1999 PLP (C (PLC(CS))

MRS. KHALIDA RACHID, J.‑‑‑Muhammad Nisar, petitioner, joined the department of respondents in the year 1967 as Clerk in BPS‑5 and reached Grade‑15 through gradual promotion in the year 1990. He was transferred to B.I.S.E., Saidu Sharif on deputation and was assigned the duties of Controller of Examinations (BPS‑16). He was given the responsibilities to conduct the examination for the year 1992. The examinations were managed in well‑regulated manner. After receiving an anonymous letter addressed to the Governor N.‑W.F.P., Governor's Inspection Team was entrusted with the probe of the allegations and the petitioner was found guilty of certain irregularities in the manner the examinations were conducted. The Chairman, Swat Board vide Reference memo. No. 332/AEC/RI/SWAT nominated Professor Fida Muhammad Paracha, Principal, Government Degree College Dargai Malakand Agency as an Inquiry Officer, who vide his report dated 13‑12‑1993 exonerated the petitioner of all the allegations levelled against him. However, respondents, after lapse of six months, not satisfied with the Inquiry Report charge sheeted the petitioner vide Letter No.241 dated 16‑6‑1994. Consequently, Mr. Sherin Jan Khan Marwat, Project Manager, Teacher Training Project was appointed second Inquiry Officer to look into the allegations against the petitioner by virtue of Letter No.230‑240, dated 16‑6‑1994, who submitted his report on 28‑7‑1994. As a result of this Inquiry Report, the petitioner was issued show‑cause notice on 5‑9‑1994, asking him to explain as to why major penalty should not be imposed upon him. The explanation of the said notice was tendered by the petitioner vide letter dated 14‑9‑1994 and then on 16‑1‑1997. However, respondent No. 1, Chairman. B.I.S.E. dated 16‑2‑1998 passed Order No.1685‑97/PA‑Secretary, B.I.S.E. dated 16‑2‑1997 directing the reversion of the petitioner from post of Superintendent (BPS‑16) to the post of Junior Clerk (BPS‑5). The petitioner invoking the constitutional jurisdiction has sought the indulgence of this Court for declaration of impugned orders as illegal, void and without lawful authority contra the rights of the petitioner.

2. In the comments filed by the respondents they took a stance that on the basis of inquiry conducted by Mr. Sherin Jan Khan, the petitioner was found guilty of material irregularities and that the impugned order was issued after adopting all the formalities.

3. We have carefully and patiently listened to the arguments of Mr. Javed. A. Khan, Advocate for the petitioner and Mr. Wali Khan Afridi, Advocate for the respondents.

4. The petitioner has assailed the impugned order of reversion to the lowest grade on two‑fold grounds. The learned counsel for the petitioner, firstly, contended that despite exoneration by the First Inquiry Officer and found not guilty by the subsequent Second Inquiry Officer who also did not hold him responsible, the issuance of the impugned order by Chairman, respondent No. l was mala fide and based on personal grudges. The learned counsel further maintained that the petitioner has been punished for holding the post of the President Joint Association of N.‑W.F.P. Secondary Boards Employees who maintained a watchful eye and surveillance on the wrong doings and irregularities of the respondents. Referring to the news cutting of newspaper "Kasoti", the learned counsel for the petitioner submitted that he was victimized as he was considered to have provided the news items to the said newspaper. The learned counsel for the petitioner also took serious exception to the reversion of the petitioner from BPS‑16 to the most junior grade of BPS‑5 as illegal and without lawful authority. He urged that the petitioner acquired the higher grade of BPS‑16 after his successive promotions and due to his hard work of 23 years and satisfactory performance of his duties in the eyes of his various previous bosses. The learned counsel maintained that reversion from Grade‑16 to the lowest grade of Grade‑5 is unwarranted in law. In this context, reliance is made to 1993 PLC (CS) page 1443.

5. The, learned counsel for the respondents, on the other hand, contended that the allegations against the petitioner, probed into by the Governor Inspection Team found true and the impugned order was passed on the basis of the inquiry conducted by Mr. Sherin Jan Khan who found him guilty and responsible.

6. We have very carefully considered the claims and counter‑claims of the learned counsel for the parties and also perused the documents referred to by them in support of their submissions. The inquiry was initiated against the petitioner on the basis of a complaint lodged by one Islahi Tanzeem Babuzai, Mingora District Swat to the Governor, N.W.F.P. regarding the irregularities in B.I.S.E. Swat examination. The main allegations lodged against the petitioner are as follows:‑

(a) Mr. Habibullah, an Operator of press in Grade‑7 was appointed as Deputy Superintendent in Annual Examination F.A./F.Sc. 1992, at Government College Dargai in the presence of other experienced and more qualified staff. (b) Combined centres for male and female were opened against the orders of the Honourable Governor, N.W.F.P. at various examination centres. (c) A female candidate was allowed to change her Female centre to a male examination centre, after having appeared in one of the English papers in a female examination centre. (d) Mrs. Liaqat Begum, Lecturer Government Girls College, Saidu Sharif Swat was appointed as Superintendent at Government High School Matta centre, in spite of the fact that her sister was also appearing in the same examination at Mingora. The said Superintendent took undue advantage through her husband. (e) Mr. Masood Ahmad, Lecturer Government College Chitral was appointed as Superintendent in Government College Khar Bajaur Centre, His duty was changed by the accused to G.H.S. Thana and in his peace Mr. Sherinzada C.T. Government College Daggar was appointed to extract Financial advantage from the candidates. Some other irregularities in appointment of the examination staff, also pointed out against him by the Governor Inspection Team."

7. The first Inquiry Officer Professor Fida Muhammad vide report, dated 13‑12‑1993 exonerated the petitioner of all the charges levelled against him. The concluding para. of the report reads as under:‑

"However, it is submitted at the end that taking any disciplinary action on the basis of an anonymous complaint (which is ascertained by the Governor Team) is not fair and discourages an enthusiastic worker to work in the hard condition as prevailed at the time of examination. The staff was repatriated to Peshawar on the order of Court and Mr. Nisar performed so many duties (as counted in his explanation) single handedly with inexperienced staff. His efforts should have been appreciated and if there was an human error in his performance must have been ignored." Rather in his report he had given note of appreciation for handling his working of examination independently with inexperienced staff. As per Rule 5, sub rule 4 of N.W.F.P., Government Servants (Efficiency & Discipline) Rules 1973, when the authorized officer receives the report of the Inquiry Officer, he shall determine whether the charges have been proved and if major penalty is proposed to be imposed, he shall forward the case to the authority alongwith the charge etc. and his own recommendations regarding the penalty to be imposed. The authority shall pass such orders, as it may deem proper. It is observed that concerned authorized officer in this case neglected the procedure and without giving any consideration to the first inquiry report and without recording any reasons, appointed Mr. Sherin Khan, Project Director, Teacher Training Project, Abbottabad as the second Inquiry Officer vide Letter No.239, dated 16‑6‑1994. After going through inquiry report of Mr. Sherin Jan, it would be observed that even in his report the petitioner was not categorically held guilty of the charges levelled against him. For the purpose of convenience, the final findings of the report of Mr. Sherin Jan are reproduced as under:‑‑ "Mr. Muhammad Nisar has been facing wide range of complaints since he has taken over in this Board. He has categorically confessed that all the complaints are being poured by his own affinity including friends and relatives. This problem can only be solved, if he changed his place of duty. It he continued his service in the present Board, it can prove very fatal and injurious for him. He will have to face the same complaint time and again. It can be readily accepted that tracing out the relationship between the supervisory staff and candidates are not included in his duties. This simple case has been turned into complex one with the addition of novel clement. Air audiocassette has been presented by Liaqat Begum who has turned the tables on Mr. Muhammad Nisar. In which he has taken the whole responsibility of the sad occurrence. If this cassette has to be considered as the real one then Mr. Muhammad Nisar has absolutely no escape for his skin saving. The whole inquiry is pivoted on the analytical study of 'Cassette' in which an odious plot has executed maliciously. This deciding factor will either confirm the previous inquiries or totally negate their outcomes. In short, if the cassette is accepted as precise and measurable factor in the case then the contender (Mr. Muhammad Nisar) can be treated as a culprit, a sinner and a criminal or otherwise. Mr. Habibullah has been appointed as Deputy, Superintendent on his personal relation than on the recommendation of the concerned Principal. Anyhow, in case of emergency this type of violation is usual in the history of Saidu Sharif Board. If Mr. Habibullah has plunged in unfair means in the conduct of Examination then the penalty can be multiplied, otherwise this allegation can be treated as common and routine work. "

9. From the plain reading of the aforesaid findings it can be inferred that petitioner is not considered guilty of allegations. It appears that the learned Inquiry Officer had recorded his findings on the basis of audiocassette produced by Mst. Liaqat Begum but he did not care to determine the genuineness or truthfulness of the statement recorded in audiocassette. He held that such‑like allegations are common and levelled in the routine work. We have no hesitation to arrive at a conclusion that impugned order passed on the basis of the second inquiry report is perverse, arbitrary and without lawful authority.

10. Now reverting to second contention of learned counsel for the petitioner the relevant provision (Rule 4 (b) (I)) of N.‑W.F.P. Government Servants (Efficiency and Discipline) Rues, 1973, reads as under:‑‑ "Reduction to a lower post or time‑scale, or to a lower stage in a time scale." The petitioner was reverted from Grade‑16 to Grade‑5 depriving him of eleven grades in one stroke. As per abovementioned rule, reduction to a lower grade" can only be interpreted as reversion to the next lower grade. In this case, a lower grade' could only be justified as demotion to next lower grade of B.P.S. 15, since the petitioner was promoted to Grade 16 from Grade

15. Even if found guilty, as severe punishment he could only be demoted to a grade lower, not to the least possible grade which was not contemplated by the rules. If a Government servant is on account of misconduct or inefficiency reduced to a lower grade or post or to a lower stage in his time scale, the authority ordering such reduction shall state the period for which it shall be effective and to what extent and when restored to what position. Hence, the impugned reversion is illegal being violative of applicable Rules.

11. In the result, we allow this petition and set aside impugned orders. However, Civil Miscellaneous is dismissed as not pressed. Parties are left to bear their own costs. Q.M.H./M.A.K./267/P Petition allowed.