2000 PLP (C (PLC(CS))

MUHAMMAD RAZA KHAN (MEMBER).‑‑‑The appellant admittedly joined the service in the PIAC,, hereinafter referred to as the Corporation in 1976 as Sales Assistant. He was redesignated as Flight Steward in 1978. His services were terminated under M.L.R. 52 in 1982. However, he was re‑employed as Flight Steward as a result of a decision by the Review Board in 1990. While working as Flight Steward (Pay Group‑4), the appellant moved an application for his appointment against the post of Briefing Officer (Pay Group‑6). His application was not responded to since 1990 and he submitted a reminder as a result of which his case was processed through various officers and finally it was approved on 19‑7‑1995 by the Managing Director of the Corporation. He was actually promoted vide order, dated 15‑8‑1995 and the initial probation period was successfully completed and he was confirmed as such on 14‑2‑1996. He was served with a show‑cause notice to which he replied. However, this reply was not considered to be satisfactory and the appellant was demoted from Pay Group‑6 (Briefing Officer) to his original post of Flight Steward (Pay Group‑4). After seeking departmental remedy ineffectively, the present appeal has been filed. The respondent‑department had filed written objections. We have listened to the arguments and perused the record. Most of the issues involved in this case have already been discussed in an identical Appeal No.2683‑K of 1997 a copy of the judgment in that appeal may be placed in this file, to be read as an integral part of this judgment.

2. In addition to the points discussed in the said consolidated judgment of identical appeals, there are certain distinctive features of this appeal. Firstly in this case the applications were invited to fill up the post of Briefing Officer and those working in the Corporation in Pay Groups 4, 5 and 6 were held entitled to participate. Hence this appeal was not like a case of failure to provide opportunity to other similarly placed candidates who could apply for a job. Secondly it was argued by the learned counsel for the respondents that the minimum qualification of Master's degree was the prerequisite whereas the appellant was simply a Graduate. The learned counsel for the appellant pointed out that the authority for relaxation was already given in the internal circular inviting application for the posts whereby the qualification could be relaxed for Graduates. Thirdly, in this case there has been detailed noting and reasoning when relaxation was being granted and the appellant was being considered due to physical disability of the appellants suffered during the employment of Corporation and hence we have to hold that the case of Mr. Abdul Jabbar Memon was not applicable and moreover the qualifications were relaxable which have been relaxed by the competent authority.

3. In this appeal, the written objections filed by the respondent, have raised an issue that merely an illegality was rectified and no vested right of the appellant was infringed. Perusal of the entire record shows that show cause notice was sent, allegations were levelled, the punishment was indicated and thereafter the demotion was ordered, which is even otherwise a penalty under the Service Regulations. The demoted officer certainly has a. right to approach judicial forum for the redressal of his grievance particularly, when it is the question of imposition of penalty without any charge of misconduct or indiscipline or even inefficiency on the part of the appellant.

4. It has been argued on behalf of the appellant that the use of extraneous pressure of a political functionary for a particular job was a question of fact for which regular inquiry was required. However, if the inquiry is dispensed with the same can be done by the competent authority which could be the Director (Administration) only, whereas in this case the General Manager had issued the orders and that too on the recommendation of the Director of Flight Services. The learned counsel for the respondents does not have the record; but he is of the view that General Manager was authorised to act as Director, Administration during the particular period and thus, he was competent to pass the order. In view of the non‑availability of the record, no view could be formed but even otherwise such a decision could be taken by competent Authority by application of his mind and not on recommendation of and at the instance of the particular officer.

5. There is also an objection whether the impugned order was a rectification of illegal order or it was the order of punishment, as stated in the show‑cause notice. If it was the certification of an earlier order illegally passed, it would amount to review or revision. Review could be done by a person not below the authority who has passed the earlier order and revision is always ordered by the authority higher than the one who had passed the order. In this case not only the original authority or any authority higher in rank has taken the decision but a subordinate officer has tried to nullify the orders by the competent higher authority. If it was considered to be the demotion or reversion under rule 20 or 76 it can be passed on account of misconduct, indiscipline or inefficiency of the employee whereas all the allegations in this case, as stated and argued by the learned counsel for the respondents, is a violation of procedure for the preparation of synopsis, the failure to take the notice of the deficiency in length of service and failure to constitute proper Selection Board of Selection Committee and failure to take notice of A.C.R. of the appellant whereby he was considered fit for promotion only on his own turn. We feel that all these procedures and formalities were to be complied by the officers of the Corporation, and the appellant is not at fault hence he could not be penalized for the procedural flaw of somebody else.

6. With regard to deficiency in service length, the learned counsel for the respondents 'had pointed out that previous service rendered by the appellant in the previous cadre was specifically declared not to be counted in the re‑employment order of 1990 and hence in 1990, when the applications were invited, the appellant did not qualify the required minimum length of 5 years' service. The learned counsel for the appellant had clarified this situation that the previous service was not counted towards seniority in the cadre of Flight Steward but was counted for pay fixation of the appellant, and thereby appreciating the previous service. Moreover, no probation period was prescribed in 1990. We are of the view that if it was a case of regular promotion on the basis of seniority, the previous service would not be counted towards seniority. But if it was merely to have previous service by which he becomes eligible for a selection post during the process of recruitment, the service rendered earlier from 1976 to 1983 could not be denied.

7. As discussed in the detailed judgment, a copy of which has been placed with this judgment, it appears that in 1994‑95 the Corporation have acted upon an advice of the Federal Government which is now being considered as "securing promotion or appointment". Now again the Corporation has received new instructions from the Federal Government to review the cases of certain officers. Hence the process of pick and choose has; been adopted by an officer considering himself to be the authorized officer, who does not apply his mind and admits the recommendation of a higher officer for the dispensation of the inquiry proceedings. We are of the opinion that officers of the Corporation should adopt a behavior of applying their own minds instead of being instructed by others and the factor of application of mind is lacking here.

8. In view of the above discussion, and the discussion in the connected appeals, we are of the opinion that the impugned order suffers from several irregularities and illegalities, and therefore, we accept this appeal, set aside the impugned order and direct that the appellant may be reinstated to his position prior to the impugned‑ order, with back benefits. No order as to costs. Parties be informed. H.B.T./260/St/F Appeal accepted.