MALIK ZAWWAR HUSSAIN (MEMBER).-Hamid Ullah Khan, Muhammad Sadiq, Safdar Ali Shah, Ghulam Muhammad and Muhammad Bashir have filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which they have impleaded the Conservator of Forests, Sargodha Circle, Sargodha and the Divisional Forest Officer, Bhakkar Division, Bhakkar as respondents. By virtue of this appeal they have prayed that the Office Order passed by the Divisional Forest Officer issued vide his Office Order No. 55/B, dated 11-12-1982 be set aside and the appellants be declared to be entitled to work against the posts of Foresters in Bhakkar Division.
2. Brief facts of the case are that the appellants had joined the Forest Department as Forest Guards on different dates during the years 1961 and 1962. During the year 1981 some posts of Foresters/Block Officers had fallen vacant and these vacancies were to be filled by promo--tion from amongst the senior Forest Guards. 27 Forests Guards including the appellants were considered for promotion. Out of whom the appel--lants were recommended by the Departmental Promotion Committee con--sisting of Mian Maqsood Alam D. F. O. T. R. M., Bhakkar, Mr. Wasif Hussain Shah, Forest Ranger, Range Forest Officer, Bhakkar as members and Mr. Muhammad Javed Kausar, Divisional Forests Officer, Bhakkar as a Chairman, for promotion as Foresters, on the terms and conditions laid down in the said order. However, in pursuance of the advice conveyed by the Conservator of Forests, Sargodha Circle, Sargodha vide his letter No. 5795/GB, dated 30th November 1982, the appellants were reverted from the rank of Foresters to Forest Guards. Hence this appeal.
3. We have heard the learned counsel for the parties and have per--used the record. It has been argued on behalf of the appellants that they were promoted as Foresters in the prescribed manner and against I clear vacancies meant for recruitment through promotion. Since they were appointed on regular basis so they could not be reverted as Forests Guards, without taking proceedings under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. It has further been argued that the impugned order dated 11-12-1982 passed by the Divisional Forest Officer is an order issued on the directions of the Superior Authorities and is void and nullity in the eye of law. In this behalf the learned counsel for the appellants has relied upon the judgment of Mr. Fiaz Hussain Qadri v. Administrator, Municipal Corporation, Lahore. On the other hand, the learned District Attorney has inter alia submitted that the appellants were promoted purely on temporary basis and with a stipulation that as soon as the vacancies would cease to exist or a Forester of the cadre of Bhakkar Forest Division working in other Divisions joins this Division they would automatically stand reverted to their original post of Forests Guard. It has further been argued that since the appellants were appointed on a temporary basis and against the temporary vacancies so they could validly be reverted to their lower rank as laid down by section 10 of the Punjab Civil Servants Act. While adopting the comments of the respondents he has concluded that the appellants have been reverted strictly in accordance with' the law and the Rules. The learned District Attorney has also raised a preliminary objection regarding the maintainability of the appeal on the ground that the appellants have not filed an appeal or representation to the next higher authorities as envisaged in their service rules and section 21 of the Punjab Civil Servants Act, resulting that the appeal would not be competent in view of the bar contained in section 4 (1) provisio (a) of the Punjab Civil Service Tribunals Act, 1974.
4. We have given our anxious thoughts to the arguments of the parties and have also perused the record very carefully. The appellants were promoted on the recommendations of a Departmental Promotion Committee constituted in accordance with the Government Rules for promoting the Forest Guards to the rank of Foresters. The perusal of the order for their promotion shows that their promotion was subject to the conditions which are reproduced hereunder in verbatim--- "Their promotion is purely temporary and as soon, as the vacancy ceases to exist or a Forester of the cadre of Bhakkar Forest Division working in other Divisions joins this Division, they will automatically stand reverted to their original posts of Forest Guard. They would be governed by the usual service conditions as prescribed under the subordinates service rules read with Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1975 as long as they continue in service in the cadre of Foresters."
The operative part of the impugned order dated 11-12-1982 is reproduced hereunder for the sake of convenience -- "In persuance of the advice conveyed by the Conservator of Forests Sargodha Circle, Sargodha vide his letter No. 5795/GB, dated 30-11-1982 and on account of the fact that no `No-Objection Certificate' was obtained from Services, General Admn. And Information Department, Government of the Punjab before pro--motion of the Forest Guards to the rank of the Foresters ; the order No. 46/B, dated 15-10-1981 is hereby withdrawn with immediate effect. Fresh selection will be made as and when N. O. C. Is received from the Services, General Admn. And Infor--mation Department, Government of the Punjab, Lahore on the occurrence of vacancies."
5. From the perusal of the above-quoted impugned order, it is revealed that the appellants have been reverted on the advice of the Con--servator of Forests and for want of N. O. C. From SGA & I Department only. It is very strange that while submitting the parawise comments to the appeal the respondents have taken entirely different stands in reply to para. 2 of the appeal, which is reproduced hereunder :- "No post of Forester was created and added to the cadre of Bhakkar Forest Division. In all 22 posts of Foresters were sanctioned during 1981-82. 11 Foresters holding their lieu in this Division were work- -ing in other Divisions/Circles. The appellants were promoted as stopgap arrangements against the vacant posts in this Division with the condition that as and when the Foresters already in service join this Division, they will be reverted to their substan--tive rank of Forest Guards. Now the following seven Foresters joined this Division and as such the appellants were reverted as no post remained in the Division to accommodate these appellants. Although the promotions were ordered on temporary basis and as a stopgap arrangement yet there was ban imposed by the Government on recruitment/promotions :---- Mr. Abdi Hussain, Forester.
Mr. Muhammad Akram, Forester.
Mr. Amjad Ali, Forester.
Mr. Muhammad Raffque, Forester.
Mr. Akhlaq Hussain. Forester.
Mr. Muhammad Hanif Akhtar, Forester.
Mr. Fazal Hussain, Forester.
6. Placing the impugned order in juxtaposition with the parawise comments quoted above, it becomes abundantly clear that the respondents have taken inconsistent plea while defending the appeal. If the Foresters working in other Divisions had come back to the parent division, the Divisional Forest Officer should have mentioned this fact in the impugned order. It seems that the respondents were fully alive to the situation that they have not passed the proper order so they have tried to make a defence while submitting the parawise comments quoted above. Thus, we hold that this plea of the respondents contained in para. 2 of the parawise com--ments is an afterthought and is of no avail to the respondents. With regards to the ground mentioned in the impugned order, if the Department had not obtained any N. O. C. Before promoting the appellants as Fores--ters it was not the fault of the appellants. This formal defect could have been rectified by obtaining an ex post facto `No-Objection Certificate" from the S G A & I Department which the respondents car? Obtain even now. The true background for reversion of the appellant comes to light if one goes through the letter of the Conservator of Forests, dated 30-11-1982 appended with the parawise comments by the respondents. The perusal of this letter shows that the Conservator of Forests had taken an exception to the criteria of Selection of the appellants adopted by the D. P.
C. We are afraid that Conservator of Forests is not supposed to sit in judgment against the order of the appointment and promotion passed by the competent authority on the recommendations of a validly constitut--ed D. P. C because no such representation is competent before him as laid down in proviso to section 21 (2) of the Punjab Civil Servants Act which clearly lays down that no representation lies on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade. Thus the order of the Conservator of Forests is also without jurisdiction.
7. In view of the above analysis we hold that the impugned order dated 11-12-1982, is illegal and is set aside. However, before parting with the judgment we may observe that the Departmental Authorities would cer--tainly be within their jurisdiction to pass fresh order according to the stand taken by them in para. 2 of the parawise comments if it is factually correct.
8. In view of the above discussion, we accept the appeal and set aside the impugned order.There will be no order as to costs.