N.A. CHOUDHURY (MEMBER).--Mr. Zahoor Haider Zaidi was appointed as Lower Division Clerk in the Department of Plant Protection, Government of Pakistan, in December, 1951. He was promoted as a Store Keeper in 1953 and was confirmed in that capacity with effect from 14th April, 1953. He was promoted as Senior Store Keeper in August, 1956. In this capacity, he was made substantive temporary vide Govern--ment order dated 15th January, 1962.
2. In February, 1962 he was posted to a sub-office of Government of Pakistan in East Pakistan. In the same year, the scheme under which the appellant held the post of Senior Store-Keeper substantively was handed over to the Provincial Government of East Pakistan. The Central Government passed the orders transferring the services of the appellant to the Provincial Government without obtaining his option. The Provincial Government of East Pakistan placed back the services of the appellant at the disposal of the Government of Pakistan vide their Memorandum dated 9th August, 1962. On this the appellant requested for his posting under the Federal Government. That Government vide their telegram dated 6th September, 1962 approved the deputation of appellant's services to the East Pakistan Agricultural Development Corporation (EPADC). This deputation was approved by the President's Secretariat, Establishment Division vide their Memo. Dated 6th April, 1.963 as confirmed in EPADC letter dated 3rd September, 1963.
3. In reply to the representation of the appellant, the respondent---Department informed him vide their letter dated 18th November, 1963 that as the post held by him had been abolished, he had severed all connections with the Government of Pakistan. An appeal was addressed to the Secretary. Agriculture Division, Government of Pakistan on 24th December, 1963 though the proper channel, which did not get any response.
4. On 20th April, 1965 EPADC reverted the appellant and placed his services at the disposal of the respondent-Department where he held a permanent post. The appellant sought permission to join his posting at Karachi vide letter dated 30th April, 1965 and in his subsequent letters dated 7th May, 1965 and 15th May, 1965. He was informed by the respondent-Department vide their letter dated 21st May, 1965 that he was no more responsibility of the Federal Government. On the other hand, the Government of East Pakistan informed the appellant vide their letter dated 5th October, 1965 that the petitioner being a permanent employee of the Central Government, had no connection with the East Pakistan Government. Furthermore, as he was of West Pakistan domicile, he could not be absorbed permanently by the Government of East Pakistan.
5. Unable to obtain redress in any manner from the departmental authorities, the appellant filed a Civil. Suit No. 406 of 1972 in the Court of District Judge, Karachi. During the pendency of the proceedings of the Civil Suit, exclusive jurisdiction, in such cases was created by the Service Tribunals Act, 1973 and consequently the District Judge, vide his order dated 30th November, 1973 declared the proceedings as abated. The appellant preferred his appeal with the Service Tribunal on 5th June, 1974.
6. Before the arguments could be started on the merits of the case, by the learned counsel for the appellant, it was pointed out by the Tribunal that the appeal should have been filed with the Tribunal within ninety days of the establishment of the Tribunal, on its abatement viz. By 23rd May, 1974 and therefore, the appeal is slightly time-barred. The learned counsel for the appellant quoted various decisions of the Honourable High Courts of Lahore and Dacca to support the contention that where an initial void order is made by the departmental authority provisions of limitation did not apply.
7. It was also argued by the learned counsel for the appellant that even if there is some days' delay, the Tribunal was established for the first time and a few days' delay could not be avoided because the public servants who were covered by the provisions of the Service Tribunals Act, 1973 were not immediately informed of the correct position, parti--cularly those who had been sent out of service prior to the establish--ment of the Tribunal.
8. As regards the merits of the case, the learned counsel for the appellant pointed out that since the petitioner was a permanent employee of the Government of Pakistan, he could not be transferred to the Government of East Pakistan, without his option, nor could he be treated to have severed all the connections with his parent Department of the Federal Government. This position, he argued, was supported by the facts that the appellant was treated as a deputationist from the Federal Government to East Pakistan ADC. This fact, according to the learned counsel for the appellant, was further reinforced by the circumstances of the case where under the services of the appellant were placed back at the disposal of the Federal Government by the East Pakistan Government, saying that he had acquired no right with the Provincial Government and yeas still the responsibility of the Federal Government.
9. The learned counsel for the appellant further pointed out that under the rules, the appellant should have been offered the option for compensatory pension by the Federal Government on aboilition of the permanent post which he held in the Department of the Plant Protection.
10. The learned counsel for State raised preliminary objection regarding the limitation, saying that even if the appeal was late by a few days each and every day has to explained adequately and properly before condonation of delay in considered. Moreover, there was no request for condonation accompanying the appeal submitted to the Tribunal.
11. The learned counsel for State further argued that the appellant was transferred to East Pakistan Government along with his work and the post from the Federal Government because the scheme in connection with which he was employed was transferred to the Provincial Govern--ment. The appellant, therefore according to the State Counsel, severed all his connections with the Federal Government.
12. As regards the question of limitation, the decisions quoted by the learned counsel for the appellant, relate to special jurisdiction of writ petitions filed by the various appellants before the Honourable High Courts. Since there is no provision for limitation in the cases where special provisions for writ jurisdiction are invoked in the Honourable High Courts, the circumstances of the case mentioned in the decisions quoted by the learned counsel, were not exactly identical to those of the instant case. Under the Service Tribunals Act, there is a positive period of limitation provided under section 6 of the Service Tribunals Act, 1973. Their Lordships in the High Courts, while considering writ petitions, were conscious of this fact that there being no positive provisions for limitation, only considerations to bar the jurisdiction were the laches in individual cases brought before their Lordships. They considered it unnecessary to place any bar on the jurisdiction of the Honourable High Courts on the basis of laches in individual cases brought before their Lordships.
They considered it in cases where the impugned order under adjudication was initially void. In the Service Tribunals Act, however, there is a positive provision to place bar on the jurisdiction of the Service Tribunal which cannot be ignored: However, in the circumstances of the establishment of the Service Tribunal, a few day's delay should be treated to have been condoned at the request of the learned counsel for the appellant made during his pleadings. We therefore, do not consider at necessary to bring this case within the mischief of section 6 of the Service Tribunals Act to bar the jurisdiction of the Tribunal for adjudication.
13. As regards the merits of the case, it was argued by the learned counsel for State that since there were no sanctioned posts available at the relevant time under the Federal Government in the scale in which Mr. Zahoor Zaidi was holding a lien, to get him back on the rolls of the respondent- Department. As such it was out of question to re-establish his connection with the Government of Pakistan.
14. As regards the point of view of the learned counsel for the appellant that the permanent employee who held a lien on the post sanctioned by the Federal Government could not be transferred or his lien could not be transferred without his option to the Provincial Govern--ment nor could he be treated to have severed his connections with the Government, the contention appears to be well supported by FR-13 and FR-14-A, the relevant provisions of which run as follows :-- F.R.-13.-Unless his lien is suspended under rule 14 or transferred under rule 14-B, a Government servant holding substantively a permanent post retains a lien on that post--
(a) while performing the duties of that post ;
(b) while on foreign service, or holding a temporary post, or officiating in another post ;
(c) during joining time on transfer to another post ; unless he is transferred substantively to a post on lower pay, in which case hiss lieu is transferred to the new post from the date on which he is relieved of leis duties in the old post.
F.R.-14-A(a).-Except as provided in clause (c) of this rule and rule 97, a Government servant's lien on a post may, ire no circumstances, be terminated even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post.
The question that crow arises is whether ors the abolition of the permanent post held by the appellant, his lien should be retained or it is automati--cally vacated. This eventuality has been considered by the Government of Pakistan. A reference is necessary here to pram. 4 of the Establishment Manual, Vol. III, Establishment Division O & M Wing Memo. No. 1/12/62/10 (RP) dated 17th November, 1962. The relevant portion runs as follows :- "A Government servant whose permanent post under the Central Government has been abolished and who does not accept employment under the Provincial Government on the terms mentioned above, shall be allowed to retire on Compensation Pension under Article 426, C. S. R. As if he was discharged from service owing to the abolition of his permanent post with--out suitable alternative employment being provided to him. The option to retire on compensation pension shall be exer-- cised and communicated by the Government servant concerned to the Head of his Department within a period of one month from the date of issue of this office Memo failing which it shall be assumed that he has accepted employment under the Provincial Government on the terms specified above."
C.S.R.-426 reads as under :- "If an officer is selected for discharge owing to the abolition of a permanent post, he shall, unless he is appointed to another post the conditions of which are deemed by authority compe--tent to discharge him to be at least equal to those of his own, have the opition--
(a) of taking any compensation, pension or gratuity to which he may be entitled for the service he has already rendered, or
(b) of accepting another appointment or transfer to another establishment even on a lower pay, if offered, and continuing to count his previous service for pension ;
(c) of accepting another appointment on such pay as may be offered and combining to count his previous service for pension.
15. Furthermore, perusal of paras. 2 and 3 of the above referred Memo is also necessary. In the provisions of the Establishment Division Memo quoted above, there were two alternatives open to the Govern--ment, i.e.--
(a) to offer alternative appointment to the appellant whose perma--nent post had been abolished by the Federal Government as contemplated under the above-cited provisions of the letter with necessary guarantee of the terms and conditions of appointment which he held under the Federal Government ;
(b) to obtain his option for retirement on compensatory pension under the provisions of C. S. R. 426 in case he was not willing to accept alternative appointment under the Provincial Government.
16. In the instant case, none of these two alternatives has been offered by the Federal Government.
It appears that he has been trans--ferred on deputation to the Government of East Pakistan and then his way back to the Federal Government has been blocked even wheat the Government of East Pakistan did not own him, because he still held a lien the Federal Government. The arguments of the learned counsel for State to the effect that the appellant was transferred alongwith the work and his post from the Federal Government to the Provincial Government is, to say the least completely irrelevant and based on the ignorance of the basic concept of Government budgeting.
A post sanctioned in the Federal Government cannot be transferred by any authority to the Provincial Government even along with the work. None of the rules permits such a transfer because the budget provisions of various Governments are voted by the respective Legislatures in the Provincial or Central spheres. What happens in such cases, is that posts under one Government can be abolished on transfer of work to the other Government and new posts are created within the framework of the latter's Budget. The employees concerned are offered alternative appoint-- ments under the other Government guaranteeing them the terms and con--ditions available to them during their initial employment. In the present case also, the permanent post held substantively by Mr. Zahoor Zaidi under the Federal Government was abolished and the lien he held could not be automatically terminated without adopting one of the alternatives mentioned earlier under the rules.
17. The contention of the respondent that there was no sanctioned post in the scale, is not supported by the facts. In this context, the learned counsel for the appellant had placed before the Tribunal copies of the Federal Government Budgets (Pink Books) for the relevant years. It was clear from the Budget (Pink Book) that as many as eight sanc--tioned posts stood provided in the Budgets. Mr. Zaidi could be absorbed against one of them. In view of this, serious view has to be taken about this misstatement of the respondent-Department at the face of clear pro--visions of the sanctioned posts made in the Budgets. I consider it necessary to mention in the instant case that the Government are at liberty to defend their point of view before the Service Tribunal where some administrative action has been taken and also to put forth as persuasively as possible their interpretation of the rules, but we do not expect that a misstatement of facts should come from a responsible department of the Government.
18. Even if the plea had been correctly taken, we would not agree with the inference made by the learned counsel for State on behalf of the respondent-Department, because it is well known that Government was: all the time competent to create a permanent or temporary post during that period to absorb Mr. Zahoor Zaidi who remained its liability through--out that period. Such posts have been created by the Government in the past, and can be created at any time even after obtaining Supplementary Budget provisions from the concerned financial authorities.
19. In the circumstance, we hold that action of the Federal Govern--ment to disown the appellant is not covered by its own rules and orders, and therefore, seriously violates the rules/orders quoted above. A decision of the Government being against the clear intentions of F. R. 13 and F. R. 14-A, which are statutory rules, is void and without any consequence. The appeal is, therefore, accepted with all consequential benefits treating Mr. Zahoor Zaidi to be in service of the Federal Govern-- ment throughout the period he has been kept out of employment for no fault of his own. He would also be entitled to all the pay and allowances, as if he remained actually in service.
20. Ordered accordingly.
21. Parties to be informed.