' SALAHUDDIN CHAUDHRI (MEMBER).--The appellant, Muhammad Akbar, who has since retired, was in the Service of Pakistan International Airlines Corporation, hereinafter referred to as the PIAC, in Pay Group VIII. On 4-9-1982 he was promoted as Manager in Pay Group IX with effect from 17-8- 1982. In terms of the order, he was to be on probation for six months and his confirmation in the new grade was subject to the satisfactory report from his Sectional/Departmental Head. After he had served for seventeen months in Pay Group IX, he was reverted vide orders dated 16-1-1984 to Pay Group VIII with retrospective effect from 7-2-1983. The order of reversion did not assign any reason. The appellant appealed against this order on 5-3-1984 within 60 days limit for such an appeal prescribed in rule 10.03.01 of the P.I.A. Service Code. Having received no response, he submitted a reminder on 23-4-1986. The appeal was finally rejected on 29-5-1986. Within 30 days of that i,e, on 28-6-1986, the Present appeal was filed in this Tribunal seeking redress against the order of reversion.
2. The learned counsel for the respondents has raised the preliminary objection that the appeal is incompetent and not maintainable in law inasmuch as the cause of action arose to the appellant at the time when he did not enjoy the status of a civil servant for the purposes of the Service Tribunals Act, 1973. It was submitted that service under the PIAC was declared to be the service of Pakistan and a person holding the post under the Corporation was declared to be civil servant with effect from the 15th of November, 1984, vide subsection (3) of section 2 of the Pakistan International Airlines Corporation (Amendment) Ordinance, 1984, hereinafter referred to as the Ordinance. It was further submitted that the said Ordinance having been applied prospectively it cannot have retrospective effect in respect of an order passed on 16-1-1984 i,e, before the promulgation of the aforementioned Ordinance. The learned counsel for the appellant refuted the objection raised taking the stand that the appeal is competent and this Tribunal has the jurisdiction to entertain and decide it. We agree with the learned counsel for the appellant for reasons that follow.
3. The present appeal has been filed under section 4 of the Service Tribunals Act, 1973. Subsection
(1) of section 4 of the said Act reads as under:- "4. Appeals to Tribunals.--(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a Departmental Authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal."
A plain reading of the above provision of law clearly shows that a civil servant can prefer an appeal to this Tribunal against any final order whether original or appellate. In the instant case, the appellant, no doubt, was not a civil servant on the 16th of January, 1984, for the reason that neither on the said date nor within thirty days of that date, he was a civil servant for the purposes of section 4 of the Service Tribunals Act, 1973, and the PIAC (Amendment) Ordinance, had not been promulgated. However, after its promulgation with effect from 15-11-1984, the PIAC enforced revised Service and Discipline Rules called as the PIAC Employees (Service and Discipline) Regulations, 1985. Regulation 89 of the said Regulation lays down that an "employee" aggrieved by an order of retirement or removal or any other order passed by the competent authority may prefer an appeal to the Service Tribunal established under the Service Tribunals Act, 1973. In Regulation 87(9)(b) it has been laid down that all appeals pending (with the PIAC) immediately before the coming into force these regulations shall be deemed to be appeals under these regulations. As already mentioned the appellant had filed an appeal on 5-3-1984 against the order of reversion dated 6-1- 1984 and it was pending with the respondent-Corporation when the said Regulations 85 was enforced. It follows therefore, that this appeal although filed before the coming into force of 1985 Regulations as well as prior to the promulgation of the said Ordinance was an appeal under the PIAC Employees (Service and Discipline) Regulations, 1985. As provided in Regulation 89, an employee of the Corporation has been given the right to prefer an appeal to this Tribunal when he is aggrieved by an order of retirement or removal or any other order. The words "any other order" refer not only to the nature and subject of the order passed in connection with the terms and conditions of service but also cover both the original or the appellate order. Therefore, when the respondent-Corporation passed on 29-5-1986 an order rejecting the appellant's appeal pending before it, it was an order within the meaning of Regulation 89 of the said Regulations and, therefore, it could be appealed against before this Tribunal.
4. The above reasoning apart, as mentioned earlier section 4 of the Service Tribunals Act, 1973 provides for preferring an appeal to this Tribunal within 30 days of the passing of an appellate order. In the appellant's case the final appellate order having been passed on 29-5-1986, by which time by virtue of the promulgation of the Ordinance the Service Tribunal had been vested with the jurisdiction, the appellant could legally come up in appeal before this Tribunal. We agree with the learned counsel for the respondents that the Ordinance has only prospective application. But the issue of retrospectively, in the instant case, would have arisen only if the law had provided "for an appeal only against the original order which had been passed before the coming into force of the said Ordinance. Since provision exists for an appeal against the final appellate order as well, which in this case was passed on 29-5-1986, even with prospective application of the said Ordinance this Tribunal has the jurisdiction to entertain and decide this appeal. The appeal, in our view, is competent, maintainable in law and having been filed within 30 days of the passing of the final appellate order dated 29-5-1986 is within time as well.
5. We now come to the merits of the case. The appellant was promoted to Pay Group IX vide orders dated 4-9-1982. The promotion order reads:-- "Subject: PROMOTION
(1) We are pleased to inform you that you have been promoted as Manager in Pay Group IX with effect from 17-8-1982 and shall be entitled to allowances of Pay Group IX effective the same date.
(2) You will, however, be placed in Pay Scale of Pay Group IX from the date of completion of 3 years in Pay Group VIII i,e, 7-2-1983.
You will remain on probation for six months and your confirmation will be subject to a satisfactory report from your Sectional/Departmental Head."
The appellant continued to serve in the new post for about 17 months and then on January 16, 1984 he was reverted back to Pay Group VIII under the orders reproduced below:-- "Subject:- REVERSION ' Please be informed that you have not been confirmed in Pay Group IX. Consequently you stand reverted to Pay Group VIII w,e,f, 7-2-1983. On reversion to Pay Group VIII your salary has been fixed at Rs,3,210 p.m. From the same date i,e, 7-2-1983 in scale of Rs,2,910-150-4,410 plus usual allowances.
(2) You have also been granted Annual Increment of Rs,150 p.m. With effect from 1-7-1983 raising your salary from Rs,3,210 to Rs,3,360 p.m. In the same scale."
' The learned counsel submitted that during the entire period of 17 months during which the appellant held charge in the higher Pay Group, he performed his duties very satisfactorily. It was contended that in terms of para. 3 of the order of promotion, the appellant had become eligible for confirmation. He added that even under the relevant rule in the PIAC Admin. Manual which provides for a maximum of one year probationary period; the right of confirmation had accrued to the appellant. The learned counsel for the appellant pointed out that never during 17 months' period the appellant had been informed or given an indication that his superiors were not satisfied with his performance. Not only that, he was even allowed annual increment with effect from 1-7-1983. It was therefore, urged that the respondent-Corporation had treated the appellant very unfairly and the order of reversion was arbitrary and entire unjustified. From the respondents' side replying to these contentions, their learned counsel took the plea that first, promotion is not a right and so the appellant's claim that he should have been allowed to continue in the higher post was unwarranted. Secondly, according to the learned counsel, the appellant's performance was satisfactory neither during the period he served in Pay Group IX nor during the earlier part of his service career. It was pointed out that out of 22 A.C.Rs, only 8 were above average while the remaining 14 were either average or below average. Then with a view to refuting the appellant's claim that his performance during the period 17-8-1982 to 16-1-1984 was satisfactory and that no adverse remarks or observations regarding his performance had in any form been communicated to him, the learned counsel submitted that when the appellant's case for confirmation was taken up the Managing Director did not approve and recorded the following remarks:-- "I have closely watched the working and performance of Welfare and Canteen activities. They have been run poorly without providing guidance and proper assistance. Both the G.M. And Manager had to be removed due to poor performance. I do not consider Mr. Akbar is fit to hold such high appointment. His case for retention and usefulness in PIAC be reviewed. He has been temporarily attached with Administration Department"
' On these facts, contended the learned counsel, the appellant was not justified in claiming the right to confirmation in Pay Group-IX and urged that the appeal be dismissed.
6. We have carefully considered the facts as brought on record and have weighed the arguments advanced from both the sides. To begin with, plea has been taken that promotion is not a right of the employee and, therefore, the appellant's grievance against action taken is not well-founded.
We find hardly any force in this plea. The appellant in this case is not claiming promotion. His grievance is that he has been wrongly reverted from the post to which the respondents had earlier promoted him. Coming to the main issue, we find that the rule relevant to the instant case in the P.IA. Administration Manual governing the "confirmation" of a P.I.A. Employee promoted to Pay Group VI an above is 12.02.01 (B). It reads as under:-- "(B) A newly promoted employee in Pay Group VI and above, shall b. Confirmed from the date of his promotion on the satisfactory completion of 6 months' probationary period. However, if he is found unfit at the end of his initial probationary period, he will either be reverted to his previous Pay Group or his probationary period will be extended further up to 6 months. If, even after the extended probationary period the employee is found unfit he will be reverted to his previous Pay Group."
In the above rule the initial period of probation as fixed is six months. If the promotee satisfactorily completes this period of probation, he acquires the right to be confirmed. The word used in the rule is "shall". But in case the promotee is found unfit at the end of initial six months probationary period, the employer Corporation can either revert the employee to the previous Pay Group or extend the probationary period for a further period of six months. So, in all the length of the probationary period can be one year and no more. Therefore, under the rule the promotee to Group VI and above shall be confirmed if he is not reverted on the ground of lack of fitness or unsatisfactory service. In the instant case, although in the order of promotion only six months' period of probation was laid down yet, it can be argued that this condition as incorporated in the order of promotion could not override the rules and so, the maximum period of one year was applicable to the appellant's case. Be that as it may, we find nothing on record which could show that during the one year probationary period the appellant was in Pay Group-IX, any authority had assessed his performance as not satisfactory. The remarks of the Managing Director referred to in para. 5 above, on which the learned counsel for the respondents has relied upon, were recorded long after the prescribed one year probationary period. This assessment could not be employed to take away with retrospective effect the appellant's vested right that he had acquired at the expiry of the one year period. In fact, as mentioned in the reversion order itself, the appellant was allowed annual increment with effect from 1-7-1983. Under rule 5: 02: 01 of the PIAC Service Code, only that employee becomes entitled to increment whose performance is considered satisfactory before the due date of his annual increment. Above all, what clinches the issue is that the appellant was not reverted--neither at the end of first six months' period nor at the end of total one year's period.
Thus in accordance with the rule, the appellant acquired the right to be confirmed at the end of six months' period. When the framers of the rule laid down a specific period of probation, it was not without purpose. The principle of natural justice demanded that the promoted employee be not left under suspense for an indefinite period or placed at the mercy of the employer. A period has, therefore, been specified within which the employer has the powers to revert the promote if his work is found below the mark, and if the employer chooses not to revert, then the employee gets the right to confirmation. In the instant case, supposing the appellant's performance was in fact unsatisfactory and still the respondent-Corporation did not revert him before the expiry of the period of probation, as laid down in the rule, for reason of not evaluating the appellant's performance in time, then it has to blame itself. The appellant cannot be made to suffer for the respondents' fault. If the appellant was really unfit or that inefficient as the respondent would want us to believe, then he could be proceeded against under the Efficiency and Discipline Rules, but could not be denied the right to confirmation on the expiry of the probationary period.
7. As regards the plea of the respondents that the appellant has had indifferent or poor record, it does not advance their case in any way. If with that average record the appellant could be promoted and with allegedly unsatisfactory service during the probationary period it was not considered proper to revert him, then there could be no justification in not confirming him in the pay group to which he had been promoted. The order reverting the appellant to Pay Group VIII after the right to confirmation had accrued, was certainly violative of the rules and not sustainable in law.
8. For the reasons given above, accepting the appeal we set aside the order of reversion and direct that the respondents will confirm the appellant in Pay Group-IX with effect from the date of the expiry of first six months of his promotion. He will also be allowed all back benefits as admissible under the Rules.
9. No order as to costs.
10. Parties to be informed accordingly.