S. ABDUL JABBAR KHAN (CHAIRMAN).-Syed Ghulam Jilani Shah and sixteen others have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, in which they have impleaded the Secretary to Government of the Punjab, Irrigation and Power Department and Chief Engineer, Faisalabad and others as respondents.
2. By virtue of these appeals they have prayed that order of respondent No. 1 directing the reversion of the appellants from the post of Sub-Divisional Officer to that of Sub-Engineer and order of respondent No. 2, dated 18-8-1982, reverting the appellants to the post of Sub---Engineers may be set aside.
3. As the facts and point of law involved in all these appeals are identical in nature we will decide these appeals by our this single judgment.
4. Brief facts of the case are that all the appellants joined Irriga--tion Department as Overseers between 1944 to 1955. The designation of the Overseer was changed to Sub-Engineer. All of them were confirmed in the service of Sub-Engineers and also passed their departmental examination.
The appellants were posted as S. D. Os. (Irrigation) on various dates since 1976/77 to 1982 onward.
They have been working as such till the direction was given by respondent No. 1 that these persons be reverted from the posts of S. D. Os. To that of Sub-Engineers. This direction was made on 15-6- 1982 to respondent No. 2 who passed the orders of reversion of the appellants accordingly. Hence these appeals.
5. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representatives of the Department and have perused the record of this case carefully with their assistance.
6. Learned counsel appearing on behalf of the appellants have taken a common ground that in fact the appellants were promoted as S. D. Os. And did not hold any additional charge as stated by the respondents. According to the learned counsel the charge of Sub-Engineer was relin--quished by them and they took over the new assignment as promotees. Learned counsel have taken strong exception to the word "Acting" used in the appointment orders of the appellants by the respondents, as accor--ding to him this word carries no legal sense according to the Service Rules nor it could be equated with ad hoc appointments which are only limited for a period of six months.
The case of the appellants is that they are promotees to the posts of S.D.Os. And could not be reverted to their substantive posts without a show-cause notice or proceedings under E & D Rules.
For this purpose reliance has been placed on PLD 1966 Lah. 825, Dr. M. S. Qureshi v. West Pakistan (PLD 1963 SC 144), 1981 SCMR 523, PLD 1970 SC 203, PLD 1970 Quetta 115 and PLD 1982 SC (A J & K) 124 to show that if a person is inducted to a senior post without observing the procedure or rules laid down in this behalf the non-observance of such rules would in no way derogate his status or affect his promotion. This view has been held in PLD 1963 SC 144. Learned counsel while relying on PLD 1966 Lah. 825 have argued that if the appointment is made by the competent authority without the consultation of Public Service Com--mission, the same would not affect the validity of such appointment. He has also taken shelter behind 1981 SCMR 523, in which the principle of locus poenitentiae has been propounded. Similarly it was vehemently argued by the learned counsel that if a temporary arrangement continues for years it would be considered as good as regular. For this he has relied on PLD 1970 SC 203. He has also relied on 1982 P SC 1025 (AK. SC), in which it has been held that if the appointment/promotion is uninterrupted for more than 2 years the same would not be considered as ad hoc. Besides these submissions, he has also based his case on PLD 1970 Quetta 115 it would be his principle mainstay as the same has been followed, by this Tribunal in the case of M. Ilyas Zaidi etc.
7. On the other hand learned District Attorney has relied on the appointment orders passed in favour of the appellants in which according to the learned District Attorney they were clearly informed that the charge so given to them were liable to termination without notice in accordance with section 11 of Punjab Civil Servants Act, 1974 and shall not confer on them any right to claim promotion on regular basis. They will draw their pay etc. As Sub-Engineers. According to the learned District Attorney this was a sufficient notice to the appellants of their status which they were allowed to enjoy by virtue of the said orders. It was vehemently argued that if they did not accept a stipulation so laid down in the very appointment order they should have refused to work under the said stipulation.
8. With regard to the merits of the case learned District Attorney has submitted that the law so cited by the learned counsel for the appel--lants is hardly applicable in their case. According to the learned District Attorney the appointments as S.D.Os. Were made by the authorities who were not competent to do. They were posted as Assistant Engineers with clear warning that this was neither a promotion nor an ad hoc appointment but only a stopgap arrangement made by the Chief Engineer in the public interest, who was not a competent authority to confer upon them any promotion as S.D.Os.
9. While looking into the comments made by the respondents we find that the directions made by respondent No. 1 were necessitated when qualified Engineers were employed on ad hoc basis as Direct Recruits by him of course awaiting their regularization from the P. S. C. And they had to be accommodated in lieu of their said appointments, made by the competent authorities. Mian Bashir Ahmad, Deputy Secretary (Admn.) Irrigation and Power Department on behalf of respondent No. 1, has submitted that the appellants in fact were allowed to work as S. D. Os. Due to paucity of Degree-holder Engineers and when this problem had been solved by recruiting a large' number of under-graduate Engineers as Direct Recruits, the Department had no alternative but to send the appellants back to their substantive posts, as civil servant going back to substantive post although he had been working on higher post for some time, would not be the act of reversion in any manner of whatsoever. However the Deputy Secretary (Admn.) assured the appellants that all of them were not going to be reverted because in a number of regions the Direct Recruits have been absorbed otherwise.
10. We have given our anxious thought to the arguments so advanced before us and have got every sympathy with the appellants who have worked as S. D. Os. Under the orders of Chief Engineers and naturally feel disappointed when having been asked to go back to their substantive appointments, but what we have to decide is to decide according to rules and law laid down in this behalf. The rules on this point are very clear i.e. That promotion is always made under the order of the competent authority and none else. If a competent authority promotes a man and certain formalities are not observed which were required to be observed, naturally the promotee should not suffer. In the present case the basic flaw which has crept into these appointments, is that all the appellant have been posted as S.D.Os. Under the orders of Chief Engineer only who in no manner would be competent authority to make such orders. It is the Secretary of the Government who can either himself provisionally promote a civil servant to Grade-16 and above to higher posts or the same should be done on the recommendations of the Selection/Promotion Committee constituted in this behalf. In the present case nothing of this sort has happened and we have no alternative but to hold that the appellants were appointed as S.D.Os. As a stop-gap arrangement with clear condition that their services would be terminated as S.D.Os. Whenever Government think proper under section 11 of the Punjab Civil Servant Act, 1974, without any notice. This stipulation is present in each and every appointment order so received by the appellant. This being the situation we have no hesitation to repel the arguments of the learned counsel for the appellants that the appellants were promotees and as they, had worked continuously against the assignment they should be considered as a regular one.
11. Before parting with this judgment we observe on the strength of the information so laid down before us by the Deputy Secretary (Admn.) Irrigation and Power Department that number of Direct Recruits have already been absorbed in other vacancies lying vacant during the pendency of these appeals, Government may accommodate required number of Sub-Engineers to work as acting S.D.O. If this in no manner interfere with the smooth working of their administration. This observation we are making on the well-honoured principle that the Government is a being litigant and will always show latitude to his employees to create confidence in them as their employer is just and kind. We are also aware that -this sort of attitude creates confidence in the employees for its employer which is very much conducive to good administration of the country.
12. With the above observation we proceed to dismiss these appeals. However parties shall bear their own costs: