' AKBAR M. MEMON, (MEMBER).---Appellant hereinabove, while he was in the service of the respondent, has challenged his reversion order dated 21-7-1992.
2. Facts of the case; in brief, are that the appellant was originally serving as Instructor (Mech.) in B- 17 at Government Poly Technic Institute Sargodha from where he was interviewed in open competition in the year 1981 by a Selection Board and was selected as Superintending Engineer (Mechanical) in PSE-IV with three advance increments vide Letter No,Admin-3(9/R)/81/PB/2653, dated 11-6-1981. Since he was already serving in the Government Department at Sargodha, he joined the respondent on deputation, which continued for five years from time to time in the first instance and subsequently the respondent through the then General Manager recommended for extension of the deputation period which was rejected in the first instance and subsequently the same was granted for three years more with effect from 7-10-1986 to 6-10-1989, thus the appellant worked with the respondent for full eight years on deputation where he worked with full devotion and honesty. During this period a move was made for absorption of the appellant, such letters are on record, and during this period the appellant was given moveover from B-17 to B-18 with effect from 1-12-1984, by his parent department. In the year 1984, Pakistan Steel managed a fellowship with the Australian Development Assistant Bureau, where the appellant had successfully undertaken the- study and also qualified Post-Graduate Diploma in Transport. On account of his meritorious unblemished service with the respondent as Superintending Engineer (Mech.) with the approval of the competent Authority a High Powered Committee was constituted which recommended for the absorption of the appellant as Deputy General Manager in ,PSE-V with effect from 7-10-1989 on regular basis in view of his long span of service for 30 years upto 6-10-1989. The recommendations so made were approved by the then Chairman, Pakistan Steel Mills (Mr. Shujat Ali Bukhari) on 14-4-1990. As a result of the above, the appellant was required by respondent No,4 to get release/retirement from the parent department vide Memorandum No,CA- TM(7886)/81/PA/15170, dated 18-9-1989 with copy to the Secretary Education, Government of Punjab. Since the appellant was assured by the said High Powered Committee and higher management of the Steel Mills that he would have given the post of DGM on or before nine months from the completion date of his deputation period i,e, 6-10-1989. The appellant was compelled to proceed to Lahore where he moved application for his voluntary retirement with effect from 6-10- 1989. This all was done 'at the instance of the respondents and the appellant voluntary retired from his parent department and when the said notification regarding the retirement/release of the appellant was received, he was absorbed as DGM(Tech.) with effect from 7-10-1989 vide Memorandum No,CA-TM(7886)/81/PA/1045, dated 18-4-1990. The appellant then remained posted as DGM with the respondent Corporation with effect from 7-10-1989 to 21-7-1992 when all of a sudden the impugned letter was issued on the recommendations of Rationalization Committee headed by Dr. Usman Farooqi, the then Director (HRD&E) vide Letter No,A&P-92-6/1(P&C), dated 16- 6-1992. According to the said letter about 9000 officers were supposed to be brought at 1-1-1988's position. As such, the appellant was reverted from the post of DGM to that of the post of Manager (Tech.) vides Letter bearing No,A&P-92-6/1) P&C)/894, dated 21-7-1992. The appellant then filed departmental appeal on 20-8-1992, which was rejected-on 10-11-1992. Thereafter, Reinstatement Review Committee was constituted and such recommendations were made. Again a Committee was constituted in the year 1996 and during this period, the appellant used to send appeals and the last of them was filed on 24-10-1997, which was finally responded on 31-12-1998, against which the appellant filed present service appeal on 3-2-1999, but the same was dismissed by this Tribunal on 21-4-1999. The appellant then approached the Hon'ble Supreme Court where the order passed by this Tribunal, dismissing the appeal of the appellant, was set aside and the case was remanded on 27-12-1999 vide Civil Petition No,353-K of 1999.
3. Mr. Sanaullah Noor Ghouri, learned counsel for the appellant has argued that the appellant was peacefully working in the Ministry of Education, Province of Punjab as Instructor wherefrom he joined the respondent after appearing in the interview alongwith others and in the year 1981 he was taken up as Superintending Engineer with three advance increments on deputation. He has contended that the appellant remained there for eight years which extensions were obtained by the respondents and on the instance of the respondents he got himself voluntary retired from his parent department though his juniors got promotions there in the Province of Punjab and on his return back he was absorbed in the respondent-department in the year 1989 as is apparent from Annexure V, page 58, which post he enjoyed in the capacity of DGM in PSE-V till the date reversion order was passed on 21-7-1992. He has contended that the word "reversion" does not exist in the Steel Mills Rules and rather it is alien in the entire rules. He has contended that by reverting the appellant, it appears that the respondent has imposed a sort of penalty, which is without any show-cause notice/charge-sheet or even personal hearing. He has contended that he question of reversion doesn't arise in case the appellant was considered to be probationer then he served for three years and there was no adverse report against him. At the same time, he has contended that the appellant has been condemned unheard by issuing such an adverse order of reversion, the norms of natural justice have been violated. He has contended the question of limitation, at this stage, would not arise as the said point has already been resolved in the order of Hon'ble Supreme Court whereby the appeal was remanded. He has also contended that once the order of absorption was passed, a valuable right had accrued to the appellant and as such he could not have been reverted by the respondents even on the principle of locus poenitentiae. He has lastly contended that the order of reversion from the face of it is illegal and, as such, the same is liable to be set aside. In support of his contentions, he has placed reliance on 1992 PLC (C.S.) 1327, PLD 1958 Kar. 350; PLJ 1997 Tr.C. (Service) 612, PU 1992 Tr.C. (Service) 1090, PLD 1983 SC 341, 1995 SCMR 776, 1992 PLC (C.S.) 1127, 1999 PLC (C.S.) 1023, 1995 SCMR 249 and PLD 2000 (sic) 110.
4. Ms. Mahreen Nazar, learned counsel for the respondents has, at the very out set, taken the point of limitation. According to her, the impugned order was passed on 21-7-1992 and the departmental appeal was filed on 20-8-1992, which was rejected on 10-11-1992, as such, the appeal from the face of it, appears to be time-barred. She has contended that this fact was not brought in the notice before the Hon'ble Supreme Court and in case this done earlier, the fate of the appeal would have been otherwise. She has contended that on this score alone, the appeal is barred by limitation. In support of her contentions, she has placed reliance on 2000 SCMR 1549 and 1669. The second point, which she has agitated, is that the appeal is hit by non-joinder of necessary parties as in case the appellant is restored to his original position as that of DGM, then those who were promoted are necessarily to be affected. On this point, she has placed reliance on 1999 PLC (C.S.)
510.
5. Mr. Ghouri, Advocate for appellant, in reply has contended that the learned counsel for the respondents has lost the sight of the fact that certain Committees for Review of the reversion orders were constituted and the appellant used to make representations from time to time and the last one was made on 24-10-1997, which was again replied on 31-12-1998 where no such mention finds place that the departmental appeal filed by the appellant already stood rejected on 10-11- 1992. He then referred certain pages of the paper book viz. 49, 72, 81, 82, 84, 86 to 88, 93, 95, 97, 99, 105, 109, 123 and 129 and has again placed reliance on 1999 PLC (C.S.) 1458, 1995 PLC (C.S.) 803 & 1108 and 1999 T.D. (Service) 188.
6. There is no denial of the fact that the appellant was originally working in the Punjab Education Department and he after taking part in the competition and after proper interview was selected by the respondents in the year 1981 for the post of Superintending Engineer with three advance increments on deputation. Record shows that the said deputation was got extended by the respondents through different letters from time to time which went to a long span of eight years. It is also on the record that the respondents required the appellant to get release/retirement from his parent department as they wanted to absorb him permanently in their department. It was, therefore, that the appellant voluntary retired and came back to the respondents where following Order bearing No,CA-TM (7886)/81/PA/1045, dated 18-4-1990, was passed:-- ' PAKISTAN STEEL (Central Administration) (Personnel-A Section)
' No,CA-TM/7886)/81/PA/1045 18th April, 1990.
MEMORANDUM ' The competent Authority is pleased to absorb Mr. Shah Muhammad Ch. As Deputy General Manager (Tech.) in PSE-V with effect from 7th Octobei 1989 on regular basis upon his retirement from the Government of the Punjab.
' His services will be governed by the terms/conditions applicable to officers of his category.
' His pay will be fixed as per rules on the subject.
(Sd)
(I.J. ABBASI)
For General Manager (A&P)"
' To ' Mr. Shah Muhammad Chaudhary Deputy General Manager (Tech.) P.No,808989, Transport Department, Pakistan Steel.
Karachi.
' After working there for three years, the miseries of the appellant started on 21-7-1992, when the following order was passed:-- CONFIDENTIAL PAKISTAN STEEL (Central Administration) 21st July, 1992.
' No,A&P-92-6/2 (P&C)894 Mr. Shah Muhammad Ch. Manager (P.No,808989), Hot Strip Mills (Opns), Pakistan Steel.
' Subject: REVERSION ' After a detailed examination in the DPC meeting held on 4th July, 1992, it was found that you were promoted contrary to the provisions of Pakistan Steel Officers Service Rules. Therefore, you have been reverted as a Manager as your promotion was irregular.
' As a ~gesture of special consideration it has been decided that financial benefit only on account of the difference of basic salary derived by you from the date of your earlier promotion will be recovered in easy instalments.
(Sd.) Lt. Col: (Retd)
(Syed Jamshiad Raza) TI(M) for General Manager (A&P")
' There is no denial of the fact that the appellant filed departmental appeal on 20-8-1992 (Annexure B, page 61), which was rejected on 10-11-1992, (Annexure X/I, page 66), but the chapter was not closed because certain Reinstatement Review Committees were constituted by the respondents which is evident from page 98 (Annexure C/1), and reviewed all reverted cases on 9-1- 1996, page 104 (Annexure F/1) and so on. This fact also gets support from the various pages of the paper book, which is on record. It was, therefore, that the appellant again moved the respondent on 24-10-1997, which was responded on 31-12-1998 and the reply reads as under:-- "PAKISTAN STEEL (CENTRAL ADMINISTRATION)
' No, A&P-98-6/1(P&C)512, dated 31st December, 1998.
' Subject: RESTORATION OF PROMOTION AS D.G.M.
' This has reference to the representation, dated 24-10-1997, regarding your fitness for promotion in the grade of D.G.M. Against the reversion order dated 21-7-1992.
' It is to inform you that the Competent Authority after careful examination of your representation for promotion to the post of Deputy General Manager reversed vide letter dated 21-7-1992 has rejected your request as it does not conform to merit. However, you may invoke such legal remedies that may be available to you, in this regard.
(Sd.) (Shah Nawaz Pathan)
Deputy General Manager (A&P)
' To ' Mr. Shah Muhammad Ch. Manager (P. No . 808989), Hot Strip Mills (Opns), Pakistan Steel.
7. As regard, the question of limitation is concerned, the point so agitated by the learned counsel for the respondents already stands resolved in para. 4 of the order in C.P.No,363-K of 1999 by the Hon'ble Supreme Court of Pakistan, which is as under:--
(4) Perusal of the impugned judgment of the Tribunal indicated that such fact has been completely overlooked by the Tribunal in its impugned judgment. In case the petitioner's case had been referred to the said Committee and there it remained pending for decision, there was no occasion for him to approach the Tribunal unless a final decision was taken in this regard.
Consequently, the finding of the. Tribunal that the case of the petitioner had become time-barred appears to be requiring reconsideration.
' Even otherwise in case the respondents would have been vigilant, they could have made such mention in the reply letter dated 31-12-1998 that the appeal of the appellant was already rejected but this mention doesn't find place therein. Bare perusal of the letter would show that the same was purely rejected on merits, in such circumstances, it cannot be said at this stage that the appeal filed by the appellant is hit by limitation. Similar is the position of the other ground taken by the learned counsel for the appellant that he worked for three years as D.G.M. From 1989 to 1992 under the order of the respondents, then the appellant could not have been reverted by the respondents by issuing mere letter of reversion without affording proper chance to &fend him. In such a situation , it has rightly been argued that legal right had been accrued to the appellant, as such, under the rule of locus poenitentiae, the appellant could not have been thrown away, as has been done in this case.
8. As regard the question that the appellant was wrongly promoted, we are of the view that the stand taken by the respondents in their letter dated 21-7-1992 is purely based on wrong assumption as it was not at all a case for promotion but absorption which is clearly mentioned in Memorandum dated 18-4-1990 (ibid). Since the reversion had taken place without chargesheet/show-cause notice and without affording any chance to the appellant to defend his case, we are of the view that the same cannot be sustained. It is pertinent to bring on record that the appellant during the course of proceedings has retired as is evident from his application dated 14-12-1998 and the date of his retirement as shown therein is 1-2-1999, in such circumstances, there is no question of reinstatement because the appellant had since retired. As such, now there remains question of benefits consisting of difference of pay and so also the pensionary benefits.
Accordingly we accept the appeal, set aside the impugned order dated 21-7-1992 and hold that the appellant is entitled to difference of pay and allowances as he was entitled to get the same being D.G.M., as such respondents are directed to pay difference of pay and pensionary benefits right from the day when he was reverted till the date he retired.
9. In the circumstances of the case, there will be no order as to costs. Parties concerned be informed through registered post.