S. ABDUL JABBAR KHAN (CHAIRMAN). --Muhammad Aslam Bhutta has filed this appeal under section 4 of the Punjab Service Tribunals Act of 1974, in which he has impleaded Director, Labour Welfare, Punjab and Secretary to Government of the Punjab, Labour Department, Lahore as respondents.
2. By virtue of this appeal he has prayed that order, dated 12-10-1980 passed by the respondent No.1 reverting the appellant from the post of Labour Inspector to the rank of Senior Clerk, be set aside.
3. Brief facts of the case are that the appellant joined Labour Department in the year 1965 as Junior Clerk and was promoted Senior Clerk in the year 1969. On 10-11-1977 appellant was promoted as Labour Inspector by respondent No.1 against a substantive vacancy on regular basis. The appellant continued working as such for over a period of three years and proceeded on four months,, earned leave as Inspector. This leave was sanctioned on 12-10-1980, and the impugned order was also passed on the same date, although vas issued from the office on 4-11-1980, when the appellant had already proceeded on leave. Appellant filed an appeal against the order, dated 12-10-1980 before respondent No.2 on 27-11-1980 but it is still undecided. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney and have perused the record of this case carefully with their assistance.
5. The learned counsel for the appellant has assailed the impugned order as being in flagrant violation of Rules framed under Punjab Civil Servants (E & D) Rules which enjoin upon the competent authority to comply with these rules before taking any punitive action against a civil servant. According to the learned counsel the order of the reversion of the appellant was ipso facto a punitive order and the same could not be made without giving the appellant full opportunity of being heard after fulfilling all the formalities so laid down in this behalf. The learned counsel has vehemently contested the only stand of the learned District Attorney on behalf of respondents that, appointment of the appellant as Inspector was a stop-gap arrangement, therefore, he could be reverted at all times by the respondents at their will. It has been argued that appellant was duly promoted In accordance with Rules of 1962 framed for Labour Welfare Subordinate Service which, inter alia, provided 25% by promotion from amongst Senior Clerks in that service. The stand of the learned counsel for the appellant is that appellant was regularly promoted person for an indefinite period of time and has been working as Labour Inspector, drawing pay as such alongwith the allowances and. Increment, therefore, for all purposes, he could not be treated as stop-gap employee by the respondents. He has relied for his contention on 1980 PLC (C.S.) 105 a ruling of Mr. Justice Gul Muhammad Khan PLD 1969 SC 407 Hamayat Ullah's case and that of 1981 SCMR page 523 Raja Muhammad Nawaz, latest view of their Lordships of the Supreme Court on this issue of locus poenitentiae in favour of the appellant.
6. We have attended to the stand taken by both the parties and find that respondents have asserted that appellant was promoted only when his senior Fallahuddin was facing a judicial enquiry with clear understanding that he would be reverted as soon as said Fallahuddin was exonerated from said matter. In view of above, it has been said that case of the appellant was purely a case of agreement between the parties based on certain eventualities therefore, the revision in his case was not a punishment but only an event to which he had agreed. To find the strength of this assertion we have perused the appointment order of the appellant, dated 10-11-1977 to find whether it contains any such stipulation in his case which has been so strongly advocated against the appellant. The language of this order is very clear and it only tells us that when one Asghar All who stood promoted on ad hoc basis was found to have been dismissed on account of his conviction by Summary Military Court, a Committee was duly constituted, who vide its meeting, dated 8-11-1977, promoted the appellant as Labour Inspector, when he was found next junior to Fallahuddin who was facing a judicial inquiry. The appellant's appointment was Officiating Labour Inspector and not as stop-gap arrangement with the clear observation that if his senior Fallahuddin at any stage was exonerated the appellant would stand automatically reverted. In view of the appointment letter, we will be forted in our view to hold that appellant was a duly promoted Officer of course officiating, with effect from 10th November, 1977. We further find that Fallahuddin came back and was promoted on 21-6-1979, so for full 16 months both of them worked and no exception was taken to continuance of the appellant as Labour Inspector. If there was any undertaking given by the appellant which we do not find anywhere on the record, then he should have been reverted on the promotion of Fallahuddin immediately. We further note that when appellant proceeded on four months' earned leave he was treated as Labour Inspector and it was only when he had proceeded that impugned order was passed at his back. The word officiating cannot be equated with ad hoc or stop-gap as every promotee is initially appointed as officiating.
The word officiating has also been used for Fallahuddin, so we cannot accept the stand of the respondents that appellant's promotion as Labour Inspector was merely stop-gap arrangement and he could be thrown back even after three years of spotless service.
7. We have perused the law so cited in favour of the appellant with respect and are of the considered opinion that reliance so placed on these authorities by the learned counsel for the appellant is fully justified. In case of Muhammad Abdullah Khan v. National Bank of Pakistan 1980 PLC (C.S.)
105. It was held that even when a competent authority finds that promotion has been illegaly made, it cannot rescind the same when such order has been acted upon and was in effective operation. In view of this hardship the transaction stood past and closed and could not be re-opened at the whim and fancy of said competent authority. The learned Judge has relied both on Hamayat Ullah Faruki PLD 1969 SC 407 as well Dr. S.M. Qureshi v. West Pakistan Government PLD 1966 Lah. 825. Similarly in 1981 SCMR 523 Raja Muhammad Nawaz's case their Lordship of the Supreme Court has reaffirmed its earlier view given in Hamayat Ullah Faruki's case and have further held that even if the promotion of a civil servant was made illegally, still it could not be reopened, one it has taken effect in view of the principle of locus poenitentiae, and animus revertendi.
8. In the present case the law so cited is fully applicable. The appellant was promoted Officiating Labour Inspector duly under the Rules of 1962 by the Promotion Committee and continued as such for full three years. If he was ad hoc as claimed by the respondent we do not find that his terms of service beyond 6 months was again notified, which condition is a sine qua non of an ad hoc appointment. Therefore for all purposes the appellant was working as Labour Inspector against a regular vacancy. The appellant cannot be treated as stop-gap promotee only because impugned order has said so, unless and until there is something on the record to justify this nomenclature.
Such like assumption is against the fact, the law and rules on this subject. In case it was found that appellant was guilty of any misconduct then action could have been taken against him "before he was reverted.
9. In view of above analysis of the entire subject-matter before us we, therefore, proceed to accept the appeal, set aside the impugned order as being without lawful authority as well of no legal effect. We hereby direct that appellant will be deemed to have been working as Labour Inspector, as if he was, never reverted. However, there will be no order as to costs.
A.E.