1. MUNAWAR ALI KHAN (CHAIRMAN).--The appellant Sahibuddin who has been reverted from the post of Statistical Investigator to the post of Field Assistant by order of Project Executive Officer, Director Agriculture Hyderabad dated 5-10-1985, has challenged the said order of his reversion in this appeal.
2. It is disclosed in the memo of appeal that the appellant joined Government service as Field Assistant in 1960, when he was only matriculate. In course of his service he however improved his qualifications by first doing graduation in 1976 and then passing M.A. (Economics) in 1980. By Finance Department's circular No.(S.R.-IV)-2-34/75(PT-11), dated 17-4-1983, M.A. In Economics was prescribed as qualifications for the post of Statistical Investigator. Meanwhile the appellant was promoted in 1978 as Agriculture Assistant (Grade-13) but with abolishment of the post in 1981, he was also reverted to his original post of Field Assistant. Thereafter he was considered for the post of Statistical Investigator (Grade-11) and as he possessed the requisite qualifications for the said post he was promoted to that post. Besides that he held additional charge of Agriculture Officer until it was not extended for further term in 1984.
3. The appellant has alleged in the memo of appeal that he was in good books of the former Director, Agriculture, Mr.Noor Muhammad Sial whose relations with Mr.Aftab Ahmed Khan, the Director General Agriculture were far from cordial. Due to their animosity with each other, the appellant suffered at the hands of Mr.Aftab Ahmed Khan, who first placed him under suspension without any reason and thereafter shifted him from one place to another until his Promotion to the post of Statistical Investigator was cancelled and he was reverted as Field Assistant. He preferred appeal against the order of reversion but after waiting for 90 days for the decision of appellate authority, he filed the present appeal.
4. We heard the learned counsel for the parties and with their help also perused the documents relevant for disposal of the appeal. By short order dated 16-4-1987, the appeal was dismissed with no order as to costs for reasons to be recorded later on. Following are the reasons in support of the said short order.
5. The appellant Sahibuddin Ashrafi was admittedly working as Field Assistant when .He was promoted to the post of Statistical Investigator. This is clear even from the order of the promotion vide the order No.Estt:-III-B-(81)/1244, dated 27-7-1982 of the Director of Agriculture Extension Sind, Hyderabad. The impugned order No.Admin/-(85/355), dated 5-10-1985 by which the above order of promotion was cancelled is in the following words: "Office order The promotion of Mr. Sahibuddin Ashrafi from the post of Field Assistant to the post of Statistical Investigator made by the former Director Agriculture Extension, Sind, Hyderabad, vide No.Estt-III-B- (81)1244, dated 27-7-1982, being irregular, illegal and ab initio void is hereby cancelled and he is hereby reverted to the post of Field Assistant with retrospective effect.
6. He is further ordered to report for duty under Deputy Director of Agriculture Hyderabad immediately.
7. The over payment made to him due to illegal promotion be recovered from his pay as per rules.
8. Project Executive Officer, Director Agriculture Ext, Agriculture Extension Sind, Hyderabad. "
9. We have to see if the above order is legally correct. In this connection the stand taken by the official respondents is reflected in para 2 of the written statement filed on their behalf. In this para the attention has been drawn to the relevant rules namely West Pakistan Non-Gazetted Recruitment Rules 1963 under which the post of Statistical Investigator was to be filled. The appellant does not dispute the applicability of these rules for filing the post in question. In the Appendix to these Rules post of Statistical Investigator appears at serial, No.3. The prescribed qualifications for the post are shown in column 3 of Appendix: Graduate in Statistics or Mathematics with Statistics as a subject from a recognized university; and the method of recruitment for this post as given in column 4 of the Appendix is; by initial recruitment. The admitted position is that the appellant neither possessed the prescribed qualifications nor was he appointed to the said post by initial recruitment. His contention however was that he was M.A.
10. (Economics) in Second Division which is higher qualification than the prescribed one. Moreover, he showed us one letter by which the qualifications for the post of Statistical Investigator was fixed as B.A. In Second Division with a subject Economics. He was however unable to show that on the basis of the above letter, necessary amendment was actually made in the Rules. On the contrary the learned Government counsel relied upon the h .O. No. F . D . (S . R-I V ) 2-34/75 (Pt-11), Karachi, dated 17-4-1983 whereby the Finance Department turned down the proposal of the Agriculture Department to the change of qualifications for the post of Statistics Investigator to M.A. In Economics in Second Division as are the qualifications for the similar post in the Planning and Development Department.
11. Even if it was assumed that the appellant did possess the requisite qualifications for the post of Statistics Investigator, yet he could not be appointed to that post by promotion. As pointed out above the said post was to be filled by direct recruitment. The essential requirement for direct recruitment was that the post was to be advertised and then the relevant Departmental Selection Committee constituted for this purpose had to make selection of a suitable candidate from amongst those who applied for the post. If that procedure was followed, there was no guarantee that the appellant would have been found suitable for appointment to the aforesaid post.
12. Nevertheless the appellant who possessed the requisite qualifications could have been accommodated as Statistics Investigator on ad hoc basis, pending the regular selection to be made by the Departmental Selection Committee as stated above. In any case his promotion to the said post was clearly in violation of the rules and as such could not be supported. Therefore the cancellation of obviously illegal promotion by impugned order was correct. In fact by the impugned order, the wrong committed by Director had been undone.
13. The next question that arises for our consideration is whether the appellant was entitled to notice before cancellation of his promotion. As stated above the appellant was only Field Assistant at the time of his promotion to the post of Statistics Investigator. The latter post being of technical nature was obviously not in his line a promotion. Moreover as required by the relevant rules the said post was to be filled by initial recruitment from amongst those who possessed the prescribed qualification. Since the appellant's promotion to that post was made in violation of legal requirements, the promotion was clearly void ab initio. Therefore no notice was required to be given to the appellant before cancellation of such promotion. Assuming for the sake of arguments that before withdrawing the order of the appellant's promotion, giving a notice to him was a must, then in that case it would be necessary to revoke the impugned order on that ground But at the same time it would be left to the competent authority to pass the order of cancellation of the appellant's promotion afresh after giving him notice and if he furnished any explanation in support to such notice, after considering his such reply. But his explanation would not improve the situation as he could not deny the violation of the rules in making his promotion. In that eventuality no useful purpose would be served to give notice to the appellant at this belated stage. It would only prolong his agony though the result would be the same namely cancellation of his promotion.
14. It was also contended that Project Executive Officer who had signed the impugned order was not competent to order reversion of the appellant. It is not denied that the said officer was in Grade-19.
15. As per schedule of the Sind Civil Servants (Appointment, Promotion. 14 Transfer) Rules, 1974 Head of office in Grade-19 or above is appointing authority for making appointment to posts in Grade 9 to
11. Since the appellant was reverted from post in Grade-11, the Project Executive officer (Grade-19) was competent to make such order of reversion.
16. Even otherwise the promotion of the appellant being void, ab initio, did not legally exist right from the date it was ordered.
17. Lastly the appellant's allegations against Mr. Aftab Ahmed Khan, Director General, have been categorically denied in the written statement. Even though the impugned order is legally correct, it has not been shown that it was passed at the said Director General's instance. Moreover these allegations are irrelevant.
18. For above reasons the appeal was dismissed with no order as to costs.
19. A.E./108/Sr.S.