' SAEED AHMED ZAIDI (MEMBER).--- The present appeal has been filed against the respondents who have implemented their own order bearing No,CCA/Admn./1/C/17.12/2002/76, dated 8-2-2003 in the case of the appellant.
2. Brief facts of the case are that the appellant was appointed as Apprentice Accountant (B-16) on the recommendations of Federal Public Service Commission (FPSC) by the Auditor-General of Pakistan (AGP) on 28-5-1989. The term "Apprenilee was, however, later substituted by the term "probationer" by the Auditor-General.
3. In accordance with the terms and conditions contained in the appellants' appointment letter, he was required to pass the S.A.S. Examination in three chances. However, he could not qualify the examination within the specified attempts and on 10-9-1995 requested for another chance. Instead of granting his request, the respondent No,2. Accountant-General, Pakistan Revenues (AGPR) to whose office appellant was allocated by the AGP terminated his service vide Office Order No,Admn.
1/5-3/Recu/Sr.Ar./94-95/16, dated 7-4-1996 as Probationer Assistant Accounts Officer (Accountant) as per terms of his appointment and simultaneously appointed him as Senior Auditor (B-11) which the appellant accepted. However, after appellant's termination, some of his colleagues who too had exhausted the prescribed number of chances to clear the S.A.S. Examination were granted another chance to appear in the examination. The said colleagues as well as the appellant appeared in the S.A.S. Examination held in August, 1996. The appellant cleared the examination and was promoted as Assistant Accounts Officer (B-16), whereas other were confirmed in the cadre of Assistant Accounts Officer.
4. According to the terms of their appointment the Probationer Accountants were to be allowed seniority from the date they qualified the S.A.S. Examination. One of these officers filed appeal against this condition before this Tribunal's Lahore Bench by way of Appeal No,290(L) of 1996 (Bilal Qadir v. Auditor-General of Pakistan). By its judgment dated 26-3-1997 this Tribunal decided that probationer Accountants shall be given seniority with effect from the date they joined the Department rather than from the date they qualified S.A.S. Examination. The department filed a C.P.L.A. Before the Honourable Supreme Court which was dismissed as it was time-barred. The said FST judgment, thus, acquired and was implemented by the department, in consultation with the Establishment Division which endorsed the principles on which the said judgment was based.
5. Another important development was that like the appellant servant Probationer Accountants who were allowed to Military Accounts Department by the Auditor-General of Pakistan, were also terminated for not having passed the S.A.S. Examination (in accordance with the same terms and conditions on which appellant was appointed). The aggrieved officers filed appeals against their termination before the Tribunal in those Appeals bearing Nos.402(P) of 1992 and 379(R) of 1992 the appellants and the respondent-Department reached a compromise and the former agreed to withdraw the appeals on the assurance of the Department, that they would be allowed another chance to clear S.A.S. Examination. The Department, however, later disputed the agreement/.
Assurance given by its representative in the said appeals and filed C.P.L.As. Before the Honourable Supreme Court which were dismissed with the following observations:- "In our view,' it was implicit in the agreement to allow one more chance to the respondents for clearing the promotional - examination that on, their passing the said examination in this additional chance, they would stand restored to their original position. If that were not so, the respondents would not have agreed to withdraw their appeals which they had filed with specific prayer that they be reinstated in service with all the consequential benefits. Needless to add that if the respondents had cleared the promotional examination in three chances as provided in the impugned departmental rules, they would have been confirmed/regularized with effect from the date of their initial appointment. Why should the same result not follow on their passing the said examination in the additional chance allowed to them as a result to mutual agreement?
' Viewed in the aforesaid light we are satisfied that the impugned direction of the Service Tribunal of which the appellants have felt aggrieved was quite consistent with the spirit of the agreement/compromise arrived at between the parties and it was also just equitable and fair in the facts and circumstances of the case. Both the appeals are accordingly dismissed but with no order as to costs.
6. Pursuant to the above mentioned decision, the matter was then taken up by the Military Accounts Department with the Auditor-General of Pakistan, Ministry of Finance and the Establishment Division. The Establishment Division, following judgment of this Tribunal advised vide its No,13/2-S.I.R.5, dated 7-9-1999, that the Probationer Accountants be given the seniority from the date they joined the Department and that suitable amendment be made in the recruitment rules notified by Military Accountant-General (MAG). By S.R.O. No,25(KE)/2001, dated 11-11-2000 notified the desired amendments. In the meantime the Probationer Accountants working in other departments like A.G.P.R. Continued agitating against the different treatment meted out in the two Departments of Auditor-General i,e, A.G.P.R. And M.A.G. Ultimately, following the Establishment Division's advice referred to above, the Controller-General Accounts issued Order bearing No,C.G.A./Admn./ 1/C/17.12/2002/75, dated 8-2-2003 regarding re-fixation of pay and seniority of Apprentice/Probationer Accountants. The relevant portion of the said order is as follows:-- "3. With a view to extend the aforesaid principle of senior to other as well, this office, after examining the issue; in consultation with the Department of the Auditor-General of Pakistan, took up the matter with the Establishment Division through the Ministry of Finance."
' The Establishment Division after consideration of the matter has endorsed view-points of this office reproduced below:-- "This office is of the considered view that seniority pay of Apprentice/Probationer Accountants should be refixed in B-11 from the date of their joining the respective Audit and Accounts Training Institute with all consequential benefits as done in the PMAD."
(4) It has accordingly been decided that seniority and pay of the Apprentice/Probationer, Accountants, 1930 batch and onward will be revised/re-fixed in the BPS-16 from the dates of joining the respective AATs/Offices with all consequential benefits including annual increments accrued up till the SAS Examination and/or successful completion of probation period.
(5) You are requested to take further necessary action immediately under intimation to this office."
(Emphasis added)
7. It appears that the respondent No,2 i,e, A.G.P.R. Issued a seniority list dated 31-5-2003 in pursuance of the above-mentioned instructions of respondent No,
1. Being aggrieved with this seniority list and non-implementation of aforementioned instructions of respondent No,1 in appellant's case the appellant represented to respondent No,1 on 30-7-2003. He was informed by respondent No,2 (A.G.P.R.) that respondent No,1 has decided to keep this Departmental appeal pending till the decision by the Court in the similar case filed by Mr. Mutahir Shah, Assistant Accounts Officer, Sub-Office, Peshawar. Hence this appeal.
8. The appellant's main grievance is that he is being denied the benefits of the above mentioned order, dated 8-2-2003. It has been argued that his services were illegally terminated by respondent No,2/ (A.G.P.R.), who was not the appointing authority, and, therefore, not competent to terminate his service. The said order, dated 7-4-1996 being void ab initio, was of no legal effect and limitation applied in such cases. Besides there was clear discrimination against appellant inasmuch as that the Military Accountant-General, in pursuance of the compromise reached before the F.S.T. (as upheld by the Honourable Supreme Court) not only reinstated all those Probation Accountants who had been similarly terminated for not having qualified S.A.S. Examination but also allowed them another chance to clear the examination. In additional to this, the A.G.P. Himself allowed appellant's colleagues in A.G.P.R. An additional chance to clear the examination only a few weeks after appellant's termination. The appellant was thus, terminated in the same circumstances and he too cleared the examination in the next chance availed by him along with his colleagues in A.G.P.R. And M.A.D. It has been argued that the long agitation by Probationer Accountants on various issues like seniority, probation, pay and one ancillary matter was finally set at rest by respondent No,1 instructions/order, dated 8-2-2003 whereby all Probationer Accountants have been allowed seniority with effect from the date of entry into service that their probationary period is to be reckoned in accordance with Civil Servants Act and the rules framed thereunder.
9. The appellant's counsel further argued that the probation period prescribed under the Civil Servants Act/Rules was only one year whereas the appellant successfully completed a Three years probationary period prescribed by his letter of appointment which was never extended. The appellants, therefore, stood confirmed as Assistant Accounts Officer (B-16) at the lapse of one year from date of appointment and was entitled to reckon his seniority from the date of his entry into Government service as Probationer Accountant (B-16) notwithstanding the illegal termination order, dated 7-4-1996.
10. It has been further argued that it was significant that after appellant's appointment, the Department changed the title of his position from "Apprentice" Accountant to "Probationer"
Accountant. ,It follows that the effect of this change would attract the rules applicable "Probationer" and probation period, as given in the Civil Servants Act, 1973 and the Rules framed thereunder. The counsel further draw our attention to the fact that after representations from the Probationer Accountants (like the appellant), the afore-mentioned litigation and Establishment Division's advice, the Auditor-General has revised the entire scheme, for recruitment of Probationer Accountants. Most significant of the changes in the modified scheme was regarding qualification of S.A.S. Examination which is no longer a requirement for confirmation. The condition now is the passing of examination at the end of the training at the Departmental Training Institution and the successful completion of probationary period as prescribed under the Civil Servants Act/Rules. The result is that the Department itself has realized the finality of condition of qualifying S.A.S. Examination and the various inconsistencies in the terms of appointments of Probationer Accountants vis-a-vis the Civil Servants Act and Rules.
11. About the objection regarding this appeal being barred by limitation, it was asserted that the order, dated 8-2-2003 gave him a fresh cause and he has come to this Court within time after impugned orders on his departmental appeal. Besides, the order of appellant's termination being void ab inito the limitation does not run.
12. It has finally been argued on behalf of the appellant that the instructions issued by the respondent No,1 on 8-2-2003 have settled the above mentioned disputes and given the appellant a fresh cause of action. The appellant is consequently entitled to all the benefits of the said order, like other Probationer Accountants, and is to be treated equally with others similarly appointed by the Auditor-General on the recommendation of F.P.S.C. Under the scheme of recruitment of Probationer Accountants including those terminated and reinstated and confirmed from the date of joining in the Military Accounts Department and those who were granted additional chance by A.G.P. On 25-4-1996. The appellant further asserted that the judgments of this Tribunals as well as the Supreme Court order in the cases of officers of Military Accounts Department referred to above are judgments in rem and principles ,decided therein are applicable to the appellant also.
13. The respondents have objected to the present appeal mainly on the ground that the appellant was terminated in accordance with the terms and conditions given in his letter of appointment. It has been further asserted that the appellant having accepted, on his termination the appointment as senior Auditor (BS-11) he was estopped from agitating it now. It was also argued that the appeal was time-barred because the appellant did not challenge his termination order when it was made in 1996.
14. We have considered the arguments of both the sides and find that there was lot of ,agitation by way of representations and, litigation regarding the passing of S.A.S. Examination by the Probationer Accountants and its impact on pay and seniority. This litigation went up to the Honourable Supreme Court and as a result of which the Probationer Assistant Accounts Officer working in the Military Accounts, Department were given an additional chance to clear the S.A.S. Examination, were reinstated and got their seniority, from the date of their joining.
15. We find that the appellant was discriminated and treated unfairly inasmuch as that he applied for an additional chance as far (sic) of allowing him the chance, his services were terminated and he was appointed Senior Auditor B-11 on 7-4-2006. It is indeed surprising that within a short span of less than three weeks, another set of Probationer Accountants serving in the same Department were allowed another chance on 25-4-1996. The appellant qualified the S.A.S. Examination and was promoted as Assistant Accounts Officer on 28-11-1996 but was not reinstated nor given the benefit of seniority from the date of entry into service. We have this treatment apparently discriminatory.
16. The principles emerging from the judgment of this Tribunal regarding termination of probationary period and reckoning of seniority from the date of joining have been acknowledged and incorporated in the orders of the respondent No,1 bearing No, CGA/Admn.1/C/17.12/ 2002,176, dated 8-2-2003 relevant portion of which has been reproduced in para.6 of the judgment. We see no reason why these principles would both be applicable in appellants' case. The Department cannot take shelter behind an ab initio void and discriminatory order of termination not having been passed by the competent authority which was the Auditor-General. The respondent counsel was unable to satisfy that the A.G.P.R., who terminated appellant's services, was the Competent Authority. Further, the Department's own conduct has been that it allowed an additional chance to other but denied it to appellant. It is also pertinent that another Department of the Auditor-General i,e, Military Accounts Department reinstated probationers like the appellant and gave them additional chance and also gave them seniority and pay benefits. It is also now settled that once period of probation has elapsed without being extended in accordance with the law, the probationer would be deemed to have confirmed. The respondent No,1i,e, Controller-General Accounts and the Establishment Division etc. Having conceded that the rules governing the period of probation and reckoning of seniority, are applicable to all Probationer Accountants from 1980 onwards, there could hardly be any about their entitlement entitled to the benefits following from the aforementioned orders, dated 8-2-2003. In our view the appellant's termination order, dated 7- 4-1996 being void, they would not stand in his way for the purpose of grant of benefits under the order, dated 8-2-2003. The order dated 8-2-2003 clearly states that seniority and pay of all Apprentice/Probationer Accounts should be refixed in B-16 from the date of their joining the respective Audit and Accounts Training Institutions with all consequential benefits as done in the "MAD".
17. Regarding question of the appeal being time-barred, it suffices that the order, dated 8-2-2003 does give the appellant a fresh cause of action and, therefore, appeal is within time.
18. After issuance of the aforementioned instructions/orders by the respondent No,1 on 8-2-2003, there is no justification for the respondents not to give effect to that order in appellant's case. We, therefore, accept this appeal and direct that effect be given to the order of respondent No,1, dated 8-2-2003 in appellant's case with all consequential back-benefits including seniority.
19. No order as to costs. Parties be informed accordingly.