S ABDUL JABBAR KHAN (CHAIR MAN).-Malik Khuda Bakhsh, Assistant Food Controller, Regional Officer, Multan has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded Deputy Director Food. Multan Region, Multan, Director Food, Punjab, Lahore and Government of the Punjab through Secretary, Food Department, Lahore, as respondents.
2. By virtue of this appeal he has prayed that the impugned order dated 20-2-1982, be set aside and respondents be restrained from review of the appellant's promotion as Assistant Food Controller, which has already been made and attained finality in accordance with the provisions of the Rules.
3. Brief facts of the case are that the appellant while he was working as Inspector Foodgrains in the Food Department, his case for promotion was placed before the Departmental Promotion Committee. The said Departmental Promotion Committee could not reach to any positive conclusion, consequence of the same the appellant was not promoted. However, respondent No. 1 took up the case of the appellant under rule 5; Part I of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, and processed the same for securing orders/approval of the next higher authority viz Director of Food Punjab. The Director of Food Punjab, gave his approval to the suggestion so made by the Deputy Director Food and in lieu thereof the Deputy Director Food, promoted the appellant as Assistant Food Controller, being his competent authority. Malik Abdul Latif (respondent) submitted a representation to the Minister for Food in which he made a grievance that the appellant's appointment was not made in the prescribed manner and although being much lower in the seniority, has been promoted by the competent authority particularly when the case of the appellant could not get through the Promo--tion Committee. On this representation, which was forwarded to the Food Department, opinion of the Law Department was sought and on the strength of the said opinion, the impugned order was passed. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Depart--ment and have also perused the comments submitted by the Department in this case as well as in the appeal filed by Malik Abdul Latif, against the appellant and respondents, which has been disposed of earlier.
5. Learned counsel for the appellant has submitted that in matters of promotion, rules 3 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 (we will mention later on as rules) envisages a Departmental Promotion Committee duly constituted by the Government which deals with the cases of selection/promotion of the relevant Department. It has been further submitted by the learned counsel for the appellant that when the case of promotion is turned down by the Committee either on merits or on legal issues then under rule 5 of the said Rules, the competent authority is competent to formulate its own opinion about a civil servant working in NPS 1-15 and is requested to obtain orders of next higher authority in that behalf and when so permitted thus to act accordingly. It has been vehemently argued that the advice of the Law Department is not applicable to the case of the appellant as his appointment cannot be called irregular and has been made in the prescribed manner. Learned counsel for the appellant has further submitted that once an appointment/promotion has, been made in the prescribed manner and the person so promoted has been inducted into senior office by virtue of said promotion and has served for a considerable time, .The principle of animus revertendi and locus standi as enunciated in Raja Muhammad Nawaz v. Government of the Punjab (1981 SCMR 523) will be applicable to the case of the appellant and his case cannot be reviewed by the Promotion Committee in any manner.
However, the learned counsel for the appellant has conceded that if any action in matter of demotion or other--were is taken against appellant, the same can be taken against him only under the E & D Rules and by no other methods.
6. On the other hand learned District Attorney assisted by the representative of the Department as well as Mr. Noor Muhammad Chandia, learned counsel for respondent Malik Abdul Latif, have controverted the claim of the appellant by submitting that the promotion of the appellant was not made in the prescribed manner, therefore, the competent authority was within its purview to act upon the advice of the Law Department by placing the case before the Departmental Promotion Committee once again. The premises of this argument has been built on the interpretation of word "Order" and word "advice". According to learned counsel the note of the Director, Food on the recommendations of the competent authority in the case of the appellant would not be considered an order but only advice, whereas the word used in rule 5 of the said rule clearly mentioned the word "Order". While concluding his arguments learned counsel has also pointed out that appeal was not maintainable in this case because there was no final order in the field against which the appellant had any grievance.
7. We have given our anxious thought to the arguments advanced by the parties and find that the following would be the crucial issues for determination before us----
(i) whether the promotion of the appellant has been made in the prescribed manner or not;
(ii) whether the impugned order will be final for the purpose of appeal as laid down in Punjab Service Tribunals Act; With regard to the first issue we will like to refer rules 3, 4 and 5 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, as these rules govern the entire case the interpretation of the same would solve the present controversy. There is no dispute about the fact which being the case of both the parties before us i.e. That the appoint--ment by promotion or transfer shall be made in accordance with Part II and by initial recruitment in accordance with Part III of these Rules. There is also concurrence of opinion by the parties that such like promotions/ appointments will be made from amongst such persons, possessing such qualifications and fulfil such other conditions as may be prescribed by the Government from time to time. For this purpose, two methods have been prescribed. One method has been prescribed under rule 4 that such like promotions/appointments etc. Shall have to be placed before the Departmental Promotion Committee from time to time which would take decision in such matters. The second method is given in rule 5 of the said rules which runs as under :- "Where the appointing authority other than which is mentioned, does not accept the recommendations of the Committee or Board it shall record reasons thereof and obtain orders of next higher authority (s) and act accordingly."
"The relevant Recruitment Rules, have been examined, wherein it has been laid down that the promotion post of Assistant Food Controller shall be filled by selection on merit with due regard to seniority from among the eligible Foodgrains Inspectors. This means that the seniority is not the sole criterion for promotion. Rather it is the merit that counts more.
It is, therefore, advised that the case of promotion of Mr. Khuda Bakhsh, Foodgrains Inspector may be considered in the light of thereof. His service record has been examined."
After receiving the said approval he exercised his powers so conferred upon him by rule 6 of the said rules and notified the promotion of the appellant on 13-7-1980. The appellant took over his new assignment and is working as Assistant Food Controller since the said date without any break.
8. It would be appropriate to mention here that Malik Abdul Latif respondent in this case, had agitated this point before this Tribunal in Appeal No. 678/81 which was later on withdrawn by him.
However, the comments were called for from the Department in the said appeal and the Department has in an unequivocal manner in para. 3 of the said written statement, accepted that the appointment/promotion of the appellant was made in a prescribed manner and was absolutely regular. However, in their second written statement so filed in this appeal, they have slightly changed their position by taking shelter under the advice of the Law Department which is not specific but obstruct in nature. Leaving aside the stand of the Department so taken earlier, we have to adjudge, whether the promotion of the appellant has been made in the prescribed manner or not. We have reproduced relevant rule 5 and have made reference to rules 3, 4 and 6 in the earlier part of our judgment, for ready reference. There is no dispute about the fact that rule 5 is enabling rule which permits the competent authority to disagree with the findings of the Departmental Promotion/Selection Committee but with a rider. The rider under the rule is that competent authority should obtain orders of next higher authority and then act accordingly. Lot of arguments have been advanced on the implications of word `Order' before us. Learned counsel for the respondent has addressed us at length to persuade us that the word `Order' as mentioned in rule 5 of the said Rules, would mean that there should be a positive order in favour of the appellant otherwise the mere `advice' or `approval' of the recommendations by the next higher authority, would not serve the purpose. The learned counsel for the appellant has submitted that the term `Order' means approval only as the factual order is to be passed by the competent authority alone and not by the higher authority. According to the learned counsel for the appellant the clear cut language used by the next higher authority of the Deputy Director Food, leaves no room for any doubt that he had accepted the recommendations of the competent authority for promotion of the appellant in view of his meritorious service and selfless attitude towards his duties. According to the learned counsel this would be an order conveying the competent authority to use his powers to promote the appellant in view of terminology used. We have reproduced the order of the Director Food in the earlier part of our judgment in which it has been clearly observed by the Director that the seniority would not be a criterion for promotion rather the merits which count more. It has been further observed that the competent authority has advised that the promotion case of Malik Khuda Bakhsh appellant be considered in the light of the said observation. The Director Food has stated that he had also examined the service record of the appellant. With these observations and the use of word `advice' we have no hesitation to hold that advice of higher authority to the lower authority fulfils the implication lf obligation of the word `Order' so used in rule
5. We cannot make any other interpretation of the word "order" as used in rule 5, except the one which we have expressed above. We wonder what else could be the response of the competent authority when he is being told that he is advised to act accordingly, except the one which has been made by him in this case. The competent authority was satisfied that his recommendation has been approved and he has been told by the higher authority to exercise his powers under rule 6 of the said rule.
9. With regard, to the advice of the Law Department what we find is that the said Department observed that if the promotion is not made in the prescribed manner it will be irregular. We have no dispute with this advice of the Law Department as we have resolved in the earlier part of our judgment that the promotion of the appellant was made in the prescribed manner. We are of the firm view that if the respondents would have checked their earlier stand so taken by them in the appeal of Malik Abdul Latif and had taken the correct appraisal of the advice of Law Department, they would not have been instrumental in passing that impugned order. No body can be permitted to breath hot and cold in the same breath as the signatures of both the statements, is the Deputy Director, Food, Multan.
10. After holding that the promotion of the appellant was made in prescribed manner as envisaged by rules, we now attend to the argument of the learned counsel for the appellant that the case of the appellant was fully covered by the principle of animus revertendi and locus poetentiae as propounded by their Lordships of the Supreme Court of in case of Raja Muhammad Nawaz so mentioned above. We have relied on this ruling in a number of cases and have read it again with great respect. We have no hesitation to hold that the appellant who has been working as Assistant Food Controller in lieu of promotion prescribed under the rules since 13-7-1980, has earned a vested right for the same and cannot be thrown back without proper notice under the E & D Rules in the light of the above-mentioned rulings of the Supreme Court of Pakistan.
11. With regard to the objections of the learned counsel for the respondents that the appellant should have gone in representation against the impugned order to exhaust the legal remedy in this case and as he has not done so, therefore, the appeal will not be maintainable, it will be sufficient to say that under section 21 of the Punjab Civil Servants Act, 1974, no representation lies against the orders of the Government as well as in matters of promotions etc. In view of the above the appellant had no other alternative but to approach the Tribunal for redress of his grievance.
12. In view of the detailed analysis of the case, we proceed to accept the appeal, set aside the impugned order dated 20-2-1982, and declare that the appellant has been promoted in the prescribed manner as laid down under the rules. There will be no order as to costs.