M. SALEEM CHAUDIIRY (CHAIRMAN).-Sh. Abdur Rehman, appellant has filed this appeal against the order dated 12 9-1977 reverting him from the post of Deputy Secretary, Government of the Punjab, to that of Section Officer and subsequently placing his services at the disposal of the Govern-- ment of Pakistani.
2. Briefly, the facts of the case are that Sh. Abdur Rehman, while working as Section Officer in the Federal Government on 8-7-1975 had his services placed at, the disposal of the Government of the Punjab, vide Notification No. 11/3/75-C. III (B) dated 8-7-1975. The appellant's services were absorbed by the Government of the Punjab as a Section Officer through their Notification No. SOP. II
(GA) 16 (346)/76, dated the 1st of February, 1977 :--- "The Governor of the. Punjab is pleased to appoint by transfer of Sh. Abdur Rehman (a Grade 17 officer to the Federal Government) on deputation to Punjab Government as Section Officer cadre on regular basis in relaxation of rules."
3. In early 1977, the provincial Selection Board considered his case and. Recommended the appellant for promotion to Grade 18 from Grade 17 :-- "Keeping in view his dedicated and outstanding record of 16 years continuous service and diversity of his experience, it was proposed to appoint him to the post of Deputy Secretary in the Provincial Government."
4. On 12-2-1977 the appellant was actually promoted and started working as Deputy Secretary to Government, Punjab, Services, General Admn : and Information Department and worked as such till 12-9-1977. Under Martial Law Instruction No. 21, the case of the appellant was reviewed and on 12-9- 1977, the appellant was reverted to the post of Section Officer vine Notification No. CI-PF-E-11/76, dated 12th of September, 1977 :- "On the recommendations of the Provincial Selection Board the Governor of the Punjab is pleased to cancel Services, General Admn. And Infor : Department's Notification No. CI-PF-E-11/76, dated 12th February; 1977, regarding promotion of Sheikh Abdur Rehman, Section Officer, to grade 18 as Deputy Secretary to Government of Punjab."
The earlier order of promotion of the appellant's as Deputy Secretary was cancelled. On the same date the services of the appellant which had been absorbed in the Punjab Government on regular basis were replaced at the disposal of the Government of Pakistan, vide Notification No. SO. PH (GA)
16 (346)/76 dated 12th of September, 1977. A representation was made by the appellant against these orders which was turned down on 29-5-78.
5. The appellant has prayed that the order of reversion as well as the demand of recovery of Rs.
4170.32 drawn by him as salary be set aside. Written arguments have been submitted by both the parties. The appellant has urged that--
(i) be was appointed as Section Officer on regular basis by the rule making authority ; and
(ii) promotion of the appellant as Deputy Secretary to the Provincial Government, was on regular basis and was for an indefinite period.
The appellant has urged the following additional points :-
(a) In 1977 the Governor of the Punjab appointed the appellant as Section Officer in relaxation of rules, vide Notification dated 1-2-1977 and thus the deputation of the appellant from Government of Pakistan to the Punjab Government stood terminated.
(b) His case for promotion was properly processed by the preparation of a Working paper by the Provincial Selection Board and was approved by the Competent Authority i.e. The Chief Minister.
Punjab ;
(c) That the right of having been promoted to N. P. S. 18 could not be taken away in an arbitrary manner. The appellant has urged that originally the respondent had taken the position that his case was reviewed under Martial Law Instruction No. 21, but now they have retracted from this position, and in any case his appointment was in the public interest ; and
(d) The next point urged by the appellant is that the case of the appellant is identical to that of Messrs Mian Waheed-ud-Din Rathore and Rana Shamsher Ali whose cases for accelerated promotion were taken up by the same Selection Board and they were also given accelerated promotion. The two officers have been retained in NPS 18 while the appellant has been demoted and as such discrimination has been carried out by the Government in the appellant's case.
6. The respondent has urged that there are three main points :
(i) The appellant secured the appointment under the Punjab Government in an unauthorised manner by deceiving both the Federal and Provincial Government ;
(ii) That he could not be appointed in any capacity under the Punjab Government without the express prior approval of the Establishment Division, which approval was not obtained. The Establishment Division has held his appointment under the Punjab Government as illegal and against the rules ; and
(iii) That the appellant was not eligible for appointment under the Punjab Government by method of transfer as be was not a member of any functional group under the Punjab Government. He being an officer in Grade 16 was not qualified to be appointed to grade 17 post. Had the Punjab Government known that the appellant was in grade 16, the Punjab Government would not have appointed him in Grade 17 post, and thus the post has been secured toy the appellant through fraud."
7. So far as the first contention of the respondent is concerned, the appellant is said to have deceived the Establishment Division, the Accountant --General, Pakistan Revenues and the Punjab Government. However powerful one may be such deception is not possible, especially by an officer of Grade 17, Regarding the second contention, no rule or provision has been quoted to establish that permission of the Establishment Division was necessary for the appointment to be made by the Punjab Government but ibis permission can be assumed when the appellant's application for appointment in the Punjab was forwarded by the Joint Secretary of the Establishment Division. So far as the, third contention is concerned, that the appellant did not belong to the functional group so be could not be appointed by transfer, in this connection it may be mentioned that there is no such provision in the Civil Servants Act, but there is a provision in the Rules. The relevant rules were, however, relaxed in favour of the appellant so that the appointment could be made.
8. The position is that under the Punjab Civil Servants Act, 1974, appointments to the service can be made under section 5 in the manner prescribed by the Governor or by a person authorised by him in that behalf. In section 6, three methods of recruitment are envisaged ; the First one is by initial appointment and the other two are by promotion or by transfer. There is no doubt whatsoever that in the present case the appointment has been made by transfer as is mentioned in the Notification. In this connec--tion, the Punjab Civil Servants Rules, 1974 are also relevant. Rule 3 states that appointments shall be made by promotion, transfer or initial recruitment.
The Rules were relaxed and, therefore, no exception can be taken to the appointment by transfer of the appellant to Grade 17.
9. Section 9 of the Civil Servants Act, 1974 says :--- "A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion in any higher grade of the service or cadre to which he belongs."
Further, rule 9(1) says that appointment by promotion or transfer to posts in various grades shall be made on the recommendations of the appropriate selection committee or board. So far as the question of promotion is concerned, the position appears to be that the appellant was promoted on the recommendations of the appropriate Selection Board. Therefore, no exception can be taken to the promotion of the appellant to grade 18 except the supersession of so many officers senior to the appellant. But this was a matter to be considered by the Selection Board and the Authority competent to approve the promotion. Now the order of the cancellation of promotion has to be considered. It appears that this order is without jurisdiction. Section 11 of the Civil Servants Act, 1974 says that civil servants appointed to a higher post or grade on ad hoc basis or officiating basis shall be liable to be reverted to a lower grade without notice. Unfortunately, section 11 was not availed of in this case but the original order of promotion was cancelled. This order is retrospective in nature and without jurisdiction. This, in our opinion, the Government was not competent to do.
The appellant had been promoted to Grade 18 on an officiating basis as is obvious from the Notification which reads as follows :- "On the recommendations of the Provincial Selection Board the Governor of the Punjab is pleased to promote Sh. Abdul Rehman, Section Officer, S, GA & ID against an existing vacancy, until further orders."
The words "until further orders" means officiating or temporary arrangement. The appellant could be reverted to the lower grade as permitted by section 11 of the 'Civil Servants Act, 1974 and in terms of his promotion order itself. However, the intention of the Government was clear that the officer was 5 to be reverted to Grade 17 and therefore, we hold that the appellant may be considered to have been reverted with effect from the date of issue of the cancellation order. The result is that :--
(i) the transfer of the appellant and his appointment to Grade 17 post was regular ;
(ii) that the promotion of the appellant to Grade 18 was done by the Competent Authority on the recommendation of the Provincial Selection Board and must, therefore, be considered to be regular although the Selection Board did not consider a large number of the officers senior to the appellant for promotion ;
(iii) that the appellant will be considered to have been reverted to a Grade 17 post from the date the orders of cancelling the original appointment of the promotion were issued ; and
(iv) the salary drawn by the appellant as a Grade 18 officer is not recoverable from him.
The appeal is accepted to the extent indicated above.