JUSTICE SHAH ABDUR RASHID (CHAIRMAN).-The appellant, Syed Amjad Ali Shah who was previously serving in the Frontier Constabulary with effect from the year 1951 was selected as Assistant, a post now in Grade 11, on 9-2-1968, and joined the Ministry of States and Frontier Regions. The appellant served in the said Division till 1973, when on the reconstitution of Pakistan Narcotics Control Board (PNCB) under the Planning Division, the appellant was selected as Superintendent in Grade 16. This selection had taken place after calling for applications on 21-5- 1973 and considering the cases of all the applicants by the Departmental Selection Committee. It is pertinent to note that alongwith the appellant, another person was also selected for another post of the Superintendent in the PNCB. As a result of selection, a letter of offer was issued by the PNCB to the appellant on 19-1-1974, and on the acceptance of the offer the appellant resumed charge of the Superintendent on 24-1-1974, and the fact was duly published in the Gazette notification dated 28-1-1974.
2. When the appellant was released by the State and Frontier Regions Division to join the PNCB, he was given one year's period for reversion to his parent post. This period expired on 24-1-1975 and the appellant re-joined the States and Frontier Regions Division as Assistant on 1-2-1975. On the request of the PNCB, the appellant was again placed at their disposal, and he took up as Superintendent again on 30-4-1975 giving the appellant right of reversion for one year. This re- appointment on 30-4-1975 was duly notified on 2-5-1975. After the expiry of one year period allowed to the appellant for reversion to the States and Frontier Regions Division, further extensions were given to him from time to time, and the last order was issued on 9-5-1979 for a period of one year and in this manner, the appellant had a right of reversion upto 8-5-1980. HHow--ever, before the expiry of that period, an order was passed by the States and Frontier Regions Division on 23-7- 1979 confirming the appellant, in absentia, as Assistant in Grade 11, with effect from 1.7-1977.
3. On 4-3-1982, the PNCB passed an order reverting the appellant tc: the States and Frontier Regions Division in Grade 11, treating him to be on deputation with the PNCB. This order of reversion is the subject--matter of appeal before us. The appellant's case that he could not be reverted to the post of Assistant after having served the PNCB continuously for a period of about four years, and also for having served previously there for a period of one year. His stand is that he was not reverted to his parent department in the ordinary course, but his reversion had taken place on the wrong advice of the Establishment Division, and that the PNCB acted male fide by exercising colourable jurisdiction.
4. The learned counsel for State - has, however, urged that the appellant, being a permanent employee of the States and Frontier Regions Division and having not been confirmed in the PNCB, was liable to reversion at any time without notice to his parent department by virtue of the provisions of section 12 of the Civil Servants Act, 1973. We are in agreement with the learned State Counsel that if the order had been passed by the PNCB itself under section 12 of the Civil Servants Act, 1973, it would have been unexceptionable. We also agree that failure to cite the specific provision or a wrong provision in the order would not make the order as invalid. However, from going through the record, we find that the PNCB, that was the appointing authority in the case, had no intention to invoke the provisions of section 12 ibid. The appellant's case was referred to the Establishment Division, and they vide Office Memorandum dated 22-2-1982, placed on file by the respondent itself, advised the Ministry of Interior as follows:--- "-----The Establishment Division consider it advisable that the Ministry of Interior may revert Syed Amjad Ali Shah to his parent cadre immediately in order to avoid further litigation/representa-- tions regarding his seniority and further promotion etc. In the PNCB. For this purpose, the Ministry of Interior may like to take action in the light of section 12-A of the Civil Servants Act, 1973, according to which the President or any other person authorised by him in this behalf may without notice remove a civil servant (appointed or promoted during the period from the first day of January, 1972 to the fifth day of July, 1977), from service, or revert hits to lower post or grade, as the case may be- -----"
It is thus clear that the PNCB did not act under section 12-A.Ot the Civil Servants Act, 1973 and in fact recommended his retention. The Establish--ment Division, however, was of the view that since the appointment of Superintendent was within the purview of the Federal Public Service Commission, the selection of the appellant as Superintendent (Grade-16) was not regularly made. Vie are afraid, such an inference though not against law, ignores the fact that the appointment even if not made according to the rules is made by the competent authority and a right vests in the employee, then that appointment cannot be annulled. Similar question had come up before this Tribunal in the case of Mohammad Ashraf Nadeem v. Establishment Division (PLJ 1982 Tr. C. (Service) 165) and the Chairman on a difference of opinion between the two Members opined that an order passed by the competent authority, though not valid, cannot be withdrawn without show-cans notice. It maybe pointed out that the Federal Public Service Commission is an advisory body and the competent authority is not bound to accept its recommendations. If the competent authority makes an appointment with--out consulting the Commission, the appointment does not become illegal on that account, because power to recede- in the appointing authority does not continue after a decisive step has been taken. In somewhat similar circumstances, the Service Tribunal, Sind in the case of Mst. Ishrat Qureshi v. Director of Schools Education, Karachi and another (1983 PLC (C. S.)'174) had observed that reduction to Grade 14 after six years, on ground that pro--motion to that grade was a mistake, was illegal without show-cause notice, as it in a way amounts to penalty. . This Tribunal too-in the case of Miss Shahnaz Bano v. Secretary, Statistics Division, Government of Pakistan and 9 others (1983 PLC (C. S.) 247) has taken a similar view. The decision of the Lahore High Court in the case of Dr. Ghulam Mustafa v. Punjab Government (1983 PLC (C. S.)
47) also lays down like law.
5. In view of the above discussions, and the legal position explained above, we accept this appeal, and set aside the order of reversion of the appellant from the post of Superintendent in the PNCB to the post of Assistant in the States and Frontier Regions Division. He shall be deemed to have continued in the said post in Grade 16 from the date of reversion, with all the consequential benefits.
6. No order as to costs. Parties to be informed accordingly.
A. O. RAIZUR REHMAN (MEMBER).-The appellant, who joined the Frontier Constabulary as a Clerk in 1951, was, on 9-2-1968, recruited by direct selection as an Assistant (Grade 11) in the States and Frontier Regions Division. In 1973, when the Government reconstituted the PNCB, it circulated a letter, on 21-5-1973, to different Divisions for filling up the post of Superintendent (Grade 16). The appellant applied for the above and appeared before the Departmental Promotion Committee, who selected him, alongwith another person, out of about 30 candidates.
Thereafter, on 19-1-1974, an offer was made to the appellant, vide letter No. C. No. 6 (5)/PNCB/74, which is reproduced below :----- ---Having been selected, Mr. S. Amjad Ali Shah, Assistant, States & Frontier Regions Division is offered the post of Superintendent in the PNCB in Grade 16 of the NPS on ad hoc basis on the following terms and conditions :--
(1) His appointment shall be purely on temporary basis and re-- placeable by the FPSC nominee.
(2) The appointment shall not confer on him any right or title to confirm or regular basis.
(3) He shall be governed by the existing service rules (as amended from time to time).
If the post is acceptable to Mr. Amjad Ali Shah on the terms and conditions mentioned above, he may be relieved to report for duty to the PNCB, Islamabad by 22nd January, 1974.
(S d.)
ASRAR HUSSAIN, Secretary, PNCB"
2. The appellant accepted the offer and assumed charge as Superin--tendent in the PNCB on 24-I- 1974. The appointment and assump--tion of charge were notified in the official Gazette on 28-1- 1974. The notification is reproduced below :- "'NOTIFICATION No. 6 (32)/PNCB/Admnj74.-Having being selected, Syed Amjad Ali Shah, Assistant, States & Frontier Regions Division has been appointed and assumed charge of the post of Superintendent in Grade 16 National Pay Scale in the Pakistan Narcotics Control Board, Islamabad w.e.f. The forenoon of 24th January, 1974 until further orders.
(Sd.)
M. Y. ORKZAI, Chairman Pakistan Narcotics Control Board."
3. Since the States and Frontier Regions Division had given him one year period to exercise the right of reversion, the appellant was reverted to his parent department after the expiry of the said period on 24-1-1975. How--ever, after some time the Board again offered the same appointment to him on exactly the same terms and conditions of service, vide Memo. No. 14 (l3)-X. Sec/73, dated 28-4- 1975. The appellant having accepted these terms, he was again appointed as Superintendent in the PNCB, which he rejoined on 30-4-1979.
4. This was notified in the official Gazette by a notification dated 2-5-1974. The said notification reads as under :- "NOTIFICATION No. 6 (32)PF/PNCB/74 - Consequent upon his release from the States and Frontier Regions Division, Syed Amjad Ali Shah, a temporary Assistant of that Division is appointed and assumed charge of Superintendent in (Grade 16) in the Pakistan Narcotics Control Boards with effect from 30th April, 1975 (afternoon) until further orders.
(Sd.)
ASRAR HUSSAIN, Secretary, Pakistan Narcotic Control Board,"
As in the case of the previous appointment, this time also his parent department, the States and Frontier Regions Division, allowed him the right of reversion for one year. This period was, however, extended from year to year up to 9-5-1981. Meanwhile, by an order dated 23-7-1979, he was confirmed in the parent department as Assistant, with effect from 1-7-1977. Nevertheless, he continued as Superintendent (Grade 16) in the P N C B. Up to 4-3-1982, when the P. N. C. B reverted him to his parent department, vide Office Order No. 6 (32)/PF./PNCB/74, dated March 4, 1982, which is reproduced below:-- "OFFICE ORDER (Sd.)
MOHMUS AKRAM, Secretary, Pakistan Narcotics Control Board, Islamabad."
5. This was followed by a notification dated April 3, 1982, which also is reproduced below :-- "NOTIFICATION No. 6 (32)-P. F. /PNCB/74.-In pursuance of the Establishment Division O:M. No. 1/44/80-F II/R-6 dated the 22nd February, 1982, Syed Amjad Ali Shah, ad hoc Superintendent, P.N.C.B., Islamabad is reverted to his original post in the States and Frontier Regions Division, Islamabad and relieved of his duties with effect from 4th March, 1982 (A. N.).
(Sd.)
MAHMUD AHMAD, Secretary, Pakistan Narcotics Control Board.
Islamabad."
6. Against the office order dated 4th March, 1982, the appellant made a representation on the same date to the Chairman, P.N.C.B. In which he pleaded that he was not a deputationist but had been appointed as Superintendent on a regular basis. In this connection, he argued that the notification, dated 30-4-1975, regarding his appointment as Superin--tendent did not indicate that he was being appointed on deputation and that his appointment as Superintendent (Grade 16) had been made in accordance with the procedure laid down by the Establishment Division for appointment to the post of Superintendent in the Ministries/Divisions/ Attached Departments. He further argued that, instead of being reverted to his parent department, after having served the P N C B. For about 8 years, he should have been confirmed as Superintendent after bringing the post on permanent footing, since it had remained in existence for more than 5 years.
7. Subsequently, after the publication of the Notification dated April 3, 1982, in which he was mentioned as ad hoc Superintendent, the appellant submitted another application to the Chairman, on 30th April, 1982, in which he pointed out the contradiction between the office order dated 4th March, 1982 and the Notification dated 3rd April, 1982, wherein he was described as on "deputation" and "ad hoc" respectively and con--tended that he had been illegally reverted from the post to which he had been properly appointed by direct recruitment.
8. Meanwhile, on 24-3-1982, he addressed an appeal to the Secretary, Ministry of Interior Government of Pakistan against his reversion and prayed for cancellation of the said order.
9. It appears that the appellant treated his representation, addressed to the Chairman on 4-3-1982 as an appeal and, after waiting for a period of 90 days, when he did not get any response, he came up in appeal before the Tribunal, under section 4 of the Service Tribunals Act, 1973, on 5-6-1982.
After preliminary hearing on 30-6-1982, the appeal was admitted for regular hearing, which took place on 9-5-1983 and is being disposed of by this order.
10. The main grounds of the appeal are contained in paragraph 9 of the memo. Of appeal, which, inter alia restate the stand taken by the appellant in his representation addressed to the Chairman, P. N. C. B and his appeal to the Secretary, Ministry of Interior. Briefly speaking, his stand is that his appointment as Superintendent (Grade 16) in the P.N.C.B. Was a regular appointment and neither on ad hoc basis nor on deputation and, therefore, he could not be reverted to his previous department. According to him, he was not an ad hoc appointee, because his appointment was not for a specified period but until further orders ; nor was he a deputationist, because a deputationist could not be appointed to a higher grade in the borrowing department. He was, therefore, to be treated as a regular incumbent, who, having served for a period of about 8 years, had acquired a vested right in the appointment, of which he could not be deprived without adequate reason.
Further, since the post of Superin--tendent was a promotion post and, according to the Establishment Division's instructions on the subject, issued on 17-5-1950 vide Memo. No. 54/11/48- Ests (M. E.), in case no Assistant or Assistant-incharge in the Ministry/Division was considered fit for promotion or fulfilled the require--ment of 5 years' experience as Assistant, Assistants of other Ministries/ Attached Departments were to be considered for appointment. Since the appellant's appointment was made in accordance with the procedure prescribed in the said Memo., his contention is that he had been selected for and appointed to the post in a regular manner and neither on deputation nor on ad hoc basis. Therefore, he claims that his reversion to the States and Frontier Regions Division is not justified and should be set aside.
11. Having heard both the parties in detail and perused the relevant documents, we have come to the conclusion that the appellant's appointment, both in the first instance, when he was selected after advertisement and interview, and subsequently, after his previous reversion to his former department in 1975, was on ad hoc basis, as is clear from the letters issued to him on both occasions offering him the appointment. On both the occasions, it was made clear to him that the appointment was purely temporary and replaceable by the FPSC nominee and that the appointment did not confer on him any right or title to confirmation on regular basis.
12. On the other hand, both the offers of appointment made to the appellant in 1974 and 1975 respectively, clearly stipulated that the appellant was replaceable by the FPSC nominee and that the appointment did not confer on him any right or title to confirmation on regular basis. Merely because no FPSC nominee had been selected to replace the appellant for more than 8 years, it did not imply that the appellant could continue in the post indefinitely.
13. As already mentioned, the plea has also been taken by the appellant that his appointment had been made in accordance with the instructions issued by the Establishment Division on the subject of recruitment to the post of Superintendent in the Central Secretariat and its Attached Departments, issued in 1950. This plea ignores the fact that the instructions referred to were issued many many years before the promulga--tion of the Civil Servants (Appointments, Promotions and Transfers) Rules, 1973, after which all appointments, promotions and transfers are to be carried out in accordance with these rules. Under rule 10 of these rules, initial appointments to posts in Grade 16 are to be made on the basis of examination or test to be held by the FPSC. It is evident because of this that, on both occasions when offers of appointment were made to the appellant, it was made clear to him that he would be replaceable by an FPSC nominee. Therefore, it is clear that neither the appellant could have been appointed on a regular basis as Superintendent in the P. N.
C. B. Without reference to the FPSC nor was he so appointed.
14. In the light of the above, we do not find anything wrong with the order reverting the appellant to his parent department. Therefore, the appeal is dismissed and the impugned order of reversion upheld.
15. No orders as to costs.
16. Parties to be informed.
ORDER OF THE COURT The opinion of the Chairman expressed in his order dated 23rd May, 1983 shall be deemed to be the decision of the Tribunal under section 3A (2) (c) of the Service Tribunals Act, 1973.