend on the outcome of such proceedings, which should be completed within four months of issuance of this judgment.
23. No order as to costs.
24. Copies of the judgment be sent to the parties under registered cover and to the relevant quarters under rule 21 of Service Tribunal (Procedure) Rules, 1973.