1987 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).‑‑This appeal arose from the order of the Secretary to Government of Sind, Communication and Works Department, dated 18th July, 1985 whereby the appellant, Ali Gohar Abro, the officiating Executive Engineer was reverted as an Assistant Engineer. The said order of reversion was challenged in departmental appeal. As no decision was made by the appellate authority within statutory period of ninety days, the appellant filed the present service appeal. It is not disputed that appellant was promoted to the post of Executive Engineer against clear vacancy on recommendation of the Departmental Promotion Committee vide Notification No. E‑1 (C&W)1‑187‑111, dated 21‑4‑1981. It is also not denied that he was put on probation for one year, which was subsequently extended for two years. However, on completion of the said period of probation, usual order of confirmation of the appellant was not passed though he was allowed to continue as Executive Engineer until his reversion by the impugned order. We heard the learned counsel for the parties at great length and also went through the record relevant for disposal of the appeal. In course of the arguments the learned Assistant Advocate?-General brought to our notice that the appellant had been repromoted subsequent to filing of the present appeal and therefore his appeal had become infructuous. Accordingly he urged for dismissal of the appeal on that ground. While admitting the appellant's promotion to the post of Executive Engineer, the learned counsel for the appellant resisted the argument that on account of such promotion, the present appeal had become infructuous. The learned counsel invited our attention to the notification dated 18th May, 1986 whereby the appellant had been re‑promoted. The notification clearly shows that the appellant's promotion as Executive Engineer had been ordered afresh from the date of the notification. The learned counsel for the appellant was therefore correct in pointing out that the appellant's fresh promotion by the above notification did not tantamount to restoration of his earlier promotion, the relief that the appellant was actually seeking by the present appeal. Accordingly we agree with him that on his repromotion as Executive Engineer, his present appeal had not become infructuous. Reverting to the merits of the case, it goes without saying that the appellant's reversion was ordered under section 12 of the Sind Civil Servants Act, 1973, hereinafter referred to as the said Act. It reads as under:‑ "A civil servant appointed to a higher post or grade ad-hoc or on temporary or officiating basis shall be liable to reversion to his lower post or grade without notice." The argument put forth on behalf of the respondents was that since the appellant was holding only officiating position, he was rightly reverted under the above section. No doubt by the time of his reversion the appellant had completed the period of probation. But somehow he was not confirmed in the post of the Executive Engineer. Therefore his status was that of officiating Executive Engineer at the time of his reversion. However, the learned counsel for the appellant was of the view that on completion of the probationary period, the appellant ceased to be officiating civil servant, as thereafter his appointment was to be regarded as the one, 'until further orders'. In this connection he referred to clause (b) of the proviso to rule 3 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, hereinafter referred to as Probation and Confirmation Rules. We are unable to agree with the above view. In our opinion the words 'until further orders' have been used in the aforesaid rule only to indicate the postponment of the order required to be passed on completion of the probationary period. The intention of postponing the order appears to enable the competent authority to make up his mind about the nature of the order. Therefore in the meantime the officiating position of the civil servant concerned would remain unaltered. In the alternative the learned counsel for the appellant argued that in view of subsection (2) of Section 7 of the said Act, the appellant became eligible for confirmation following the completion of probationary period and consequently the above rule by which his appointment was to be regarded as the one 'until further order' being inconsistent with the said subsection, is invalid to the extent of the inconsistency. In order to appreciate this argument subsection (2) of Section 7 the said Act is reproduced as under:‑ "(2) A Civil Servant promoted to a post or grade on regular basis shall be eligible for confirmation after rendering satisfactory service for the period prescribed for confirmation therein." On perusal of the above provision of law, there is no doubt that eligibility for confirmation of a civil servant is dependent upon his rendering satisfactory service for the prescribed period. Mere completion of probationary period does not entitle him to automatic confirmation. In the instant case there is no proof that the appellant had successfully completed the probationary period. The deferment of his confirmation despite the expiry of the period of his probation is, on the contrary, indicative of the fact that his performance during that period was no satisfactory. This finds support from the appellant's ultimate reversion from the post of Executive Engineer. It is thus clear that the argument invalidity of the rule However we are clear in our mind that the power of reversion conferred by section 12 of the said Act cannot be exercised by way of punishment. As provided in rule 4 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, hereinafter referred to as Efficiency and Discipline Rules, reduction to lower post is a major penalty which can only be imposed after observing the procedure contained in the said rules, Even on the principle of natural justice no one can be condemned unheard. If the appellant was reverted as a punishment, his version was wrong as no show‑cause notice to which he was entitled was given to him before the reversion. The learned Assistant Advocate‑General was however emphatic in saying that the impugned order of reversion clearly shows that the reversion was simplicitor as it was not accompanied by any blemish. Therefore according to him the appellant's reversion was not in the nature of punishment. As against this argument, we noticed that para 2 on page 2 of the written statement filed by the learned Assistant Advocate‑General on behalf of the official respondents speaks??????????? volumes on this point. It may be advantageous to reproduce the said para. It is to the following effect: "In its meeting held on 6‑3‑1985, the D.P.C. revised the case of Mr. Abro. Finding his record as average and with a poor reputation on integrity enjoyed by the officer, it was decided to rescind Mr. Abro's promotion under section 12 of the Sind Civil Servants Act. After obtaining the approval of the appointing authority, he was reverted as Assistant Engineer vide notification dated 18‑7‑1985." It would appear that it is the respondents' own admission that the appellant was reverted on account of his average service record and poor reputation of integrity. In such a case his reversion was clearly a punishment inflicted on the appellant owing to his unsatisfactory service?????? record and poor reputation of integrity. Obviously he could not be condemned unheard. Both under the Efficiency and Discipline Rules and on the principle of natural justice he was entitled to show‑cause Notice before awarding of the penalty. If any authority is needed in support, reference may be made to the case of Raja Muhammad Afzal Khan v. The Federation of Pakistan P L D 1957 (W.P.) Lah. 17 in Which service of a temporary civil employee was terminated ostensibly on a notice simplicitor in terms of the conditions of his employment but really on the ground of his "undesirable" character and conduct, in support for which conclusion there was evidence. It was held: "The petitioner was being removed from service for misconduct a without being given an opportunity to show that the Thal Development Authority was vindictively stalking his path to all future employment. I really do not understand why it hurts some administrative departments to give "show‑cause" notice, when the ultimate power to accept or not to accept the explanation lies with then alone, and not with the Courts . . . . . . . I would, therefore, accept the petition and declare that the petitioner continues to be in service notwithstanding his discharges." In view of above discussion the impugned order of the appellant's reversion could not be sustained. Accordingly appeal is allowed and the impugned order is set aside. I also hold the opinion that this appeal be allowed. It is unnecessary for me to repeat the facts of this case which have been duly elaborated in the main part of the judgment written by the learned Chairman of the Tribunal. I will make the following observation in respect of facts and law.

1. I observe from record that Mr. Ali Gohar Abro was promoted as an Executive Engineer through Notification No.E‑1(C&W)1‑187/74‑III dated 21st April, 1981 and put on probation in accordance with relevant Rules against a clear vacancy and he continued as such till he was reverted vide Notification No.E‑1(C&W)1‑187/74(85) dated 18th July, 1985. After his reversion he has been repromoted as Executive Engineer vide Notification No.E‑1(C&W)1‑187/74(85) dated 18th May, 1986. It is obvious that he has officiated for almost 4 years before being reverted by invoking of clause 12 of the Sind Civil Servants Act of 1973.

2. I shall now revert to main points on law. The learned Assistant Advocate‑General Mr. Abdul Ghafoor Mangi has attacked the appeal against the order on the grounds of Limitation stating that the appeal was hit by the proviso 4(a) of the Sind Civil Servant Act of 1973. Tot clarify the position, I shall say that the appellant was reverted vide, Notification No.E‑1(C&W)1‑187/74(85) dated 18th July, 1985 and he filed the departmental appeal against his reversion on 1‑8‑1985 and preferred this appeal to the Governor of Sind. It is also a matter of record that present service appeal was filed on 27‑11‑1985 before the Sind Service Tribunal. The appellant's appeal to the Governor of Sind was therefore well within time. The appellant did not hear from the Government for 90 days i.e. till 1‑11‑1985 and has filed properly his appeal on 27‑11‑1985, within the specified period. I therefore hold that this appeal is within time and has not been hit by above‑stated proviso of limitation.

3. I shall focus my thoughts now on the point of probation. Adding to the views of the Chairman I shall further say that now that no orders were issued for his confirmation, his appointment was deemed to be continued "until further orders" in accordance with Rule 3(ii)(b) of Sind Civil Servant (Probation, Confirmation & Seniority) Rules of 1975. The main point in question is whether a civil Servant holding a position for 4 years for more or for indefinite period) and against a permanent vacancy could be reverted by invoking Section 12 of the said Act? I am inclined to believe that a Civil Servant who has held the post substantively against a permanent clear vacancy and who was not confirmed during his period of probation and has continued to officiate beyond period of probation cannot fall within the mischief of Clause 1 of the said Act. His period of probation shall be regulated by Clause 6 and 7 of the Sind Civil Servants Act of 1973 and Rule 3 of S.C.S. (P.C.S.) Rules‑of 1975, his period beyond probation shall be regulate by rule 8 of the S.C.S.(P.C.S.) Rules 1975 which stated that "If civil servant becomes due for confirmation, his confirmation shall not be deferred unless a disciplinary action is pending against him if the appointing authority for reasons to be recorded in writing defers his confirmation". This is the case of an officer who was officiating 'until further orders' with his confirmation deferred and if he was to be reduced in rank he should have been dealt with: in accordance with rule 4 of the Sind Civil Servant (E&D) Rules of 1973 and as such he was entitled to a show‑cause notice before changing the terms and conditions of this service (of until further orders). What shall happen to a case when a Civil servant might have served for period of 10 years? Could he be reverted without notice? If the answer is 'yes' then all very senior civil servants working against substantive posts could be reverted without notice. This cannot be the spirit of any clause of the Sind Civil Servants Act of 1973. Clause 3(ii)(b) of the S.C.S.(P.C.S) Rules, 1975 only says that a person continues to officiate and shall be awaiting for his confirmation subject to his satisfactory performance at any later stage. It is my reading of clause 12 of the Act that it be applied as a simplicitor and only when the promotee isto to be reverted within the period of his probation and not beyond. On this point of 'until further orders' it may be worthwhile to refer to the case of Ghulam Sarwar v. Pakistan P L D 1962 S C (142) wherein was established that even a temporary employee of Railways who had a service of 25 years could not be terminated without any notice. I also do not subscribe to the view of Mr.Manzoor Ali Khan the learned Advocate for the appellant that there is any inconsistency in Rule 3 of the (Probation, Confirmation and Seniority) Rules of 1975 and between clauses 6 and 7 of the Act of 1973. This point has been well elaborated by Chairman in the main body of the judgment and I subscribe to his arguments. A.E./120/Sr.S. Appeal allowed.