MUHAMMAD ASHFAQ Versus CANTONMENT BOARD through Executive Officer, Peshawar
ORDER
WAQAR AHMAD SETH, J.--- The instant writ petition has been filed by Muhammad Ashfaq and Noor ul Islam, hereinafter called the petitioners, under article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayer:--
"It is, therefore, humbly prayed that on acceptance of this writ petition, the honourable court may be pleased to declare impugned orders dated 26.5.2001 and 21.01.2014, of respondent No.2 as illegal, without lawful authority, without jurisdiction, mala fide, void ab initio and of no legal effect, therefore, the same is liable to be laid to rest and the petitioners may be restored in their previous position i.e. BPS-6."
2. In essence the case of petitioners is that, on allegation of selling of Homeopathic medicine they were suspended from service and on 26.5.2001, consequent upon the findings of inquiry report, they were downgraded to BPS-05 from BPS-6. Against the said order petitioner Muhammad Ashfaq, filed departmental appeal, however, on 12th December, 2012, they filed Writ Petition No. 3499-P of 2012, which was disposed of on 7.3.2013 with the direction to respondents to decide the appeal of petitioners within one month. On 21.01.2014, the respondents while deciding the appeal of petitioner Muhammad Ishfaq, has held which is reproduced as under:--
The appeal is badly time barred however, seeing his work efficiency from 2002 to 2013, the CB/CEO may promote the appellant to BS-6 against the existing post of BS-06 with effect from 1st January, 2014.
3. Feeling aggrieved and having no other adequate, efficacious and alternate, remedy has approached to this court through the petition in hand.
4. Comments were called from respondents which they furnished accordingly and denied the assertion of petitioner and stated that during visit of DGML&C to Cantonment Board Hospital Peshawar, petitioner No.1 was found selling Homeopathic medicine to lady patients with collaboration of petitioner No.2 and were suspended from service. After inquiry the report was placed before the Board and vide CBR No.11 dated 9.5.2001, they were downgraded from BS-6 to BS-5. As per record petitioner No.1 submitted an appeal to the DGML&C which was hopelessly barred by time while Petitioner No.2 did not file any appeal, however, in the year 2012, they filed Writ Petition No. 3499-P of 2012.
5. We have heard learned counsel for the parties and available record gone through.
6. Record is suggestive that both the petitioners were appointed in BPS-06 vide order dated 6th February 1990 and 23rd July 1994 respectively, and consequent to the findings of the report of inquiry officer both were downgraded from BPS-06 to BPS-05 vide order dated 26.5.2001. The said impugned reversion orders are void and defective on two legal grounds; firstly they have been reverted to a post which they never held. If at all, both the petitioners committed some misconduct, they could have been proceeded and punished with any other punishment except reversion, as they were appointed in BPS-06 and never held the post in BPS-05. Reliance in this respect is placed on 2009 SCMR-512 wherein it has been held as under:--
"R. 4(i)(b)---Reversion---Principles---When a person is directed to return to a lower post from a higher post, such person is said to be reverted---Return implies that the incumbent must have held the lower post at some point of time and from which he was promoted in service---In its immediate effect, reversion is always bound to bring about a reduction in rank and connotes a movement downward from a higher position already held by a civil servant---Reversion from higher to lower post of civil servant may be made under certain circumstances---Question of reversion can only arise when a valid and proper promotion has been made---Direct recruit to a post cannot be reverted to a lower post; it is only a promotee who can be reverted from promotion post to lower post from which he was promoted."
Likewise, in the case of Chief Secretary Punjab v. Abdul Rauf Dasti, reported in 2006 SCMR 1876, it has been held as under:--
"S. 3---Punjab Civil Servants (Appointment and Condition of Service) Rules, 1974, R.23---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R. 2(d)---Political appointment---Misconduct---Civil servant was serving as Assistant District Attorney and bypassing all legal formalities, he was directly appointed as Deputy District Attorney by Chief Minister, on the recommendations of Law Minister---Authorities in exercise of powers under S.3 of Removal from Service (Special Powers) Ordinance, 2000, initiated proceedings against the civil servant and reverted him to the post of Assistant District Attorney---Service Tribunal set aside the order passed by the authorities on the ground that he was directly appointed by competent authority and could not be reverted to the lower post---Validity.
"23. In view of what has been noticed and found above, this petition is converted into an appeal which is allowed as a result whereof it is declared that the appointment of the respondent as a Deputy District Attorney was illegal and of no legal effect having been made and secured in violation of law and for extraneous reasons. Consequently, the impugned judgment of the Punjab Service Tribunal dated 18.12.2002 passed in Appeal No. 75 of 2002 is set aside. It is further declared that in view of the respondents own plea of having been appointed as a DDA by way of initial recruitment and in view of the law, as mentioned above, he could not have continued as an Assistant District Attorney. Therefore, in discharge of the obligations cast on us by Article 187 of the Constitution, we modify the order of the Authority/the Secretary Law, dated 31.7.2001 to the extent that since the respondent could not be reduced to the rank of an Assistant District Attorney, therefore, he would not be so reduced in rank with the result that he would cease to be a civil servant with immediate effect."
7. The second reason of defectiveness, on the face of it, in the impugned order of reversion is that, the authority while imposing punishment of reversion did not specify length of time thus, same is violative of "Fundamental Rule-29", which reads as under:--
"F.R.29 If a Government servant is, on account of misconduct or inefficiency reduced to a lower grad 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 whether, on restoration, it shall operate to postpone further increments and if so, to what extent".
Reliance in this respect is placed on the case of Member (ACE & ST) Federal Board of Revenue, Islamabad and others v. Muhammad Ashraf and 3 others, reported in 2008 SCMR-1168 which reads as under:--
"---R (1)(b)(i)---Fundamental Rules, 29---Constitution of Pakistan (1973), Art. 212(3)---Supreme Court Rules, 1980, O.XIII, R.1---Reduction to five stages in time scale---Charges of casual and negligent attitude, procedural lapses and violation of instruction of standing order---Service Tribunal in appeal modified such penalty reducing same to two stages in time scale for two years---Validity---Petition for leave to appeal was barred by six (6) days---Penalty imposed by departmental authority upon civil servant did not specify length of time, thus same was violative of Fundamental Rule-29---Penalty for indefinite period was not provided in law---Supreme Court upheld impugned judgment and refused to grant leave to appeal."
Likewise, in the case of Secretary Kashmir Affairs and Northern Areas Division, Islamabad v. Saeed Akhtar and another, reported in PLD 2008 SC 392, wherein it has been held as under:--
"---Ss. 3 (1) & 5(4) ---Fundamental Rules, 29---Constitution of Pakistan (1973), Art. 212(3)---Misconduct--- Civil servant was serve with a charge sheet and a show cause notice on the charge of misconduct on account of corrupt practices---Civil servant, in his reply repudiated the allegation and claimed to have been falsely implicated in the matter---Reply having been found unsatisfactory, the competent authority without resorting to full fledged inquiry, in exercise of powers under S. 3(1) of the Removal from Service (Special Powers) Ordinance, 2000, imposed upon civil servant penalty of reduction to a lower pay scale with retrospective effect and without specifying the period of penalty imposed---Validity---Held, Proceedings carried out in the case suffered from gross legal infirmities such as violation of Rule-29 of the Fundamental Rules, as period for punishment was not specified and major penalty was imposed retrospectively---Enquiry Officer thus certainly went beyond the scope to examine the real controversy---Reduction in rank constituted major penalty and required full fledged inquiry and inquiry could not have been dispensed with in timers of S. 5(4) of the Removal from Service (Special Powers) Ordinance 2000---Leave to appeal was declined to the employing department."
8. Penalty for indefinite period was not provided in law of the land and as such, the impugned orders suffer from legal infirmity i.e. non mentioning of time/period, and restoration, which could not be sustained and upheld.
9. In view of what has been discussed hereinabove, the instant, writ petitions is admitted and allowed, the impugned orders dated 26.5.2001 and 21.01.2014 respectively are declared void, illegal and defective, hence not sustainable in the eye of law.
ZC/211/P Petition allowed.