Syed Afal Hussain Naqvi has made this appeal to the Punjab Service Tribunal, Lahore wherein the has impleaded the respondents as mentioned 1, 2 and 3 above.
2. By virtue of this appeal, the appellant has prayed that the orders dated 5-8-1982 and 28-2-1983 be set aside and the appellant be declared still to be the Research Assistant.
3. Brief facts of the case are that respondent No,2 advertised in the newspaper for recruitment of Research Assistant in Grade-10 in the Directorate of Manpower and Training, Lahore. The appellant had applied for this post. He appeared in the written test and qualified the same. The appellant was interviewed and selected as Research Assistant, by the Departmental Promotion-cum- Selection Committee. On the recommendation of the Departmental Promotion Selection Committee, he was appointed as Research Assistant vide orders dated 8-4-1979 of respondent No,2. The appellant has been working as Research Assistant since then when all of a sudden the appellant's cadre has been redesignated as Assistant in the same grade and contesting respondent No,3, Faqir Muhammad Nawaz has been brought in place of the appellant as Research Assistant vide order dated 5-8-1982 by respondent No,2. The appellant made an appeal which has been rejected vide order dated 28-2-1983 of the respondent No,2. Hence this appeal.
4. I have heard the parties. It has been argued by the learned counsel for the appellant that the appellant had appeared for a written test for the appointment for the post of Research Assistant, advertised by the Director Manpower and Training, Punjab, Lahore. He was declared successful in the written test. The appellant appeared for interview before the Departmental Promotion-cum- Selection Committee in the year 1979 and was duly selected on the basis of his written test, qualifications and other merits. Consequently, he was appointed as Research Assistant on the recommendations of the Departmental Promotion-cum-Selection Committee vide order, dated 8- 4-1979 by the Director, Manpower and Training, Punjab Lahore. Thus, the appointment of the appellant was made in accordance with the prescribed procedure and rules. Suddenly after a period of 3 years, the appellant has been made scapegoat to favour and oblige Faqir Muhammad Nawaz another official of the same Department. Faqir Muhammad Nawaz, Assistant has been redesignated as Research Assistant to appoint him on a technical post of Research Assistant while the appellant has been re-designated as Assistant on a non-technical post which has resulted in irreparable loss to the appellant. It has also jeopardised the right of the promotion of the appellant to the higher technical post. Concluding his arguments, it has been submitted by the learned counsel for the appellant that the impugned order dated 5-8-1982 issued by respondent No,2 is unlawful, unjustified and be quashed.
5. On the other hand the learned District Attorney, has relied on parawise comments submitted by the respondent on this appeal, at page 2 against para. 4 (a) which are reproduced below:-- ' This para. Is not admitted. According to the recruitment rules only 2nd divisioner degree-holders with Economics and Stat. Or Maths. Are eligible for appointment against the post of Research Assistant. As the appellant was not eligible for appointment as Research Assistant and as his appointment could have been challenged at any time and stage, it was, therefore, considered appropriate to adjust him as Office Assistant to save him from unemployment. Condition was not waived nor this Directorate was competent to relax the condition. It was the Government to relax the condition and Government had refused to relax the condition."
' It has been submitted by the learned District Attorney that keeping the above facts in view, the appointment of the appellant as Research Assistant was irregular as he was not qualified to hold the post of Research Assistant according to the rules. Thus, he has been accommodated on another alternative post, where he could be adjusted, to keep him in service. Hence, no injustice has been done with the appellant.
6. I have given my anxious thought to the arguments of the prties and have consulted the record of this case with the help of the representative of respondent No,2. The appellant had appeared in the written test for the selection of the post of Research Assistant and was declared successful. A working paper was prepared for the meeting of the Departmental Promotion-cum-Selection Committee to be held on 5-3-1979, for selection the persons for the posts of Manpower Survey Officer, Research Assistant and Statistical Assistant with the following footnotes at pares. 2 and 3 which are reproduced as follows:-
2. "The method of recruitment and minimum qualification required etc. Are available at flag 'A' placed below for appointment against the post. A person is required to be B.A.(2nd Division) from a recognized University with Economics or Stat. Or Maths. As one of the subjects and his age should be 18-25 years.
3. The candidates were called for test on 12-2-1979 and who passed the test have been called up for interview on 5-3-1979. Their particulars are flag 'B' (Total Nos, 34.)"
' A meeting of the Departmental Promotion-cum-Selection Committee was held on 5-3-1979 wherein the appellant was interviewed, his qualifications checked and was approved for the post of Research Assistant at priority No,2, alongwith three other candidates namely M/s. Khalid Mahmood, Mohammad Nawaz and Farukh Bilal. It is worth mentioning, that the merits sheet prepared by the Selection Committee at the time of interview show as that it was in the knowledge of the Committee that he is a third divisioner, as he was given 9 marks against qualification while the candidates with higher divisions were given 11 and 15 marks respectively. In all 34 candidates were interviewed for 3 categories of posts as mentioned above, including post of Research Assistants,where the minimum qualification prescribed was 2nd Division, but the result sheet prepared by the Promotion-cum-Selection Committee shows that out of 34 candidates interviewed, eleven were third divisioners. On the recommendation of the Departmental Promotion-cum-Selection Committee, the appellant was offered an appointment for the post of Research Assistant vide order dated 5-3-1979 of respondent No,2. On acceptance of this offer, the appellant was regularly appointed as Research Assistant vide order, dated 8-4-1979 of respondent No,2. He joined his post in the Directorate of Manpower and Training and as a result thereof a right of holding the post and to draw the pay of the post accrued to the appellant. Moreover, I have perused the aforesaid order of appointment dated 8-4-1979 very carefully and found that the appointing authority viz. Respondent No,2 did not reserve to himself any right for review the order or to re-consider the appointment by imposing any condition that the appointment was liable to be reviewed or re-considered at any stage. Therefore, the order of appointment of the appellant was unequivocal and unconditional. Since it was duly implemented and acted upon and remained operative for a period of more than 3 years, therefore, it had attained the finality. This order cannot, therefore, be reviewed or rescinded after a lapse of more than 3 years.
7. I have also given my anxious thought to the plea raised by the respondents in the written statement and also stressed by the learned District Attorney during the course of arguments that since the appellant had the qualifications of B.A. (3rd Division), and he could not have been appointed as a Research Assistant in view of the provision of the Recruitment Rules which require that the candidate must be B.A. (2nd Division). In the nutshell it has been submitted by the respondents that this appointment of the appellant as Research Assistant was made by mistake; as such it did not give any right to the appellant and for that reason respondent No,2 was justified in reviewing the same after three years. As already mentioned in the earlier part of the judgment, the fact that the appellant was a 3rd divisioner was fully before the Selection Authorities as well as appointing authorities and as such the appointment of the appellant was made with the full knowledge of the Departmental Authorities that he is a 3rd divisioner and there was no concealment of this fact. Now the only question which requires consideration is whether the right which had accrued to the appellant by virtue of his selection and the appointment in the year 1979, can be taken back in the year, 1982. Now it is almost settled if an appointment has been made and it remained operative, then the rights which accrued to a particular Civil Servant cannot be taken back from him merely because the Departmental Authorities concerned had omitted to perform their duties which were cast upon them under the particular rules. Therefore, the appointment which has been made by the competent authority cannot be allowed to vitiate due to omission on the part of the Departmental Authorities concerned. Obviously the appellant was not at fault in this matter as he made a clean breast to declare his correct qualification at the time of his selection.
8. I am persuaded in this view by the pronounced judgments of the Federal Service Tribunal as well as this Tribunal. I rely upon the observations of the Federal Service Tribunal in case of Syed Amjid All Shah v. Secretary, Government of Pakistan, Establishment Division and 2 others 1983 PLC (C.S.) 995, relevant portion of that decision at page 998, is quoted below with advantage:- "We are afraid, such an inference though not against law, ignores the fact that the appointment even if not made according to the rules is made by the competent authority and a right vests in the employee then that appointment cannot be annulled. Similar question had come up before this Tribunal in the case of Mohammad Ashraf Nadeem v. Establishment Division P L .1 1982 Tr. C.
(Service) 165 and the Chairman on a difference of opinion between the two members opined that an order passed by the competent authority, though not valid, cannot be withdrawn without show- cause notice. It may be pointed out that the Federal Public Service Commission is an advisory body and the competent authority is not bound to accept its recommendations. If the competent authority makes an appointment without consulting the Commission, the appointment does not become illegal on that account, because power to recede in the appointing authority does not continue after a decisive step has been taken. In somewhat similar circumstances, the Service Tribunal, Sind in the case of Mst. Ishrat Qureshi v. Director of Schools Education, Karachi and another 1983 PLC (C.S.) 174 had observed that reduction to Grade 14 after six years, on ground that promotion to that grade was a mistake, was illegal without show-cause notice, as it in a way amounts to penalty. This Tribunal too in the case of Miss Shahnaz Bano v. Secretary, Statistics Division, Government of Pakistan and 9 others 1983 PLC (C.S.) 247 has taken a similar view. The decision of the Lahore High Court in the case of Dr. Chulam Mustafa v. Punjab Government 1983 PLC (C.S.) 47 also lays down like law.
' The similar view has been taken by this Tribunal in two cases i,e, Saleem Hussain Gardezi v.'
Government of the Punjab and 4 others 1981 PLC (C.S.) 592 and Nazar Hussain and another v.
District Education Officer, Lahore and 2 others 1981 PLC (C.S.) 835. The relevant portion of the judgment 1981 PLC (C.S.) 592, from page 597 is reproduced below:- "The learned judges of the Supreme Court even went to the extent to maintain the order even though it was passed through some error or against some rules for the simple reason that a person once conferred with certain status in life and the said order having been duly implemented and acted upon, a vested right has been created in his favour and could not be withdrawn subsequently for any reason. Shahbaz v. The Crown PLD 1955 FC 46, Lt. Col. G.L. Bhattacharya v.
The State PLD 1964 SC 503, Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and the State v. Muhammad Ismail 1980 SCMR 268 were relied upon in the judgment cited above.
' In the light of the above discussion, we are unable to maintain the two impugned orders dated 10th March, 1978 and 27th December, 1980 passed by the respondents and set aside the same as being of no legal effect. We, therefore, direct that the appellant will be reinstated as Inspector of Police, the post which he was holding at the time when the impugned orders were passed against him, as if he has never been removed from service with all the back benefits."
9. The upshot of the above discussion is that the appeal is accepted.
' The impugned orders are set aside and the appellant will continue as a Research Assistant as if the impugned order, dated 5-8-1982, re-designating him as Assistant was never passed.
' There will be no order as to costs.