1987 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN).‑‑ Abdul Qadir Sheikh, Assistant Executive Engineer, at present Section Officer (Floods). Irrigation and Power Department, Government of the Punjab, Lahore this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Government of the Punjab through Secretary, Irrigation and Power Department, Lahore, as respondent. 2. By virtue of this appeal he has prayed that Secretary respondent's impugned order Annexure 'D', dated 4‑5‑1986, whereby he has rescinded /recalled the earlier order of expunction of remarks, dated 18‑12‑1985, be set aside, as being illegal, inoperative and unsustainable. it has been further prayed that Government of the Punjab be directed to consider the appellant's promotion case, treating order, dated 18‑12‑1985, as final and irrevocable, as the appellant enjoys seniority at the top now. 3. Brief facts of the case are that the appellant was adversely reported for the years 1965, 1972, 1974, 1981 and 1982, by certain Reporting Officers. When the case of the appellant was considered for promotion to Grade‑18 (post of Executive Engineer) in accordance with the West Pakistan Irrigation Engineers Service (Class I) Rules, 1967, Government of the Punjab decided to proceed against him under the Efficiency and Discipline Rules, 1975, on the basis of adverse reports for the years 1965, 1972, 1974, 1981 and 1982. In pursuance of the above decision of Government action under the Efficiency and Discipline Rules was initiated against him. The Authority Secretary Irrigation and Power, Punjab, appointed the Chief Engineer (Irrigation), Multan, as Authorised Officer, to conduct proceedings against him. Consequently the Authorised Officer while dispensing with a formal enquiry within the meanings of Rule 6(3) proceeded to serve the appellant with a show‑cause notice, whereby he was called upon to show cause against the proposed action within 14 days. The appellant submitted a detailed reply and assailed the adverse remarks for which the said enquiry was so conducted. After considering the written comments filed by the appellant and the material provided by him, the Authorised Officer, after thorough consideration of the case presented by the parties, recorded a just finding of 'not guilty' in favour of the appellant and recommended to the Authority that the case be dropped. On receipt of recommendation of the Authorised Officer, the Authority held the appellant not guilty and exonerated him, at the same time expunging the adverse remarks for the years 1965, 1972, 1974, 1975, 1981 and 1982, on which disciplinary proceedings were initiated. The Review Committee meeting was also convened on 21‑1‑1986, to consider the suitability of the appellant whether fit to be retained in service after completion of 25 years of service or not, as required under section 12(ii) of the Punjab Civil Servants Act, 1974. Taking into consideration that no adverse entry existed against him in view of the Secretary's own order, the Departmental Review Committee considered the appellant fit for retention in service beyond 25 years service. Similarly, a working paper was formulated, by Mr. Masud Akhtar, Secretary Irrigation and Power, Punjab who had earlier expunged the remarks of the appellant in which the case for promotion of the appellant was once again placed before the Provincial Selection Board, for considering his suitability for promotion. It was mentioned in the said working paper that no inquiry was pending against the appellant and the entire adverse entries stood expunged. When this case came before the Provincial Selection Board, it was observed that as the earlier representation of the appellant, had been rejected by the Governor of the Punjab, the Secretary/ Authority was not competent to expunge those adverse remarks and directed that appellant be asked to submit separate representations against each of the adverse remarks and examine the feasibility of expunging them. Hence this appeal. 4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the entire record of this case carefully with their assistance. 5. Learned counsel for the appellant has submitted that the observations of the Provincial Selection Board are misconceived as well as illegal, in view of established fact that the Authority/ Government had exonerated the appellant under Rule 8 of the Efficiency and Discipline Rules, 1975; and also expunged the adverse remarks for which he was competent to do so. According to the learned counsel for the appellant the Secretary, Irrigation and Power, Punjab, enjoys in respect of Grade‑17 Officers, two types of powers, framed in pursuance of the provisions of Punjab Civil Servants Act and secondly in regard to the 'terms and conditions' of their service, and in this category falls the power of expunction of adverse remarks. It was vehemently argued that in the instant case the only charge, preferred against the appellant, was that of adverse A . C . Rs. , therefore, the Secretary was fully within his powers, as well as justified to expunge the remarks, when it was found so by him that no material was available on record to justify the said adverse entries against him. According to the learned counsel for the appellant this decision was not a mechanical decision but it was a decision arrived at after the appellant had allowed counter proof and advanced cogent arguments for the same. 6. With regard to the observation of the Provincial Selection Board, he has relied on the New Webster Encyclopedic Dictionary wherein the word 'representation' has been defined as 'a statement of facts or arguments etc.; sometimes a written ex‑postulation'. According to the learned counsel for the appellant the appellant's defence was more than a representation as it was lucid, detailed and based on cogent reasons, therefore, according to the definition so given in the New Webster Encyclopedic Dictionary, would be for all purposes a representation also. 7. With regard to the further observation of the Provincial Selection Board that as representation against adverse remarks stood rejected, therefore, Secretary Irrigation and Power, Punjab, was not competent to expunge the aforesaid remarks. Learned counsel for the appellant has submitted that earlier representation was rejected after a thorough enquiry but in a summary manner by the Department, whereas the Secretary who is also Government for all intents and purposes in the case of the appellant, came to the justified conclusion after holding a regular enquiry and going through the Authorised Officer's complete report on the issue of adverse remarks, wherein the appellant was held not guilty by the Authorised Officer, therefore, the Authority/ Government was fully justified to come to a positive conclusion when different facts were placed before him. 8. On the other hand learned District Attorney had submitted that the Provincial Selection Board observation would be justified as earlier representation of the appellant stood rejected by the Governor, therefore, it would be a fresh case of each representation to be filed in a separate manner before the Secretary Irrigation and Power in order to determine whether the adverse entries were justified or not. 9. We have given our anxious thought to the arguments advanced by the parties and find that the adverse entries of tile appellant came under scrutiny when regular proceedings were initiated under the Efficiency and Discipline Rules, 1975. The Authorised Officer after taking into consideration the defence so put up by the appellant, came to the positive conclusion that adverse entries were not justified and held the appellant not guilty. It was only then the Authority acting as Government in accordance with the Rules of Business of the Government of Punjab, framed under Article 139 of the Constitution of the Islamic ' Republic of Pakistan, vide his order, dated 18‑12‑1985, held the appellant not guilty and exonerated him and at the same time expunged the adverse remarks for the years 1972, 1965, 1974, 1981 and 1982 on which the disciplinary proceedings were initiated, we are of the considered opinion that Secretary/Government was perfectly competent to expunge the said remarks in respect of Grade‑17 Officers. We are of the considered opinion that these powers legitimately and legally exercised were in the same functionaries of Government, Secretary of the Department. Secretary acted legally in both these categories. We are further strengthened in our above observation when we find that the order of the Secretary was acted upon because the Review Committee, which considered the suitability of the appellant's retention beyond 25 years of service, has categorically mentioned that he had no adverse entries against him and the record was clean. In this manner a vested right which had accrued in favour of the appellant was validly considered' in his favour per report of the Review Committee so mentioned above.' Similarly in the working paper formulated by the Secretary Irrigation and Powers for submission to Provincial Selection Board, it was positively mentioned that appellant had a clean record, therefore, it left no locus poenitentiae for the Secretary/ Government to recall/rescind the same. For this we also rely on P L D 1969 SC 407, P L D 1963 Lah. 65, PLD 1963 SC 633, P L D 1970 SC 439, 1981 S C M R 523, P L D 1981 SC 94, P L D 1980 Pesh. 128, 1979 P L C (CST) 1, 1981 P L C (C.S.) 422, 1980 P L C (C.S. ) 495 and the cases of Amir Abdullah Khan and others decided by this Tribunal. 10. In view of the above analysis of the entire law as well as facts of the case we are of the considered opinion that once the entries stood expunged by the Government itself, Provincial Selection Board has no powers to order the review of the said decision of Government itself and if at all, there was any grievance against the same, the matter could have been agitated by the next higher forum i.e. Punjab Service Tribunal. We also are of the considered opinion that the defence of the appellant during the disciplinary proceedings so initiated against was only representation as envisaged in the New Webster Encyclopedic Dictionary as a 'statement of facts or argument etc. sometimes a written ex‑postulation'. 11. The result is we proceed to accept the appeal, set aside the impugned orders and direct that the Provincial Selection Board should reconsider his case on merit for promotion. There will be no order as to costs. M.Y.H. Appeal accepted.