' SHAH ABDUR RASHID (CHAIRMAN) - The appellant, Ghulam Akbar Bhutto, was serving in Grade-19 as Director Marketing and Supplies in the Population Planning Council when, by order, dated 27th Novembers, 1979, he was reverted to Grade-18 under section 12-A of, the Civil Servants Act (LXXI of 1973). His departmental representation having been rejected, he has come up in appeal before this Tribunal, under section 4 of the Service Tribunal Act (LXXI of 1973).
2. The facts of the case are that the appellant was directly recruited in the Sind Population Planning Board in Grade-18 with effect from 7th February, 1972. He was taken in the Population Planning Council on the recommendation made by Mr. Abdul Waheed Kaptar, the Minister for Population Planning Government of Sind and ex-officio Chairman of the Provincial Board. The said Minister, in the first instance, made recommendation for appointment in the Population Council in respect of four persons, all of whom were in Grade-18, serving under him. On this recommendation, the first name person, Mr. Aftab Ahmad Junejo, was appointed in Grade-19, but the others were at that time left out. The Minister then addressed another letter to the Federal Minister, incharge of the Population Planning, who was also the Chairman of the Council, recommending the name of the appellant, who appeared at serial No, 2 in the first letter of recommendation for appointment in Grade-19 in the Council. The appellant was then taken in the Council in Grade-19 with effect from 10th December, 1976.
3. When the Review and Reorganisation Committee, consisting of Major-General Choudhry Abdul Rehman Khan and Mr. Sikandar Hayat Khan, Joint Secretary of the Population Division, was constituted, it examined the case of the appellant. The minutes of the Committee, containing the recommendation for taking action against the appellant under section 12-A ibid have been placed on record. Since examination of this recommendation is important, I reproduce the same as under :- "Mr.
0. A. Bhutto was directly appointed in Grade-18 with effect from 7th February, 1972. There is no evidence in his personal file or C. R. Dossier to prove that while appointing him necessary formalities were observed. The absence of any formalities in connection with his appointment has led this Committee to the inevitable conclusion that this appointment was made on political considerations rather than merit. This conclusion finds support from a D. O. Letter written by Mr. Abdul Waheed Katpar, the then Minister for Population Planning Sind to Mr. Taj Muhammad Khan Jamali the then Federal Minister for. Population Planning (a copy of this letter is enclosed as per Annexure 'A'). There is another D.
0. Letter from the Minister of Population Planning, Sind addressed to the Federal Minister for Population Planning Division requesting him that Mr. G. A. Bhutto who is his next recommendee may be considered for appointment as Director in the Council (see Annexure 'B'). He was accordingly appointed as Director with effect from 10th December, 1976.
' On the basis of his date of appointment in Grade-18, an appointment which is ab initio illegal, Mr. G. A. Bhutto was given another promotion to Grade-I9 ignoring the rights of a number of officers senior to him in Grade-18.
' In respect of Federal Services initial appointment to a service is made on the basis of Provincial Quotas. Thereafter promotion within a particular service is not made on the basis of Provincial seniority but on the basis of seniority on All Pakistan Basis. This requirement was ignored while promoting Mr. Aftab Ahmed Junejo and Mr. G. A. Bhutto, The Review and Reorganization Committee has taken due notice of such a manner of promotion in the case of Mr. Aftab Ahmad Junejo and has submitted its recommendations to the C.M.L.A's Secretariat. In keeping with its earlier recommendations, this Committee is of the view that the appointment of Mr. G. A. Bhutto made on 7th February, 1972 was based on political considerations and the matter of his promotion to Grade- 19 at the cost of a number of senior officers was equally the result of political manoeuvring on his part.
' To accommodate him even the Headquarters of the Directorate of Supply and Marketing was shifted from Islamabad to Karachi (A nnexure 'C').
Since his promotion to Grade-19 he has already earned an adverse report.
' In view of the above circumstances, Review and Reorganisation Committee recommends that Mr. G. A. Bhutto may be removed from service forthwith. He could seek re-entry into public service provided he is found fit for it by the Federal Public Service Commission."
4. Though the appellant was recommended for removal from service also from Grade-18, that recommendation was not accepted by the competent authority and it only passed order of reversion of the appellant from Grade-19 to Grade-18, meaning thereby that the appointment of the appellant to Grade-19 had been considered to be the result of considerations other than merit, relevant portion of the order of the authority is as under :- "There is no evidence on record to prove that his (Mr. G. A. Bhutto's) initial appointment was political in nature. However, in respect of his appointment to Grade-19, four years later, there are a couple of letters which lend support to the charge of political influence and, therefore, the charge is tenable."
5. The learned council for the appellant has argued that the order of reversion of the appellant is not tenable for the following reasons :-
(i) There was a violation of the principles of natural justice.
(ii) The order of reversion is mala fide.
(iii) There was no public interest; which is the prerequisite of an order under section 12-A in reverting the appellant from Grade-19 to Grade-IL
(iv) The order is not valid on the facts of the case.
6. As regards the first contention, the learned counsel for the appellant has submitted that the appellant was not afforded an opportunity of explaining his position before passing order of reversion. No doubt, this is so, but the language of section 12-A ibid is clear enough to indi cate that the right of hearing for taking action under the said section has been taken away by the law itself.
No law which takes away the right of hearing can be held to be invalid. The principle is that when an action is taken against a person, opportunity of hearing should be given to him unless the law under which the action is taken itself provides that such an opportunity shall not be given. As observed, in enacting section 12- ibid, the law-maker has taken away by specific words the right of hearing, and therefore, the order cannot be struck down simply for the reason that opportunity of hearing the appellant was not given to him.
7. As regards mala fide, it was pointed out that Mr. Sikandar Hayat Khan, Joint Secretary, who was the Member of the Committee, was the son of Nawab Muhammad Ahmad Khan Qasoori, who had been murdered and Mr. Z. A. Bhutto, the late Prime Minister was accused in his murder case, and that the appellant, though had no relationship with the late Prime Minister (Mr. Z. A. Bhutto), he belonged to the Bhutto tribe as his name clearly shows, and that Mr. Sikandar Hayat Khan was prejudiced against him, and he not only made recommendation for his removal, but also sat in the Committee and reviewed the appellant's case. According to the learned counsel for the appellant, the entire action is vitiated by participation of Mr. Sikandar Hayat Khan in the proceedings of the Committee. The fact is not denied that Mr. Sikandar Hayat Khan was the son of Nawab Muhammad Ahmad Khan Qasoori and he being the Joint Secretary, recommended the case of the appellant and also paricipated in the deliberations of the Committee. However, it has not been established that Mr. Sikandar Hayat Khan was inimical towards the appellant simply because he belonged to the Bhutto tribe, and Mr. Bhutto was suspected of murdering his father. Though there can be some suspicion that Mr. Sikandar Hayat Khan was instrumental in taking action against the appellant for the reasons of enmity with the late Prime Minister, nevertheless, it has not been established that Mr. Sikandar Hayat bore any grudge against the appellant. To prove mala fide, very strong evidence is required, which, in the present case, is wanting. I am, therefore, not inclined to accept the stand that the action taken against the appellant was mala fide.
8. The third point is with regard to the absence of public interest. That is linked with the question of the justification of the order of reduction. I am, therefore, taking up both the points together.
9. The appellant was recommended alongwith others from the Province of Sind for appointment in Grade-19 in the Population Planning Council, as they hailed from rural areas of Sind. There were persons senior to him in the Sind Population Planning Board but all of them, except Mr. Aftab Junejo whose name too had been recommended for appointment in Grade-19, belonged to the urban area of Sind. The recommendation of Mr. Katpar was based mainly on the ground that the rural area of Sind was not properly represented in the Population Planning Council, and that there was resentment among the people belonging to that area, which should be looked into. There is nothing on the record to show that the appellant himself was instrumental in getting his name recommended for appointment in Grade-19. The correspondence, however, does show that Mr. Katpar was interested in getting appointed officers from rural areas in Grade-19 in the Population Planning Council. If such a recommendation was made by Mr. Katpar, that was a policy which he evolved and to which the Federal Minister, who was the Chairman of the Population Planning Council, also agreed. It may be that the policy was not justified, but it cannot be said that the appellant exerted any political influence to gain entry in Grade-19 in the Population Planning Council.
10. On behalf of the respondent-department, it has been urged that appointments on promotion are made on seniority and fitness basis irrespective of the regional quotas, and that the very act of Mr. Katpar was political in nature, who presumably intended to help appellant. I am not in agreement with this contention because similar appointments bad been made from the Provinces of Punjab, Baluchistan and N.-W.F.P. There was no consolidated seniority list of officers in Grade-18 belonging to the different Provinces. In fact, there were separate lists of each Province and the list of the Province of Sind included both employees from rural and the urban areas. The appointment of the appellant in Grade-19 in the Population Planning Council was in the nature of direct appointment and not on promotion basis, because if the question of promotion had been involved, then the seniority of persons in Grade-18 in all the four Provinces should have been considered together, which was not done. I am inclined to agree with the learned counsel for the appellant that this was a case of direct appointment of the appellant and the stand taken by the respondent Government that seniority was ignored for promotion has no substance.
11. The other point which remains is that the appellant was appointed in Grade-19 when he had rendered only four years service in Grade-18, and was not ripe for promotion in Grade 19. This may be so, but there is no strict rule for appointment in Grade-19 regarding the length of service. The appellant, on the date of promotion, being the senior most officer in Grade-18 from rural area of Sind, thus was appointed strictly in accordance with the policy letter sent by Mr. Katpar. We may say that the decision was politically influenced, but it cannot be said that the appointment of the appellant was politically motivated. I am also conscious of the fact that the Review Committee took unwarranted interest against the appellant when it recommended his removal from service from Grade-18 as well, because there is nothing on the record to show that the appellant gained entry into Grade-18 by exerting any C political influence, or that his appointment was otherwise not made on merits. The minutes of the Committee give at least one fact which on the face of it is wrong. It is mentioned that the appellant secured transfer of his office from Islamabad to Karachi.
This was done after the previous Government had ceased to exist. It was during the period of the present Government that the post of the appellant was shifted from Islamabad to Karachi. This fact further shows that the recommendation for taking action against the appellant was not free from prejudice.
12. For the aforesaid reasons, I would accept this appeal, and set aside the order of reversion of the appellant from Grade-19 to Grade-18. D He shall be deemed to have never been reverted to Grade- 18 and would be entitled to consequential benefits.
13. There shall be no costs in this appeal.
14. Parties to be informed.