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Appeal No. 420(R) of 1984, decided on 2nd July, 1987.

‑‑‑Ss.4 & 5‑‑Civil Servants Act (LXXI of 1973), S.12‑A‑‑Review‑ Service Tribunal has no power to review its own order‑‑Previous appeal of appellant on same cause of action dismissed by tribunal‑‑Some new events taking place thereafter on basis of judgment of Supreme Court‑‑Power of review having not been made available to tribunal, order in case of appellant, Held, could not be reopened on original cause of action.

S.A. Rizi v. Pakistan Atomic Energy Commission 1986 SCMR 965 rel.

‑‑‑Ss.4 & 5‑‑Civil Servants Act (LXXI of 1973), S.12‑A‑‑Reversion‑ Criteria‑‑Plenary powers of Government to remove or revert a person appointed during a period mentioned in S.12‑A, Civil Servants Act, 1973.

‑‑‑S.12‑A‑‑Service Tribunals Act (LXX of 1973), S.4‑‑Reversion‑ Appellant, a Central Inspector of Mines appeared in lateral entry examination for post of Deputy Secretary and was appointed as such‑ Appellant was reverted by competent authority under S.12‑A of Civil Servants Act, 1973 to his original post and directed to appear before Federal Service Commission for clearance for appointment of Deputy Secretary but the Commission did not approve his appointment as Deputy Secretary‑‑Appeal challenging his reversion was rejected by Tribunal‑‑Appeal of another candidate on similar cause of action who was also reverted from post of Deputy Secretary was accepted by Tribunal and appeal filed by Government against this decision of Tribunal failed on technical ground of limitation‑‑Other candidate was, therefore, reinstated by Government to post of Deputy Secretary‑ Appellant contending that since that other candidate was reinstated, appellant should also be taken back‑‑Grounds on which Review Board opposed appointment of appellant as Deputy Secretary was that appellant was wrongly awarded 145 marks instead of 130 marks for his ACRs and if only 130 marks had been credited to him, his position would have been lowered to 72 whereas only 56 posts were available from quota of province of Punjab of which appellant was domiciled, contention of appellant was thus repelled‑‑Held, S.12‑A of Civil Servants Act, 1973 envisaged review of cases of‑only those persons who had not been selected‑‑What Review Board had to decide was whether selection of 56 persons was in order‑‑Review Board noticed that last person who had 56th position had obtained 233 marks in it therefore disapproved all those candidates, including appellant. Whose marks were less than 233 and this was most convenient criteria All such persons were also given an opportunity of clearing themselves from Public Service Commission and appellant having not been approved by Commission could not claim re‑appointment to post of Deputy Secretary‑‑Re‑opening of case of appellant, by tribunal even otherwise amounted to review which power having not been available with Tribunal, his appeal was not maintainable.

‑‑‑Ss.3‑A(2)(c), 4 & 5.

Bashir Ahmad Ansari for Appellant.

Muhammad Amir Akbar Khan for the State.

Date of hearing: 6th November, 1986.

‑‑The appellant, Muhammad Nawaz Khan, appeared in the lateral entry examination of 1973 for the post of Deputy Secretary and was selected and appointed as such. Subsequently, however, the competent authority by invoking the provisions of section 12‑A of the Civil Servants Act, reverted him to the post of Central Inspector of Mines which he Held immediately before his selection as Deputy Secretary. He was directed to appear before the Federal Public Service Commission for clearance for the appointment of Deputy Secretary, but the said Commission did not approve his name. The appellant challenged his reversion by way of appeal before us which was registered as 86(R)/1978. The said appeal was heard on 29‑11‑1981, and this Tribunal by order dated 30‑11‑1981 rejected the claim of the appellant for re‑instatement as Deputy Secretary. The question which was argued and decided by this Tribunal was that the reversion of the appellant was rightly done because at the time of making selection, he had wrongly been awarded 145 marks for ACRs instead of 130, and that if only 130 marks had been credited to him, his position would have been lowered to 72, whereas only 56 posts were available from the quota of Province of Punjab, of which the appellant was domicile. The appellant had obtained 98 marks in the examination, while 145 marks were originally credited to him on account of his ACR entries. The Review Board found that on the basis of the criteria for awarding marks for ACRs, the appellant was entitled to 130 marks only. In this manner, the total marks of the appellant had been reduced from 243 to 228.

2. One Rao Fazal Khan Akhtar, who had also been reverted from the post of Deputy Secretary, filed an appeal before us, which was registered as 97(R)/1980. The Tribunal, while accepting his appeal by a majority view, observed as follows:‑

"Be that as it may, it was contended by the learned counsel for the appellant that even with the marks reduced by the Review Board, the appellant still occupied a position within 56 posts filled up from the Punjab Province. Thus, he would have been selected even his total marks were considered to be 222. The representatives of the Establishment Division were not able to rebut this contention of the appellant."

When the appellant came to know that the Tribunal had ordered re‑instatement of Rao Fazal Khan Akhtar who had obtained 222 adjusted marks, he represented to the Establishment Division on 15‑11‑1983 that he should not be discriminated, inasmuch as, he had obtained more marks than Rao Fazal Khan Akhtar. The prayer of the appellant was neither rejected by the Establishment Division, nor accepted. He was, however, given the following reply:

" the judgment delivered in the 'Rao' case by the Service Tribunal is being contested in the Supreme Court. As such, we have to wait for the final verdict and then see whether the ratio decidendi of the case is applicable to Mr. Muhammad Nawaz Khan."

Subsequently, the Supreme Court dismissed the Government appeal against Rao Fazal Khan Akhtar on the ground of limitation, but despite that, the case of the appellant was not reopened by the Government. On the issuance of the notification of Rao Fazal Khan Akhtar's re instatement dated 3.0‑5‑1984, the appellant again represented to the Establishment Division on 5‑6‑1984, and having received no reply, came to this Tribunal by way of appeal filed on 30‑9‑1984.

3. The learned counsel for State has argued that the previous appeal of the appellant bearing No. 86(R)/1978, on the same cause of action having been dismissed, he cannot come to the Tribunal to seek redress. The learned counsel for the appellant, however, contended that fresh cause of action arose to the appellant when Rao Fazal Khan Akhtar, who secured less adjusted marks than the appellant, was reinstated into service by the order of the Tribunal. We do not think, this argument has any substance, inasmuch as, the judgment in Rao Fazal Khan Akhtar's case, at the most, brings new events and the order in the appellant's case can be reopened only by way of review if the power of review was available to the Tribunal. 1 The Supreme Court in the case of S.A. Rizi v. Pakistan Atomic Energy Commission 1986 S C M R 965 has Held that the Tribunal has', no power to review its own order. We are, therefore, not inclined toil accept the stand taken by the learned counsel for the appellant that his client can come to the Tribunal on the original cause of action on the basis of the judgment in the case of Rao Fazal Khan Akhtar.

4. The learned counsel for the appellant then argued that the department had not placed before the Tribunal true facts when previous appeal was being heard, and that it was wrongly stated that re‑adjusted marks of the appellant relegated his position to 72. It was argued that if Rao Fazal Khan Akhtar with lesser re‑adjusted marks could come within the list of 56 selectees from Punjab, the appellant having obtained more marks, his' position could have been much higher. On the basis of this argument, the learned counsel urged that the previous order in Appeal No. 86(R)/1978 deserves to be set aside on the ground of concealment of facts and misrepresentation, which amount to fraud under section 10(2), C.P.C.

5. When the above arguments were brought to the notice of the learned counsel for State, he argued that the decision in the case of Rao Fazal Khan Akhtar had never been accepted by the Government and that actually an appeal was filed, but unfortunately that appeal failed on technical ground of limitation. He argued that if the criteria laid down in that case is accepted, then whatever marking may be, every one who was originally selected, would come within 56 candidates and shall seek re‑instatement. According to him, the actual facts were that the original selection was made of 56 persons and the last one had obtained 233 marks. It was explained that the Review Board cleared only those persons who had obtained 233 marks irrespective of their readjusted position. In this manner, several persons whose marks were below 233 were not approved and were directed to clear themselves from the Federal Public Service Commission. The Establishment Division has now made available the relevant record of the case, which shows that originally the last person selected had obtained 233 marks. Not only so, but three other persons who also secured 233 marks, could not come within the selection because the quota of 56 had been exhausted. The Government has satisfied us that the Review Board did not approve any person who had obtained less than 233 adjusted marks. No doubt, the appellant with 228 adjusted marks remains above 56th place, but this position is attained by him by including other persons within the list of 56, whose marks were re‑adjusted to less than 233. If the argument now advanced is accepted, then everyone of the 56 candidates originally selected would remain within the quota of 56 candidates, but their positions in the order of merit would be altered.

6. Section 12‑A of the Civil Servants Act gives plenary to the Government to remove or revert a person appointed during a period mentioned thereunder. The law itself does not lay down any criteria. It is the Review Board which, while examining the cases, had laid down the criteria. It appears that the Review Board noticed that the last person who had 56th position had obtained 233 marks. It, therefore, disapproved all those candidates whose marks were less than 233. In our opinion, this was the most convenient criteria which could have been adopted, otherwise the Board would have to readjust the marks of those persons also who were not selected having received less than 233 marks. Apart from the four persons who obtained 233 marks, three obtained 232 marks; one 231 marks; four 230 marks; two 229 marks and two 228 marks. If we accept the appeal, then it would be injustice to the persons who had not been selected in spite of having obtained 229 or more marks. Section 12‑A ibid envisages the review of only those persons who had not been selected. What the Review Board had to decide was whether the selection of 56 persons was in order. It rightly came to the tentative decision that the selection of all those persons who obtained less than 233 marks' was not justified. In our opinion, even if originally the facts were not brought to the notice of the Tribunal, and there was implied concealment the position has now become clear that no other person getting 233 marks or less was approved by the Review Board. As' stated earlier, all 'the persons whose cases were reviewed and they were removed front the post of Deputy Secretary, were given opportunity of clearing themselves from the Public Service Commission. The appellant having not been approved by the said Commission, he, in our opinion, cannot claim re‑appointment to the post of Deputy Secretary,

7. For the reasons stated above, this appeal, even if it is treated as an application under section 12 (2), CPC, has no merit and is dismissed, with no order as to costs.

8. Parties to be informed.

.‑‑I have had the benefit of going through the judgment proposed to be delivered by the learned Chairman, however, with greatest respect to him I hold a different view.

2. No doubt the appellant had challenged his reversion from the post of Deputy Secretary earlier as well by way of Appeal No.86(R) of 1978 which was rejected by the order of this Tribunal dated 30‑11‑1981 and on first impression it appears that by the present appeal the appellant is seeking review of that order but, in fact; it is not so for the reasons given in the paragraphs that follow:

3. The earlier appeal of the appellant was rejected on the ground that if only 130 marks had been credited to him for the CRs, as he had been Held entitled to by the Review Board then his position would have been lowered to 72 as against 56 seats available to the quota of the Punjab of which he was domiciled. Subsequently in another identical case of one Rao Fazal Khan Akhtar, who had also been reverted to his previous post when the Review Board reduced his marks from 230 to 222, this Tribunal in Appeal No‑97(R) of 1980 found that even with the marks reduced by the Review Board the appellant in that case occupied a position within 56 seats allocated to the Province of Punjab. When the present appellant came to know of the decision of this Tribunal in the Rao's case he represented to the Establishment Division on 5‑11‑1983 in the following words:‑‑

"In view of the facts brought out in paras. 6 and 7 above, it is abundantly clear that when Rao Fazal Khan Akhtar with 222 marks has been conceded by the Establishment Division to be within the first 56 position of the Punjab, I with 228 marks would naturally enjoy a higher position than Rao Akhtar and hence entitled to re‑instatement as Deputy Secretary retrospectively from the date of my reversion with all benefits of pay and seniority."

The Establishment Division did not reject .the claim of the appellant. On the other hand, it advised him that the judgment of the Service Tribunal in the Rao's case was being contested in the Supreme Court and as such the final verdict was to be awaited whereafter it would be seen if the ratio decidendi of the case was applicable to the appellant. When the appeal o the Establishment Division in the Rao's case was dismissed by the Supreme Court and Mr. Rao was restored to his position as Deputy Secretary, the appellant again asked the Establishment Division to restore him too as Deputy Secretary. The Establishment Division still did not tell him that his case was distinguishable from that of Rao Fazal Khan Akhtar or that his appeal having been once rejected by the Service Tribunal, could not be reopened. Instead they preferred to keep quiet and the appellant thereon approached this Tribunal. In my humble view by entertaining his representation of 5‑11‑1983 and promising that his request would be considered after the decision of the Supreme Court in Rao's case the Establishment Division provided him a fresh cause of action and now they cannot say that the appeal is barred by the principle of res judicata or that it amounts to seeking review of the earlier decision the Tribunal on his appeal. Even if it is assumed for the sake of arguments, that by the present appeal the appellant was, in fact, seeking review of the earlier decision, the appeal, in my humble view, is maintainable. For, as I have stated earlier, the previous appeal of the appellant was dismissed by us for the reason that with the revised marking (228) he could not be adjusted against 56 position available for the Punjab. Subsequently, however, in the case of Rao Fazal Khan Akhtar we found that with 222 revised marks Rao would come within 56 position. Thus, it was a matter of arithmetical error somewhere which this Tribunal is competent to rectify under rule 22 of the Service Tribunals (Procedure) Rules, 1974.

4. It will be of interest to notice the contention of the appellant that in the case of Rao Fazal Khan Akhtar the stand of the Establishment Division before the Supreme Court was not that the Tribunal had erred in holding that even with 222 marks Rao came to be within 56 position. The CPLA was filed by the Establishment Division on altogether different ground and was rejected on the ground of limitation.

5. It will also be of interest to point out that the earlier appeal of the present appellant was dismissed by us on the basis of incomplete information/record placed before us by the Establishment Division and obviously the appellant was not in a position to rebut them because he had no access to the record in that Division. Rao Fazal Khan Akhtar was, however, able to produce before us a list which was not rebutted by the Establishment Division, on the basis of which he was able to satisfy us that even with 222 marks he came within 56 position allocated to the Punjab.

6. Now turning to the merits of the case it is a common knowledge that large scale irregularities were committed in the matter of appointments through lateral entry. Persons who had failed, or had not even appeared in any of the lateral entry examination, were appointed to various posts under the garb of lateral entry. The Martial Law regime was, therefore, perfectly justified in having those appointments reviewed but it is still to be seen if in the process of review injustice was not done to anyone. As observed by my former colleague, Mr.A.O. Raziur Rahman in Rao's case, if the Review Board had based its recommendations on its scrutiny of the marking, the correct thing would have been to review the cases of all the candidates i. e. those who were appointed and also those who were not appointed but if for any reason, it was not considered desirable to re‑assess the cases of those who had not been appointed then the Review Board should have simply pointed out only those cases where the candidates had not appeared or failed to qualify the examination but were appointed.

7. I have observed from the lists supplied by the Establishment Division that 233 were not the qualifying marks. The selection in the case of candidates from the Punjab was closed at 233 marks because that. completed the quota for the Punjab. In the case of Sind (rural) I have noticed that persons with 210 marks (M/s. Roshan Ali Mangi tend Abdur Rashid Khan Balooch) were selected and appointed as Deputy Secretary. Likewise in the case of Baluchistan and Azad Kashmir persons with 213 and 208 marks respectively were appointed. Thus, it would be wrong to say that with the corrected marks the appellant fell within the category of those who had failed to qualify. Even if it is accepted that the appellant had been erroneously given is marks in excess of his entitlement he would have been selected for appointment as Deputy Secretary against 56 post available for the Punjab had the persons who had secured lesser marks were not appointed.

8. Incidentally it may be added that according to the list produced by Rao Fazal Khan Akhtar and now relied upon by the present appellant the marks of the following persons had also been reduced is less than 233 as indicated against each:

(1) Mr. Manzoor Elahi 231

(2) Dr. Ghulam Muhammad Samdani 225

(3) Mr. Muhammad Naseem Qureshi 219

(4) Mr. Riaz Ahmed. 214

(5) Mr. Mussarat Ali Khan 203

According to the appellant either the cases of these officers were not referred to the Federal Public Service Commission or if referred to they had not appeared before and cleared by the Federal Public Service Commission. The Establishment Division did not produce any authentic document to rebut the contention of the appellant and had no answer but to say that perhaps their marks had not been reduced. The appellant contended that out of the officers mentioned by him, according to his information, Dr. Ghulam Muhammad Samdani and Mr. Riaz Ahmed had been referred to the Federal Public Service Commission but they had not appeared before the Commission. His submission was that if the marks were referred to the Federal Public Service Commission. No satisfactory answer to this could be given by the Establishment Division.

9. It may be further pointed out that according to the Government's policy decision contained in O.M. dated 28‑11‑1973 vacancies which are not filled by the candidates belonging to the province or region to which the vacancies are allocated are, to be carried out and readvertised. These orders still hold the field. Therefore, even otherwise the vacancies caused by the reversion of officers were to be filled by the persons of the same domicile and that being so no one else could have a better claim to those vacancies than those who were duly selected earlier and had satisfactorily worked against those posts for a number of years and had even on review secured good qualifying marks. I, therefore, reiterate the view Held by me in Rao Fazal Khan Akhtar's case concurred in by the learned Chairman in the following words:‑‑

"I am, however, in agreement with my learned brother that on merits the reversion of the appellant was not justified even if the revised marking of his Annual Confidential Reports by the Review Board is taken into account. By excluding those persons who really deserved to be removed from service, the appellant's position still remains within the quota prescribed for the Province of Punjab. There being no element of political pressure, the appellant's reversion cannot be upheld, and my learned brother has rightly set it aside."

10. There was thus no justification whatsoever for reverting the appellant. In holding so I am also fortified by the following observations made in a decision of the Lahore High Court in Writ Petition No.237‑S/1982 filed by another similarly affected person:‑‑ .

"On the insistence of the petitioner, the relevant record was summoned. It has transpired that M/s. Muhammad Hanif Malik and Naweed Asghar Qureshi had also obtained 219 marks and, of course, were given appointments. Not only that, a few others even with lesser marks were also appointed. They were M/s. Mahmood Ahmed, Sajjad Haider, Kamran Zafar, Anwarul Haque, Tariq Saeed Haroon and Muhammad Ashraf Nadeem. It is, therefore, hard to conceive as to why the petitioner obtaining rather higher marks as compared to them, should be refused the appointment ............................ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . This discrimi nation made qua him is apparent."

In view of the foregoing, I hold that the recommendations of the Review Board were erroneous and the reversion of the appellant on the basis of those erroneous recommendations was unlawful and so was the subsequent reference to the Federal Public Service Commission,. Accordingly, I would allow the appeal.

In terms of Class (c) of Subsection (2) of Section 3‑A of the Service Tribunals Act, 1973 (Act No.LXX of 1973), the opinion of the Chairman dated 8‑11‑1986, shall be the order of the Tribunal.

M.Y.H./381/Sr.F

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