Find a Lawyer

(a) Constitution of Pakistan (1973)

-- Art. 185(3)-Corporation Employees (Special Powers) Ordinance (XIII of 1978), S. 3-Leave to appeal granted in view of admitted fact that appellant was not holding any lower post in a Corporation, to consider question whether he could be reverted to lower post under provisions of Corporation Employees (Special Powers) Ordinance, 1978, and whether provisions of said Ordinance were applicable to appellant as according to him he was not a person in Corporation Service within meaning of term as defined in said Ordinance.

(b) Corporation Employees (Special Powers) Ordinance (XIII of 1978)

-- S. 3-An employee who was not in service before prescribed period and was not promoted but was appointed to a post during said period, held, could not be reverted to a lower post or grade to the one of which he was the incumbent for the time being Reversion of such employee to a post of lower grade which he had never held before was in excess of authority conferred by law and, therefore, was without lawful authority.

Section 3 of Ordinance 1978 authorises the competent authority to remove from service or revert to lower post or grade, an employee in the service of Corporation, who has been either appointed,. or being already in service has been promoted during the relevant period, i. e. from 1st January, 1972 to 5th July, 1977.

The plain reading of section 3 of Ordinance clearly makes out that the power of review vested under the said section related to two classes of employees, those who had been appointed and those who had been promoted, during the relevant period. The power to remove from service was apparently relatable to such employees who were appointed during this period and the power to revert the employee to a lower post or grade was only referable to such employees who had been promoted during this period. This is abundantly clear from use of the word "his" which qualifies the words "lower post or grade": These words presupposed the affected employee to have held a lower post or a lower grade post, before his promotion. It, therefore, follows that an employee appointed during the relevant period and not having been promoted, cannot be reverted to a lower post, for the obvious reason that such lower post cannot be called "his lower post or grade". Accordingly the power to remove from service was confined to cases in which the employee was appointed during the relevant period and the power to revert was applicable in cases of promotion during the said period. In the present case the undisputed facts are that the appellant was appointed on 5-4-1976, for the first time which falls within the relevant period and as he was not promoted he was not liable to be reverted to the lower post. He could of course, upon relevant considerations of public interest be removed from service. However, as the competent authority did not find it feasible in public interest to terminate the service of the appellant, the authority misdirected itself to revert him to a post of grade which he had never held before. Clearly, therefore, the order was passed in excess of authority conferred by law and is liable to be declared as having been passed without lawful authority.

A. K. Brohi, Senior Advocate Supreme Court and S. M. Abbas, Advocate-on-Record far Appellant.

Akhtar Mehmood, Advocate-on-Record for Respondents.

Date of hearing: 24th April, 1985.

ZAFFAR HUSSAIN MIRZA, J.-Appellant Khan Muhammad Qureshi was appointed as Estate Manager, in N. P. S. 19 under a resolution passed by the Board of Trustees of the Port of Karachi (hereinafter referred to as K. P. T.) respondent No. 2 herein, in their meeting held on 25-2-1976. It was further directed in this resolution that sanction of the Government be obtained under section 24 of the Karachi Port Trust Act, 1886. As the post against which the appellant was appointed was created under the re-organization scheme of the K. P. T. the Government of Pakistan decided to await the result of the working of the re-organization scheme for some time and in the circumstances, the post of Estate Manager was treated as temporary and no orders of confirmation were, therefore, passed. However, the Government vide its letter, dated 21-6-1977, directed that if the appellant had completed his probationary period, his probation may be terminated and "he may be allowed to hold the post on temporary basis and until further orders". However, subsequently the appellant was served with an order, dated 23-1-1979, the relevant part of which reads as under:

"In exercise of the powers conferred, vide Establishment Division Notification No. 1/2/78-Rev. 1, dated 27-3-1978, I, Major-General Shafqat Ahmad Syed, Secretary, Ministry of Communications, do hereby order that the above-named official shall stand reverted to to next lower Grade with effect from 31-1-1979, afternoon."

The appellant made representation to the President of Pakistan against the aforesaid order of reversion to Grade-18, but as no reply was received by him within the statutory period of 90 days, he preferred an appeal under section 4 of the Service Tribunals Act, 1973, before the Federal Service Tribunal, Islamabad, praying that the aforesaid order, dated 23-1-1979 be set aside and he be restored to Grade-19 with all consequential and back benefits. Learned Members of tile Federal Service Tribunal, Islamabad, by their judgment, dated 4-4-1982, held that the appellant was 'legally and justly reverted" by the Review Board under section 3 of the Corporation Employees (Special Powers) Ordinance, 1978. In this view of the matter the learned Tribunal upheld the order of reversion and dismissed the appeal of the appellant.

2. Leave was granted by this Court in view of the admitted fact that the appellant was not holding any lower post in the Karachi Port Trust, to consider the question whether, he could be reverted to the lower post under the provisions of the Corporation Employees (Special l Powers) Ordinance, 1978, The other point for consideration was whether the provisions of the said Ordinance were applicable to the appellant. According to him he was not a person in Corporation service within the meaning of the term as defined in the said Ordinance.

3. Mr. A. K. Brohi, learned counsel for the appellant, however, has not pressed before us the contention that the appellant is not an employee of a Corporation within the ambit of the provisions of the Ordinance. As the decision of the remaining point turns on the interpretation of section 3 of the Corporation Employee (Special Powers) Ordinance, 1978, it will be convenient to set out the same, which reads as under:

"Certain persons to be liable to removal or reversion.-Notwithstanding anything contained in any law for the time being in force, or in the terms and conditions of service a person in corporation service appointed or promoted during the period from the first day of January, 1972, to the fifth day of July, 1977, may be removed from service, or reverted to his lower post or grade, as the case may be, without notice, by the President, or a person authorised by him in this behalf, on such date as the President, or as the case may be, the person so authorised may, in the public interest, direct."

When analysed section 3 authorises the competent authority to remove from service or revert to lower post or grade, an employee in the service of Corporation, who has been either appointed, or being already in service g has been promoted during the relevant period, i. e. from 1st January, 1972 to 5th July, 1977. The precise question which requires determination is whether an employee who was not in service before the prescribed period and was not promoted but was appointed to a post during the said period, could be reverted to a lower post or grade to the one of which he is the incumb at for the time being. The authorised person and the Service Tribunal, both proceeded on the assumption that after revising the cases of such employees it was within the power of the authority to choose either of the two courses, namely, either to remove such employee from service or to revert him to the lower post or grade. Mr. A. K. Brohi learned counsel for the appellant contended that an employee who was not promoted during the relevant period, could be removed from service but the authority had no power to revert him to a lower post or grade. We are inclined to agree with this contention. In our view, the plain reading of section 3, clearly makes out that the power of review vested under the said section related to the classes of employees, those who had- been appointed and those who bad been promoted, during the relevant period. The power to remove from service was apparently relatable to such employees who were appointed during this period and the power to revert the employee to a lower post or grade was only referable to such employees who had been promoted during this period. This is abundantly clear from use of the word "his" which qualifies the words "lower post -or grade". These words pre-supposed the affected employee to have held a lower post or a lower grade post, before his promotion. It, therefore, follows that an employee appointed during the relevant period and not having been promoted, cannot be reverted to a lower post, for the obvious reason that such lower post cannot be called "his lower post or grade". Accordingly we are of their view that the power to remove from service was confined to cases in which the employee was appointed during the relevant period and the power to revert was applicable in cases of promotion during the said period. In the present case the undisputed facts are that the appellant was appointed on 5-4-1.976, for the first time which falls within the relevant period and as he was not promoted, he was not liable to be reverted to the lower post. He could of course, upon relevant considerations of public interest be removed from service. However, as the competent authority did not find it feasible in public interest to terminate the service of the appellant, we hold that the authority misdirected itself to revert him to a post of Grade-18 which he had' never held before. Clearly, therefore, the order was passed in excess of authority conferred by law and is liable to be declared as having been passed without lawful authority.

4. Mr. Akhtar Mehmood learned counsel for the respondent advanced a somewhat ingenious argument by submitting that the impugned order of reversion of the appellant is in fact an order of removal from service from a post of Grade-19 and reappointment in Grade 18, as the competent authority found the appellant unsuitable for the higher post and fit for appointment in the lower grade post. The submission of the learned counsel was that the order, therefore, substantially falls within the ambit of power conferred under section 3 of the ordinance of 1978, and the error if any is merely technical in nature. He was unable, however, to controvert the interpretation of section 3 contended for by the learned counsel for the appellant. We find no substance in the argument of the learned counsel for the respondent. The impugned order is clearly an order or reversion and cannot be construed as canvassed by the learned counsel to be an order of removal from Grade-19 and appointment in Grade-18, for the simple reason that the continuity of service of the appellant remains unaffected. The order cannot be construed against its clear tenor which is that of reversion from higher to a lower post. The reasons that impelled the competent authority to pass such an order are irrelevant and insignificant in the context of the view taken by us that the competent authority overreached the limits of the power vesting in it. The order dated 23-1-1979 passed by the Secretary, Ministry of Communications is. therefore, unsustainable in law and we hold accordingly.

5. In the result we set aside the aforesaid order and allow this appeal with costs.

M. s. A. Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.