1. ' ABDUL MAJID KHANZADA (CHAIRMAN).---This appeal is directed against the order dated 29th October, 1997 passed by the Secretary, Local Government and Rural Development and Katchi Abadies Department Government of Sindh, whereunder the appellant was reverted from the post of Assistant Director, Local Government (BPS-17) to the post of Development Officer (BPS-16).
2. ' The appellant being highly aggrieved and dissatisfied from the order, dated 29th October, 1997 filed departmental appeal before the Chief Secretary to Government of Sindh, Karachi which was dismissed under order, dated 19th August, 1998. Both the orders have been impugned by the appellant in this appeal.
3. ' The case of the appellant is that he entered in Government service as Marketing Inspector (BPS-11) in integrated Rural Development Department, Government of Sindh. He was so appointed on regular basis under order, dated 9th February, 1976. Subsequently integrated Rural Development Department was abolished and redesigned as Rural Development Department and the post of the appellant was designated as Planning Assistant in the same grade. Therefore, the appellant was appointed by way of transfer in Sindh Local Government Department as Development Officer (BPS- 16) in his own pay and grade. Subsequently he was absorbed in Local Government Department in the year 1983 and was promoted as Development Officer on regular basis under order, dated 21st December, 1987. Thereafter, the appellant was promoted to the post of Assistant Director (BPS-17) on out of turn basis by the competent Authority on account of extraordinary professional competency displayed by The appellant in carrying on development work in Taluka Sehwan Sharif.
4. The appellant was so promoted under order/Notification, dated 1st February, 1994 although he was working against that post on officiating basis since 21st January, 1993. Such promotion of the appellant was treated by the Department itself on regular basis as his name was placed in the seniority list of Assistant Directors (BPS-17). It is the case of the appellant that right from the date of his promotion i,e,. 1st February, 1994 till 9th January, 1997 when he was served with a show-cause notice as to why his promotion should not be undone, no complaint against him about his efficiency or integrity was received from any quarters.
5. ' The appellant challenged the legality of show-cause notice in writ jurisdiction of High Court but the same was dismissed for want of jurisdiction on account of bar under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and such order of the High Court was maintained up to the level of Supreme Court. Under such circumstances the appellant submitted his reply to the show-cause notice which is on the record of this case at page 41 as Annexure 'E'. The reply of the appellant was found unsatisfactory and as such he was reverted to the post of Development Officer (BPS-16) under order, dated 29th October, 1997 which has been challenged through this appeal stated in the earlier part of the judgment. Main grounds against the impugned order are that the same is (i) in violation of the principle of locus poenitentiae; (ii) victimisation by way of discrimination in the shape of impugned order; (iii) there was no order of the Chief Minister withdrawing his earlier order passed under section 24 of Sindh Civil Servants Act. The impugned order having been passed by the Secretary of the Department, is void order; (iv) order passed by the Chief Minister in exercise of his powers and or section 24 of Sindh Civil Servants Act in respect of terms and conditions of civil servant is not a void order. It cannot be recalled in violation of the principle of locus poenitentiae; (v) respondents are estoppel from challenging the position of the appellant as he had been inducted in that position through the same channel and by the same authority.
6. ' Official respondents filed the written statement which was signed by the respondent No,
1. The respondents had admitted that appellant was promoted as Development Officer (BPS-16) in the same Department on regular basis as claimed by him vide order, dated 21st December, 1987.
7. Therefore, to this extent facts of the case as pleaded by the appellant had been admitted.
8. According to the respondents the appellant was promoted to the post of Assistant Director on out of turn basis as desired by the Sindh Chief Minister on 1-2-1994 without recommendations of the Departmental Promotion Committee. Cases of out of turn promotion were reviewed by the Care Taker Government and in all such cases of accelerated promotion show-cause notices were issued and served on those persons including the appellant who was served with such show- cause notice on 9-1-1997. At the time of his promotion about 11 Development Officers of the Local Government were senior to him according to the seniority list who were deprived of their right to be considered for promotion to the post of Assistant Director Local Government. Promotion was made in unusual manner, lacking recommendation of the Departmental Promotion Committee, possibility of extraneous pressure by the appellant could not be ruled out.
9. ' We have heard the learned counsel for appellant Mr. M.M.Aqil Awan who argued his case with reference to the contentions mentioned in the earlier part of the judgment and perused the record of the case with his assistance. We have also heard the learned Assistant Advocate-General Mr. Syed Sayedain Zaidi, Adverting to the first contention of the learned counsel for appellant we perused section 24 of Sindh Civil Servants Act, 1973 which reads as under:- '"Section 24.--Nothing in this Act or in any rule shall be construed to limit or abridge the power of Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable: Provided that where this Act or any rule is applicable to the case of civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."
10. ' Section 24 was read with anxiety to see as to whether the Chief Minister, Sindh which is the executive head of the Provincial Government had the power to pass order in pursuance of which the appellant was promoted as Assistant Director under order, dated 1st February; 1994. We are constrained to hold that Government can pass the order as mentioned above with the only condition that as it appears to it to be just and equitable. Without going into the question whether this Tribunal can sit over in appeal over consideration which appears to the Government to be just and equitable, we are clear in our mind that the order passed in favour of the appellant is covered by section 24 of Sindh Civil Servants Act, 1973. Moreover, it is not the case of the respondents that competent Authority which was Sindh Chief Minister in this case, had no power to pass the order of out of turn promotion of the appellant. We hold that order passed in favour of appellant under which he was promoted on out of turn basis on 1st February, 1994 was an order passed by the competent Authority. The learned A.A.-G. Invited our attention that such order was passed by ignoring about 11 Development Officers who were senior to him. The learned counsel for appellant had submitted that none of so-called 11 Senior Development Officers had challenged the promotion order of the appellant either at the department level or before any competent Court of law out of which the only presumption is that no one was aggrieved against the order, of promotion nor it was in violation of their right. We enquired from the learned A.A.-G. As to how many of those 11 junior Development Officers had been promoted from the year 1994 till today but he could not make any positive statement on the subject. Here we can rely upon Rule 13 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 according to which if any civil servant is not promoted on his turn on the ground mentioned in the said rule he can be allowed seniority in the next higher grade over and above his junior who was promoted earlier to him and this provision perhaps is meant for to meet the situation as arisen in this case. Merely an officer who was promoted on out of turn basis, cannot be pulled back after having been so promoted after lapse of about 3 years. Moreover, in view of the Ground No,3 of the memo. Of appeal where the appellant has specifically pleaded that so-called 11 Development Officers were in fact junior to him in view of the date of appointments disclosed by him in the lower grade and as such he had claimed his seniority over and above the persons mentioned therein, but unfortunately written statement is completely silent about this fact, positively pleaded in Ground No,3. Under such circumstances even the facts that the appellant was junior to 11 Development Officers to in obscurity' and uncertainty. It is not disputed before us that promotion order dated 1st February, 1994 was passed in favour of the appellant and it was implemented in its letter and spirit and the Department has treated such promotion as regular one by mentioning the name of the appellant in the seniority list of the Assistant Directors, Local Government (BPS-17) to which our attention is drawn by the learned counsel for the appellant and such seniority list is at page 67 of the record of appeal and the name of the appellant is appearing at Serial No,11. We are mindful of the fact that ordinarily regular promotions are ordered on the basis of clearance of the promotees through Departmental Promotion Committees but that is one of the mode and prescribed manner to promote the officers to next higher post. We asked the learned A.A.-G. To point us any specific provision of law under which the promotion so given to the appellant under order, dated 1st February, 1994 can be termed as illegal but he was unable to lay hands on any specific provision of law. Perhaps that is why in the very show-cause notice, at page 39 of the record of this appeal, say that promotion had been made in unusual manner. Nowhere in the show-cause notice or in the impugned, order itself it is mentioned that the promotion order was illegal. Under such circumstances we have reached the conclusion that promotion order, dated 1st February, 1994 having been passed by the competent Authority and having not been branded as illegal by the respondents themselves, admittedly same having been, acted upon it could not have been recalled under the impugned order, dated 29th October, 1997. We are fortified in our view by a judgment reported in 1990 SCM R p.1414-Inspector-General of Police, Punjab Lahore v. Muhammad Amir Abdullah Khan. In the reported case the Inspector-General of Police had been confirmed out of turn by respondent in relaxation of the relevant rules but the succeeding I.-G.P. After few months rescinded the order without notice to and without hearing respective police officers. Action was challenged before the Punjab Service Tribunal which allowed the appeal and Supreme Court upheld such order and held in para. No,4 of the judgment "Inspector-General of Police who has rescinded the order did not proceed on the ground of nullity in competence or absence of power of the authority passing the order. He based his order only on the ground of propriety and fairness where rights have come to vest such or these grounds could not be sufficient, to unilaterally justify rescission of the order, apparently passed competently.
11. ' Adverting to the. Next contention of the learned counsel where he invited our attention to the ground No,11 where has specifically mentioned that one Zaffar Khan Balooch, Assistant Engineer, Local Government Department was issued same show-cause notice in the same circumstances and it was subsequently withdrawn vide order, dated 17th August, 1998 which order has been placed on the record of this appeal at page 69. We do not find any reply in the written statement to this averment. Under the law of pleadings we have no other option but to believe the ground as it has not been controverted or denied. With regard to last two grounds we do not feel inclined to say much as we have already concluded that order impugned in this appeal, dated 29th October, 1997 is not sustainable in the eye of law and same is hereby set aside, so also the appellate order dated 19th August, 1998.
12. ' Under these circumstances the appeal is allowed with no order as to cost.
13. ' Given under our hands and seal of this Tribunal this 10th day of September, 1999.