A. O. RAZIUR RAHMAN (MEMBER). - The Appellant, who was appointed as Deputy Secretary in the Communications Division by an order of the Establishment Division, dated 12th September, 1973, as a lateral entrant to posts in the Central Secretariat, was removed from service under section l2-A of the Civil Servants Act, 1973, by an order of the Establishment Division. The said order is reproduced below :- "Government of Pakistan Cabinet Secretariat Establishment Division Rawalpindi, the 10th July, 1978.
NOTIFICATION No. 7/4/78-AV (12) : In exercise of the powers conferred under section 12-A of the Civil Servants Act, 1973, the competent authority is pleased to remove Mr. Ameer Ali Barq, Deputy Secretary/Officer on Special Duty (with headquarter at Karachi), Establishment Division, from service with immediate effect or if any leave is at his credit and is applied for by him within 7 days of the date of issue of this notification and granted to him, on the expiry of such leave.
(Sd.)
ABDUL KHALIQ AWAN, Deputy Secretary to the Government of Pakistan."
2. Subsequently, by an order dated 29th March, 1980, he was re-instated in service in grade 18 of the Office Management Group. This order is also reproduced below :- "Government of Pakistan Cabinet Secretariat (Establishment Division)
Rawalpindi, the 29th March, 1980.
NOTIFICATION No. 10/2/80-C. III (B). The competent authority has approved the re-instatement of Mr. Ameer Ali Barq in Grade-18 in the Office Management Group from the date of his removal from Grade-19.
2. He will not be entitled to any pay an allowances of the post in which he is being re-instated for the period between the date of removal and the date on which he assumes charge of the post in Grade-18.
3. Having been re-instated in Grade-18 in the Office Management Group, the services of Mr. Ameer Ali Barq are hereby placed at the disposal of Ministry of Industries for appointment as Section Officer in. His own grade with immediate effect and until further orders.
Sd/- (G. K. DAKHAN), Deputy Secretary Telephone No. 63754."
3. On 8th April, 1980, the appellant assumed charge of his new office but, at the same time, he stated in writing that he had done so under protest, because, he held, his reduction in rank was unfair and illegal. His protest, in this behalf, was made in the following note submitted by him .- "I have received Establishment Division's Notification No. 1012/80. C. III (B), dated 29th March, 1980, reinstating me in Grade-18 in the Office Management Group from the date of my removal from Grade-19.
I was removed from Grade-19 Secretariat Group vide Establishment Division's Notification No. 7/4/78-AV (12), dated 10th July, 1978.
I have, vide the covering charge resumption report, joined the duty in terms of the Notification of my re-instatement. However, I have done so under protest as I believe that my reduction in rank pursuant to my re-instatement is unfair and illegal. In accordance with the established principles of law and natural justice I should be re-instated in the grade and group from which I was removed. I have resumed my duty without prejudice to my right to seek appropriate remedies against my illegal reduction in rank.
Sd/- (AMEER ALI BARQ)
Dated 5th April, 1980.
S. O. Winn.)".
4. On the advice of his Ministry, given to the officer in reply to his protest, he submitted a final representation addressed to the Secretary, Establishment Division on 7th May, 1980, which was duly sent to that Division, who, after considering the matter, intimated that, since the Competent Authority had found him fit to hold a Grade 18 post in the Office of Management Group, no representation was permitted under proviso to subsection (2) of section 22 of the Civil Servants Act, 1973. This was conveyed to the Appellant by Memo. No. 1 (252) Admin. I, dated 24th June, 1980, issued by the Ministry of Industries.
5. Against the above order, the officer came up in appeal before this Tribunal on 22nd July, 1980.
After preliminary hearing, the appeal was admitted by the Tribunal's order dated 10th August, 1980.
6. After notice had been, issued to the Respondent and written objections submitted, but before the appeal was taken up for regular hearing, the Establishment Division, on 17th November, 1981, issued an amendment to the impugned order, in the following terms :- "Government of Pakistan Cabinet Secretariat (Establishment Division).
Rawalpindi, the 17th November, 1981.
NOTIFICATION No. 1/9/79-Rev.
1. The President has been pleased to approve the appointment of Mr. Ameer Ali Barq in Grade-l8 in the Office Management Group with effect from the date, on which he assumed the charge of the above post.
2. Establishment Division Notification No. 10/2/a2-C. III (B), dated the 29th March, 1980, is hereby amended to this extent.
Sd/- (ABDUL HAYE), Deputy Secretary Tele: 67548."
7. Some time after this, the Respondent filed his written objections to the appeal, in which he took the stand that the Appellant had been removed from service as a result of action taken under section 12-A of the Civil Servants Act, 1973, but, subsequently, on reference of his case to the Federal Public Service Commission, under rule 4 of the Federal Public Service Commission (Functions)
Rules, 1978, he was appointed to the post recommended by the F. P. S. C., namely, a Grade-18 post in the Office Management Group. It was further stated that this appointment had been erroneously notified as `Ire-instatement" in the notification dated 29th March. 1980. And that the mistake had since been rectified by the notification dated 17th November, 1981, which showed him as having been appointed in Grade-l8 of the O. M. G.. With effect from the date of assumption of charge,. It was also stated that the President had now been pleased to order that the persons "who had been recommended by the F. P. S. C. For the posts and Groups other than the original, will be appointed afresh and will not be entitled to seniority with effect from the date on which they were reverted/ removed".
8. In view of the amended notification, the Appellant sought for and was granted permission to file an amended appeal; which came up for consideration on 6th March, 1982, and was admitted after disposing of the objection raised by the Respondent.
9. The appeal, as amended, came up for regular hearing on 12th August, 1982 and is being disposed of by this order.
10. The main ground on which the order dated 17th November, 1981 has been impugned is that it is "malicious, having been passed with the ulterior motive of protecting the attempt of the Appellant to secure justice and redress of his grievance from this august Tribunal". It has also been urged that the said notification, having been issued to take effect retrospectively and setting aside another notification issued about 20 months earlier, is a nullity in law. It has also been contended that the notification "is illegal and incompetent, as the authority com--petent to pass an order of appointment in Grade-18 is now the Establish--ment Secretary and not the President, who is alleged to have passed the order in question.
11. While impugning the order dated 17th November, 1981, the Appellant has not withdrawn his objection to the earlier order dated 29th March, 1980, by which he was re-instated in the O. M. G. In Grade--18 and, in spite of being re-instated, was denied the pay and allowances of the post in which he was being re-instated for the period between the date of removal and the date of assumption of the new post. He has contended that he could not be reverted to a lower grade or to a service other than the original one, because re-instatement could, ipso facto, be only to the service and grade from which he had been removed. He has also contended that, although under the proviso to Section 17 of the Civil Servants Act, 1973, the authority setting aside the order of removal from service was given the discretion to prescribe the amount of the arrears of pay that the Appellant shall be entitled to for the relevant period, this discretion had to be exercised on judicial grounds and for substantial reasons and was only for determining the quantum of arrears of pay and not for denying the entire pay and allowances.
12. On behalf of the Respondent, it has been argued that the removal of the Appellant, originally ordered under Section 12-A of the Civil Servants Act, 1973, vide notification dated 10th July, 1981, already quoted earlier, was perfectly valid and in accordance with law. It has further been claimed that the subsequent notification, dated 19th March, 1980, re-instating the Appellant in service, was not passed under Section 12-A or under the Government Servants (Efficiency and Discipline) Rules, on which the Appellant has, relied, but independently of these two, on the recommendation of the F. P. S. C., to whom reference was made in this behalf by the President, under rule 4 of the F. P. S. C.
(Functions) Rules, 1978. It was thus an entirely fresh appointment, which did not entitle the Appellant to arrears of pay for the period he remained out of service. It was further explained that the word "re-instated" had been erroneously used in the relevant notification and, being purely a mistake of terminology, was replaced by the expression "appointment" in the amending order.
Further, being a fresh appointment, it could take effect from the date of assump--tion of charge and not from the date of removal. Hence, the amend--ment of this part also of the previous notification. It was argued, on behalf of Respondent, that the Government was competent to rectify a clerical mistake and that the concerned Government servant could not claim a benefit he was not entitled to merely because an erroneous expression had been used in a notification giving him a job after he had been removed from service.
13. After hearing both the parties in detail and perusing the relevant documents, we have come to the conclusion that the Appellant, who was appointed to a Grade-19 post in the Federal Secretariat during the period January 1, 1972 and July 5, 1977, was lawfully removed from service by the competent authority under Section 12-A of the Civil Servants Act, 1973, which gives the President or a person authorised by him in this behalf, the power to remove or revert to his lower post a civil servant appointed during the said period. There is no restriction placed on the discretion of the President to take action under this section, except that this action is to be taken in the public interest. It has been pointed out by the Appellant that the -impugned notification does not mention the fact that the action was taken to the public interest. Although it is true that the impugned order does not mention this, it is apparent that when it mentions the exercise of the power under section 12-A, the action taken was in the public interest and the mere omission of the words "in the public interest" in the notification will not vitiate the said order. It has also been asserted that in order to be in the public interest, the removal ordered should have been based on sufficient material adverse to the Appellant which should have been communicated to him to enable him to controvert or contradict. It has been claimed that in the absence of such proof, the impugned order is a mere capricious exercise of power not contemplated by law. We do not see any force in this contention also, for the simple reason that section 12-A does not provide for any show-cause notice or communication of material on the basis of which the order is passed nor even for proving any specific allegations against the concerned person.
14. Another point raised by the Appellant against the order under section 12-A is that the order in question was passed by a Review Board which had no lawful authority to exercise the powers conferred under section 12-A. This point is based on a complete misstatement of the actual position. The order was passed by the President and not by any Review Board or Committee and, therefore, the question of contravention of the provision of section 12-A does not arise at all. It is true that a Review Board was set up to examine all cases of the nature covered by section 12-A, but its function was only to go through the merits of each case and make appropriate recommendation for orders by the competent authority. This was an essential exercise necessary for ensuring that due care was taken in dealing with such cases and that the competent authority was properly briefed in regard to the facts and circumstances of each case so as to enable it to arrive at a just and fair decision instead of one based on a capricious exercise of power.
15. It has also been claimed that Section 12-A of the Civil Servants Act is ultra vices of Article 25 of the 1973 Constitution, since it discrimi--nates against a class of civil servants and that it is opposed to Article 4 of the Constitution, because it places unlimited and arbitrary power in the hands of one man. So far as the first objection is concerned, we are at a loss to understand how Article 25 of the Constitution has been relied upon in this behalf. The only provision of this Article that the Appellant could possibly have referred to is subsection (1), which reads as follows :-- "All citizens are equal before law and are entitled to equal protection of law."
There is no relevance of this to the case of the Appellant. Section 12-A of the Civil Servants Act, 1973, was introduced in order to deal with a certain class of employees of the Government, whose appointment was not in accordance with the normal rules followed in respect of other employees and, therefore, by attempting to rectify the discriminatory preference shown to these employees, the section referred to aimed at removing discrimination rather than creating one. As for its being contrary to Article 4 of the Constitution, we are unable to see any merit whatsoever in the point raised. Article 4 of the Constitution guarantees the right of every citizen to enjoy the protection of law and to be treated in accordance with law. But, it does not prescribe the nature of the law that shall be enacted. For example, it does not lay down that no la shall be made which takes away an existing right or privilege enjoyed by a person or a class of persons, Section 12-A of the Civil Servants Act, deprives a certain class of employees of the security of service previously enjoyed by them by virtue of their employment in Government service. This deprivation has been resorted to in the public interest and, having once become law, its application to individual cases would not amount to denial to the concerned persons of the protection of law or the right to be treated in accordance with law.
16. The objection raised to the vires of Section 12-A of the Civil Servants Act having been repelled, the only point remaining assailable to the Appellant for agitating was whether the order passed under the said section was in accordance with the provisions of that section. As discussed earlier, the said order was passed in accordance with the said Section. Therefore, we have no hesitation in holding that the order of removal from service passed by the President against the Appellant was not only a fully competent order but also a lawful and legally valid order.
17. The only point that is left to be adjudicated by us whether, in the subsequent order dated 29th March, 1980, the competent authority could have re-instated the Appellant in Grade-18, although he had been removed from service when he was in Grade-19, and whether, after having been so re-instated the notification could be amended and the re-instatement changed into a fresh appointment. Ancillary to this is the question whether on re-instatement/re-appointment, he could be denied, for the period he remained out of service, the pay and allowances of the original post held by him before removal or the new post to which he has been appointed.
18. From the documents produced before us by the parties and the facts and circumstances disclosed by them, it is clear that, after the Appellant had been removed from service under section 12-A of the Civil Servants Act, 1973, his case was referred to the F. P. S. C. Under rule 4 of the F.
P. S. C. (Functions) Rules, 1978, for advice as to whether he was fit for the post previously held by him or for any other post in the same or lower grade. The very nature of the reference indicated that the President reserved to himself the right to re-instate the Appellant or appoint him afresh to the post formerly held by him or to appoint him to any other equivalent or lower post. In view of the recommendation of the F. P. S. C. That the Appellant was fit for a lower post, the only course open to the President was to give him a fresh appointment in a lower post. This he did. But, this was erroneously notified as a re--instatement with effect from the date of removal. The mistake was corrected- immediately it was brought to notice, after the appeal filed before this Tribunal. Had the mistake been not corrected, the position would have been that the Appellant would have still continued to serve in Grade--18 and not in Grade-19, to which he formerly belonged. However, because the re-instatement was with effect from the date of removal, he would have counted his seniority from the date of his original appointment and not with effect from the date of the so- called re-instatement. The amending notification, on the other hand, changed the position and deprived him of the seniority allowed to him by the previous notification. It is our considered view that while the respondent was perfectly entitled to effect a verbal change in order to correct an obvious terminological mistake, he could not change the earlier notification to bring about a material change in its contents. Having notified "re-instatement" with, effect from the date of removal, it was quite within his competence to declare that it was not "re-instatement" but "appointment". But, it was no longer within his competence to say that it would be effective from the date of taking over charge and not from the date of removal. Whatever the original intention of Government, by the very fact that the order dated 29th March. 1980, put the Appellant back into service with -effect from the date of his removal and that he continued to work under this impression for more than a year and seven months, he acquired a vested interest which could not be taken away from him arbitrarily. We, therefore, hold that the Appellant was appointed to the new post were. f., the date of his removal and that he would be entitled to count his seniority on this basis.
19. At the same time, we are unable to accept the contention of the Appellant that merely because the word "re-instated" was used in the relevant notification, he would be deemed to have been re- instated in Grade-19 for the simple reason that a mere terminological unexecuted cannot be allowed to be exploited to alter the very intent and purport of the notification. From a plain reading of the notification, it is clear that the intention of that concerned authority was not to give back the old job to the Appellant but to employ him in a lower job and in a different cadre from that of his original appointment. It is also clear that, contrary to what has been stated on behalf of the Appellant, the order in question was not passed under section 12-A of the Civil Servants Act, 1973, by which a Government servant, appointed or promoted between 1st January, 1972 and 5th July, 1977, could be either removed from service or reverted to the lower grade, as the case may be. Action under section 12-A was already complete when he was removed from service. The action taken about two years later to put him in a lower job in a different cadre was taken by the President under rule 4 of the F.P.S.C. (Functions) Rules, 1978, and though it was in effect, a modification of the action taken earlier, it could not be argued that this action had to be with in the four-walls of Section 12-A of the Civil Servants Act, 1973 and, no being covered by any provision of that section, was ultra vires and, therefore, illegal and void or liable to be amended to fit in with the provisions of that section: For one thing, if it was ultra vires and void, the Appellant has no case and he cannot claim restoration of the previous position. For another, since it was a fresh action taken by the President to provide relief to those removed from service under section 12-A, its legality has to be judged in the light of the provision of the law under which it was taken. That law being rule 4 of the F.P.S.C. (Functions) Rules, 1978, the only point to decide is whether it was in conformity with that rule.
The Appellant has not been able to point out any circumstance from which even a semblance of doubt could be created as to the correct of the decision in the light of the said rule. Thus, we hold that the, order giving the Appellant an appointment in a lower grade and in a different cadre from his original one is perfectly legal and valid and cannot be impugned on any legal or technical ground.
20. As for the claim to arrears of pay and allowances, put forward by the Appellant on the ground that he is entitled to it under the second proviso to section 17 of the Civil Servants Act, 1973, it is clear that the claim is based on a misinterpretation of the said proviso as well as to the wrong assumption that it is relevant to the instant case. The misinterpretation is in the Appellant's contention that the concerned authority cannot entirely deny to a civil servant the arrears in case the order of dismissal, removal or reduction in rank is set aside. What the proviso lays down is that the civil servant shall be entitled to such arrears as the relevant authority shall determine. This does not exclude the, possibility of the said authority determining that no arrears shall be' paid. However, even if the Appellant's interpretation were to be accepted, the simple fact remains that this proviso is not applicable in his case. The impugned order or orders did not set aside the previous' order removing him from service. They are quite separate and inde--pendent orders which do not attract the provision of the proviso to section 17 of the Civil Servants Act, 1973.
21. Apart from the above points raised by the Appellant in support of his claim to re-instatement in the original Grade to which he belonged before removal from service, there are other grounds, which have been urged to impugned the so-called order of re-instatement and its subsequent amendment, purely on the strength of procedural irregularities. These are :
(i) That the order amending the previous order of "re-instatement" is a "malicious" order, having been made, after the filing of the original appeal, merely to frustrate the Appellant's attempt to get an invalid order set aside ;
(ii) That the amending notification, being retrospective to effect, and having been passed after about 20 months of the original notification, is a nullity in law ; and (i.e) That it is an illegal and incompetent order, as the competent authority for appointing a Grade- 18 officer is the Establishment Secretary and not the President, who is supposed to have passed the said order;
(iv) I take up these points one by one.
22. Regarding the mala fides of the order, it does appear, at first sight, that the amending notification was resorted to as a result of the appeal filed before this tribunal, because it was published on 17th November, 1981 whereas the appeal had been filed on 22nd July, 1980 and admitted on 11th August, 1980 and notice issued to the Respondent on 12th August, 1980. In spite of this however, it cannot be denied that the Appellant was relying entirely on the use of the word 'Ire- instated" to demand his former job in Grade-19. The use of this word did not, ipso facto, imply that the Appellant was entitled to be put back in the previous job, because, as already observed earlier, the intention of the order was clearly to post him in a Grade 18 job. The issue of the amendment did not, therefore, in any manner result in any detriment to the interest of the Appellant. Hence it cannot be treated as a malicious act.
23. As for the argument that the amendment was a nullity, because of the great distance of time at which it was made from the date of the original order, we are of the view that, since it was a verbal amendment and not an amendment in the substance of the order, the lapse in time would not operate to make it invalid or a nullity in law.
24. So far as the third argument is concerned, this is without any force at all. While it is true that the Establishment Secretary is now the Appointing Authority in respect of Grade-18 posts, this fact cannot operate to make the impugned order defective or invalid. It is an accepted principle of law that where a superior authority authorises an authority subordinate to itself to exercise a power it is competent under law to empower that authority to exercise, it does not divest itself of the right to exercise that power, whenever necessary. Therefore, an appoint--ment made by the President does not become invalid merely because some other functionary has also been empowered to exercise that power. Besides, in this case, the action was taken by the President under rule 4 of the F.P.S.C. (Functions) Rules, 1978, under which powers had not been delegated to any other person.
But, even if the Appellant's stand on this point were correct, it is not understood how it could entitle him to claim any relief on that account. If the President's order appointing him to a Grade-18 post were invalid, the same order could not entitle the Appellant to occupy a Grade-19 post. Nor could it automatically lead to the substitution of that order by one appointing him to a Grade-19 post.
Therefore, this argument of the Appellant is also clearly untenable.
25. In the light of the above; we hold that, while the order changing the re-instatement of the Appellant to a Grade-18 post to appointment to such a post is quite valid, the appointment would be deemed to have taken effect from the date of the original removal and not with effect from the date of actual assumption of charge, although he would not be entitled to any arrears of pay and allowances on that account.
26. In the result, we reject the claim of the Appellant to reinstate--ment in the post held by him at the time of his removal from service. Similarly, we reject his claim to arrears of pay and allowances with effect from the date of his removal, However, we allow his claim to being treated as appointed in Grade-18 with effect from the date of his removal from service, for the reasons given in paragraph 14 above.
27. With the above orders, the appeal is partially allowed.
28. No order as to costs.