1988 PLP (C (PLC(CS))

In this Notification Mr. Azizullah Brohi (Sr.No.8) was shown to be senior to Inspector Ghulam Abbas Bugti (Sr.No.10). 1n the meantime a tentative seniority list of Inspector was issued under Provisions of Sind Civil Servants (Probation, Confirmation and Seniority) Rules of 1979 under office Notification No. 792 830/E.II, dated 19-1-1985. The above tentative seniority list was later withdrawn on 29th March, 1986 in wake of the decision of Supreme Court P L D 1985 S C

159. It was ruled that the subordinate police force upto and including the rank of Inspector was to be governed by the special law i.e. Punjab Police Rules. 1n view of the above Supreme Court's decision which had the general application, the Government of Sind withdrew the tentative seniority list of Inspectors issued under Provisions of Sind Civil Servant (Probation, Confirmation and Seniority) Rules of 1974 and ordered the issue of another tentative list under the Police Rules. This tentative seniority list of confirmed Inspectors in Sind Police was issued under cover Letter No. 6501-42/ E.11, dated 29th March, 1986. In this iist Mr. Azizullah Brohi was shown on Sr.No.35 with a confirmation date of 1st July, 1981 and Inspector Ghulam Abbas Bugti was shown on Sr.No.37 with a confirmation date. of 1st July, 1981. It is obvious from this list that all during this period Inspector Ghulam Abbas Bugti continued to work as a Deputy Superintendent of Police on acting charge basis w.e.f. 19th July, 1984. It is a matter of record that Inspector Bugti did not challenge the seniority list in prescribed time.

6. Subsequent to the Supreme Court's decision quoted above and subsequent to issue of the tentative seniority list of confirmed Inspectors, Sind Police on 29th March, 1986, a Notification bearing No. POL-HD/2-7/86, dated 24th November, 1986, was issued which consisted of two parts: Part I deals with promotion of Inspectors to D.S.Ps. and Part 11 with some reversions from D.S.PA to Inspectors. Part II of the Notification is reproduced as under:- "Part-II: The following officers already promoted as D.S.P. on Acting Charge Basis vide Home Department Notification No. POI-HD/2 48/84, dated 19-7-1984, 28-8-1984 and 3-1-1985 are hereby reverted to their substantive rank of Inspector with immediate effect: (1) Mr. Azizullah Brohi. (2) Mr. Ghulam Abbas Bugti. (3) Mr. Ali Nawaz Daudpota. (4) Mr. Abdul Majeed Choudhary. (5) Mr. Nazir Ahmad Shaikh. Vide this Sind Notification Ghulam Abbas Bugti D.S.P. was reverted to his substantive rank of Inspector with four others who have not filed their appal before the Sind Service Tribunal. Appellant exhausted all channels before coming in Appeal to this Tribunal.

7. On the part of Government not much has been denied. It is only asserted that Rule 8-A(2) did not confer upon the appellant any vested right and as such he was reverted. It is further said in para.4 of the written statement, (grounds) that the case of appellant was put up with other D.S.P's. for the 3rd time in the meeting of the Departmental Promotion Committee which did not find the appellant's service record satisfactory and hence he was superseded and consequently reverted. It has been further averred in the written reply of the department that as far as the super session of the officers is concerned subsection (2) of section 23 of the Sind Civil Servants Act, 1973 no representation lies on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade. It is further averred on behalf of the Government that none of the clauses of Rule 8-A(2) did conform upon the appellant any vested right which has been taken away or infringed.

8. We shall now return to the question of fact and law. It is a question of fact and has not been controverted by the respondent department that the appellant did hold the office of D.S.P. w.e.f 19th July, 1984 to the 24th November, 1986 for a period of more than two years. The only contention of the respondents has been that the appellant was promoted as D.S.P. on `Acting Charge basis' in accordance with rule 8-A(2), of the Sind Civil Servant (Appointment, Promotion and Transfer) Rules, 1974 and that his clearance from Departmental Promotion Committee was necessary for regularization of the promotee. It is averred on part of the department that the promotion of Inspector Ghulam Abbas Bugti to the post of D.S.P. did not become regular automatically after 9th August, 1985 and that a separate notification was necessary. It is also a further contention of the department, as extended in para.7 of the written statement that for regularization of the promotion of the appellant and others, the case was once again placed before the Departmental Promotion Committee in September 1986 in accordance with subsequent advice dated 5th December, 1984 of the Services and General Administration Department. It is also contended in para.13 of the written statement that the Departmental Promotion Committee was not satisfied with the record of the appellant (A.C.R. 1984) and as such he was reverted.

9. The department has taken a very vehement stand in respect of proviso 8 A(2) of the Appointment, Promotion and Transfer Rules and also of subsection (2) of section 23 of the Sind Civil Servants Act 1973 whereby `no representation lies on matters relating to the determination of the fitness of the person to hold particular post or to be promoted to higher post or grade.' We have heard at great length the learned Counsel for the parties and have perused a mass of record made available to us.

10. We shall now deal with the legal question. We shall set up following issues for determination. (1) Was the appointment of the appellant `Regular' in nature? (2) If his appointment was `Regular in Nature' did it create a vested right? (3) If his promotion was `Regular' and against substantive/permanent vacancy, was he not entitled to show-cause notice before being reverted? and ' (4) Whether subsection (2) of section 23 of the Sind Civil Servants Act and section 12 of the Sind Civil Servant Act (regarding fitness and regarding reversion) are attracted in his case. We shall answer all the above questions one by one;

11. Answer to Question No. 1.- The answer to this question is very plain and simple and can be read from para. 3 of the Notification No. POL- HD/2-48/1984:- "On the recommendations of Departmental Promotion Committee "(3) The promotion of officers at Sr.Nos. 8 to 10 above will be on 'Acting Charge Basis' till 9-8-1985 i.e. the date on which Mr. Azizullah Brohi will complete live years experience as Inspector. After that their promotion will be deemed as Regular ." There is no dispute or ambiguity in our mind that appointment of the appellant was regular arid became so on the afternoon of 9th August, 1985 (at the latest). We shall not agree with the contention of the learned counsel for the department that a separate Notification for his regularisation was necessary. We consider this notification to be the only notification necessary and a valid notification which regularises the services of appellant (who was then a D.S.P.) beyond 9th August, 1985."

12. Answer to Question No. 2.- We shall now ponder over 2nd question of law, i.e. if his appointment was `Regular in Nature' did it create a vested right? For this we shall read the entire rule 8-A(2). We have thoroughly gone through rule e-A(2). The department has relied upon sub-clauses (6) and (7) of the Rules 8-A(2) which state as under:- "(6) Acting charge appointment shall not amount to appointment by promotion on regular basis for any purpose including seniority. (7) Acting charge appointment shall not confer any vested right for regular promotion to the post or grade held on acting charge basis." If we examine these clauses in their spirit we find that these clauses cannot be attracted in this case. Particularly so when the appellant had already been examined by the Departmental Promotion Committee in 1984 and had fulfilled all the prescribed requirements including that of the experience and particularly R; so when it has been categorically stated in the notification purporting to promote him that his promotion to the post of D.S.P. shall be deemed to be regular on and after 9th Angst 1985. In the entire rule 8-A (2) which deals with the `Acting charge basis' there is no mention of any reversion. Obviously the appellant Inspector Ghulam Abbas Bugti was reverted within the meaning of clause 12 of the Bind Civil Servants Act, which was applicable to the rank of Inspectors and above. It read 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." There are three elements required for reverting a promotee. The appellant did riot possess any of these disqualification namely: He was not ad hoc, he was not temporary, he was not officiating. The appellant was a regular D.S.P. promoted in a prescribed manner and fulfilled all the qualification required/necessary for such appointment. His promotion to the D.S.P. was not on officiating basis, but was on `Acting charge basis which included condition that his appointment would be deemed to be regular w.e.f. 10th September 1985. His appointment was against a promotion post of D.S.Ps. We do not conform to the view of the department that it was necessary to send his case to the Departmental Promotion Committee for re-examination. It is our understanding that the appellant was regular D.S.P. beyond 9th August, 1985 (a necessary condition) and it was not at all necessary to send his case for re-examination to the Departmental Promotion Committee only the cases of those persons were to be sent to the Departmental Promotion Committee whose cases were not regularised by that time. Superior Courts have lard down the law in respect of the term `Officiating and have specifically said that any official working in the `officiating capacity' could be reverted to the lower position without a show-cause notice, if no stigma/blemish is attached to him. Reliance is placed on Muhammad Ibrahim v. Government of Pakistan P L D 1972 S C 332 and on Mahmoodul Hassan v. Islamic Republic of Pakistan P L D 1973 Lah.

411. Apart from these two cases, more of case-law is also available This is a case of a regularly promoted D.S.P. and not of a person who was working on ad hoc basis or promoted to work in `officiating' capacity. On the contrary his promotion letter envisaged that his promotion was deemed to be readier beyond 9th August, 1985. The case of officiating capacity is entirely different from the case of a regular promotee. As we shall see in our subsequent paragraphs that this is a case with `blemish' attached and hence the appellant was entitled for a show-cause notice in view of the case-law cited above.

13. From elaborate discussion made above, we realise that appointment/promotion of the appellant was neither on `ad hoc basis' nor was it on `officiating basis, on the contrary his appointment to the post of D.S.P. was regular for all purposes of definition in law. Now we have to examine his case for the `word' temporary as read in section 12 of the Sind Civil Servants Act, 1973, and examine (r) if his appointment to the post of D.S.P. was temporary or probationary in nature. (ii) if the post of D.S.P. existed but was totally temporary and could be abolished at any time. Our answers are based on direct conclusions which are derived from facts presented before this Tribunal. We get answer of the first part of our question by looking at Sind Civil Servant (Probation. Confirmation and Seniority) Rules, 1975. Clause 2 of the said rules state as following: "A person appointed to a post by initial recruitment shall be on probation for two years and a person appointed otherwise may, if the appointing authority so directs, be on probation for one year." We find from his appointment order that he was not on probation but he was on `acting charge basis' and his appointment was deemed to be regular after 9th September, 1985. From the very notification it is clear that he was not put on probation and as such the question of completion of his probation did not arise and as such this para did not apply to him. We now revert to part two of the question posed in earlier part of this para regarding the nature of the post of D.S.P. We see from the record that the post was at least not temporary but it was of indefinitely long duration. We can see this if we read the Notification No.POL HD/2-7/86, dated 24th November, 1986 (impugned notification), we find that 33 more Inspectors have been promoted in part I of Notification to positions of D.S.P. on regular basis. In the very same Notification the appellant has been reverted. This position, therefore, shows very clearly that the appellant was working against permanent vacancy or at least vacancy of indefinitely long duration. It is with these observations that we shall declare the appellant to be a holder of the post of D.S.P. on regular basis and against almost permanent vacancy and we believe that as such he was entitled to a show-cause notice, before his reversion to the post of Inspector in view of the ruling of the Supreme Court' in case of Pakistan v. Muhammad Hymayatullah Farrukhi P L D 1969 S C 407' wherein it was observed that "the authority has the power to make the order has, also the power to undo it. But this is subject to a exception that where the order, has taken legal effect and in pursuance thereof certain rights have been created ink favour of the individual such an order cannot be withdrawn or rescinded to the detriment of those rights". The case law cited above does not apply d1rcctly to his case and is distinguishable but its principle has a very general application that is whenever an executive order is issued in case a regular employee which directly affects him, a vested right is created in favour of the employee which cannot be taken away without giving him a proper show-cause notice. In the instant case of the appellant the Notification No. POL-HD-2-48/1984 created a vested right of his being appointed as a D.S.P. on regular basis w.e.f. 10th August, 1985. The order of reversion issued vide subsequent Notification No- Poi-RD-2-71/S6 of the 24th November, 1986 reverted him, in absence of any law cited to us, infringed upon this vested right of giving him sufficient opportunity to explain his position in respect of the reversion. We feel that order of reversion w a:: issued with a blind reading of clause

12. We are very clear in our mind that clause 1? of the Sind Civil Servants Act, 1973 which was purported to revert him was not proper and has been misconceived and wrongly applied to his case. In view of the Supreme Court case-law quoted above we have no hesitation to hold that the appellant before being reverted to the position of Inspector, was entitled to a show-cause notice. This is more so because one of his A.C.R. (1984) was not very satisfactory and the remarks of Inspector-General of Police were to his detriment and the same were to be conveyed to him.

14. Answer fo question No.3.--The answer to our 3rd question is simple. His promotion to the post of D.S.P. was regular by all means and he was appointed against a permanent vacancy or at least against vacancy of indefinitely long duration and since his performance was not satisfactory as indicated by his A.C.R. of 1984, we consider that a vested right was created in this case and he was entitled to a show-cause notice under the Sind Civil Servants (E&D) Rules of 1973.

15. Answer to question No. 4.--We shall finally touch upon question No. 4 and try to find an answer by looking at the provision of law. Clause 23 of the Sind Civil Servants Act deals with right of appeal or representation and its last paragraph on which the learned counsel for the, respondent has been insisting and relying upon is reproduced to read as under:- "Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade." Let us look at the construction of this piece of law and read it as an integral part of the Act of 1973. This simply does not apply to `Reversion' fur which a separate clause i.e. clause No. 12 which specifically deals with the `Reversion to lower grade of service' has been incorporated. The appellant has been reverted and this has been done so rightly or wrongly with whatever intent, but, certainly under the implied application of clause 12 of the Sind Civil Servants ct of 7973 and no other provision of law. We are very clear in our understanding that the appellant is not requesting for any promotion on which the jurisdiction of this Tribunal is certainly barred by provisions of law. He is trying to seek for reined against a `Reversion' for which special section and only section (section 12) of Sind Civil Servants Act of 1973 exists in law. If we apply subsection (2) of the section 23 of the Civil Servants Act for reverting an employee then the very purpose of having a separate section en! `Reversion to a lower grade in service' shall be redundant and superfluous in law. We, therefore, hold that subsection (2) of section 23 of Civil Servants Act 1973 is not attracted in the case of this employee and we reject the contention of the I learned counsel for respondents that the appeal is barred by jurisdiction.

16. In view of the elaborate discussion and arguments advanced in respect of facts and law both and in view of the case-law cited above we are of the view that before being reverted to his substantive post, the appellant was entitled to a show cause notice. Since this has not been done, before issuing the order of reversion the impugned order suffers from serious legal infirmity. The impugned order of reversion of the appellant Ghulam Abbas Bugti is accordingly set aside. If the department still considers it fit to proceed against him; it may do so by issuing a proper show-cause notice to appellant in accordance with the provisions of Surd Civil Servants (E&D) Rules of 1973. A.A./170/Sr.S Appeal accepted.