SARDAR ABDUL JABBAR KHAN (CHAIRMAN). --Abdul Majid Javed, Assistant, Deputy Commissioner's Office, Faisalabad, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Member (Revenue), Board of Revenue, Punjab, Lahore, Commissioner, Faisalabad Division. Faisalabad, Deputy Commissioner, Faisalabad, District Faisalabad, and Manzoor Mohsin, Junior Clerk, Deputy Commissioner's Office, Faisalabad, as respondents.
2. By virtue of this appeal he has prayed that the impugned order dated 23-9-1984, passed by Member (Revenue), Board of Revenue, Punjab, Lahore, be set aside and appeal be accepted.
3. Brief facts of the case are as under:- The appellant joined service as Junior Clerk in the Office of Deputy Commissioner, Faisalabad w.e.f.
6-6-1967. The respondent No.4 had also been working in the Office of the Deputy Commissioner, Faisalabad, as a Junior Clerk. Two posts of Assistants were advertised for the Office of the Deputy Commissioner, Faisalabad, as direct recruitment on the basis of written test in accordance with Rule 17 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. For these posts, 16 candidates appeared for taking test. The appellant took his test and obtained 16 marks out of 30 whereas Manzoor Mohsin, respondent No.4 obtained 14 marks out of 30. However, the Deputy Commissioner appointed respondent No.4 Manzoor Mohsin against the said initial recruitment post of Assistant whereas the appellant was dropped. The appellant filed representation to the learned Commissioner, Faisalabad. The said representation was considered by the learned Commissioner in which the plea taken by the appellant was that the decision of the Deputy Commissioner was not in accordance with the test and on account of interpolation with the same, the learned Commissioner came to the conclusion that the order of the learned Deputy Commissioner could not be sustained and accepted the representation of the appellant and directed that the appellant be appointed as Assistant instead of respondent No.4. The respondent No.4 aggrieved against this order of the learned Commissioner filed appeal before this Tribunal which was disposed of as premature and Manzoor Mohsin now respondent, in this case, was directed to exhaust remedy before the next higher authority which was so available to him. Under the direction of this Tribunal the said Manzoor Mohsin now respondent before us, filed a representation before the Member, Board of Revenue, Punjab, who vide his decision dated 23-9- 1984, held that no appeal would lie against the order of Appointing Authority where the appointment was made by direct recruitment on the basis of the recommendations of the Departmental Selection Committee. However, the learned Member, Board of Revenue observed that the case of mala fides could only be looked into by the Punjab Service Tribunal and none else.
Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned counsel for the respondent No.4 and learned District Attorney on behalf of the Government and have perused the record of this case carefully with their assistance.
5. Learned counsel for the appellant has submitted as under:--
(i) That the appeal being time-barred the learned Member, B.O.R. Was under obligation to consider the point of limitation.
(ii) That the learned Member, Board of Revenue, has illegally held that no appeal would lie against the order of the Deputy Commissioner. This was against the provision of section 21 of the Punjab Civil Servants Act, 1979, which envisages the right of representation to the next higher authority.
(i.e) Learned Member, Board of Revenue, failed to appreciate the record of the parties which guided the learned Commissioner for the maintainability of the representation /appeal of the appellant before him, as there was a clear case of interpolation so established on record as well as so found by the learned Commissioner in his detailed order.
(iv) Learned Member, Board of Revenue, has failed to take into consideration the bad record of the respondent No.4 in comparison with the excellent record of the appellant.
(v) Learned Deputy Commissioner acted independently in his own capacity as the case was not scrutinized by the Departmental Selection Committee, which was must according to the rules of service. He has challenged the constitution of the Departmental Selection Committee for the purpose.
6. On the other hand learned District Attorney has supported the stand of the learned Member, Board of Revenue, Punjab, that no appeal or representation would lie against the matter of appointment for initial recruitment and submitted that the claim of the appellant in this respect is untenable.
7. With regard to the legal objection that no meeting of the Departmental Selection Committee was held to scrutinize the case of the appellant as well as of the respondent and it was only the Deputy Commissioner who passed order in his individual capacity, he has challenged the same by submitting that the Deputy Commissioner in his own averment stated that the matter was taken into consideration by the Departmental Selection Committee and he has only acted on the recommendation of the said Committee and not in independent capacity as Deputy Commissioner.
8. With regard to the merits of the case it has been submitted that it would be for the Punjab Service Tribunal to hold whether there was any mala fide into the order of the learned Deputy Commissioner or not, therefore, the observation of the learned Member, Board of Revenue, in this respect was also maintainable.
9. We have given our anxious thought to the arguments advanced by the parties and first of all would dispose of the legal objection so raised by the learned counsel for the appellant in this case by holding that it is an established principle of law that no appeal lies against the decision of the District Selection /Promotion Committee in the matters of initial recruitment. By holding so we have no dispute with the learned Member, Board of Revenue who has held accordingly. We have also seen the case of Rana Ali Akbar v. Commissioner, Lahore Division, which was referred to in our short order dated 16-10-1985, and find that the said case was of different nature as in the said case representation was made to the next higher authority against the determination of seniority by the learned Deputy Commissioner. This Tribunal was of the view that under section 21 of the Punjab Civil Servants Act, 1974, the representation was competent before the learned Commissioner in matter of seniority as he being the next higher authority in the said case.
10. With regard to the merits of the case we have carefully perused the judgment of the learned Commissioner, Faisalabd dated 3-10-1983, as well as comments so filed by him and find that he has elaborately dealt with this issue and after perusing the record came to the conclusion that out of 8 candidates so interviewed on 1-6-1983, respondent Manzoor Mohsin obtained 14 marks and the appellant obtained 16 marks out of 30. Learned Commissioner after perusing the record of this case, found that Abdul Majid obtained 16 marks but in order to make the respondent No.2 (4 in this appeal) successful 2 marks had been reduced from the marks originally given for question No.3 to make it 14 i.e. Equal to the respondent. According to the learned Commissioner the interpolation is quite evident on record. With regard to the service record of the appellant as well as respondent No.4, learned Commissioner was of the positive opinion, after going through the record of the case, that the appellant has good service record whereas respondent No.4's record was not satisfactory.
Learned Commissioner has taken a stand that he being the senior Executive Head of the Division was competent to interfere, if any irregularity in selection was pointed out by any party. For this he has relied on Rule 5 of the Punjab Civil Servants (Appointment and Conditions) of Service Rules, 1974, wherein it has been laid down that if the Deputy Commissioner does not accept the recommendations of the Committee or Board he shall record reasons thereof and obtain orders from the Commissioner (being next higher authority) Faisalabad Division, and act accordingly.
Similarly on representation of any candidate, the Commissioner of Division may direct the Deputy Commissioner to act as he finds necessary.
11. The crucial issue in this case would be whether the mala fides so alleged by the appellant has successfully been established before this Tribunal or not. As the Tribunal has already held in the earlier part of this judgment that no appeal/ representation lies to the next higher authority against the decision of the District /Departmental Selection Committee in the matter of recruitment /promotion. In this matter this Tribunal is fully in accord with the observation of the learned Commissioner Faisalabad Division, and rightly so, as the record so made available before this Tribunal, has fully established the observation of the learned Commissioner in this respect. The record so produced before us clearly shows that interpolation was done in order to make the respondent No.4 equal in position with the appellant by reducing his numbers against question No.3. It is also established on record that the record of the appellant was satisfactory whereas the record of the respondent No.4 was unsatisfactory. The respondent No.4 has been punished many a time by withholding of his increments and adverse remarks in the ACRs. In this situation we have no hesitation to hold that the appellant's case has been destroyed on the strength of interpolation made in the result of test and an act of this nature would certainly be an act of malice. It is established principle of law that any act which is not done in the manner in which it has to be done, would be an act of malice and thus the order would be coram non judice, i.e. No order in the eye of law and ab initio void.
12. In view of the above analysis of the case, we are of the considered opinion that the order of the learned Deputy Commissioner on the recommendation of the District Promotion Committee cannot be upheld which is not based on actual facts and is a result of certain interpolation so made to the advantage of respondent No.4.
13. The result is we accept the appeal, set aside the impugned orders and uphold the order of learned Commissioner, Faisalabad Division, Faisalabad dated 3-10-1983, and hold that the appellant should be appointed as Assistant in place of respondent No.4 Manzoor Mohsin. There will be no order as to costs. Judgment be communicated to the' parties.
A.E./115/Lb.S