' S. ABDUL JABBAR KHAN (CHAIRMAN).-- Ch. Muhammad Shafi Mushtaq has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Government of the Punjab through Secretary, Livestock and Dairy Development, Punjab, Lahore and the Director, Livestock and Dairy Development Punjab, Lahore as respondents.
2. By virtue of this appeal he has prayed that respondents Nos, 1 and 2 be directed to implement the order of the competent authority passed in October, 1981, in respect of the "Review Petition" of the appellant and he be declared to be re-instated in service from the date of his retirement with all back benefits.
3. Brief facts of the case are that the appellant was serving as Assistant in the office of the Deputy Director, Livestock and Dairy Development, when he received a letter, dated 7-1-1980, signed by the Deputy Director (P & D) Directorate of Livestock and Dairy Development, Punjab, Lahore, retiring the appellant from service under section 12(ii) of the Punjab Civil Servants Act, 1974. The appellant made a representation against the said order of retirement on 28-1-1980, but his case remained undecided. Aggrieved with this stalemate, he filed a writ petition before the Lahore High Court on 3- 6-1980, which was admitted to regular hearing. While the writ petition was pending before the High Court, the Review Petition, so pending with the authorities, was decided and thus the writ petition became infructuous. However, the High Court directed the appellant to agitate his grievance before the Punjab Service Tribunal, which was a proper forum. The appellant filed appeal before this Tribunal but the same stood dismissed in view of the Provisional Constitutional Order of 1981. As the appellant has a Constitutional right, he filed a Review Petition under Article 13 of the P.C.O., 1981, and applied for the review of the order of his retirement, dated 7-1-1980. Although no formal information was conveyed to the appellant regarding the fate of the Review Petition yet be learnt from the reliable source that his review petition has been accepted by the competent authority by rescinding earlier order. The Punjab Service Tribunal called for the comments of the respondents. In this manner the case of the appellant remained shrouded with mystry and the Department even at its own ambit, kept on doing something which ultimately resulted in another order of the competent authority, by which the appellant was once again retired. 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 carefully.
5. Learned counsel for the appellant has submitted that once a review petition was considered by the Officer who was exercising the power of competent authority, the decision on the said review petition would become final and no further action could be taken against him. He has made a grievance that although the order of his re-instatement in the light of the order passed by the successor competent authority who rescinded the earlier decision, should have been implemented but the Department by its own mechanization, passed another order claiming that the same had been passed by the competent authority and nullified the earlier order so passed in his favour.
6. On the other hand learned District Attorney has submitted that although earlier order was passed in favour of the appellant by the competent authority yet the Department visualized that the author of the said order was not in fact a competent authority and it was under misconception that he assumed to be as such. In nutshell the case of the respondent would be that the earlier order in fact was not passed by the competent authority and the latter order would be an order by the competent authority.
7. We have given our anxious thought to the arguments so advanced by the parties and the issue for determination before this Tribunal would be, whether the authority which rescinded the earlier order of the retirement, was competent to do so or the stand of the Department that the said authority was not competent and therefore, his order could easily be overruled by another authority which was competent.
8. The perusal of the record shows that before the appellant's case was decided by Mr. A.Q.
Chaudhry, Project Director, the Department wanted to get it clarified whether the said Project Directors was competent to pass this order or not. This situation arose in view of the Review Petition filed by the appellant under the Provisional Constitutional Order, 1981. We have carefully taken into consideration of the correspondence contained in file No,933, Head B(I) and without burdening the present judgment with all its details what we find is that in nutshell the preponderance view was that Mr. A.Q. Chaudhry would be the competent authority in the case of the appellant for the disposal of the said review petition. However, the Department left this matter open and asked Mr. A.Q. Chaudhry to make his independent judgment in the said case according to the rules so laid down. Mr. A.Q. Chaudhry after applying his mind and consulting the Rules, decided the case of the appellant in his favour and re-instated him in service. Instead of implementing the said order, what we find is, that the Department once again created a controversy about the validity of the said order. Ultimately this controversy we set right by the Services, General Administration and Information Department vide their advice No, SO(S)14-2/81-VIII, dated 13-10-1982, which will be useful to reproduce below:
(1) Since the power of review always remains with the same authority who passed the orders, the competent authority for the purpose of Article 13(2) of P.C.O. Would be the same authority who passed the order and none else. It is also added that competent authority as defined in section 12 of the Punjab Civil Servants Act, 1974, is obviously the competent authority visualized by the P.C.O.
(2) The competent authority may consider and decide the review position even though the retired civil servant, bona fide, and under some misunderstanding addressed the same to a superior authority, provided that it was filed within the prescribed time.
(3) The successor in office of the competent authority is authorised to review the order passed by his predecessor.
(4) Even those persons can file review petitions under Article 13(2) of the P.C.O. Who had already filed review applications and availed right of representation under section 21(2) of the Punjab Civil Servants Act. The right of review under Article 13(2) of the P.C.O. Provides an additional remedy in lieu of abatement of appeals etc. Pending before the Service Tribunal etc. At the time of the promulgation of the P.C.O. The orders passed by the competent, authority are final.
' The reading of the abovequoted advice. Makes the point crystal clear that once an order passed by an authority which was competent to review its earlier order, the same had become final and nobody else can disturb the same. What we are surprised to see is that this advice has no effect on the Department although the same was sought by them and was in a way, binding upon them also. The Information and Publicity Officer, of course was holding the position of next senior Grade- 18 officer who nullified the order of an officer holding the same position with whose order the appellant was re-instated. We are further amazed to note that the Director-General, Livestock and Dairy Development (Extension), Punjab, Lahore while addressing a letter No, 2890/17.I.B., dated 29- 8-1982 to the Section Officer EI, l&DD Department, in connection with the same issue, clearly admitted that Mr. A.Q. Chaudhry, Project Director, has been exercising the power of competent authority for Grade-3 to 10 officials. With all these facts on the record for which the learned District Attorney has failed to controvert, we find no reason to uphold the second order of Mr. S.W. Hameed, I.P.O., dated 7-12-1982 at page 474 of file No, 933 of the Department, which nullified to effect an earlier order in favour of the appellant. We are fortified in our view. On the grounds that the latter action was caused on the positive advice of the Services, General Administration and Information Department as well as the admission of the Director-General in his letter No, 2890/17.I.B., dated 29- 8-1982, on the subject so referred in the earlier part of this paragraph of our judgment. It is a settled principle of law, that no review lies once an order has been passed by A the competent authority by another authority equivalent in rank. The principle of transaction of past and closed, fully comes into display and nobody can be allowed to play with the fate of the civil servant at his own whim and fancy in utter disregard of the Rules and the law so laid down.
9. Ch. Muhammad Shafi Mushtaq a grade-10 official has the mis-fortune of having been retired under section 13(ii) of the Punjab Civil Servants Act, 1974, but was re-instated in service by the competent authority under the Provisional Constitutional Order, 1981 in review, which was allowed to the appellant under its Article No, 13(2). Under the General Clauses Act, it is laid down in section 23 that the authority passing an order can also rescind the same. In the present case the authority which passed the order, did not rescind it; but at some later stage, somebody else holding an equivalent grade, chose to pass a different order. It is also on the record that the first order of reinstatement on review by the competent authority, was not conveyed to the appellant but instead some person in the rank of Superintendent made a move that competent authority was not justified to review and rescind its earlier order in view of adverse entries in the service record of the appellant. In this way this Superintendent arrogated to himself the powers to sit on the judgment of a competent authority, an act which was uncalled for and against the discipline of service. One the competent authority has considered all pros and cons of the appellant's antecedents and has given full consideration to the points so raised by him in the review, the act of the said Superintendent was nothing but malacious as well as beyond his competence. We have no hesitation to hold that such like move and ultimate decision was illegal as well as unwarranted, particularly in the face of the opinion of the B Services, General Administration and Information Department that the first decision by the competent authority on review in favour of the appellant was final.
10. In view of the above analysis of the case we are of the considered opinion that the order of rejection of review petition passed by the Information and Publicity Officer, dated 7-12-1982 and conveyed to the appellant by the Directorate of Livestock and Dairy Development, Punjab Lahore, vide his letter No, 18487, dated 21-12-1982, would be nothing but nullity in the eye of law, as the same is illegal as well as ultra vires. We have no hesitation to maintain the earlier order passed in favour of the appellant by an authority which rescinded the earlier order of retirement of the appellant and was competent to do so as mentioned in the earlier part of our judgment. No exception could be taken to the said order and all what has happened, was nothing but an exercise in futility.
11. The result is we accept the appeal, set aside the impugned orders, dated 7-1-1980, 7-7-1980, 7- 12-1982 and 21-12-1982, and uphold the order of Mr. A.Q. Chaudhry, Project Director, dated 29-10- 1981, at page 383 of file No, 933, !Lead B(I) of the Directorate of Livestock and Dairy Dev. (Exh.)
Punjab, Lahore, passed in favour of the appellant, with all back benefits. There will be no order as to costs.