1. N.A. CHAUDHRY (MEMBER)--The appellant, Mr. Jamshed Ali Khan, entered into Government service as Clerk in the Estate Office of the Govern--ment of Undivided India on 13-10-1945. On option for Pakistan, he joineu here on 3-8-1947.
2. While serving in the Estate Office in Pakistan, the appellant in response to an advertisement made by the Pakistan High Commission in India, applied and was selected for appointment as L. D. C. He was relieved from Karachi on 16-8-1949 and joined at New Delhi on 22-8-1949. He was taken on the strength of the Ministry of Foreign Affairs as a temporary L. D. C. On 21-5-1958. Subsequently, he was declared surplus in October 1959. He again applied to Pakistan High Commission in India, and was taken as temporary L. D. C. There with effect from 2-5-1960. On both the occasions it was decided by the Government of Pakistan that the appellant should be treated as Pakistan based Clerk. He was transferred back to the Ministry of Foreign Affairs in December 1965.
3. The appellant was confirmed as L. D. C. w.e.f. 14-8-1947 in the Estate office by virtue of an office order issued on 4-3-1969.
4. The Ministry of Foreign Affairs issued an order, in consultation with the Establishment, on 17-9-1969 to the effect that the appellant should count his seniority among optees of the Persian Gulf/Political Agencies w.e.f. 22-8-1949, the date of joining the Mission. It was also decided by the Ministry of Foreign Affairs that the appellant should be treated senior to all the purely temporary L. D. Cs. Of the Mission on account of his being confirmed L. D. C. Of the Estate Office w.e.f. 14-8-1947.
5. In view of the above position, it has been contended by the appellant that under the applicable rules of seniority, he should be treated as senior to Messrs S. Murad Ahmad and S. M. A. H. Siddiqi, who were confirmed as L. D. C. In the Mission w.e.f. 1-1-1948, while the appellant was so confirmed w.e.f. 14-8-1947.
6. On 22-12-1970, the Ministry of Foreign Affairs cancelled its order dated 17-9-1969 declaring the appellant as non-optee instead of treating him as an optee which position he held in the orders previously issued by the same Ministry.
7. Failing to obtain the response from the Ministry of Foreign Affairs, he has preferred the appeal, under disposal, to the Service Tribunal.
8. The learned counsel for State raised various objections with regard to the maintainability of the appeal, under disposal, and also to the rejoinder of the respondents; that after submission of the amended appeal, all the issues raised in the earlier appeals, became in fructuous and irrelevant in the eyes of law for the purpose of appeal. He further stressed that the relief claimed by the appellant against the respondents was not allowable, as both of the respondents already stand retired.
9. With regard to the nature of appointment of the appellant, the learned counsel for State contended that irrespective of the orders issued to the contrary, the appointment was offered to the appellant in response to an advertisement, and for all practical purposes, it was a fresh appointment and even if the Government orders had been issued to the contrary, subse--quently, they were of no consequence. His seniority should, therefore, count from the date of this fresh appointment.
10. It was also argued on behalf of the Ministry of Foreign Affairs that in terms of para. 6(f) (a) of the Establishment Division Office Memo. No. 6/15/ 48-ME, dated 31-3-1951, the seniority of the appellant should count from the date of his appointment in the Missions even if it was not a fresh appointment, but an appointment on transfer, because the option was open to the appellant to accept or refuse the appointment in question. The above sub-para of the Office Memo runs as follows :-- "When it is open to the person concerned to accept or refuse an offer of appointment in another office, he should count his seniority in the new office from the date of his transfer to that office."
11. He further argued that no specific relief for arrears of salary and/or the consequential benefits has been claimed in amended appeal. Therefore, the arguments of the learned counsel for the appellant had no ground for the claim sought for.
12. Full Bench of the tribunal, vide its orders dated 8-3-1978 disposed of all the preliminary objections of the respondents and further directed the State Counsel to produce the documents showing the nature of appointment of the appellant in. The Pakistan High Commission in India. On 15-8-1978, - during the course of hearing, the learned counsel for State could not furnish the requisite record and made a statement that the service record of the appellant had been burnt during the 1965 War with India. It was, therefore, directed by the Tribunal that partial record of service from the concerned authorities may be got requisitioned and reconstructed. On the hearing of 1-11-1978, it was . Stated by the learned counsel that the entire service record of the appellant had been traced out and delivered to the Tribunal.
13. The learned counsel for State could not give convincing arguments with regard to the nature of appointment of the appellant in the Missions, which is the only crucial point in the appeal. The appellant applied through proper Channel for appointment as `B' Grade Clerk in the Missions. The High Commissioner for Pakistan in India, vide his letter No. -F. 38(8) A/49 dated 30-7-1949 made an offer V the appellant for acceptance of the post, carrying the prevalent rates of pay including foreign allowance @ 50 7 of basic pay. It was further mentioned that pending confirmation of the appellant, his lien will be retained in the Estate Office. The Estate Office, vide their letter No. 712/458 dated 16-8 1949 relieved the appellant, but his lien was not retained. On the representation of the appellant, the matter was considered by the Works Division, and it was'-'decided to confirm him as L. D. C. In the Estate Office w.e.f. 14-8-1947. Subsequently when he was confirmed in the Ministry of Foreign Affairs as L. D. C. w.e.f. 23-8-1949, his lien on the post of the Estate Office was terminated with effect from that date, on this ground under the applicable rules.
14. Furthermore, the High Commissioner for Pakistan in India, vide his office order No. 109, dated 6-7- 1964 has admitted that nature of his appointment was as a Pak-based L. D. C. w.e.f. 2-5-1960 and consequently allowed him all the benefits, as admissible under the rules only to a Pak. Based member of the staff and not to locally recruited staff in the Missions. The contention of the respondent has, therefore, been refuted. The admitted position therefore, is that all the attributes of continuity in service are present in favour of the petitioner. He was allowed Travelling Allowance to join his appointment abroad. Had been paid Foreign' Allowance through--out his tenure of service in the Missions at the rates payable to Pak-basest Staff. He has been paid travelling allowance on return journey to Pakistan on transfer back. He has been given benefit of fixation of pay in continuity in service. Above all, he has been confirmed with effect from the date prior to his so- called fresh appointment in the Missions..
15. In the circumstances, his service has to be treated as continuous through out and his appointment as L. D. C. In the Foreign Missions as recruitment on transfer from Government Department under the rules. The argument that his seniority should be regulated under para. 6(i) (a) of the Establishment Division Office Memo dated 31-3-1951 also does not hold good because this para. Regulates the seniority of the persons who were appointed on transfer subsequent to the dates of issue of this letter. The seniority of those who went on deputation from one office to another before that date has to be regulated in terms of para, 6(ii) (a) of the same letter the relevant portion of which runs as follows:- "In order to get the - benefit of continuous service in a grade, a deputationist be permanent in that grade in his parent office, and not merely eligible for being made permanent. In case, however, he is subsequently made permanent in a grade in his parent office from a retrospective 'date, his seniority should be changeable in the borrowing Ministry/Department in that grade."
16. The objection made by the State Counsel that since both of the respondents mentioned in the appeal have retired and therefore, the appeal has b-.Come in fructuous does not held good, because the main respondent was the Federal Government of Pakistan and the relief was claimed against the orders of the Government.
17. As to the non-mention of the relief claimed by the appellant, objection of the State Counsel is not maintainable, because once seniority claimed by lf the petitioner was restored, all other consequential benefits would automatically accrue to him.
18. In the circumstances, appeal is accepted. The seniority claimed by the petitioner should be restored to him with all the consequential benefits.