2001 PLP (C (PLC(CS))

Date of hearing: 14th January, 1999. ABDUL MAJID KHANZADA (CHAIRMAN).

Being aggrieved by the final/appellate order bearing No.SOIII (S&GAD)-5-3/25-5-1995,. issued by tire Respondent No.2 Chief Secretary Sindh, delivered to the appellant on 5-7-1995, the appellant has filed this service appeal. The facts, according to the counsel for the appellant are that he initially joined as Cameraman (BSP.13) in Anti-Corruption Establishment (ACE) Government of Sindh on 23-5-1977 and continued serve in that capacity upto 27-10-1987. The Director (ACE) was pleased to allow the change of cadre/appointed him as Sub-Inspector (BPS. 11) vide Order No.7 E(XXIV) 79-12628-31, dated 8-11-1987. The appellant, thereafter, completed upper course from PTS Shahdadpur in 1992, and continued to serve as Sub-Inspector ACE upto 22-5-1993, when the respondent. No.2 cancelled his appointment order as Sub-Inspector ACE, dated 8-11-1987, or the alleged grounds 'contrary to the rules, unauthorised and without jurisdiction as if never issued'. The appellant preferred a departmental appeal, dated 28-8-1993, which was recommended by the Director ACE However, it was regretted, vide order, dated 25th May, 1995, delivered to the appellant on 5-7-1995. The main contentions of the counsel for the appellant are that at the time, when the change in cadre of the appellant was ordered (from Cameraman BSP.13 to S.I. BSPA1) in 1987, the post of Sub-Inspector (ACE) was in BSP.11. The appellant had requested for such change in cadre, for better career planning/prospects for promotion because the post of Cameraman had no chance for promotion being an isolated post. According to him, he paid a heavy price for the same i.e. He sacrificed two grades (BSP.12 and BSP.13) as such it cannot be alleged that he gained any monetary benefits, as a result of that order. What actually happened was that the post of Sub-Inspector, in Police Department was upgraded from BSP.11 to BSP.14 in 1990, i.e. three years after his appointment as Sub-Inspector, but again downgraded from BSP.14 to BSP.11 after a short while, in which the appellant had no contribution. He accepted both the orders of upgradation and downgradation as 'fate accomplie'. However, it caused a confusion in Finance Department, allegedly, which opined in 1993, that since the post of Sub-Inspector was in BSP.14, it was outside the jurisdiction and competence of the Director (ACE) and hence opined that the orders for change of cadre issued in 1987 was without jurisdiction and competence, which advice was also upheld by the Respondent No.2, erroneously. He contended in unequivocal terms that in the year 1987, when the Director (ACE) allowed the change of cadre from Cameraman to Sub-Inspector the post of Sub -Inspector was in BSP.11, as evident from the order, dated 8-11-1987 itself Annexure 'A' of the appeal). He pointed out to Rule 4(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 schedule of the authorities competent to make appointments to the various Grade, Serial No.4 which lays down clearly that the appointing authority in Grades 9 to 11 is the Head of the Office in Grade-19 or above, otherwise Regional Head or if there is no Regional Head, Head of attached Department. He, therefore, contended very strongly that the Director (ACE) being an officer of Grade-19, Regional Head of Department the said order, dated 8-11-1987, was 'perfectly legal' and respondent No.2 had erred in holding it to be without jurisdiction/competence of the Director (ACE) on the misconceived advice of Finance Department which did not take note of the fact that the post of Sub-Inspector though upgraded to BSP.14 temporarily was against down graded to BSP.11. He also contended that since the appellant had served for more than 5years as Sub-Inspector (ACE) the doctrine of locus poententiae is attracted in the matter as enunciated by the Honourable Supreme Court of Pakistan in the famous case of Himayatullah Farrukhi (PLD 1969 SC 407). It could not be undone, according to him, because 'a legal right has been created and actually enjoyed' for more than 5 years, more so when the appellant had qualified the upper course at P.T.S. Shahdadpur was eligible for confirmation. He also contended that no adverse order in respect of 2 civil servant can be passed without resort to the formalities of a show-cause notice departmental inquiry and in this connection pointed out to the decision of Honourable Supreme Court of Pakistan in the famous case of Anisa Rehman. Moreso, because it violates the basic principles of natural justice fair play and equity. He, therefore, pleased that the impugned final/appellate order may be set aside. A.A.-G. also argued the plea at length. He stated that the appellant had not impleaded proper parties because the Administrative Department of Anti-Corruption Establishment was S&GAD and not Home Department whereas Secretary (Services S&GAD has not been made a party. The appellant had impleaded Secretary Home as respondent No. l who had nothing to do with this appeal vide their letter, dated 11-5-1998. As such according to him, this appeal is 'not maintainable'. He also contended that change of cadre is allowed in 'equal grades' whereas the grades of Cameraman and Sub-Inspector are 'different'. In the instant appeal, the change of cadre in case of the appellant, according to him, amounted to 'reversion' from BSP.13 to BSP.11 and Director (ACE) was not competent to revert the appellant from BSP.13 to BSP.11, without a disciplinary action i.e. without a show-cause or departmental inquiry. He specifically invited our attention to 'Rule 6-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. He also referred to a decision of the Sindh Service Tribunal upheld by the Honourable Supreme Court of Pakistan on the point of 'change of cadre' bearing No. 4K of 1998 (Nasir Ahmad v. IGP Sindh and others). He, therefore, opposed the appeal because according to him the original order of the Director (ACE) is 'void' as he had no-jurisdiction/competence, in the matter. He also pointed out that under. Sindh Government Rules of Business, the consultation/approval of Finance Department was necessary under Rule 28(1) which had not concurred to the original order. He, therefore, pleaded that the appeal may be dismissed. Mr. Mazoor Ali Khan, exercising his right to reply stated that the Director (ACE) was not made a party because, he had not passed any order adverse to the appellant. On the contrary, he had throughout pleaded the case of the appellant/recommended it. He also contended that under Rules of Business, the Chief Secretary is the Head of S&GAD and as such he had pleaded all the necessary parties. Home Secretary had been impleaded as party as a pro forma respondents. We have gone through the arguments of either side carefully, perused the written statement and record, alongwith citation quoted. As rightly pointed out by the A.A.-G. a Division Bench of this Tribunal has already decided the question of change of cadre with similar facts/points of law, in Service Appeal No.80 of 1995 (Nisar Ahmed v. I.-G. Police Sindh) at length and had dismissed it vide judgment, dated 2nd, December, 1997, upheld by the Honourable Supreme Court of Pakistan in Civil Appeal No. 4K of 1998 mainly because of the specific provisions of law as contained in Rules 8 and 9 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 whereunder recommendations of Departmental Selection Committee are must and appointment by transfer has to be in the same grade in which the post to be filled exists, as well as the decision in Human Rights Case No. 104 of 1992. We, therefore, dismiss this appeal with no orders as to the cost. Announced in open Court this 2 day of March, 1999 at Karachi. H.B.T./12/K (Sr. Trib.) Appeal dismissed.