' ANWAR ZAHEER JAMALI, J.---This appeal is directed against the judgment dated 25-7-2008, in Appeal No, 2337 of 2007, passed by Punjab Service Tribunal, Lahore, Rawalpindi Bench (in short the Tribunal), whereby the said appeal, preferred by the appellant for challenging two letters No, SO(P)11-47/84/2111 dated 31-5-2005 and No, Coord. CMS/07/OT-45/549/24 dated 18-7-2007, and seeking further directions to issue notification of his repatriation to the Government of Punjab, was rejected.
2. Briefly stated, relevant facts of the case are that the appellant, who was initially appointed as Deputy District Attorney (BS-17), through Punjab Public Service Commission, vide notification dated 22-3-1994, after having served in the said department for more than seven years, was taken on deputation as Assistant Director (Legal) in Federal Investigation Agency (FIA) under the Ministry of Interior, vide Establishment Division Notification dated 4-3-1991. Later on, vide another notification dated 23-7-1997, with the approval of the competent authority, he was permanently absorbed as Assistant Director (Legal) against the post reserved for direct recruitment quota of the Province of Punjab. Further, by same notification, it was also confirmed that his seniority was to be reckoned from 11-4-1997. The appellant, according to him, was not confirmed in the FIA, therefore, looking to the uncertainty about his career, on 25-9-2001, he moved an application, addressed to the Secretary, Ministry of Interior, Government of Pakistan, for his repatriation to the Government of Punjab. As this application remained unattended, therefore, on 24-6-2005, he moved another application to respondent No,1, as reminder, containing similar prayer for his repatriation.
According to the appellant, vide Punjab Government letter dated 18-7-2007 and the earlier letter dated 31-5-2005, his request for repatriation was turned down, which gave him a cause of grievance for filing of appeal under section 4 of the Punjab Service Tribunals Act, 1974, which was accordingly filed by him on 18-8-2007. The main ground urged in the memo. Of appeal was about subsistence of his lien in the service with the Government of Punjab, and the fact that despite having served the FIA for a period of fourteen years, he was still not confirmed employee of FIA, which was causing serious prejudice to his interest.
3. The Tribunal, in its impugned judgment, after taking into consideration all the above referred relevant aspects of the case, and making reference to rules 3.14 and 3.16(a)(ii) of Civil Servants Rules, Punjab, held that after permanent absorption of the appellant with the. FIA with effect from 23-7-1997, he had no lien in service for repatriation, therefore, the decision to this effect taken by the Government of Punjab on 31-5-2005, was lawful. In addition to it, the Tribunal, while computing the period of limitation for filing of appeal under section 4 of the Punjab Service Tribunals Act, 1974, took the impugned order dated 31-5-2005, as starting point of limitation, as on this date, the request for repatriation of the appellant was declined by the Government of Punjab, and on these premises held that the appeal of the appellant before it was also liable to be dismissed on the ground of limitation, besides, being devoid of merits.
4. This appeal is outcome of civil petition for leave to Appeal No,1333 of 2008, wherein leave was granted vide order dated 7-7-2009, to consider, inter alia, following points:-- "(a) Whether the petitioner was ever absorbed by the Federal Government,
(b) Whether the petitioner by simple deputation could lose or had lost his lien in the Provincial Government,
(c) Whether Rule 3.14 of the Civil Service Rules (Punjab) is applicable to a deputationist to the Federal Government or whether this rule is at all applicable."
5. Mr. Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court for the appellant, arguing this appeal in a eloquent manner, contended that the appellant is one who has been made to suffer by the two Governments i,e, F.I.A. Under the Federal Government and the Law Department, Government of Punjab, for no fault on his part, as on one hand, as yet he has not been confirmed in the service of FIA, resultantly having no lien in service to maintain there, while on the other hand, despite having his lien for service in the Law Department, Government of Punjab, the said Government has refused/declined his request for repatriation for this purpose. He further contended that in the given facts and circumstances of the case, an anomaly has been created, which has casted clouds over the interest of the appellant, inasmuch as, his option to be repatriated in the parent department i,e, the Law Department, Government of Punjab in not being honoured. However, learned Senior Advocate Supreme Court did not dispute the legal proposition that in a situation where a Government servant is appointed against a clear vacancy, even on probation, after lapse of some specified period prescribed for this purpose, if not removed from service, he stands automatically confirmed. As to the question of limitation decided by the Tribunal in its impugned judgment against the appellant, the submission of the learned counsel was that the period of limitation for the purpose of filing appeal before the Tribunal was to be computed from 18-7-2007, therefore, the appeal before the Tribunal was within time and the view taken by the Tribunal, making basis the earlier impugned order dated 31-5-2005 for computing the period of limitation was erroneous. Before conclusion of his submissions, learned Senior Advocate Supreme Court also made reference to reply/ concise statement on behalf of respondent No,2 submitted by Jameel Ahmad Khan, Additional Director (Discipline), FIA on 18-10-2010, wherein, according to him, he fully conceded the claim of the appellant for his repatriation in the Law Department, Government of Punjab, as Deputy District Attorney, on the basis of his subsisting lien in service:
6. Before we proceed further, we regret to mention here that the concise statement. Of Jameel Ahmad Khan, Additional Director/ Discipline, FIA filed in this appeal on 18-10-2010, is nothing but an obliging statement, contrary to the interest of his own institution; contrary to the service record of appellant maintained in his department i,e, FIA, and also contrary to well entrenched legal position of permanent government employees. Therefore, such dubious conduct on his part, advocating the cause of appellant, requires serious consideration and appropriate departmental action against him. In the same context, it is also not clear from the record, whether the said Additional Director, FIA had due approval of Director-General FIA and lawful authority to submit such concise statement under his signatures for Director-General FIA.
7. On behalf of Federation, Mr. Khalid Ismail Abbasi, learned Deputy Attorney-General has placed his appearance and in his brief submissions, based on instructions received by him from Jaffar Shah, Deputy Director (Law), submitted that the statement of facts made by the appellant about his non-confirmation as permanent employee of FIA is entirely misconceived and misguiding, as from the date of his appointment as permanent employee against a clear vacancy, he enjoyed the status of a permanent and confirmed employee in F.I.A. With an appropriate seniority and lien in service, which fact is evident from the record. For this purpose, he made particular reference to the notification dated 23-7-1997, which was willingly acceded to and not challenged by the appellant up to date, and contained even the provision for computing his departmental seniority with effect from 11-4-1997. His further submission was that accordingly seniority of the appellant is also being maintained in his department i,e, FIA, and as per seniority list dated 11-5-2010 (photocopy placed on record) his name appears at serial No,3 out of 18 officers in his pay scale. He also added that even for arguments sake if it is presumed that vide notification dated 23-7-1997, the appellant was placed on probation for certain period, then too, as per rules of service, after completion of such period of probation, which could be at the most extended for one year, he automatically stood absorbed as a permanent and confirmed employee of FIA in the Interior Division, Government of Pakistan, therefore, at no point of time, there was any occasion for him to take up a somersault and set up such baseless plea in order to have department of his own choice/option. For this purpose, he made reference of rule 31 of the Federal Investigation Agency (Appointment, Promotion and Transfer) Rules, 1975 read with rule 21 of the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973. He, therefore, concluded his submissions, with the remarks that although FIA is a Department in the Ministry of Interior, Government of Pakistan, it has no serious objection for the repatriation of appellant to the Law Department, Government of Punjab, but in view of above stated factual and legal position, the claim of the appellant to this effect is wholly misconceived.
8. Mr. Saeed Yousaf Khan, learned Additional Advocate-General, Punjab also strongly resisted the claim of the appellant for his repatriation to the Law Department, Government of Punjab, and fully supported the impugned judgment of the Tribunal for the reasons stated therein. Reiterating some relevant factual aspect of the case, learned counsel not only made reference to the clear language of notification dated 23-7-1997, regarding the permanent absorption of the appellant as Assistant Director (Legal) (BS-17) in the FIA with effect from 11-4-1997 qua provision of his seniority, but to show his questionable and dishonest conduct he also made detailed reference of various other documents Annexed with the concise statement of respondent No, 1, which, inter alia, contained his own application (Annex-D) (page-17) dated 26-5-1993, seeking NOC for his permanent absorption in FIA, which was accordingly approved and issued by the Government of Punjab, and formed basis for his subsequent permanent absorption in FIA. Learned Additional Advocate-General Punjab further made reference to the application of appellant dated 15-9-2001, seeking his repatriation to the Government of Punjab, which was withdrawn by him on 30-10-2001.
By making reference of these two documents, available as Annexure-F (page 19) and Annexure-G (page 20) of the concise statement submitted on behalf of respondent No,1, he stressed that after this futile exercise the appellant was estopped from agitating the same plea once again, but, by use of his good offices, he succeeded to get re-agitated the same issue in the year 2006, through Syed Zafar Ali Naqvi, Coordinator to the Chief Minister Punjab, vide his letter dated 8-10-2006, addressed to the Principal Secretary to the Chief Minister Punjab, though said officer in the Chief Minister's office had nothing to do with such alleged grievance of the appellant. In the same context, further submission of the learned counsel was that if at all the appellant had any grievance to this effect then for that purpose cause of action had accrued to him on 31-5-2005, upon issuance of such letter, but admittedly thereafter no further remedy was followed by him before any higher forum, and thus the appeal preferred by the appellant before the Tribunal on 18- 8-2007 for challenging, inter alia, such basic order was hopelessly time barred, as also rightly held by the Tribunal in its impugned judgment. Learned Additional Advocate General also made reference of rules 3.13, 3.14 and 3.16 of Civil Servants Rules, Punjab, to show that the claim of appellant for maintaining his lien with the Law Department, Government of Punjab, despite his permanent absorption in the FIA in the year 1997, was entirely ill-founded and mala fide. His further submission was that if by way of manipulation in record or otherwise in the year 2003, the appellant succeeded to get his name placed at serial No,20, in the seniority list of Deputy District Attorneys in the Province of Punjab, he cannot avail benefit of such manipulation in the record or at best such entry can be considered as an inadvertent mistake, but nothing more, and thus it will not confer any vested right in favour of the appellant to support his cause.
9. We have carefully considered the arguments advanced before us by the parties counsel and also perused the whole material placed on record. In order to examine the status of the appellant in the service of FIA, Ministry of Interior, Government of Pakistan, the language of notification dated 23-7-1997, regarding his permanent absorption as Assistant Director (Legal) (BS-17) in the Federal Investing Agency is very pertinent. The same is reproduced as under:-- "GOVERNMENT OF PAKISTAN INTERIOR DIVISION ' Islamabad, the 23rd July, 1997. NOTIFICATION ' No,3/58/90-Estt.(FIA). Consequent on approval of competent authority, Mr. Qaisar Masud, Deputy District Attorney (BS-17) of Government of Punjab is permanently absorbed as Assistant Director/Legal (BS-17) in the Federal Investigation Agency with effect from 11th April, 1997 against a post reserved for direct recruitment quota of Punjab. His seniority will be reckoned with effect from the date of approval of competent authority i,e, 11th April, 1997.
' Sd/- (Muhammad Hanif) Section Officer".
10. A plain reading of this notification reveals that the very appointment of the appellant against a clear vacancy of Assistant Director (Legal) (BPS-17), which was a post reserved for direct recruitment from Punjab quota was on permanent basis and not on probation, therefore, there was no occasion for issuance of any further letter or notification for confirmation of his appointment against the said vacancy. This factual position, emanating from the above reproduced notification gains further support from the fact that even the issue of his seniority in the department after his permanent appointment w,e,f, 11-4-1997, was resolved to his satisfaction. We are justified in drawing such conclusion for the reason that from 23-7-1997 till his first application for repatriation dated 15-9-2001, which too was withdrawn by him on 30-10-2001, at no point of time the appellant had agitated either his grievance of alleged non-confirmation against the post of Assistant Director (Legal) (BS-17) in FIA or the question of his seniority in the said department. It will not be out of place to mention here that in his application/ representation for repatriation dated 15-9- 2001, knowing well that the appellant is permanent and confirmed employee in FIA in terms of his appointment letter dated 23-7-1997, he did not raise any plea of his non-confirmation, but only agitated his grievance regarding his seniority within the Department, which he wanted to claim from 12-4-1984. This fact alone is sufficient to show that the plea of non-confirmation was raised by the appellant as an afterthought pretext for his repatriation, with mala fide intention, knowing well that his appointment by notification dated 23-7-1997 was on permanent basis/confirmed, and against a clear vacancy, therefore, no further confirmation was required for this purpose. Based on these premises, whole case of the appellant about his non-confirmation against reserved post of Punjab quota or maintaining lien of his service with the Government of Punjab or non- maintenance of his lien in service with the FIA falls on ground.
11. Having formed the above view about the permanent and confirmed appointment of appellant in FIA against the post of Assistant Director (Legal) (BS-17) with seniority from 11-4-1997, which needed no further confirmation from any quarter, we repeatedly asked the learned Senior Advocate Supreme Court for the appellant to show us anything from the record, except the contents of reply of concise statement dated 18-10-2010 submitted by Jameel Ahmed Khan, Additional Director/ Discipline, FIA, regarding which we have already observed to be an obliging and dishonest favour on his part to the appellant, he has not been able to show us any material from the record, which reflects that at any point of time FIA has not accepted/treated the appellant as its confirmed and permanent employee with all consequential benefits. This stance of appellant is further belied from the statement of Jaffar Shah, Deputy Director (Law), FIA, who was present in Court and stated that seniority of the appellant in the service of FIA is being properly maintained in terms of his appointment letter dated 23-7-1997.
12. Reverting to the legal position, as amplified by Mr. Saeed Yousaf Khan, learned Additional Advocate General, Punjab, by making reference to rules 3.13, 3.14 and 3.16, we find that appearance of name of the appellant in the seniority list of Deputy District Attorneys, Government of Punjab, vide list dated 31-7-2003, is nothing but either an inadvertent mistake as held by the Tribunal in its impugned judgment or an intrigue at the instance of the appellant, who succeeded to manage appearance of his name at serial No,20 of the said list, despite clear legal position amplified from the above referred rules. In addition to it here a reference to rule 31 of the Federal Investigation Agency (Appointment, Promotion and Transfer) Rules, 1975 and rule 21 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, will also be useful which read as under:-- "Rule 31 of the Federal Investigation Agency (Appointment, Promotion and Transfer) Rules, 1975 "31. In respect of matters not provided in the Act, and not covered by these rules or any other rules framed under the Act but covered by the Civil Servants Act, 1973 (LXXI of 1973), or the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the corresponding provisions of the latter Act or the Rules shall apply to the appointments made under these rules.
Rule 21 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973
21. (1) Persons appointed by initial appointment, promotion or transfer shall be on probation for a period of one year.
(2) The period of probation may be curtailed for good and sufficient reasons, to be recorded, or, if considered necessary, it may be extended for a period not exceeding one year as may be specified at the time of appointment.
(3) On the successful completion of probation period, the appointing authority shall, by specific order, terminate the probation.
(4) If no order is issued under sub-rule (3), on the expiry of the first year of probation period, the period of probation shall be deemed to have been extended under sub-rule (2): ' Provided that, subject to the provisions of proviso to subsection (2) of section 6 of the Civil Servants Act, 1973 in the absence of an order under sub-rule (3), the period of probation shall, on the expiry of the extended period under sub-rule (2), be deemed to have successfully been completed."
From the combined reading of these two rules, it is evident that the alternate plea raised by learned Deputy Attorney General about the automatic absorption of appellant in FIA during his long service period of 14 years with that department has also much legal force, which fact has not been disputed/ denied by the appellant.
13. Lastly, coming to the question of limitation, which was decided by the Tribunal against the appellant, we find no substance in the submissions of learned Senior Advocate Supreme Court Mr. Iftikhar Hussain Gillani that period of limitation for the purpose of filing such appeal before the Tribunal was to be computed from 18-7-2007. We are justified in recording this conclusion for the reason that it was the order dated 31-5-2005, which was duly communicated to the appellant, and had closed the issue of his repatriation in the Law Department, Government of Punjab in unequivocal terms, but despite it, for a long time, the appellant kept mum and failed to avail remedy of appeal against such order. Even the correspondence emanating from the office of the Chief Minister, Punjab Province, as highlighted and referred to by Mr. Saeed Yousaf Khan learned Additional Advocate-General, Punjab, is of no help to the appellant for this purpose, as the letter dated 18-7-2007 was in continuation of such proceedings, and based on the summary dated 19-1- 2007, which was approved on 11-2-2007. To sum up, we are in agreement with the order of the Tribunal, even on the question of limitation, which was rightly decided against the appellant.
14. Upshot of the above discussion is that this appeal fails and the same is accordingly dismissed.
15. With reference to our observations contained in paragraph No,6, a copy of this judgment are sent to the Director-General, FIA for appropriate enquiry and action against Mr. Jameel Ahmad Khan, Additional Director (Discipline), FIA within three months, with intimation to this Court through its Registrar at Islamabad.