1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to the Federation of Pakistan under Article 212(3) of the Constitution to examine the following questions of law of public importance:-- ---(i) Whether exercise of power by the President or his nominee under section 12-A of the Civil Servants Act is reviewable by the Service Tribunal on the ground of non-existence insufficiency of public interest Relies on It.-Col. Farzand Ali v. Province of West Pakistan PLD 1970 SC 98.
(ii) Whether it was not a case where powers reserved under section 12-A, Civil Servants Act could be invoked."
2. The respondent, Mr.Ghulam Akbar Bhutto, was directly recruited in the Sind Population Planning Board in Grade-18 with effect from 7-2-1972. He was then appointed in Grade-19 in the Population Planning Council w.e.f. 10-12-1976.
3. Civil Servants (Amendment) Ordinance (No.XXXIV of 1980), introduced in the Civil Servants Act section 12-A authorising the President or a person authorised by him in this behalf, to remove or revert without notice civil servants appointed or promoted during the period from 1st day of January 1972 to 1st day of July, 1977. The President authorised a committee of officers to review all such cases. The appointment and the promotion of the respondent fell during this period. This Review Committee submitted its recommendations which concluded as follows:-- "In keeping with -its earlier recommendations, this Committee is of the view that the appointment of Mr. G. A. Bhutto made on 7-2-1972 was based on political considerations and the manner of senior officers was equally the result of political manoeuvring on his part.
4. To accommodate him even the Headquarters of the Directorate of Supply and Marketing was shifted from Islamabad to Karachi (Annex-C).
5. Since his promotion to Grade-19 he has already earned an adverse report.
6. In view of the above circumstances, Review and Reorganization 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."
7. The competent authority did not accept the recommend a non in its entirety. Instead it passed an order of the reversion of respondent from Grade-19 to Grade-18. The order passed by the relevant authority is reproduced hereunder:-- "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."
8. The respondent challenged this order on the following grounds taken note of by the Service Tribunal:--
(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-18.
(iv) The order is not valid on the facts of the case."
9. The Tribunal held that the law (Section 12-A) itself provided in express words that such action could be taken without notice, hence there was no violation of the principles of natural justice. The order of reversion was also held to be not mala fide in fact. As regards the last two grounds, the Tribunal dealt with them together and held that the appellant himself was not instrumental in getting his claim recommended for appointment in Grade-19, that it was not a case of promotion but of direct appointment, that there was a policy decision of accommodating officers from the rural areas which was visible and all these facts protected the promotion and the impugned action under Section 12-A was not tenable. Hence the appeal was allowed and the action taken set aside, entitling the respondent to all the consequential benefits as if he had never ,been reverted to Grade-18.
10. Considering the law laid down so far by this Court particularly in the case of WAPDA v. Saeed Ahmed 1986 SCMR 725 the exercise of such a power as is found in section 12-A and was exercised in the case of respondent would be reviewable before the Service Tribunal on the ground of coram-non-judice, mala fide in fact or on ground mala fide in law. To that extent such orders are reviewable. The only question is whether when these tests are applied the impugned order of the competent authority suffered from any defect such as may have prompted the Service Tribunal to hold that it was a case of corum non judice or of existence of mala fide in law. From the fact admitted and examined by the Tribunal, these conclusions are not borne out.
11. As regards the merits, whether there was a malice in law the tribunal having found as a fact that the appointment or the promotion of the respondent had taken place on the recommendatory letter and insistence of Mr. Abdul Waheed Katpar, the then Minister for Population Planning in Sind, one thing becomes very clear. He was not a statutory authority in the heirarchy, either charged with the duty of making such recommendations or seeking such appointments of any one in his establishment Therefore, whatever action was taken by the competent authority in appointing the respondent in Grade-19 emanated from a non-statutory and from an extraneous authority and it was his insistence which procured his appointment to that post. Mr. Abdul Waheed Katpar was not in a position to frame a policy for the Federal Council. He was a Minister of the Province. There was no sue policy framed that in the matter of promotion, the officers belonging to the rural areas of particular province will be given preference. By accepting that the anointment was a direct appointment and not a promotion, the Service, tribunal has repudiated the grounds taken up by the respondent for avoiding the order. If it was a direct appointment it had to having after publicity by inviting applications as approved by the Government under the recruitment rules and not from a closed group confined to the names mentioned by the Provincial Minister. The appointment of the respondent to Grade-19 suffered, on the findings of the fact recorded by the Service Tribunal itself, from too many taints and they could not be explained away or condoned unless the competent authority permitted it or was inclined to do so. The Service Tribunal should not have either condoned it itself or explained it away.
12. The respondent has not appeared to contest this appeal and while hearing the connected appeal we have been told that he has not been appointed under section 3(1) of the Ordinance XIV of 1981 and that may be the reason for his non-appearance.
13. For the foregoing reasons, this appeal is allowed, the order of the Federal Service Tribunal are set aside and the appeal filed by the respondent in the Tribunal is dismissed with no order as to costs.