' IJAZ-UL-HASSAN KHAN, J.--- Petitioner, Fuad Asadullah Khan, through instant petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, seeks leave to appeal against the judgment, dated 23-8-2000 of Federal Service Tribunal, Islamabad, dismissing petitioner's appeal, challenging Notification dated 8-7-1997 issued by Intelligence Bureau, respondent No,2, whereby petitioner was reverted from the post of Director (B-19) to the post of Deputy Director (B-18).
2. Facts giving rise to the filing of instant petition are, that petition possessing Degree of B.E.
(Electronics) was appointed as Deputy Assistant Director (B-17) on regular basis on 18-4-1990 by the respondent Bureau. Petitioner was promoted in due course as Deputy Director (B-18) with special pay of Rs,330 per month vide notification dated 27-9-1995. Thereafter, petitioner was given current charge of the post of Director (BPS-19) from September 28, 1995 to December, 1995 and also for another period of 3 months from December 31st 1995 to March, 29, 1996.
3. On 13-3-1996, post of Director (B-19) was advertised by respondent Bureau, requiring the candidates having qualification of B.E. (Electronics) 1st Division with minimum experience of five years in the field of communication and security. The petitioner having the required qualification and experience applied through proper channel, for appointment against said post. Petitioner was called for interview on 25-3-1996 vide memo. Dated 21-3-1996 of the respondent Bureau. After interview by the Selection Board, petitioner was selected for appointment as Director (B-19). In pursuance of the orders contained in the Establishment Division office memorandum, dated April 8, 1996, petitioner was appointed as Director (B-19) with special pay of Rs,275 per month, vides notification, dated April 9, 1996, issued by respondent Bureau. It appears that on change of the Government and taking over by the new Director-General in the respondent Bureau, a summary was initiated by the incumbent Director-General on 28-12-1996 for the Secretary, Establishment Division, recommending termination of services of petitioner on the ground that appointment of petitioner as Director (B-19) was irregular. Secretary, Establishment Division, being competent authority under Rule 6(2) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 read with Serial No,121 ESTACODE 1989 Edition, instead of dealing with the matter himself, on March, 8, 1997 moved a summary for the Prime Minister with specific mention that termination of the services of the petitioner as Director (B-19) was not tenable as all the procedural formalities had been complied with. However, the Prime Minister ordered that petitioner be reverted to the post of Deputy Director (B-18) and be posed out of respondent Bureau to avoid any adverse reaction from him in a sensitive organization. Consequently, notification dated July 8, 1997 was issued by respondent Bureau as stated and mentioned above. Petitioner filed departmental appeal and after expiry of statutory period of 90 days, approached Federal Service Tribunal, Islamabad, by way of filing Appeal No,867(R) of 1997, which was dismissed vide judgment impugned herein.
4. We have heard in detail Hafiz S.A. Rehman, learned Senior Advocate for petitioner and Sardar Muhammad Ghazi, learned Deputy Attorney-General for respondents and have also examined the material on record with their assistance.
5. Learned counsel for petitioner bitterly criticized the impugned judgment and contended with vehemence that learned Tribunal has not appreciated the matter in its true perspective and has proceeded on wrong premises to hold that petitioner's appointment/selection as Director (B-19) was made with legal/procedural infirmities of substantial nature; that appointment of a civil servant made in accordance with the prescribed rules and procedure by a competent authority cannot be declared irregular by other functionaries of the Government; that advice of the Establishment Division was binding on all concerned under Rule 11(c) to (e) of the Rules of Business, 1973 and as such appointment of petitioner could not be reversed/set aside being legally justified.
Learned counsel also submitted that there was no justification in referring the matter to the Prime Minister, when the same had been made final by the Establishment Secretary. Prime contention of learned counsel was that notification of petitioner's reversion was bad in law and volatile of the principles of locus poenitentiae and that reversion could only be made, had petitioner been promoted to a higher post whereas in this case petitioner was not promoted to the post of Director (B-19) but was directly appointed under the required procedure and rules. Further contention of learned counsel was that reversion to lower post is a major punishment provided in Rule 4(1)(b) of the Government Servants (E&D) Rules, 1973, which could not have been awarded without assigning any reason issuing any charge-sheet, holding of regular inquiry, issuance of show-cause notice and affording opportunity of hearing, which are lacking in petitioner's case.
6. Learned Deputy Attorney-General representing the respondents, on the contrary, repelled the arguments of learned petitioner's counsel and attempted to argue that since petitioner was holding the post of Deputy Director (B-18) prior to his appointment as Director (B-19) in the same department, therefore, competent authority was fully justified to revert him to his substantive post and that reversion was the only option in petitioner's case.
7. Having examined the matter anxiously in the light of submissions made by both learned counsel and the material on the file, we find force in the submissions of learned counsel for petitioner. We feel it appropriate to examine term "reversion" used in service laws. Dictionary meaning of word "reversion" is return to previous state. In service laws when a person is directed to return to a lower post from a higher post, is said to be reverted. The return obviously implies that the incumbent must have held the lower post at some point of time and from which he was promoted in service.
In its immediate effect the reversion is always bound to bring about a reduction in rank. It connotes a movement from a higher position already held by a civil servant. Reversion from higher to lower post of a civil servant may be made under certain circumstances. The question of reversion can only arise when a valid and proper promotion has been made. A direct recruit to a post cannot be reverted to a lower post. It is only a promote who can be reverted from the promotion post to the lower post from which he was promoted.##TE# For example, if promotion has been given by mistake, then a subsequent reversion made with a view to rectify such mistake, cannot, in the strict sense, be considered as reversion and a fortiori, as a punishment. State of U.P. v. Sughar Singh AIR 1974 SC 423, Hussain Sasansaheb Kaladgi v. State of Maharashtra AIR 1987 SC 1627 and Nyadar Singh v. Union of India AIR 1988 SC 1979.
8. In the present case, petitioner was never promoted but was directly appointed as Director (B-19) after fulfilling the prescribed procedure, therefore, petitioner's reversion to the post of Deputy Director (B-18) is not sustainable. Learned Tribunal dismissed the appeal of petitioner on the ground that his appointment/selection as Director (B-19) was made with legal/procedural infirmities of substantial nature. While mentioning procedural infirmities in petitioner's appointment, learned Tribunal has nowhere pointed out that petitioner was, in any way, at fault, or involved in getting the said appointment or was promoted as Director (B-19). The reversion has been made only after the change in the Government and the departmental head. Prior to it, there is no material on record to substantiate that petitioner was lacking any qualification, experience or was found inefficient or unsuitable. Even in the summary moved by the incumbent Director-General of respondent Bureau he had no where mentioned that petitioner was inefficient or unsuitable to the post of Director (B-19) or lacked in qualification, and experience, except pointing out the departmental lapses in said appointment.
9. Admittedly, rules for appointment to the post of Director (B-19) in the respondent Bureau were duly approved by the competent authority; petitioner was called for interview and was selected on the recommendation of Selection Board, which recommendation was approved by the competent authority.
10. In such-like a situation this Court in the case of Federation of Pakistan through Secretary, Establishment Division Islamabad and another v. Gohar Riaz 2004 SCMR 1662 with specific reference of Secretary to the Government of N.-W.F. Zakat/Social Welfare Department Peshawar and another v. Saadulalh Khan 1996 SCMR 413 and Water and Power Development Authority through Chairman WAPDA House, Lahore v. Abbas. Ali Malano and another 2004 SCMR 630 held:--- "Even otherwise respondent (employee) could not be punished for any action or omission of petitioners (department). They cannot be allowed to take benefits of their lapses in order to terminate the service of respondent merely because they had themselves committed irregularity by violating the procedure governing the appointment. On this aspect, it would be relevant to refer the case of Secretary to Government of N.-W.F.P. Zakat/Ushr, Social Welfare Department 1996 SCMR 413 wherein this Court has candidly held that department having itself appointed civil servant on temporary basis in violation of rules could not be allowed to take benefit of its lapses in order to terminate services of civil servants merely because it had itself committed irregularity in violating procedure governing such appointment. Similarly in the case of Water Development Authority referred (supra), it has been held by this Court that where authority itself was responsible for making such appointment, but subsequently took a turn and terminated their services on ground of same having been made in violation of the rules, this Court did not appreciate such conduct, particularly when the appointees fulfilled requisite qualifications."
11. In Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others 2006 SCMR 285 this Court observed that "principle in nutshell and consistently declared by this Court is that once the appointees are qualified to be appointed their services cannot subsequently be terminated on the basis of lapses and irregularities committed by the. Department itself. Such laxities and irregularities committed by the Government can be ignored by the Courts only, when the appointees lacked the basic eligibilities otherwise not".
12. On numerous occasions this Court has held that for the irregularities committed by the department itself qua the appointments of the candidate, the appointees cannot be condemned subsequently with the change of Heads of the Department or at other level. Government is an institution in perpetuity and its orders cannot be reversed simply because the Heads have changed. Such act of the departmental authority is all the more unjustified when the candidate is otherwise fully eligible and qualified to hold the job.##TE# Abdul Salim v. Government of N.-W.F.P.
Through Secretary, Department of Education, Secondary, N.-W.F.P. Peshawar and others 2007 PLC (C.S.) 179.
13. It is well-settled principle of law that in case of awarding major penalty, a proper inquiry is to be conducted in accordance with law, where a full opportunity of defence is to be provided to the delinquent officer.##TE# Efficiency and Discipline Rules, 1973 clearly stipulate that in case of charge of misconduct, a full-fledged inquiry is to be conducted. This Court in the case of Pakistan International Airlines Corporation through Managing Director, PIAC Head Office, Karachi Airport, Karachi v. Ms. Shaista Naheed 2004 SCMR 316 has held that "in case of award of major penalty, a full-fledged inquiry is to be conducted in terms of Rule 5 of E&D Rules, 1973 and an opportunity of defence and personal hearing is to be provided". Specific reference is made to latest decisions of this Court in cases of Secretary, Kashmir Affairs and Northern Areas Division, Islamabad v. Saeed Akhtar and another PLD 2008 SC 392 and Fazal Ahmad Naseem Gondal v. Registrar, Lahore High Court 2008 SCMR 114.
14. In the facts and circumstances, we find that in this case, neither petitioner was found to be lacking in qualification, experience or in any ineligibility in any manner, nor any fault has been attributed to petitioner, therefore, he cannot be reverted from the post of Director (B-19). Act of sending summary by the Establishment Secretary to the Prime Minister was not in accordance with Rule 6(2) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 as the Establishment Secretary was himself the appointing authority. The departmental authorities at the time of appointment of the petitioner as Director (B-19) did not commit any irregularity or illegality as has been affirmed by the Establishment Secretary in the summary to the Prime Minister. The power vested in the competent authority should have been exercised by the competent authority itself, fairly and justly. Decision has to be made in the public interest based on policy. It must be exercised by the proper authority and not by some agent or delegatee. It must be exercised without restraint as the public interest may, from time to time require. It must not be fettered or hampered by contracts or other bargains or by self-imposed rules of thumb. So a distinction must be D made between following a consistent policy and blindly applying some rigid rule. Secondly discretion must not be abused.##TE# In the case of Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 this Court observed that "we need not stress here that a tamed and subservient bureaucracy can neither be helpful to government nor it is expected to inspire public confidence in administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait of a bureaucrat. It hardly need to be mention that a Government servant is expected to comply only those orders/directions of superior which are legal and within his competence".
15. As a result of the analysis, we are of the opinion that reversion of the petitioner from the post of Director (B-19) to the post of Deputy Director (B-18) is not sustainable as petitioner was appointed legally and validly by the competent authority in accordance with the prescribed rules.
Consequently, the petition is converted in to appeal and allowed. The impugned judgment, dated 16-8-2000 passed by learned Tribunal in E Appeal No,867of 1997 and Notification, dated 8-7-1997 of respondents are accordingly set aside. Petitioner is restored to the post of Director (B-19) by maintaining Notification dated 9-4-1996 of his appointment as such with all consequential benefits.
16. Above are the detailed reasons of our short order, dated 3-11-2008 announced in Court.##TE#