1993 PLP (C (PLC(CS))

RANA RIFAT SAEED (MEMBER).‑The appellant Abdul Waheed was promoted as Superintendent B‑16 against 10% quota for Stenographers vide office order dated 11‑6‑1983 and placed under probation which had later on been curtailed/terminated vide order dated 31‑10‑1983.

2. Since the senior most Stenographer (one Munsif Khan) who was to be considered for promotion as Superintendent was on unauthorised absence during this period, his name had not been considered for promotion as Superintendent. Learned counsel for the appellant had mentioned that this position of Munsif Khan respondent No. 4's unauthorised absence from the Department, as contained in para. 2 of the appeal, stood admitted by the respondent‑Department vide their objections submitted on 21‑3‑1993. As such there was no doubt that respondent 4, Munsif Khan had absented himself unauthorisedly and proceeded abroad to Saudi Arabia where he had been working in King Faisal University. This had been supported by the documents.

3. Since respondent 4, Munsif Khan was away from the Department for a period sine die, the appellant Abdul Waheed who was at Srl. No. 2 on the Seniority List, had further been promoted to officiate as Assistant Admin. Officer (B‑16 plus one increment) w.e.f. 30‑5‑1984 vide Notification dated 5‑6‑1988. His services had not been placed under probation and he had worked as AA.O. till 29‑5‑1988, when he had been reverted as Superintendent vide Notification dated 12‑6‑1988.

4. The learned counsel had clarified that Munsif Khan respondent 4 who had absented himself w.e.f. 28‑3‑1978 had reported back for duty on 26‑6‑1982 and then after serving the Department upto 31‑7‑1982 had again proceeded on long leave w.e.f. 1‑8‑1982 on EOL for five years (without pay) which vide office order dated 25‑8‑1992 had been sanctioned by the Department for domestic purposes and not as EOL ex‑Pakistan. This was also confirmed by the learned counsel and representative of the respondent Department that the EOL had been sanctioned by the respondent‑Department for settling his domestic affairs and it was not an EOL ex‑Pakistan, whereas the documents on record particularly letter dated 18‑5‑1987 from the King Faisal University, Saudi Arabia did indicate that till his return/rejoining the Department on 8‑6‑1987, Munsif Khan had been working in Saudi Arabia in the said University, when he had no permission from the department to go abroad. The learned counsel for the appellant had brought out at Bar that it was straightaway a case of indiscipline/misconduct which warranted a major penalty on Munsif Khan respondent 4, but the matter had been kept concealed by his colleagues/senior officials in the Ministry who had also helped him to change the record particularly with regards to his unauthorised absence and proceeding abroad. This had been revealed/observed from a note dated 1‑2‑1990 sent by Mr. Kamran Shafi, Principal Information Officer to the Secretary Ministry of Information and Broadcasting. He had mentioned that it was established beyond doubt that the record of his unauthorised absence had been changed and no disciplinary action had been taken against him, when Munsif Khan had served abroad during his E.O.L. for domestic purposes and instead of taking disciplinary action, he had been promoted as Superintendent w.e.f. 29‑9‑1987 (B‑16) and as Assistant Admin Officer (B‑16 plus one increment) w.e.f. 3‑1‑1988 resulting in the unjustified, unlawful and mala fide reversion of the appellant who had by then served as AA.O. for four years satisfactorily. The reversion had also been done without any show‑cause notice to the appellant. He had, therefore, prayed as under:‑‑ "That the appeal may be accepted, the order of promotion of respondent No. 4 as Assistant Administrative Officer and consequent reversion of the appellant may be set aside by holding respondent No.4 to be not eligible for promotion as Asstt. Administrative Officer in accordance with the instructions of the Establishment Division and the appellant may be ordered to be restored to the post of Assistant Admn. Officer w.e.f. the date of his reversion with all back benefits. Any other relief, which this Honourable Tribunal may deem proper though not specifically claimed in this appeal may also be awarded."

5. The learned counsel and the representative of the respondent Department had stated that the absence of Munsif Khan, respondent 4 and his foreign service in King Faisal University, Saudi Arabia had later on been agreed to be the Department as deputation which had been extended from time to‑ time and lastly it was extended upto 24‑2‑1982 vide order dated 8‑6‑1981. After the expiry of this period he had joined back the Department on 26‑6‑1982 and served up to 31‑7‑1982 when again he had applied for E.O.L. for five years for domestic purposes. They had mentioned that Munsif Khan's service abroad had been regularised by the Department and it was in no way an irregularity or a matter of indiscipline/misconduct.

6. Since on his return to the Department finally on 8‑6‑1987 he had come to know that the appellant being junior to him had been promoted as Superintendent and Assistant Admin. Officer, he had submitted a representation to the Department on 19‑7‑1987. This was validly considered and Munsif Khan's promotion as AA.O. had duly been cleared by the D.P.C. which had met on 29‑9‑1987. Consequently he had competently been promoted as Superintendent with effect from 29‑9‑1987 and as AA.O. with effect from 3‑1‑1988. Regarding reversion of the appellant from the post of AA.O. they had mentioned that, since Munsif Khan was senior to the appellant he had to be promoted as Supdt./AA.O. and the appellant being junior to be reverted under the rules. (a) Upon an observation whether respondent 4 Munsif Khan could take liberty to go abroad and serve King Faisal University, Saudi Arabia during his five years' E.O.L. from 1‑8‑1982 which had been sanctioned for domestic purposes and whether as such Munsif Khan had committed an act of indiscipline/misconduct and if so why he could not be proceeded under the E&D rules and punished? Both the learned counsel and representative of the respondent Department could not give any satisfactory answer. (b) Upon another observation whether the office record had been changed with regards to his unauthorised absence, as it was confirmed and revealed by the note of PIO, dated 1‑2‑1990 because respondent 4 Munsif Khan himself used to sit in the same, branch, where his files and cases were being dealt with? They had mentioned that even if the record had been changed, ultimately the Department had agreed to the deputation of Munsif Khan for serving abroad. (c) They were also asked whether Munsif Khan while serving King Faisal University, Saudi Arabia and getting pay and allowances from there, could also draw salary/leave salary in Pakistan i.e. Rs.20,741.49? They had no answer.

7. Under the aforementioned circumstances and after hearing the parties, it is established that: (a) the respondent 4 Munsif Khan's absence from the Department with effect from 28‑3‑1978 was an unauthorised one, as also admitted in the comments of the Department. This had later on been converted into deputation by manipulating and changing record in the concerned branch. (b) Munsif Khan's E.O.L. for five years without pay with effect from 1‑8‑1982 was not E.O.L. ex‑Pakistan and accordingly he could not serve abroad in King Faisal University, as had been confirmed and brought to the notice of the Department by the University vide confidential letter dated 18‑5‑1987; so much so he had also drawn salary from the King Faisal University for the period and also Rs.20,741.49 as leave salary from his Department. This has also been admitted by the respondent‑Department. (c) this was a clear case of indiscipline and misconduct. But instead of proceeding against him under the E&D Rules, the departmental officers/colleagues had afforded him undue favour against the rules so much so they had even promoted him as Superintendent with effect from 29‑9‑1987 and AAO. with effect from 3‑1‑1988 by changing the record. He had finally retired on 20‑1‑1992. (d) the appellant's reversion from the post of Assistant Admin. Officer after serving as such from 30‑5‑1984 to 12‑6‑1988 that is for more than four years had been done by the Department without any notice and when the appellant had even crossed the maximum probationary period of two years, as provided under the AP&T Rules, 1973. Evidently the reversion was unjustified, ultra vires and mala fides. (e) the appellant had made departmental representation against his reversion on 27‑8‑1989, but it was kept pending by the Department and finally it was decided against him vide letter dated 26‑10‑1992, when the respondent No.4, Munsif Khan had already retired on 26‑1‑1992. He came to the Tribunal on 23‑11-1992.

8. We, therefore, accept the appeal, set aside the order of reversion of the appellant dated 12‑6‑1988 and direct the respondent‑Department to adjust/accommodate him by creating a supernumerary post of Superintendent/Assistant Administrative Officer with effect from the same date of his reversion as such (if such vacant posts were not available then in the Department) and pay him all consequential benefits accordingly.

9. No order as to costs. H.B.T./829/Sr.F Appeal accepted.