' S. ABDUL JABBAR KHAN (CHAIRMAN).-Muhammad Malik has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded Secretary to Government of the Punjab, Local Government and Rural Development Department, Lahore, as respondent.
1984 MUHAMMAD MALIK V. SECRETARY TO GOVERNMENT OF PUNJAB, 765 LOCAL GOVT. AND RURAL DEVLT. DEPTT. (S.Abdul Jabbar Khan, Chairman)
2. By virtue of this appeal he has prayed that the orders, dated 10th January, 1981 and 22nd March, 1982, passed by the respondents, be set aside as being illegal and the appellant be restored all the consequential benefits.
3. Brief facts of the case are that the appellant joined service in the Punjab Civil Secretariat, Lahore, as Junior Clerk in 1956 and was promoted as Assistant in the year 1973. As the appellant was M. A.
Economics with Statistics, therefore, he has been working all along as Statistical Assistant in the joint cadre of Assistants of Local Government Department. The appellant was appointed as officiating Statistical Officer in N. P. S. 16 vide order dated 18th October, 1978, and after consultation with the S G A & I Department, the appellant was appointed as Statistical Officer in relaxation of Rule 13 (2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, vide orders dated 19th October, 1979. Later on the appellant was sent on deputation to the Provincial Local Government Board vide order, dated 28th August, 1979, where he was posted as Research Officer in N. P. S.
17. After 27th March, 1980, when he was still holding the post of Research Officer, the appellant was posted as Chief Officer, Kamalia vide order, dated 27th March, 1980. During his tenure as Chief Officer, Municipal Committee, Kamalia, the appellant was called upon to explain as to why he has committed an act of omission while he was looking after the work of Section Officer (VI) of the Local Government Department in addition to his own duties. The appellant explained his position.
However, on 22nd November, 1980, the respondent issued a show-cause notice to the appellant on 10th December, 1980 and in consequence thereof he was ordered to be recalled from the deputation and simultaneously reduced in rank, vide order, dated 10th January, 1981, and was sent to Home Department. The appellant made representation to the Minister Incharge of the Local Government Department against his reversion who was pleased to order that the appellant be accommodated as Chief Officer, a post against which he was already serving. The representation of the appellant alongwith the order of the Minister for Local Government, was sent to the respondent, but ultimately the respondent rejected the representation. 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 Department and have perused the record of this case with their assistance.
5. Learned counsel for the appellant has submitted that the appellant being undisputedly on deputation with the Provincial Local Government Board, he could not be reverted without the express order of the Chairman, Provincial Local Government Board, who would be the competent authority in this case. According to the learned counsel the impugned order, dated 10th January, 1981, was purportedly passed by the respondent on the wrong premises that he was Chairman of the Provincial Local Government Board. It has been argued that the Chairman, Provincial Local Government Board and Secretary, Local Government Department has two distinct capacities with two distinct officers. According to the learned counsel, the Chairman of the Provincial Local Government Board, could not take any unilateral decision without consulting the Board in a meeting properly convened for the purpose. It has been further submitted that the order of reversion being penal in nature, the same could not be made without giving proper opportunity to the appellant to defend himself. Reliance has been placed on Abdul Qadir v. Government of West Pakistan ' Learned counsel has submitted that even if it is assumed though not conceding that appointment of the appellant in Grade-16 was ad hoc appointment, the same cannot be terminated till the availability of regular incumbent as this was clearly provided in the order, dated 19th October, 1979, that the appellant would continue as Statistical Officer till the regular incumbent was available. It has been pointed out by the learned counsel for the appellant that the said post against which the appellant was appointed, is still lying vacant. Learned counsel has further made grievance of the fact that normal tenure of deputation being 3 years, the appellant could not be recalled without consulting the borrowing agency. Learned counsel has also relied on the principle of locus poenitentiae as according to him the first order was duly implemented and acted upon, therefore, it has created a vested right in favour of the appellant.
6. On the other hand learned District Attorney has raised two preliminary objections with regard to limitation as well as competency of the appeal so filed before us. With regard to the merits of the case he has submitted that the appellant was allowed to officiate as Statistical Officer in N. P. S. 16, as a stop-gap arrangements, therefore, no vested right has accrued in his favour for his reversion to the parent Department. He has also referred to the conduct of the appellant while working as Section Officer, in addition to his own duties and has submitted that the appellant twisted the language of the proposal and thus tried to give undue benefit to certain parties. With regard to the averment that the Minister Incharge had passed a favourable order in the case of the appellant, the learned District Attorney has denied the same. It has also been urged that the order of1 withdrawal from deputation and reversion to the parent post, were passed by an authority, which was competent to do so, therefore, no exception could be taken to the competency of such order.
He has also denied the allegation that the deputationist cannot be withdrawn without consulting the Borrowing Agency, before the expiry of the deputation period.
7. We have given our anxious thought to the arguments so advanced by the parties and first of all would like to dispose of the preliminary objections so raised by the learned District Attorney.
Annexure 'B' placed on the file by the appellant is a letter from the Government of the Punjab, Local Government and Rural Development Department, addressed to the appellant and is dated 22nd March, 1982. In fact this is the letter by which representation of the appellant has been rejected. In our considered opinion this would be the date from which time would start running for limitation against the appellant: The appellant has filed this appeal on 20th April, 1982, therefore, the appeal is well within time and we have no hesitation to repel the arguments that the appeal is time- barred. With regard to the competency of the appeal, we do not find any force in the arguments of the learned District Attorney that it would lie before this Tribunal under section 4 (b) of the Punjab Service Tribunals Act, 1974, as the appellant' is a civil servant and can ventilate his grievance against the order which effects terms and conditions of his service. The appellant who was enjoying N. P. S. 16 and 17, when reverted to N. P.'S. 11, would certainly be an aggrieved person against such act.
8. With regard to the merits of the case we will refer to a very crucial documents which we have placed on the record as Annexures 'A-1' and `A-2'. Annexure `A4' is an order of the Government of the Punjab, Services, General Administration and Information Department, dated 9th February, 1976 by which the appellant Muhammad Malik, was posted from Health Department to Local Government and Social Welfare Department against existing vacancy of Statistical Assistant we find in the endorsement addressed to Section Officer (G), Government of the Punjab, LG& SW Department that the Rules Sub-Committee has decided to include the post of Statistical Assistant in the general cadre of the Assistants of the Punjab Secretariat. Since Mr. Muhammad Malik is M. A.
(Economics) with Statistics as one of the subject and will be able to perform the duties of Statistical Assistant". While Annexure `A-2' goes to show that the post of Statistical Officer against which the appellant was posted was still lying vacant in the current year's budget and Finance Department had refused to fill the said post. This is a letter from the Government of the Punjab, Local Government and Rural Development Department addressed to the Registrar of the Punjab Service Tribunal, Lahore, in reply to the query made by this Tribunal during the pendency of this appeal.
With these accepted facts we are in no manner of any doubt that the appellant was posted as Statistical Officer in N. P. S. 16, on purely temporary basis w. e. f. 30th October, 1977, till the availability of regular incumbent in relaxation of Rule 13 (2) of the Punjab Civil Servants (Appoinment and Conditions of Service) Rules, 1974, vide order, dated 18th October, 1979. It is also a fact undisputed that the appellant was on deputation with the Provincial Local Government Board. Now the question would be whether the appellant who was working on deputation with the Provincial Local Government Board, could his deputation be terminated by the Chairman of the Provincial Local Government Board, without his case being fully processed by the Provincial Local Government Board and without decision of his repatriation being taken in the meeting of the said Board or not. It seems that respondent passed the impugned order assuming himself to be the Chairman of the Provincial Local Government Board whereas these two posts are quite distinct in nature. In fact at the time, the impugned order was passed by the respondent, he was acting as Secretary to Government of the Punjab, Local Government Department and not as Chairman of the Provincial Local Government Board. As a Chairman of the Board, he cannot take any unilateral decision, without consulting the Board in a meeting properly convened for this purpose. The Secretary can act independently but the Chairman of the Board has to act in consultation with the other Members of the Board, therefore, the nature of the office is distinct in nature and a Secretary cannot act as Chairman of the Board unless he complies with the procedure so laid down in this behalf pertaining to the said office.
9. The perusal of the record of this case shows that at one time action was initiated against the appellant when it was found that he had committed some omission while looking after the work of Section Officer VI. It is also on the record that the said omission did not cause any loss, whatsoever to Government because when the omission was detected, the said administrative order was recalled. Assuming for the sake of argument in favour of the respondent, that it was an objectionable conduct and for the said purpose, a show-cause notice was issued, the proper procedure would have been to conclude the said charges in the said show-cause notice and to take action against the appellant after affording him full opportunity to defend himself. But what we find from the record is that no further action was taken towards departmental proceedings initiated by respondent by way of a show-cause notice, dated 22nd November, 1980 and the appellant was recalled from deputation and simultaneously reduced in rank vide order, dated 10th January, 1981. There is no denying of the fact that the order of 'reversion passed by the respondent would undisputedly be penal in nature and this would definitely carry a stigma with it. In this matter reliance on Abdul Qadir v. Government of the West Pakistan is wellplaced.
10. Looking into the other aspect of the case in view of the comments offered by the respondent that the appointment of the appellant as Statistical Officer in N. P. S. 16 was on purely temporary basis, we cannot remain oblivious of the procedure laid down in this behalf that his services could only be terminated, if the regular incumbent was so available Annexure `A-2' reply to the query of the Tribunal, clearly indicates that the post is still vacant and no incumbent was available to fill it. In view of this established fact, the order of termination from said N. P. S. Would also be against the letter and spirit of the appointment order.
11. We also cannot consider the appellant as a temporary appointee, as it is on the record that vide order, dated 19th October, 1979, the appointment of the appellant as Statistical Officer was w. e. f.
30th October, 1977, therefore, the appellant stood confirmed by operation of law. We have no dispute with the fact that a person sent on deputation can be repatriated even within the normal tenure of 3 years, yet according to the norms and procedure, such like deputation should not be terminated arbitrarily and the borrowing agency should also be consulted at such juncture. In fact such like unilateral action would be considered for all purposes, review of earlier order passed in favour of the appellant and we are afraid that this power of review is nowhere provided under the Punjab Civil Servants Act, 1974 and the rules framed thereunder.
12. The appointment of the appellant was made in consultation with the Services, General Administration and Information Department and would therefore, be for all intents and purposes, a regular appointment as Statistical Officer and stood confirmed by operation of law. In view of the said fact, the reversion of the appellant, should not have been made without following the procedure as prescribed under the E & D Rules, 1975. Further anomaly in this case is that the appellant, has been reverted from N. P. S. 17 to N. P. S. 11 but with the operation of law, he could only be reverted to N. P. S. 16, which he was enjoying at the time of deputation. The claim of the appellant that his case was also covered by principle of locus poenitentiae, is not without force. A person who has been working in N. P. S. 16 and N. P. S. 17, and stood confirmed by operation of law, at least in N. P. S. 16, would certainly acquire a vested right in his favour and it would be highly unjust to throw him back to N. P. S. 11, without any cogent reasons, particularly when the appellant was posted on the grounds that he was M. A. (Economics) with Statistics.
13. In view of the detailed analysis so given above we proceed to accept the appeal, set aside the impugned order and direct that the appellant will remain as Statistical Officer in N. P. S. 16, the post against which he was appointed and stood confirmed by operation of law. There will be no order as to costs. PLD 1967 SC 506