1981 PLP (C (PLC(CS))

Respondent No. 5 and two others, namely, Abdur Rahman Honorary Daffadar B. M. P./Lance Daffadar and Muhammad Lance Daffadar B. M. P., Dera Ghazi Khan filed three different and separate petitions against these direct appointments of the appellants as well as of respon dents Nos. 3 and 4 before respondent No.

1. All the three petitions were taken up together and disposed of by one single order dated 27th April, 1980. In this order the learned D C., D. G. Khan observed as follows: ‑ "The directive given by the Commissioner in his order dated 31st January, 1979 should be kept in view and at least one Daffadar should be taken from the existing establishment. I do not want to recommend or de‑recommend the case of the petitioner or respondents and leave it to the judgment of the Commandant B. M. P. to give one seat of Daffadar to the Departmental Candidates and two to the direct recruits." The Commandant B. M. P. vide his order dated 30th August, 1980 observed as under: ‑ "In order to implement the decision of Deputy Commissioner, D. G. Khan all the candidates have been interviewed and their cases thoroughly examined. Following changes are hereby made with immediate effect: ‑ (1) Shahid Hassan (appellant) is terminated from service due to his unsatisfactory performance during the period of posting. (2) Pervaiz Iqbal respondent is retained in service for the time being ; (3) Zahid Hussain is retained in service for the time being. He should produce his Matric Certificate within the stipulated period of time as required in his appointment letter. (4) Mushtaq Ahmad Khan Shaklan Lance Daffadar being senior most is promoted as Daffadar in N. P. S. No. 3 in place of Shahid Hassan whose services have been terminated. Hence this appeal was filed before the Punjab Service Tribunal. The learned counsel for the appellant has submitted that under rule 3 of the 1935 B.M.P. Rules the Commandant (Political Assistant) is the sole and the final authority for making appointments to all the posts other than that of Jamadars or Subedars, a matter exclusively within the jurisdiction of D. C. only. It was pointed out that it was highly unjust on the part of the D. C. to issue any instructions with regard to such appointments falling within the powers of Commandant on0y, as it would tantamount to imposing his order upon the Commandant B.M.P. who being his imme diate subordinate would have no alternative but to accept the same. It was further argued that the order of the Commandant B.M.P. was final under rule 3 of the 1935 B.M.P. Rules and the same could not be reviewed either by him or by his predecessor. While assailing the order of D. C. on the legal plane it was submitted that no representation was competent before the D. C. with regard to the matter of promotion as made by Respondent No. 5 and two others. It in fact was in violation of section 21 of the Punjab Civil Servants Act, 1974. With regard to the order of termi nation of services passed by the Commandant B.M.P. on 30th January 1980 it was submitted that he was not authorised under the law as well as under the Rules to dismiss the appellant without giving him a show‑cause notice particularly when he was being removed from service for his unsatis factory performance. Reliance has been placed in this regard on the parawise comments filed by the Department in which serious allegations of corruption have been made against the appellant and it has been stressed that the termination of his services by the Commandant B.M.P. was due to his corrupt misconduct. On the other hand on behalf of the respondents Nos. 1 and 2 a stand has been taken by the Department in the parawise comments that the D. C. being a supervisory officer of the Commandant was competent to issue directions to him to obey the instructions of the Commissioner, an over all authority in this matter with regard to the appointments so made by him. It has also been stated that as the appellant was a thoroughly corrupt person, whose conduct of malpractices being fully established on record through so many enquiries conducted against his openly and secretly, therefore he was hardly fit person to be retained in service. We have given our anxious thought to all the contentions so raised by both the learned counsel and stand taken by respondents Nos. I and 2 in parawise comments submitted on his behalf and have perused all the annexures so placed on file by the appellant carefully with their assistance. Without going into the merits of the case with regard to the performance of the appellant during his short period of service i.e. about seven months in which initially he is shown as a recipient of reward for bravery and painted as devil incarnate later, we will dispose this appeal only on the legal issues raised before us. In the letter No. 560‑E from the Financial Commissioner's office Lahore dated 30th January 1951 to the Commissioner, Lahore Division it was clearly laid down that the order once passed by the Appointing Authority would be final notwith standing that such orders may be erroneous. Vide this letter the Commis sioner was strictly prohibited that unless specific provision for review, revision or appeal exists in the law or the Rules, the D. C. was debarred to review orders of his predecessor. Similarly in another letter dated 26th May 1951 it was directed as follows: ‑ "The Financial Commissioner, Revenue, in consultation with the Legal Remembrancer to Government Punjab is pleased to decide that a Deputy Commissioner has no inherent right to review his order in an establishment case even with the sanction of the Commissioner." In view of these two letters so placed on the file we have no hesitation to hold that the Commandant B. M. P. could not review the orders of his predecessor with respect to the appointment of the appellant as being con clusive and final. No authority has been shown to us to prove that the author of the impugned order had any authority under the rules to review his or his predecessor s orders. In view of the matter it would be incum bent upon the Commandant B. M. P. to take recourse to the normal procedure laid down under the Efficiency and Discipline Rules for removal, from service of a subordinate who was reported to be corrupt and inefl5cterit, 1n the present case what we find is that the appellant had been dismissed Without being given a chance to defend himself. The dictum of audi alteram partem will full apply to the case of the appellant with all its force, Similarly we are in full agreement with the learned counsel for the appellant that no representation would lie in the matter of pro motion to the D. G. therefore his order is liable to be struck down as being without lawful authority. It was for the Commandant, B. M. P. T political Assistant who was the sole judge of fitness of a person in matters of promotions and the proper course for those when aggrieved from its order would be to file an appeal to the next higher authority as provided under the law. In view of the above we are of the considered opinion that both the impugned orders are without lawful authority therefore being of no effect. The appellant would be considered to be in service for all purposes, unless and until the competent authority dismissed him from the same complying with all the Rules governing such matters. The result is we accept the appeal and set aside the impugned orders dated 27th April, 1980 of the D. C. and 30th August, 1980 of the Commandant B. M. P. and maintain the order dated 8th January, 1980 in his favour. Appeal accepted.