' MUHAMMAD IRSHAD KHAN (MEMBER).-- This appeal is directed against an order issued on 15-4- 1979 in exercise of the powers conferred by section 3 of the Corporation Employees (Special Powers) Ordinance, .978 (hereinafter referred to as the Ordinance), whereby the appellant was reverted from N.P.S.-16 to N.P.S.-12. The appellant has raised several grounds of law and facts to assail the impugned order.
2. It was contended on behalf of the Respondent Department that a Review Board was constituted in the Ministry of Religious Affairs to review the irregular/politically motivated appointments made directly or by promotion otherwise than on merits during the specified period. The Review Board on such reviewing the cases of the officials employed in the Auqaf Organization, had found that the appellant, who joined as Assistant Manager, Auqaf, on the 1st of July, 1968, and subsequently promoted as Manager, Auqaf, (Grade-12) on the 25th of October, 1975, was given accelerated promotion to the post of Senior Manager, Auqaf (Grade-16) on the 2nd of February, 1977, under the orders of the then Provincial Auqaf Minister. The Review Board considering the appellant's accelerated promotion to Grade-16 as politically motivated and made at the initiative of the appellant ignoring his seniority position, recommended that he (the appellant) be reverted to Grade-12. Accordingly the competent authority ordered his reversion.
3. A perusal of the record made available to us has, however, revealed that the order of the promotion of the appellant to Grade-16 was actually made on a summary submitted by the then Chief Administrator of Auqaf, Sind. It was proposed in the said summary that keeping in view the annual income and expenditure of Sehwan Circle of the Auqaf Department and the importance of shrine of Sehwan Sharif, creation of a new post of Deputy Administrator, Auqaf, at Sehwan Sharif, in Grade-16, may be considered and the appellant in view of his satisfactory record of service and the best performance, be promoted to Grade-16 and be appointed against the proposed newly- created post. Agreeing with the recommendations of the Chief Administrator, Auqaf, the Provincial Auqaf Minister had approved that a post of Senior Manager in Grade-16 may be created at Sehwan Sherif and the appellant be posted as such by promoting him to Grade-16. It thus becomes quite clear that the promotion of the appellant to Grade-16 was neither politically motivated nor was made in disregard of the rules. The factor of seniority was also considered and given due regard. It was mentioned by the Chief Administrator, Auqaf, in the summary that only three persons, namely, Khawaja Ziauddin, Mr. Anwarullah Farooqui and Mr. Elahi Qureshi were senior to the appellant but none of them was fit for promotion as Mr. Anwarullah Farooqui was only matriculate, while the remaining two were being disciplinary proceeded against and thus the appellant was well qualified having sufficient experience and good record of service was considered fit to be promoted to the post. Significantly, this assessment and proposal was made by the appropriate departmental authority, the Chief Administrator of Auqaf, while the Minister only approved the proposal. The Review Board, therefore, was not justified in assuming that the appellant's promotion was ordered by the Minister at his (appellant's) initiative. In the circumstances, the appellant's promotion to the post of Senior Manager made in usual course having due regard to his qualifications, performance and seniority position, cannot and must not be considered an irregular/ political appointment. We are thus of the view that the findings and recommendations of the Review Board were not based on a correct appreciation of the material on record and, therefore, the impugned order based on such misconceived, unjustified and unwarranted findings cannot be sustained.
4. We further found that the impugned order suffers from a serious legal lacuna. It is to be seen that section 3 of the Ordinance had invested the President of Pakistan or a person authorised by him in this behalf with powers to remove or revert a person in Corporation service appointed or promoted during the specified period. The President of Pakistan was pleased to authorise the Secretary to the Government of Pakistan in the concerned Ministry for the purpose of the said section. Thus, the competent authority to pass an order in respect of the appellant was either the President of Pakistan or the Secretary to the Government of Pakistan in the Ministry of Religious Affairs. It, however, transpired that vide A.D.O., dated the 27th of August, 1978, the Establishment Division had required the Secretary, Ministry of Religious Affairs, to constitute a Review Board to review all appointments made during the relevant period and to submit the recommendations framed by the said Board for the approval of the concerned Minister. Accordingly, in the instant case, the then Secretary, Ministry of Religious Affairs, vide his noting in paragraph 21 of the file, had submitted the recommendations of the Review Board for the approval of the Minister mentioning that the case should have been put up by his predecessor and, therefore, his note did not constitute any recommendation. The Minister lncharge had thereon approved the recommendations of the Review Board and then the impugned order was notified by the Secretary. It is thus quite clear that the competent authority, the Secretary, Ministry of Religious Affairs, without applying his mind and without making any recommendation, merely passed on the case to the Minister. The position being so clear, the impugned order cannot be considered to have been passed by the competent authority.
5. The learned counsel for the appellant also urged a number of legal and technical grounds including the applicability of the Ordinance to the case of the appellant. Since, however, the appeal is being allowed by us on merits, we do not consider it necessary to examine and discuss those grounds.
6. For the foregoing reasons the appeal is accepted, the impugned order is declared to be incompetent, legally ineffective and inoperative and is accordingly set aside. Consequently it shall be deemed that the appellant continued to be in B.P.S.-16 and was never reverted. He shall be entitled to all attending benefits.
7. No order as to costs.