ABDUL JABBAR KHAN (CHAIRMAN).-Saleem Hussain Gardezi, formerly Inspector of Police, has filed this appeal in which he has impleaded Government of the Punjab through the Chief Secretary, Chairman, Headquarters, Martial Law Zone 'A' Review Board, the Secretary to the Government of Punjab, Home Department, Inspector-General of Police and Deputy Inspector-General of Police, Multan Range, as respondents. By virtue of this appeal he has prayed that order dated 18th March 1978 passed by respondent No, 2 as well as order dated 27th December 1980 passed by respondent No, 3, be declared to be illegal, void ab initio, without lawful authority and consequently of no legal effect. He has further prayed that he may be re-instated as Inspector of Police with all back benefits.
2. Briefly, stated, the facts of the case are that the appellant was appointed as Inspector of Police by respondent No. 1 under orders of the then Governor of the Punjab after his case had been cleared by the ad hoc Selection Board duly constituted by the Chief Minister. The order of appointment was conveyed to the appellant by respondent No, 4 on 17th September 1976 vide Circular No, 175-10-18/E-H dated 17th September 1976 after the fulfilment of the condition such as the medical examination. The appellant was assigned Muzaffargarh district by respondent No, 5 through a notification duly published in Police Gazette, Part II, in September, 1976 which was endorsed to respondent No, 4 vide Circular No, 250-53/E dated 23rd September 1976. The appellant completed his training firstly, at Punjab Police Centre, Chuharkana, and then at Police Training College, Sihala. Martial Law Instruction No, 21 pertaining to the regularization of ad hoc appointments was promulgated on 8th August 1977 and appellant's case was taken up for necessary scrutiny and his services were terminated on 13th September 1977. This was notified in the Police Gazette of Multan Range of September, 1977. In December, 1977, a direction of Martial Law Administrator Zone 'A' was published in the 'Daily Pakistan Times' according to which applications were invited for review of the decisions taken by the appropriate authorities under Martial Law Instruction No,
21. The appellant preferred a petition to Martial Law Administrator Zone 'A' on 22nd December 1977 which was decided on 18th March 1978 by which he was reinstated but reduced in rank as an A.S.I. Aggrieved against this decision of respondent No, 2, the appellant represented to respondent No. 1 through a petition and he was summoned there and directed to file an objection petition in writing. The appellant complied with the same but to his utter dismay his petition was rejected vide Memo dated 27th December 1980, hence this appeal.
3. We have heard the learned counsel for the appellant as well as the learned District Attorney assisted by Malik Azam Rasul, Advocate, and have perused the record of the case carefully with their assistance. It has been submitted on behalf of the appellant that the sole purpose of promulgation of Martial Law Instruction No, 21 was either to regularise ad hoc appointments already made or to terminate such appointments on the ground of ineligibility or, for that matter, unsuitability. Therefore, the impugned order was beyond the scope of Martial Law Instruction No, 21.
It was further argued that reinstatement necessarily means the rehabilitation of the civil servant in the same status or it would mean in law the restoration of forfeited rights. In view of the above meanings of the word 'reinstatement' it was not within the purview of the Review Board constituted by Martial Law Administrator Zone 'A' to reduce the appellant in rank. Once he was reinstated then it was incumbent upon the authorities, to reinstate him on the same post which he was holding at the time of his removal. Learned counsel for the appellant has vehemently argued that reduction in rank amounted to punishment which could only be visited upon the appellant by invoking the procedure as provided by the Efficiency and Discipline Rules, 1975.
4. On the other hand, learned District Attorney has controverted the arguments by submitting that under section 11-A of the Punjab Civil Servants Act, 1974, the Governor/Government was authorised to take such action against the appellant and no illegality was involved in the matter. Lie has further defended the order impugned in view of the provisions of the Provisional Constitution Order, 1981, particularly, referring to Article 15 of the same. While concluding his arguments he has submitted that the appellant was reinstated as an A.S.I. And not as Inspector and his refusal to accept the offer of appointment as an A.S.I. Gives the respondent an option to withdraw the same.
5. We have given or anxious thought to the arguments advanced on behalf of both the parties and we consider it useful to reproduce Martial Law Instruction No, 21 in which action is purported to have been taken against the appellant.
"In the past, some time, a large n uglber of Ad Hoc appointments in Revenue, Police, Education and other Departments were made in the Province of Punjab. These Ad Hoc appointments fall in the following categories :-
(a) Appointments against which proper selection by the Public Service Commission has since been made and the persons thus selected are awaiting appointment. Ad Hoc appointments are being held against these vacancies.
(b) Vacancies had been advertised but the results have not been finalised by the Public Service Commission. Ad Hoc appointees are being held against these posts.
(c) Ad Hoc appointees whose cases either have been referred to Public Service Commission or not, but no advertisement has been made so far.
The Martial Law Administrator, Punjab, Zone 'A' has decided that the following procedure will be adopted with immediate effect to regularize these appointments :
(a) Persons selected by the Public Service Commission against the Ad Hoc vacancies will be given appointment letters and services of Ad Hoc appointees terminated.
(b) Cases advertised by the Public Service Commission and other formalities also completed by them will be finalised by August 31, 1977 and action taken as in 'a' above.
(c) Cases of all other persons appointed directly or promoted on Ad Hoc basis at present in service will be reviewed immediately by the appropriate Selection Authority competent to make recommendations for regular appointment according to the Rules. On such reviews, those who are found ineligible and unsuitable, their services will be terminated. Those found - eligible and suitable will be converted to regular basis. This action shall be completed by August 31, 1977 by all Departments in the Province of Punjab.
The Martial Law Administrator, Punjab, Zone 'A' further directs that all appointments whether by initial recruitment or by promotion, made otherwise than in accordance with the prescribed method of recruitment promotions shall be deemed to have been made on Ad Hoc basis notwithstanding that they have been made in the purported exercise of power of relaxation of rules and their cases will also be regulated according to policy given in para. 2 above. .................... ....................
6. A bare reading of Martial Law Instruction No, 21, makes it absolutely clear that the same only requires two things to be done i,e, (I) .Regularization of Ad Hoc appointments made during the specified period or (2) to terminate the services of those civil servants who were found either ineligible or unsuitable. In the present case we do not find in the impugned order by which appellant's services have been terminated that he was either found unsuitable or ineligible for the post of Inspector of Police by the competent authority after relaxation of rules which the authority was fully competent to do so. We also find that the initial appointment of the appellant as Inspector of Police was fully implemented and the appointment order was also acted upon and remained operative for a considerable period. The impugned order dated 13th September 1977 is from Deputy Inspector-General of Police, Multan Range, which only states that the appellant's services on Ad Hoc basis are terminated with immediate effect. Similarly when we look into the second order from Headquarter, Martial Law Administrator, Zone 'A', addressed to Mr. Habib-ur- Rahman, the then I.G. Police, Punjab, Lahore, we find that it talks of re-instatement of appellant but not as Inspector of Police-the post which he was holding when his services were terminated, but as an A.S.T. We also cannot remain oblivious of the fact that at one stage a reference was made on 8th November 1979 from Headquarter M.L.A. Zone 'A' seeking clarification from Regularization Wing, S & GAD & 1, Department on the crucial issue whether a person reinstated could be reinstated on the same post or in a lower rank which he had never occupied. Three propositions were formed and referred to S&GAD&I, Department, for their advice. We reproduce the same :-
(I) In the civil law, the reinstatement means the cadre or the post from which the services of the person were terminated. The Review Board has decided and offered the post of A.S.I. To the petitioner.
(ii) Period of his absence from duty is to be treated as leave of the kind due to the petitioner. The order indicates that his service shall not be discontinued if he is re-instated in Police Department in the rank of A.S.I.
(I) Re-instatement can be made only on the post from which services of the person were terminated. The orders of Review Board, to re-instate the official in a lower post would not be valid under civil law.
(ii) The period of absence can be counted as leave of the kind due if re-instatement is against the post originally held by the concerned person. Reinstatement against a lower or higher post (although not possible under Civil Law) will essentially be fresh appointment.
(iii) Has he been appointed/re- (iii) Such re-instatement shall have appointed or re-instated in to be construed as fresh service, appointment and shall be subject to all the conditions of appointment prescribed in the relevant Service Rules."
In view of these important factors i,e, the purpose of M.L.I. No, 21 and advice of S & GAD & I.
Department, Regulation Wing (which, according to the Rules of Business, has been invested with the powers, of laying down terms and conditions of civil servants), we have no hesitation to hold that the appellant was neither hit by the phraseology of Martial Law Instruction No, 21 nor could he be reduced in rank in view of the above advice. If the Review Board had come to a conclusion that B the appellant was ineligible or unsuitable person appointed by an authority which was incompetent to do so, it could have taken the course of termination of services straightaway without reducing the rank of the appellant. Since the authorities while reconsidering the case of the appellant came to the decision to reinstate him (the word which they have used in this order) we will only give that meaning to this word to which it is entitled both in law as well as in common parlance. At this juncture, we will like to take into consideration the arguments raised on behalf of the respondents, particularly the one pertaining to the powers of the Government under section 11- A of the Punjab Civil Servant Act, 1974 and Article 15 of the Provisional Constitution Order, 1981. We are afraid, the arguments advanced in this respect, are not tenable. The reading of the impugned order does not convey that the action so taken against the appellant has been taken under section 11-A, ibid, or under Article 15 of the Provisional Constitution Order, 1981. Even by implication the impact of these two above-mentioned provisions is not attracted to the case of the present appellant. It is a C matter of common understanding that when no action has been taken under a particular provision of law, the same cannot be defended. Admittedly, there is a protection with regard to certain actions taken or purported to have been taken under Martial Law Regulations or Orders but in the present case nothing of this sort has happened. Even the Martial Law Instruction No, 21 about which it is said that the action was taken under it, does not extend the scope of the present action within its phraseology. Therefore, we have no hesitation to repel these contentions.
6. As discussed in the earlier part of or judgment, we have come to a positive conclusion that the appellant who was initially appointed on Ad Hoc basis by an authority which was competent to do so, became subject of review under Martial Law Instruction No, 21, he could not be proceeded against under the said instruction as the action taken was beyond the scope of such instructions.
We have also settled the issue that no action was taken against the appellant under section 11-A of the Punjab Civil Servants Act, 1974, therefore the mischief of the same was not attracted in his case.
We further find that the case of the appellant also stands protected under the principle of animus revertendi or loco poenitentiae. For this we rely on Raja Muhammad Nawaz v. Government of the Punjab through the Chief Secretary , decided on 11th March 1981. Their Lordships of the Supreme Court while dealing with this case found that Raja Muhammad Nawaz who was appointed as an E.A.C. By a competent authority could not be relegated to junior post by the same authority as it violated the above two golden principles of equitable justice. The learned Judges of the Supreme Court even went to the extent to maintain the order even though it was passed through some error or against some rules for the simple reason that a person once conferred with certain status in life, and the said order having been duly implemented and acted upon, a vested right has been created in his favour and could not be withdrawn subsequently for any reason. Shahbaz v. The Crown , Lt.-Col. G. L. Battacharya v. The State , Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi and The State v. Muhammad Ismail were relied upon in the judgment cited above.
7. In the light of the above discussion, we are unable to maintain the two impugned orders dated 10th March 1978 and 27th December 1980 passed by the respondents and set aside the same as being of no legal effect. We therefore, direct that the appellant will be re-instated as Inspector of1 2 3 4 5 Police, the post which he was holding at the time when the impugned orders were passed against him, as if he has never been removed from service with all the back benefits. 1981 SCM R 523 PLD 1955F C 46 PL D 1964 SC 503 PLD 1969 SC 407 1980 SC MR 268