' ABDUL HAMEED KHAN KHATTAK (MEMBER).---This appeal is directed against Notification dated 8th July, 1997 whereby the appellant was reverted to the post of Deputy Director (BPS-18).
2. Brief facts are that appellant was appointed in the Intelligence Bureau as Deputy Assistant Director (BPS-17) on regular basis w,e,f, 18-4-1990 and posted to Technical Wing vide 'order dated 8-5-1990 (Annexure-C). Subsequently the nomenclature of the pay scale of the post of Deputy Assistant Director was changed into that of the post of Assistant Director (B-17). He was promoted to the post of Deputy Director (B-18) w,e,f, 26-9-1995 vide order dated 27-9-1995 (Annexure D).
During March, 1996 the post of Director (B-19) was advertised in the daily newspaper on 13-3-1996 (Annexure-E) inviting applications for the same and as the appellant fulfilled the required qualification and experience, thus he also submitted an application, he was called vide the Mario.
Dated 21-3-1996 (Annexure F) to appear for interview before the Board of Intelligence Bureau and was selected for appointment as Director (B-19) and after approval of Secretary, Establishment Division, he was appointed as Director (Technical) (BPS-19) with special pay of Rs,275 per month against direct recruitment quota in the Intelligence Bureau w,e,f, 8-4-1996 vide the Notification dated 9-4-1996 (Annexure G). Due to change of Government (taking-over of Government by the Care-Takers), the Intelligence Bureau at the instance of Care-Takers moved for termination of the services of the appellant from the post of Direct. (B-19) to which Establishment Division did not agree resulting in a conflict between the Intelligence Bureau and Establishment Division over this matter a per Establishment Division, the appointment of appellant being lawful and in a prescribed manner, the question of termination of his service did not arise. It was alleged that due to constant pressure of Intelligence Bureau, the Establishment Division had no alternative but to yield and as a consequence the impugned order in the form of reversion of the appellant to the post of Deputy Director (B-18) was made against which he submitted a departmental appeal (Annexure-A) on 5- 8-1997 but having not been responded within stipulated period, the appellant preferred the instant appeal on 1-12-1997 on the grounds as stand reflected under the heading Grounds available in the memo. Of appeal.
3. The appeal was hotly contested only by respondent No,2, D,.G. Intelligence Bureau, whereas respondents 1 and 3 did not avail the opportunity of filing any objection although they were served in due course. The stand taken by respondent No,2 was that as the appointment/selection of appellant as Director (B-19) was irregular having been procured through illegal manner hence no exception could be taken to the impugned order. Precisely the case of respondent No,2 was that the existing recruitment rules for the post of Director (Tech.) (BPS-19) designedly and purposely were got changed to adjust the appellant against the said post inasmuch as no written test was conducted, instead of period of 30 days required for the receipt of applications, only 10 days' time was advertised for the purpose of invitation of applications, the qualification of having Master's Degree in Engineering was reduced to B.E. (Elect) and the experience of 12 years was slashed to only 5 years, and one of the Member of the Interview Board was closely related to the appellant.
4. We have heard the arguments and perused the record.
5. The learned counsel for the appellant strenuously argued that appellant was appointed/selected as Director in a prescribed manner, thus his selection being regular and lawful for all intents and purposes, did not smack of any irregularity or illegality, in that, he was having required academic qualification and experience required for the said post under the existing rules and as advertised, before passing of the impugned order no show-cause notice was issued to the appellant, it was the Secretary, Establishment Division who was the Competent Authority to appoint the Director or to remove from that post but the impugned order of reversion was instead made by the Prime Minister and not by the said Secretary, hence the impugned order was not tanable in law, that misstatement of facts was made in the Summary forwarded to the Prime Minister resulting in passing of the impugned order, certain officers of I.E. At the relevant time were unhappy with the appellant's direct appointment as Director, who were all out to get him removed from the said post, the Competent Authority did not apply independent mind while making the impugned order and the Care-Taker Government had no lawful authority to initiate proceedings for reversion of the appellant.
6. The learned counsel for respondent No,2, LB. On the contrary, supported the impugned order of reversion and reiterated in his arguments the stance already reproduced above in para.3, I e. The appellant's appointment as Director was irregular and suffering from legal flaws which need not to be reproduced again.
7. We have considered these contentions and carefully examined the record before us. The net result of such consideration is that appointment/selection of appellant as Director was tainted with legal/procedural infirmities of substantial nature which rendered the same as to be null and void and illegal ab initio and our such observation is supported by the following reasons:--
8. Admittedly before the selection of appellant as Director, the existing rules with regard to qualification and experience for this post required a candidate to be possessed Master's Degree in Engineering with 12 years experience but as the appellant was not so qualified hence those rules were promptly got modified/changed by reducing academic qualification to B.E. (Elect) 1st Division and to 5 years experience as by that time appellant had completed 5 years service (experience) and he was B.E. (Elect) 1st Class. Astonishingly the Notification whereby the qualification and experience for this post was amended and changed was issued by Intelligence Bureau, Islamabad on 13-3-1996 and on the same date i,e, 13-3-1996 the advertisement in the daily News of Lahore appeared in this respect. It does not pass comprehensions as to how this was made possible through such God-speed. The only presumption and conclusion which is to be deduced from this peculiar fact is that the functionaries of IB, who were at the helm of affairs and had actually initiated and motivated change/modification in the rules were already in the know of this fact as the matter in question was pre-planned by them. No doubt a draft of changed rules might have been sent to the Establishment Division by LB. Earlier but unless and until a final Notification to that effect was issued by I.B. Islamabad, how could an advertisement for such post be floated and sent to newspaper prior to 13-3-1996 when actually the relevant Notification as given above, was issued by I.B. On 13-3-1996 and simultaneously the advertisement (Annexure-E) also did appear in the newspaper on 13-3-1996, It transpires that the advertisement was floated much prior to issuance of said Notification by the I.B. Whereby experience and academic qualification were slashed down to fit in the case of appellant and this modus operandi being mala fide was not sustainable in law.
9. Vide Office Memorandum dated 2-1-1992 of Cabinet Secretariat, Establishment Division, bearing No,3/1/1992-R2, relating to recruitment Policy for the Federal Services/Autonomous Bodies/Corporations, it is specifically given that no Ministry/Division/Department/Organization shall receive applications for any post unless the vacancies are advertised and a minimum period of 30 days will be allowed for receipt of applications. But in the present case, the advertisement appeared in the daily News of 13-3-1996 and the last date given therein for receiving the applications was 21-2-1996 meaning thereby that total period allowed for receiving the applications was only 8 days which was certainly violative of the above Recruitment Policy as curtailing of the required period of 1/4th was certainly repugnant to the very object and purpose of publicity and information with the result that in this case only one other candidate Mr. Asad Abbas could apply. Had there been one month period allowed for entertaining the applications, a lot of aspiring candidates would have pured in during this period of unemployment especially when it was a high post and there is no dearth of meritorious and potential applicants.
10. The only other contesting candidate Mr.. Asad Abbas seems to be at higher footing qua the appellant as Asad Abbas warms having Master's Degree iii the Engineering (Telecom) from University of Limerick (Irland) with more than six years experience but as against him, the appellant who was C simply having 5 years experience and was a Graduate was given preference which smacks of injustice. No written test for the candidates was conducted hence no merit list was prepared their appellant was selected, simply on interview basis for which no record is maintained whereas under the above O.M. Dated 2-1-1992 regarding recruitment Policy, it is specifically given that no weightage shall be given to the interview and the interview shall be resorted to only if considered necessary to determine the suitability for a particular job. It is also laid down therein that recruitment shall be made only in the months of February and August each year whereas this interview was conducted on 25-3-1996 and the advertisement was also floated in the month of March. No reason, unavoidable circumstances or urgency was shown especially for resorting to such galloping type of hasty procedure especially when the appellant was already having the current charge of the post of Director since 31-12-1995 and the Organization's/Department's work was not suffering for want of appointment of Director. It is to be noted that appellant was given the current charge of the post of Director since 31-12-1995 and Notification to that effect, bearing No,4/196/A-I was issued on 10-1-1996 and he was to hold current charge of that post for a period of three months w,e,f, 3142-1995. The learned standing counsel, however, even objected to the matter of current charge being with to the appellant as he was not the senior most Deputy Director, though this assertion seems to be well-founded nevertheless at the moment we are not to address ourselves to this issue. Nevertheless in the light of above hard facts, it stands established to the hilt that there were no compelling circumstances to appoint a Director independently in such hot haste.
11. It is pertinent to note that one of the Members of the so-called Interview Committee was Muhammad Shabbir Ahmed, the then Joint D.G(A), who was a close relative of the appellant. The norms of justice and rules of transparency demanded that he should have not acted as Member of that Interview Committee being a close relative of the appellant but his association in the selection process has marred such selection, as being close relative of appellant, his opinion could not remain uninfluenced/unbiased nor the same could be held to be independent.
12. To crown this all, no representative from the Establishment Division was associated in the Interview Board. Vide Office Memorandum No,D.346/80-D.V/A(IB), dated 25-6-1981/, issued by the Establishment Division, the Selection Board for all the Ousts in Grade-17 and above in the Intelligence Bureau was to comprise of the following{{TABLE}}
1. Director, I. Chairman.
2. Joint Secretary (Regulation), Establishment Division. Member
3. Joint Director, IB. Member
4. Deputy Director (Adrian) IB HQ. Secretary.
' By not joining Joint Secretary (Regulation), Establishment Division as Member of the Selection Committee (Interview Board) in the present case, all the proceedings of such selection stand rendered void as the competent 'Authority to make appointment for the post of Director (B-19) was Secretary, Establishment Division and his representative was required to be one of the Members of the Selection Board under the above O.M.
13. It would be appreciated that Summary for removal of the appellant from service was moved by D.-G., I.B. As early as 28-124996 and the same was addressed to Secretary. Establishment wherein all the aforementioned illegalities with regard to appointment of the appellant were pin-pointed and was specifically mentioned therein that at that time appellant was a probationer and his services could be terminated without assigning any reason as his probation of one year's period for the post of Director was to expire on 8-4-1997 but it is quite manifest that as the then Secretary, Establishment Division was glove in hand with the then D.-G., J.D.-G. Of I.B. In appointment of the appellant he delayed the matter indefinitely till finally' the Prime Minister intervened and passed the impugned order of reversion on 8th July, 1997, k4. The contention of the learned counsel for the appellant that the reversion is bad in law as it was passed by the Prime Minister although the Competent Authority in the matter was Secretary, Establishment Division, seems to be devoid of force as even Secretary, Establishment Division was /subordinate to Prime Minister. Thus there was no illegality if such reversion order was passed by the Prime Minister who was having all the powers With which the Secretary was vested and no prejudice was caused to the appellant as the very order of appointment in the light of above discussion was illegal null and void ab initio.
15. We are constrained to observe with heavy heart that perhaps ours is the unique country on the face of earth where laws/rules are enacted, modified and repealed just in order to favour or seal the fate of one individual. In the present case simply in order to get a post of BPS-19 for the appellant so abruptly without waiting of his promotion in due course to that post, the relevant rules were got changed in a hot haste by flouting the legal formalities with impunity. The obvious; reason for all this seems to be that the functionaries at the helm of affairs were perhaps keeping in view the maxim "make hay while the sun shines". It would not be out of place to point out at this juncture that the then D.-G. And J.D.-G. And their other functionaries appointed hundreds of officers/officials in I.B. In different pay scales although Intelligence Bureau is a highly sensitive organization and at the same time of utmost importance. As such appointments were made on the recommendations of Prime Minister, Ministers and other political high-ups and with the change of the then Govemrnent such functionaries who were working on contractual basis had to quit their offices and the succeeding D.-G. Moved the case on 20-1-1997 for the abolution of hundred's of such posts and termination of services of a lot of such appointees in order to save the public exchequer and such suggestion was approved by the Competent Authority on 13-2-1997 and in consequence thereof, all the posts were abolished and the services of incumbents of such appointments were terminated who preferred appeals in this Tribunal out of which as many as 201 appeals were dismissed on 3-10-1997 by a Bench of this Tribunal and the judgment was recorded in Appeal No,59(P) of 1997 which is quite a detailed judgment wherein it was inter alia held that all those posts were result of nepotism, favouritism and politically motivated.
16. The contention of the learned counsel for the appellant in the present appeal that no prior show-cause notice was issued to the appellant/ and the , impugned order was sans reasons for reversion, thus the impugned order is illegal, null and void, seems devoid of force as in view of our above observations and reasoning, the very appointment order of appellant as Director was void ab initio being tainted with favouritism and mala fide and also violative of substantial prescribed selection procedure, thus there was no need to issue show-cause notice to the appellant before making of the impugned order and as he was not being proceeded against under E&D Rules, thus there was no need to assign any reason for his reversion. To our mind, the appellant should be thankful to his stars that he was simply reverted to his lower post otherwise legally speaking he was not having any lien to that post and he could straightaway be removed from service by holding the appointment as Director to be illegal. It transpired that the Prime Minister was much lenient vis-a- vis this matter.
17. We may also refer here to the O.M. Dated 7-7-1997 issued by Government of Pakistan, Cabinet Secretariat, Establishment Division with regard to termination of service of appellant addressed, to Intelligence Bureau, D.-G., whereby the Competent Authority was pleased to direct as under:--
(a) The officer (Mr. Fuad Asadullah) be reverted back to his original post in. BS-18 and posted out of the I.B.;
(b) Requirement of Master' Degree with 12 years experience be prescribed for initial appointment and Recruitment Rules revised according to the prescribed principles.
' It is, thus manifestly clear that the change/modification brought about in the academic qualification and quantum of experience for the post of Director in I.B. At the time of appointment of present appellant was taken seriously viewed by the Prime Minister who succeeded the earlier Prime Minister and it was for this reason that the old requirements i,e, Master's Degree and 12 years experience were ordered to be re-introduced
18. For all the aforesaid reasons, we are of the considered view that the appeal is meritless and the same as such is hereby dismissed with costs.
19. Copies of this judgment to be sent to the parties through registered mail.