' SARMAD JALAL OSMANY, J.---Both these petitions impugn the judgment of the learned Federal Service Tribunal in Appeal No,310(L)CS of 2010 filed by the respondent No,1/petitioner Muhammad Aslam Shami whereby same was allowed; hence they are being disposed of together.
2. The facts of the matter have been noted extensively in the impugned Judgment. However, a brief recapitulation is necessary in order to dispose of these Petitions. Mr. M. Aslam Shami respondent No, 1/petitioner was serving in the Punjab Judicial Department as an Additional District and Session Judge when he was sent on deputation to the Federal Judicial Academy as a Member of the Teaching Faculty on his own pay and scale for a period of three years on 1-9-1994. Thereafter his services were requisitioned by the Speaker, National Assembly vide Office Memo. Dated 26-3-1995 which was not objected to by the learned Acting Chief Justice of the Lahore High Court. Accordingly he was appointed as Secretary to the Speaker, National Assembly in BPS-20 on 19-4-1995 and thereafter absorbed in the National Assembly Secretariat vide Notification dated 18-9-1995. He was then promoted to the rank of Additional Secretary (BPS-21) on 10-1-1996. On the same day another Notification was issued counting his entire services rendered previously in the Lahore High Court and the Federal Judicial Academy towards his length of service in the National Assembly for the purpose of pension benefits etc. Subsequently vide Notification dated 5-7-1997 he was repatriated to his parent department viz. The Lahore High Court and was relieved from his duties in the National Assembly Secretariat with immediate effect. Mr. Shami challenged the same before the Lahore High Court in Writ Petition but the same was dismissed on the ground of jurisdiction. Subsequently this Court vide order dated 31-7-1997 passed in C.P. No,820 of 1997 suspended the repatriation Notification and during the pendency of Civil Appeal No,1187 of 1997 (arising out of C.P. No,820 of 1997) directed him to perform his duties as an Additional Secretary (BPS-21) in the National Assembly Secretariat. After attaining the age of superannuation he was retired on 1-12-2003. The National Assembly relieved him from his duties vide Notification dated 2-12-2003 but did not give him any retirement benefits etc. Due to the pendency of the Appeal in this Court. At the same time he stood retired, from the Punjab Judiciary from the same date as well.
3. While dismissing Civil Appeal No,1187 of 1997 along with other Appeals this Court held that Mr. Shami fell within the definition of a civil servant. He therefore filed a representation to the Speaker, National Assembly on 21-9-2010 requesting for payment of retirement benefits as Additional Secretary (BPS-21) which was turned down vide letter dated 23-11-2010 on the ground that after dismissal of his Appeal by this Court the repatriation order previously suspended by the Court held the ground and as such he was not entitled to draw pensionary benefits from the National Assembly. He filed an appeal against such order before the learned Tribunal which as noted above allowed the same and directed the National Assembly to release his pensionary benefits as an officer in BPS-21.
4. Mr. Athar Minallah, learned Advocate Supreme Court appearing for the National Assembly of Pakistan has firstly submitted that this Court while deciding Civil Appeal No,1187 of 1997 has only held that Mr. Shami was a civil servant and hence his remedy lay before the Service Tribunal and nowhere it has been mentioned in the said decision that he being a civil servant was entitled to pensionary benefits from the National Assembly. Secondly that the learned Service Tribunal fell into grave error whilst holding that since the absorption order was not challenged before any competent forum it had attained finality despite the fact that a copy of such Notification was duly endorsed to the Registrar of the Lahore High Court. Per learned Advocate Supreme Court the reason why he was repatriated back to his parent department was that there were serious allegations of misconduct against him and hence he had to face the same. However in order to avoid such disciplinary proceedings he chose to file a writ petition before the Lahore High Court which was dismissed on the ground of jurisdiction and Civil Appeal No,1187 of 1997 filed against such Order was also dismissed which meant that the order of suspension of his repatriation also lapsed. Consequently per learned Advocate Supreme Court Mr. Shami cannot be allowed to circumvent departmental proceedings against him through misuse of proceedings filed before the superior Courts.
5. Mr. Khadim Hussain Qaiser, learned A.A.-G. Appearing for the learned Lahore High Court has fully supported the arguments of Mr. Athar Minallah, learned Advocate Supreme Court for the petitioner.
6. On the other hand, Mr. M. Akram Gondal, learned Advocate Supreme Court for Mr. Shami has supported the impugned Judgment on the ground that once his absorption order was never challenged before any forum it gained finality which is also supported by the fact that both the learned Lahore High Court as well as this Court have treated him as a civil servant which means that he is no more subject to the jurisdiction of the Lahore High Court. He has therefore prayed that Mr. Shami's pension be released as an officer of BPS-21 along with mark up from the date of his retirement.
7. We have heard all the learned ASCs as well as the learned AAG and perused the record with their assistance.
8. It would be seen that the controversy hinges around the status of Mr. Shami i,e, whether he should be treated as an employee of the National Assembly or an officer of the Punjab Judiciary. In this regard it would be seen that per the ESTACODE where a deputationist is proposed to be absorbed permanently in the borrowing department, a proposal is to be initiated by such department at least six months before the expiry of the deputation period. In the event of non- acceptance of the proposal the individual shall revert back to his parent department. This issue came up for consideration by this Court in the case reported as Hamida Begum v. Government of Pakistan, Ministry of Education through Secretary and others (2010 PLC (C.S.) 297) wherein it was observed that a civil servant being an employee of the Provincial Government and on deputation to the Education Department, Government of Pakistan could not be permanently absorbed in the latter department without the concurrence of the Provincial Government. Admittedly in Mr. Shami's case no permission was obtained from the learned Lahore High Court for his permanent absorption in the National Assembly. Consequently he cannot be considered as having been so absorbed despite the Notification issued by the National Assembly Secretariat in this regard. It would be seen that he had a patchy record while serving as a Judicial Officer in the Punjab Judiciary inasmuch as he had been deferred for promotion as a District and Session Judge on a number of occasions. So also in various departmental proceedings he was imposed penalties of censure and stoppage of annual increments after holding regular inquiries and there were adverse remarks regarding his integrity in his ACR for the year 1985, March 1993 to December 1993 and 1-1- 1994 to 9-10-1994. He was proceeded against on the judicial side by the learned Lahore High Court for tampering with the judicial record which perhaps is still pending. It appears that he somehow managed to obtain his deputation firstly to the Federal Judicial Academy in 1994 and then to the National Assembly in 1995 where his career progressed by leaps and bounds as he was not only permanently absorbed in the year 1996 but was promoted to BPS-20 in 1995 and in BPS-21 in 1996. It may be noted that he was issued a Show Cause Notice in this regard by the National Assembly for violation of the rules in respect of his promotion etc. Finally it would be seen that it was decided by the learned Lahore High Court to issue him a Show Cause Notice in June 1997 for submitting fake and forged prescription slips of the Mayo Hospital, Lahore. Consequently, it appears that in order to avoid facing such departmental proceedings he approached the learned Lahore High Court in writ petition on the judicial side and obtained suspension of the repatriation order which continued before this Court.
9. For all the foregoing reasons, we would convert C.P. No,756 of 2011 into an Appeal and allow the same. The impugned Judgment of the learned Federal Service Tribunal is set aside. Mr. Shami would be considered to have retired from judicial service as an officer of the Punjab Judiciary per the Notification issued by the learned Lahore High Court on 1-12-2003. As a consequence C.P.
No,1046-L of 2011 stands dismissed wherein mark-up has been prayed for upon his pensionary benefits. This is for the simple reason that Mr. Shami chose to contest such retirement whereas he could very well have accepted the same and taken his dues on the aforementioned date in which event there would have been no issue regarding mark-up. Hence, where ultimately he has failed in litigation, he cannot be granted the same.