' MUHAMMAD IQBAL KHAN (MEMBER).---This appeal is directed against the order, dated 29-11-2002 whereby the request of Syed Nazar Hussain Shah, Ex-Deputy Director, Ministry of Education for A move-over to BPS-20 with effect from 1-12-1983 was rejected on the ground that his service record is not available for the period from 6-5-1981 to 4-12-1988. The appellant submitted his departmental representation against the impugned order on 9-12-2002, which reportedly has not evoked any response from the department after the expiry of statutory period of 90 days. The department submits that his departmental representation was rejected on 22-3-2003.
2. The background of the case is that the appellant Syed Nazar Hussain Shah joined the Cantonment Board Service with effect from 8-10-1952 and was posted as a Clerk in the Cantonment Public High School, Peshawar Cantt. The appellant gradually rose to the position of an officer in BPS-19. Following nationalization of schools by the Federal Government, administrative control of the Cantonment Educational Institutions was transferred to the Federal Government in the Ministry of Education w,e,f, 1-6-1975. He was appointed as Deputy Director in the Directorate of Nationalized Cantonment Educational institutions, Islamabad vide order, dated 31-5-1975. The appellant remained on deputation to the Government of N.W.F.P. As Deputy Director (BSP-19) from 16-2-1977 to May, 1981. He was suspended from service on 6-5-1981 on the allegation of corruption as Project Director, 3rd Education Project, N.W.F.P. He was dismissed from service w,e,f, 3-9-1983. He reached the age of superannuation on 4-12-1988. In the first round of litigation before the Federal Service Tribunal in Appeal No,11(R)/91, the appellant challenged his dismissal and suspension orders. The Federal Service Tribunal in its Judgment, dated 18-8-1996 reinstated the appellant. The relevant portion of the Tribunal's Judgment is reproduced below:--
(i) The appellant, after having served the country as an educationist for over thirty years fell prey to the atrocities of an autocrat and was made to suffer the agony of untold miseries for almost six years. The democratic government tried to undo the wrong committed during such period but unbridled bureaucratic system further prolonged the agony by six years. The person already suffering the irreparable losses was put to lengthy litigation under the normal habit of creating bottle-necks for the aggrieved civil servants. The entire file does not contain a single sentence in proof of even a slightest irregularity, what to say of misappropriation, embezzlement and corruption. Like every respectable and honest citizen he avoided the humiliation that was apprehended in the face of vendetta and, therefore, he had to avoid the due process of law, that is why, the punishments awarded by such Courts were declared by the President of the country to be ineffective, to restore the honour and dignity of innocent citizens. However, the appellant still suffers and he attained the age of superannuation during this period of miseries. To add injury the insult, the learned standing counsel for the respondents stated at the bar that the appellant should not be held entitled to any benefit for the intervening period. Thus he wants to fix a seal of credibility over the arbitrary, unjust and illegal conviction of an innocent civil servant. This will also negate the "gesture of goodwill" rather defeat the very purpose of general amnesty allowed by the President for the remission of such illegal sentences. The appellant suffered self-imposed sentence of abscondment for the only reason to avoid the penalty of R.I. For fourteen years and confiscation of his entire property without being responsible for a single fault on his part. He suffered because his parent department, in the Federal government in their capacity as "lending authority", did not care to protect the rights and honour of a civil servant placed on deputation to another Government in the interest of public service. His proof has been produced of any source of income of the appellant during the period of his dismissal till the final date of hearing of his case. Hence he cannot be denied the benefits for the intervening period.
(n) The result of the foregoing discussion is that we accept this appeal, set aside the order, dated 3-9-1983 and 27-12-1990 and direct that the appellant may be deemed to have been reinstated into service with effect from the date of his dismissed till the date of his superannuation. The period during which the appellant remained out of service, shall be treated as leave due, admissible under the rules.
' The FST Judgment was also upheld by the apex Court. Accordingly, the respondents implemented the Judgment of the Tribunal, dated 18-8-1996 to the satisfaction of the appellant. The appellant's move-over to BPS-20 became due w,e,f, 1-12-1983. The issue now requiring adjudication is whether the appellant is entitled to claim move-over w,e,f, 1-12-1983 when he had reached maximum of the scale to BPS-19 after his reinstatement in service by the Tribunal.
3. Heard the parties and perused the record.
4. There is no dispute that the appellant was reinstated in service w,e,f, 3-9-1983 but at the time when FST Judgment was announced on 18-8-1996, he had already reached the age of superannuation on 4-12-1988. On reinstatement, his outstanding terminal dues were paid to him by the respondents as per directions of the Tribunal Judgment. It appears that at that time it was not realized that the appellant had become mature for the grant of move-over to BPS-20, though he had reached the maximum of BPS-19 on 1-12-1983 when he already stood dismissed from service.
Subsequently, on reinstatement when the appellant requested the respondents for this benefit, in his departmental appeal, it was rejected.
5. The impugned order, dated 29-11-2002 and appellant's departmental representation, dated 9- 12-2002 are reproduced below:-- "General Headquarters IGT & E's Branch FGEI (C/G) Dte Sir Syed Road, Rwp. Tel Mil: 34353 No,04/PF- 96/77- FGEI(PS) 29, Nov.2002 ' To: FGEI(C/G) Regional Office Peshawar Cantt.
Info: The Principal, FG Public School, Peshawar Cantt.
Person Concerned (H.No,760, Street No,25, G-9/1, Islamabad)
Subj: Move Over from BPS-19 to 20 ' Mindef U.O. No,F5/3/2001/D-26 (Admin), dated 4-11-2002, ref
(1) Move over committee considered move over case of Syed Nazar Hussain Shah, Dy Director
(Retd) but did not find him eligible for grant of move over to BPS-20 as the committee noted that the officer was suspended on 6-5-1981 on the charges of embezzlement of project funds while he was in service as Project Director of 3rd Education Project TEP Unit Peshawar.
(2) He was tried in Military Court, which awarded him rigorous imprisonment for 14 years and forfeiture of his movable and immovable property in absentia. Subsequently he was dismissed from service. However, in December, 1998 the President granted general amnesty and remitted various punishments imposed during Military / Martial Law Regime. Taking advantage of general amnesty, the officer filed an appeal against the punishment in the Federal Service Tribunal. The Federal Service Tribunal gave verdict in his favour which was also upheld by the Supreme Court of Pakistan. He was such reinstated in service from the date he was suspended. His, suspension/dismissal period was regularized by grant of various categories of leave.
(3) The committee perused the service record of the officer and observed that no ACR is available for the period from 6-5-1981 to 4-12-1988 i,e, from the date of his suspension till his retirement from service on attaining the age of superannuation. Likewise, his ACRs for the period from October, 1952 to May, 1981 are also not available. The committee therefore, held that in the absence of his ACRs it is not possible to judge his performance. The committee as such did not recommended his case for grant of move over to PBS-20. -(4) The individual be informed accordingly.
(Sid.) Ltd. Col. For Director Federal Govt.
' Educational Institutions (Muhammad Imran)"
The Secretary, Government of Pakistan, Ministry of Defence, Rawalpindi.
' Through the Director, FGEI(C/G), GHQ, IGT & E's Branch, Sir Syed Road, Rawalpindi.
Subject: Move Over From BPS-19 to 20 ' Reference FGEI (C/G) Dte, letter No,04/PE96/77-FGEI(PS) dated 29-11-2002.
Sir, ' I have received FGEI (C/G) Dte, letter No,04/PF96/77- FGEI(PS), dated 29-11-2002 rejecting my representation for grant of move over from BPS-19 to BPS-20 mainly on the grounds that my ACRs are not available.
(2) This is a settled law that a person, particularly a civil servant, is not to be adversely affected on account of acts of Govt. Authorities. My service record is expected to be available with the relevant authorities and if they have misplaced it, I am not to suffer on that account.
(3) I am enclosing a photocopy of my Service Book which will clearly show that throughout my service there was no adverse (red) entry therein proving that my record of service was unblemished.
(4) It was the responsibility of the Department to trace out my record and if it has not done so then the benefit thereof should be given to me and it should be presumed that throughout my service as far as my ACRs are concerned these are very good.
(5) Needless to say that I was serving under the Govt. Of N.W.F.P. On deputation when my move over became due. That Govt. In its letter No,SOG/EDUI/6-37/ACRs/99, dated 12-10-1999 has categorically stated that they have no objection to my move over meaning thereby that my record with them justified my move over To BPS-20.
(6) Prayer: In view of the circumstances stated above the order No,4/PF96/77-FGEI(PS), dated 29- 11-2002 may be set aside by accepting this appeal and I may kindly be allowed move over to BPS- 20 from 1-12-1983 when it became due. Yours obediently servant.
(Sd.) (Syed Nazar Hussain Shah) Deputy Director (R)FGEI(C/G) Peshawar Region, Peshawar (Present Address: H. No,760, St.25, Sector G-9/1, Islamabad"
' It will be observed that in the light of the Tribunal Judgment, dated 18-8-1996, paras. Nos. 1 and 2 of the impugned order are not relevant to the issue under consideration. We feel that recapitulating the position as existing before the Tribunal's Judgment ibid was irrelevant. The respondents themselves have admitted in no unambiguous terms that the appellant was reinstated pursuant to the Federal Service Tribunal's Judgment of 18-8-1996 which was also upheld by the Honourable Supreme Court of Pakistan. He was reinstated in service from the date he was suspended and his suspension was also treated as period spent on duty and the period he remained out of service was regularized by grant of various categories of leave. After having done all this, the alibi of the respondents that his service record w,e,f, 6-5-1981 to 4-12-1988 i,e, from the date of his suspension till his superannuation from service is not available with them is not convincing. We cannot buy this argument. The appellant, performed his duties in the borrowing department from 16-2-1977 to 5-5- 1981. He was suspended which effect from 6-5-1981. The respondents should have obtained his ACRs for the period from '16-2-1977 to 5-5-1991 No effort was made by them to obtain those ACRs from the borrowing department. The fault, therefore, lies with the lending department who made no effort to obtain this service record as well as the borrowing department who did not write his ACRs for the effective period he remained with them. Obviously, his ACRs could not be available for the period he was placed under suspension with effect from 6-5-1981 until he reached the age of superannuation on 4-12-1988. We agree with the learned counsel for the appellant that the appellant's rise from the position of a clerk to that of an officer in BPS-19, provides enough collateral evidence of his good service record, coupled with the fact that the borrowing department has no objection to the grant of move-over to BPS-20 to him as indicated by the appellant in para 5 of his departmental appeal, reproduced in para 5 of this order. Posting of the appellant on deputation to the Goverment of N.-W.F.P. Does not constitute viable justification for not considering him for this benefit.
7. Considering the above position, we are of the view that withholding his move-over to BPS-20 with effect from 1-12-1983 on the ground that his record of service is not available with the respondents is not legally sustainable. As soon as the appellant was reinstated in service in the light of Tribunal's Judgment, dated 18-8-1996 and paid all his dues to his satisfaction, the issue of his move-over to the next scale of BPS-20 should have engaged the attention of the respondents. Apparently the respondents made no effort in this regard. Accordingly, the order, dated 29-4-2002 is set aside and the respondents are directed to re- consider his case for the grant of move-over to BPS-20 w,e,f, 1- 12-1983 based on his service record already available with them. The appellant shall be entitled to pensionary / terminal benefits consequential to the grant of move-over to BPS-20.
8. No order as to costs. Parties be informed, accordingly. accordingly.