MUHAMMAD IRSHAD KHAN (MEMBER).-The facts of the case giving rise to the present appeal, briefly speaking, are that the appellant, then a Prosecuting Deputy Superintendent in Punjab Police, was posted as Officer on Special Duty (Law) in the C.M.L.A. Secretariat vide Notification, dated 4-9- 1970. Subsequently he appeared in the competitive examination for the recruitment of Deputy Secretaries to the Federal Government under the lateral entry scheme then in vogue and having obtained 92 out of 200 marks he qualified the written test. In that examination in addition to the written test, a viva voce test was also conducted for those candidates who were not in Government service. For the candidates who were already in Government service, in place of viva voce test, marking was carried out on the basis of their A.C.Rs./dossiers. The appellant on the basis of his A.C.Rs./dossiers, was graded +A, which gradation carried 145 marks, thus having secured 237 marks he secured 38th position out of the candidates of Punjab Domicile. He was accordingly selected and appointed as a Deputy Secretary to the Federal Government vide Notifica--tion, dated the 28th March, 1975, and continued to work as such till by Notification, dated the 10th July, 1978, the competent authority ordered under section 12-A of the Civil Servants Act, 1973 (hereinafter referred to as Act), his reversion from the post of Deputy Secretary to the Federal Government and replacement of his services at the disposal of the Govern--ment of Punjab for appointment in the Provincial Police to a post to which he would have been appointed but for his appointment as Deputy Secretary to the Federal Government. He petitioned to the President pf Pakistan, on the 15th July, 1978, for review of the said reversion order. Subsequently, according to a decision relating to reference of the cases of all lateral entrants, who were removed from service or reverted under section 12-A of the Act, to the Federal Public Service Commission for assessment of their suitability to hold the post from which they were removed/reverted or any other post, the appellant's case was referred to the Federal Public Service Commission which found him unsuitable for appointment in the Secretariat Group. He represented for reconsideration of his case in view of the Commission's alleged failure to take into consideration the result of his psychological test but his this representation too was turned down. He then submitted an appeal/review petition to the President of Pakistan, which was also rejected as communicated to him vide Establishment Division's letter, dated 12-5-1980. Thereafter the appellant filed the present appeal.
2. We have heard Mr. Bashir Ahmad Ansari, the learned counsel for the appellants as well as Mr. S. M. Shahudui Haq, the learned counsel for the respondent-Department. Mr. Ansari raised a number of grounds of law and facts to assail the impugned order of the appellant's reversion and also the advice of the Federal Public Service Commission. The main emphasis was laid down on the submission that the order of the appellant's reversion was based on the erroneous recommendations of the Review Board set up for examination of the cases of lateral entrants. The learned counsel strenuously contended that the impugned order is liable to be set aside on that score alone and consequently all the subsequent action taken either by the Establishment Division or by the Federal Public Service Com--mission, in pursuance of the impugned order, would automatically fall to the ground. While the case of the respondent is that the appellant had secured 92 out of 200 marks and thus qualified the written test and his A.C.Rs. Were graded '+A--- which carried 145 marks. This grading of the appellant's A.C.Rs. As "+A" was found incorrect by the Review Board set up for the examination of the cases of the person appointed under the lateral entry scheme. The correct grading of the appellant's A.C.Rs. Was "A" which carried 130 marks. Thus, the total marks of the appellant would have been 222 which placed him at lower position against 56 vacancies allocated to the Province of Punjab because the last person select--ed from Punjab secured 233 marks, hence, the appellant could not be selected on the basis of his merit position.
3. We nave given our careful consideration and anxious thought to the submissions made by the parties. It is well known that the cases of the persons who were appointed during the period from the 1st day of January, 1972 to the 5th day of July, 1977, were examined by a Review Board in order to see if those appointments were made on merits or for political considerations. And it was for the object of reviewing the irregular appointments made in violation of the prescribed method or rules and for political considerations that section 12-A was inserted in the Act. The object of enactment of section 12-A of the Act is thus quite clear. We are of the view that it was not a function of the Review Board to discover the errors in the marking if otherwise the appointment was not found to have been made in violation of the prescribed method of recruitment of for political considerations. The Review Board, therefore, erred in questioning the appointment of the appellant on the basis of erroneous marking. It is a well-established legal position that mailce in law is to be inferred when an order is passed or action is taken contrary to the object and purposes of the relevant enactment. Therefore, the action of the Review Board recommending the reversion of the appellant on the basis of in--correct gradation of his A.C.Rs. Being not covered by the intended scope of section 12-A of the Act, is an act without lawful authority.
4. Be that as it may, it was contended by the learned counsel for the appellant that even with the marks reduced by' the Review Board, the appel--lant still occupied a position within 56 posts filled up from the Punjab Pro--vince. Thus, he would have been selected even if his total marks were con--sidered to be 222. The representatives of the Establishment Division were not able to rebut this contention of the appellant. Our conclusion, therefore, is that the effect of wrong marking in the appellant's case should not be considered in isolation but an accumulative and combined effect of such in--correct marking discovered bar the Review Board should be taken into ac--count. In such view of the matter, it appears to us that even on the basis of the correct marking, as suggested by the Review Board, the appellant could have been placed at a merit position within 56 posts available and would have been accordingly selected. The recommendations of the Review Board are thus erroneous and unlawful on the factual plane also. The impugned order, therefore, being based on the erroneous recommendations of the Review Board, cannot be sustained as it has as little foundation as the unlawful recommendation on which it is founded. That being so, the subsequent proceedings of reference of the appellant's case to Federal Public Service Commission and the result thereof becomes redundant and inoperative.
5. For the foregoing reasons we accept the appeal, set aside the im--pugned order and direct that the appellant should be re-instated into service as Deputy Secretary to the Federal Government.
However, he will not get any financial benefit for the intervening period as he did not perform the duties of the job from which he was reverted in pursuance of an order competently passed. The appeal is disposed of accordingly with no order as to costs.
6. Parties to be informed.
MR. JUSTICE SHAH ABDUR RASHID (CHAIRMAN).-I partly agree with the learned Member, Mr. Muhammad Irshad Khan. Section 12-A does not specifically say that the persons to be removed will be only those whose appointments have been secured by political pressure. No doubt, section 12-A was inserted to remove or revert such persons who were appointed or promoted either in irregular manner or without merit or on account of poli--tical pressure, nevertheless, the recommendation of the Review Board that the appellant should be reverted as he did not secure position within the quota prescribed for Punjab, cannot be said to be illegal or without jurisdiction. Neither section 12-A nor any other law provides for the setting up of the Review Boards. Such Boards were set up by executive order to enable the competent authority to reach a conclusion for taking action contem- -plated by section 12-A, and, therefore, the question of determining the sphere of their jurisdiction is wholly irrelevant.
7. I am, however, in agreement with my learned brother that on merits the reversion of the appellant was not justified even if the revised marking of his Annual Confidential Reports by the Review Board is taken into account. By excluding those persons who really deserved to be removed from service, the appellant's position still remains within the" quota prescribed .For the Province of Punjab. There being no element of political pressure, the appellant's reversion cannot be upheld, and my learned brother has rightly set it aside.
8. I do not agree with my learned brother that the appellant should not be paid higher salary for the period he remained reverted. Such an order will be contrary to the dictum of the Supreme Court laid down in the case of Province of the Punjab v. Muhammad Ashraf (1973 SCMR 304), wherein it was held that when a civil servant for no fault of his own is wrongly prevented from rendering service in a higher post to which he was entitled should be given salary for the higher post. I would, therefore, accept this appeal, as observed by my learned brother, with the modification that the appel--lant shall be entitled to the pay and allowances of the post from which he was reverted from the date of reversion onwards.
A. O. RAZZ-UR-REHMAN (MEMBER).--I am sorry this case had to be delayed because I wanted to study closely the documents produced by the Department in response to the Tribunal's order, dated 25-11-1981 in order to satisfy myself on the question whether the revised marking given by the Review Board to the appellant affected his position on merit to the extent of placing him out of the list of the first 56 candidates from the Punjab.
10. The main ground on which my learned colleagues have allowed the appeal is contained in paragraph 4 of the judgment written by the learned Member, Mr. Muhammad Irshad Khan, and endorsed by the learned Chairman, in which, inter alit, it has been stated that "it appears to us that even on the basis of the correct marking. As suggested by the Review Board, the appellant could have been placed at a merit position within 56 posts and would have been accordingly selected".
As against the above, the stand of the Department has been stated in paragraph 4 of the written objections, in which, inter alia, it has been said: ---According to his correct grading, his total marks would have been 222 which placed at him a lower position against 56 vacancies allocated to Punjab. The last person selected from Punjab secured 233 marks. Hence the Appellant could not be selected on the basis of his merit position."
12. A reference to the original marks sheet shows that, with the marks originally given to the appellant on the basis of the written test and the marking of his A.C.Rs. Namely, 237, the appellant had secured 43rd posi--tion among the candidates from the Punjab. Thus, his selection against 56 vacancies reserved for the Punjab was correct and fully justified on the basis of his merit position.
However, when the marks were revised and the appellant's reduced to .222, his merit position, after taking into consideration the reduced marks of other candidates also, who had been originally selected and appointed but whose marks were reduced on scrutiny by the Review Board, came down to 71st. Obviously, on the basis of this reduction in the marks of the appellant and his merit position, the Review Board was fully justified in recommending, and the respondent. Department in ordering, the reversion of the appellant, on the ground that his original appointment was not justified. In this view of the matter, acceptance of the appeal and setting aside of the impugned order would not appear to be justified.
13. There is, however, one aspect of the matter which cannot be easily ignored. While it is true that, after the revise d marks given to the Appellant and other candidates; who had been selected and appointed the merit position of the appellant stands reduced from 43rd to 71st; this has been arrived at after only a partial revision of the marks originally given to the candidates who appeared at the lateral entry examination in 1974. While the Review Board undertook re-marking in the case of those who had been selected and appointed, they did nothing of the sort in respect of those who were not selected for appointment. The true picture would have emerged only if the comparative merit of all the candidates, i. e. Those who were selected and appointed as well as those who were unsuccessful, were assessed on the same basis. This, however, was not done and, while the revised marks were taken into account in the case of the successful candi--dates, the old marks were allowed to stay in the case of the unsuccessful ones. In this situation, the comparison could not yield reliabie results and reflect the true position. Thus, it could not be said, with any degree of certainty, that the appellant or others of his category, i. e. Those who had originally been selected and appointed on the basis of the original marking but whose marks had on review been reduced, were rightly reverted on the ground that they did not come within the first 56 candidates to qualify for appointment against the Punjab quota. If this aspect of the matter is taken into account, it would appear that the reversion of the appellant, as indeed of all those candidates who were reverted on the ground that the revised marks given to them did not place them within the first 56 candi--dates in order of merit, would appear to have been unjustified.
14. At the same time, from the facts revealed by a close scrutiny of the original 40 revised marks, it is also clear that the claim of the appellant that, in spite of the reduced marks given to him by the Review Board, he still continues to be within the first 56 candidates in order of merit, is not valid.
Considering the position of the appellant among the candidates from the Punjab, after the revised marking, but without carrying out a similar revision in respect of the unsuccessful candidates, we find that the last candidate from the Punjab, who had been selected originally and has still been retained in service has a total of 233 marks. There are 3 other candidates also with 233 marks, who had not been originally selected and whose marking has not been revised. Besides, between 233 and 222 (the total marks now remaining to the credit of the appellant) the number of candidates, exciding the appellant, is 19. Thus, it would be seen that, after the revision of the marks allotted to the appellant, the marks of these 19 plus 3, i. e. 22 candidates, remaining un-revised, the appellant does not come within the first 56 candidates. In short, the appellant has not been able to prove that he should be considered fit for retention even after the revised marking.
15. The upshot of the above discussion is that, while we cannot accept the Appellant's claim that he continued to be within the first 56 candidates front the Punjab, even after the revised marking, we cannot also say, with any degree of certainty, that the appellant could not come within the first 56, had an effort been made to obtain a correct picture by com--paring the marks given to him after revision with the marks that would have been given to the other candidates whose cases had not been reviewed, after carrying out a similar revision of their marks.
16. In my humble opinion, the above confusing situation can be set right only if the correct merit position of the appellant vis-a-vis the other candidates from the Punjab, including the unsuccessful ones, is determined by carrying out a review of the marks given to the unsuccessful candidates also. If, as a result of this exercise, it is established that the Appellant falls within the first 56 candidates from the Punjab, he should be reinstated in service, since the only ground on which his original appointment was set aside was the comparatively lower marks awarded to him after the review. If, however, he still remains outside the first 56, he would have no claim to re- instatement.
17. In the light of the above, I would order that the review suggested above be carried out and action taken and completed within a period of three months.
ORDER OF THE TRIBUNAL
18. By virtue of clause (a) read with clause (b) of subsection (2) of section 3-A of the Service Tribunals Act, 1973- (LXXI of 1973), the order of honourable Member, Mr. Muhammad Irshad Khan, dated 12-4-83 as modified by the order of Mr. Justice Shah Abdur Rashid, Chairman, dated 12-4- 1983, shall be the order of the Tribunal.