' A.
0. RAZIUR RAHMAN ( MEMBER). -The Appellant was appointed to the Ministerial Establishment of the Directorate General of the Indian Medical Service, Government of India on 16th February, 1942. By an order of the Directorate General of Health, Pakistan, bearing No, 16-1/49 Admn., dated the 16th February, 1953, he was confirmed as an Assistant in the same department in Pakistan with effect from 15th August, 1947. After some time, i. e. On 27th May, 1961, the entire set-up of the Health Organization of the Central Government was re-organized and the Directorate General of Health given the status of a Division, with the Director-General working as ex officio Joint Secretary to Government. At the same time, a Directorate of Central Health Establishments and Stores was set up to function as an Attached Department. Similarly, a number of other Directorates, known as Directorates of Campaigns, were also set up to function as Attached Departments. These were the Directorates of Family Planning and Health Education, Malaria Eradication, Nutrition Survey and Research and B.C.G. Campaign, all of which were placed for administrative purposes under the Health Division, as Attached Departments. Consequent to this re-organization, the existing available staff was re-allocated among the Health Division and the various Directorates, by order of the Director-General and Joint Secretary, Health Division. Under this re-allocation, the Appellant was posted as Assistant-in-charge in the Directorate of B.C.G, Campaign.. The Appellant protested against this, on the ground that he was a permanent employee of the Directorate General of and that he had even been officiating as Assistant-in-charge since 31st December, 1-958 and, since the Directorate General had been converted into the Health Division, he was entitled to retention as an employee of the Health Division, instead of being shunted out to an Attached Department, which was also a temporary one, without any permanent berth for him. No action appears to have been taken on this representation, which was made on 3rd July, 1961. Therefore, he sent another representation to the Directorate General on 25th October, 1961, requesting that his original position in the Health Division may be restored. Meanwhile, by a memorandum dated 25th August, 1961, the Health Division asked the Director, Central Health Establishments and Stores to "retain" the lien of this employee in his organization. In this memorandum, it was clearly mentioned that this employee, alongwith some others named, held substantive appointment in the Office of the Directorate-General of Health. After this, the Appellant submitted two other applications for retention of his lien in the Health Division. No action was taken on these applications also.
Meanwhile, on 29th May, 1962, he was promoted as Superintendent, by the Health Division, and transferred to the Directorate of Family Planning and Health Education on 2nd June, 1962, where he remained till the year 1965. On the abolition of the Directorate of Family Planning and Health Education, the Health Division, by an order, dated 7th July, 1965, placed the services of the Appellant as Superintendent at the disposal of the Pakistan Family Planning Council. Later, he was promoted as Assistant Director in the same organization. On .25th January, 1974, he made a further application to the Secretary, Ministry of Health Social Welfare and Population Planning, requesting that his lien in the Health Division, which had been transferred to the Directorate of Central Health Establishments and Stores without his consent, be restored in the Health Division, in view of his fast approaching age of superannuation. On 2nd June, 1977, he was informed that his request for retention of lien in the Health Division was considered in consultation with the Establishment Division and it was regretted that it could not be acceded to. It was further stated that he could claim his lien in the Directorate of Central Health Establishments, which was not being denied to hi n. After some time, on 17th November, 1979, the Appellant addressed a letter to the Additional Secretary, Regulation Division, stating that he intended to proceed on 1L P R, with effect from 11th February, 1980, and that, by virtue of his posting in the Population Planning Council, which was abolished with effect from 30th April, 1977, and its functions taken over by the Population Division, he was now an employee of the Population Division and, therefore, entitled to proceed on L P R from the Population Division. The Population Division did not agree to send him on retirement from that Division but, instead, reverted him to his parent department, namely, the Health Division, by a Notification dated 13th February, 1980. Being dissatisfied with the order of the Population Division, the Appellant, through his Advocate, requested the Secretary of the Planning Division not to revert him to the Health Division or the Directorate of Central Health Establishments but to maintain the status qua till the matter of his lien in the Health Division was decided by the Service Tribunal and the Health Division, because, according to him, his lien could not be terminated nor transferred to another department without his consent, Apparently, no notice was, taken of this request and the Population Division relieved the Appellant of his duties with effect from 1st March, 1980. This was followed by a communication, dated 15th March, 1980, under which the appellant was directed to report to the Director, Central Health Establishments, on reversion to that department. Being aggrieved with this final decision, the appellant pre-lured his appeal before this Tribunal on 27th March, 1980.
2. After due notice to the Respondents, full hearing was given to both the sides and such records as were made available to us by them were examined and considered,
3. From the facts and circumstances of the case, as detailed above, it is seen that the crux of the question requiring a decision is whether the Appellant who, admittedly, was an employee of a permanent .Depart-meat in the Government of India, holding a permanent post therein, and who was confirmed as an Assistant in that Department, with effect from the date immediately after the establishment of Pakistan, retained his lien on that post in that department, in spite of the re- organization of the Central Health set-up of the Government of Pakistan, and the decision of the Government to transfer his lien from the Directorate General of Health to the Directorate of Central Health Establishments and Stores, without his consent and, in fact, contrary to his wishes' and despite his repeated protests and representations in this behalf. It was pleased by the learned lawyer appearing for the Appellant that, although the Directorate of Central Health Establishments was asked by the Health Division to retain his lien there, his lien on the post of Assistant in the Health Division was not terminated and he was also not consulted under Fundamental Rule 14-A. It was argued that an employee's lien could not be terminated in such a manner as to leave him without a lien on a permanent post. It was further claimed that a lien could be transferred only from one post to another in the same cadre and of the same status. Since, in the present case, lien had been transferred without the consent of the employee, and it had been transferred from a permanent department to a temporary department, which was placed on permanent footing as much as 10 years later, it could not be held valid under the law. It was contended that the action of the concerned authority, in transferring his lien from a permanent department to a temporary one and of subsequently reverting him to a department in which he never worked, not only resulted in depriving him of the prospects of promotion in his original parent department but also created problems for him with regard to his pension, since this would deprive him of the benefits accruing from promotion, to which he would have been entitled had he been reverted to his original department, namely, the Directorate-General of Health.
4. The case of the Respondents, as made out in the written objection filed by the Ministry of Health and Social Welfare, through Mr. S. Shahudul Huque, the Standing Counsel for the Federal Government, is that the Appellant was a confirmed Assistant in an Attached Department, namely, the Directorate General of Health and, therefore, on re-arrangement of the Health Organization set-up of the Central Government, he was rightly allocated to an Attached Department and his lien retained there. According to them no injustice has been done to the Appellant and he should have no cause for grievance. The main ground on which this stand of the Respondents is based is that, as the result of the re-organization carried out, the Directorate General of Health ceased to exist and, therefore, its personnel had to be transferred elsewhere and the Appellant was rightly transferred to an equivalent organization, namely the Directorate of Central Health Establishments and Stores, which was also an Attached Department, like the defunct Directorate General of Health.
We are unable to appreciate this argument of the Respondents, because, from the relevant documents on the subject, it is seen that, when the re-arrangement of the Health set-up of the Central Government Health Organization took place, by an order dated 27th May, 1961, issued by the Ministry of Health, Labour and Social Welfare, although, in the new set-up, no such organization as the Directorate-General of Health, was provided for, in an order dated 25th May, 1961, it was made clear that the Directorate General of Health was to function as the Health Division of the Ministry of Health, Labour and Social Welfare and that it was to be headed by the Director-General, who was also to be Joint Secretary to the Government. Not only was the designation of the Director General retained but some of his previous functions 'and activities were also retained in the Health Division. For example, administrative control over the Directorates of Special Campaigns was to be the responsibility of the Director-General, who was to function as the Head of the Department in relation to these Directorates. It was, thus clear that the Appellant, who was a confirmed employee of the Directorate-General of Health and was posted to the B. C. G. Campaign Directorate, could continue to retain his link with Directorate-General of Health, without in any way infringing the arrangements under the re-organized set-up. Moreover, the Appellant, by virtue of the lien acquired by him in the Directorate General of Health, had a right to retain the lien, unless the post or the department in which he held the lien were abolished or closed down. Under Fundamental Rule 12-A, a Government servant on substantive appointment to any permanent post acquires a lien on that post and under Fundamental Rule 14-A, a Government servant's lien on a post, may in 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. In the instant case, the Appellant, who had acquired a lien upon a permanent post in the Directorate-General of Health, was deprived of his lien without his consent and without any formal termination of his original lien, and the lien transferred to the Directorate of Central Health Establishments and Stores, where there was no permanent post available, against which his lien could be adjusted. In the circumstance, it is obvious that the transfer of the appellant's lien to the Directorate of Central Health Establishments was ab initio not only wrong but ineffective and void.
5. As contended by the Appellant, this position appears to have been recognised by the Health Division. While working as Assistant incharge in the Directorate of B. C. G. Campaign, he was promoted to the rank of Superintendent, with effect from 25th September, 1962, by the Health Division and not by the Directorate of Health Establishments and Stores Similarly, on 20th June, 1964, his pay was fixed in the Revised Prescribed Scales of Pay by the Health Division and not by the Directorate of Central Health Establishments and Stores, to which his lien was supposed to have been transferred. Even as late as 10th December, 1969, when posts in the Directorate of Central Health Establishments and Stores were placed on permanent footing, two Superintendents namely Shakir Ansari and Muhammad Sarwar, were confirmed with effect from 1st June, 1961, alongwith a number of other employees, who were confirmed as Assistants, U.D.Cs. Etc. With effect from the same date, but no order regarding the confirmation of the Appellant in that organization were passed. It is, thus, seen that, whereas the Directorate-General o Health, now designated as the Health Division, took the responsibility of posting, transferring and promoting the Appellant, the Directorate of Central Health Establishments did not even take notice of the existence of the appellant as one of its employees.
6. Even if the Health Division had not exercised the administrative powers in respect of the Appellant and the Directorate of Central Health Establishments and Stores had taken over the responsibility of the same, we would not have considered this fact as sufficient to justify the transfer of the lien from the Directorate-General of Health to the Directorate of Central Health Establishments and Stores. For one thing, the Directorate-General of Health had not been abolished, but only it powers and functions enlarged and, therefore, the question of transfer of the lien of a permanent hand of that department did not arise Secondly, it could not be transferred without his consent. Thirdly, the lien could not be transferred from a permanent department to temporary one. The plea taken by the Respondents in their written statement is that, following the re-organization of the set-up, re-arrangement of the staff was done in the public interest and that it was neither "imperative to take option" nor an invasion of his future prospects in service." We see no justification for such a line of thinking, either in law or in equity. The Appellant was a permanent employee of a permanent department and he could not under the rules, be deprived of his lien, merely on the ground of re-organization, When neither his department nor his post was abolished.
7. The plea has also been taken by the Respondents that, with the re-arrangement of the Central Government Health Organization set-up, the Directorate General of Health have been abolished and, therefore, his lien in the Directorate could no longer be retained, but, since he was a permanent employee of an Attached Department his lien was retained in another Attached Department. We do not see our way to accepting this argument as at all plausible. The order of the Ministry of Health Labour and Social Welfare, dated 25th May, 1961, clearly says that the Directorate General of Health would function as the Health Division of the Ministry and that the Director- General Health would head the Health Division and also be Joint Secretary (ex-officio) to the Government of Pakistan. This shows that not only the Directorate General of Health was not abolished but even the designations of the Directorate General and the Director-General were retained.
8. It is understandable that the Appellant protested against his being shunted away to a purely temporary department, without any guarantee as to the retention of his lien in the original department, but his protest was not heeded. Not only this, he continued to represent against what he considered to be an act of gross injustice and discrimination, without being able to elicit any response from the concerned quarters, until as late as 2nd June, 1977. It appeared that those dealing with the matter were callously indifferent to the grievance or this employee. This is even reflected in the following comments made in the written statement with reference to the Appellants protest of 1st June, 1961. "Since the decision was made as a result of re-organization by the order of the President of Pakistan hence the protest of the Appellant was not justified. To our mind, a plea of this kind, taken by any Government Department hardly does any credit to the sense of responsibility of those putting it forward. A wrong act, an unjust act, or an administratively ill- advised act, cannot be condoned merely on the plea that it was done as a sequel to some order of a general nature given by the President of Pakistan. Also, we can find justification for this neither in law nor in equity.
9. In its zeal to defend its action, the Health Division has taken up an attitude which conveys the impression that it considers itself competent to give the final verdict in the matter of interpretation of rules and even to lay down maxims pertaining to the conduct of Government business, This it has done without appreciating the implications of its interpretations or of the maxims propounded by it. Some examples are listed below :-
(1) In paragraph II of the written objections filed before this Tribunal, on the question of facts, with reference to para. 1 of the petition of appeal, it has been stated that "order No, 16-1/ 49-Admn, dated 16th February, 1953 does not hold good as it pertains before the re-organization of the Directorate-General of Health. The order referred to is one issued by the Director-General on the subject "Confirmations Against Cent Per Cent of Posts," in which, alongwith others, the Appellant was confirmed as an employee (Assistant) of the Directorate-General of Health, with effect from 15th August, 1947. We are unable to understand how an order passed before the re-organization ceased to hold good merely because re-organization took place at a subsequent date, No authority in the relevant laws, rides, or rulings given by competent persons has been cited in support of the stand, which can only be termed a wild and reckless generalization.
(2) Against paragraph 5 of the appeal, the written objection says "Since the re-organization was made in the public interest by the President of Pakistan, it is not unnecessary and discriminatory or an invasion of his future prospects in service, because all could be done in the public interest."
Apart from the fact that in paragraph 5 of the appeal, the appellant had referred to this allocation to the B. C. G. Campaign Directorate and not to the re-organization of the Central Government Health Organization set-up, the plea that "all could be done in the public interest' is one we cannot accept in any circumstances. No Government department is competent to ride roughshod over the rights and interests of its employees, otherwise protected by law, merely on the ground that it is in the public interest to do so.
(3) Against paragraph 11 of the grounds of appeal, in which it was stated that the Health Division never permitted the Directorate of Central Health Establishments to exercise any of the functions of the Appellant's parent office and the Appellant's name was also not shown in the confirmation list of that Directorate (Directorate of Central Health Establishments), issued under Office Order No, F.4-I/69-Admn. Dated 10th September, 1969, consequent upon placement on permanent basis, of posts in the Directorate, by orders of the Health Division, the written objection says : "The omission is accepted, but it was also the duty of the Appellant to have pointed out this discrepancy after the issue of the orders." Since the appellant never accepted the position that he held a lien in the Directorate of Central Health Establishments and had been protesting against this all the time, it was not in his interest either-to point out the alleged discrepancy or to ask for confirmation in that Directorate.
(4) In the same sub-paragraph, the Health Division explains away the orders relating to the fixation of his pay issued by the Health Division, on 20th June, 1964, by commenting that "the said order was of administrative nature and has no bearing with the issue of his lien in the Health Division. This observation actually supports the stand of the Appellant that the Health Division had always treated the Appellant as its own responsibility for administrative and allied matters, and not the responsibility of the Directorate of Central Health Establishments and Stores, which is exactly what the Appellant contends. If, as claimed by the Health Division, the Appellant belonged to the Directorate of Central Health Establishments, and not the Health Division, orders pertaining to his posting, transfer, promotion and pay fixation should have been passed by the Directorate and not by the Health Division. Since this was not done, it cannot be argued by the Health Division that they always treated the Appellant as the responsibility of the Directorate of Central Health Establishments and Stores.
10. We have discussed the above points, made out in the written objections, only to bring out the fact that the Respondent Department to has tried to take shelter behind untenable and, sometimes, even absurd generalizations and maxims designed by itself to justify its own action.
11. Considering all aspects of the case, we have no hesitation I finding that the transfer of the lien of the Appellant from the Directorate p General of Health to a purely temporary department, namely, the Directorate of Central Health Establishments and Stores, was neither in conformity with the relevant rules on the subject nor in accordance with the requirements of justice, fairplay and administrative propriety and that the persistent refusal of the Health Division to even consider his representations against their action was an act of callousness, for which it is difficult to find any excuse.
12. In the light of the foregoing, we accept the appeal and order that the original lien of the Appellant in the Directorate-General of Health be restored, with all its consequential benefits, and that he may be retired from the Directorate-General of Health (since re-designated as the Health Division).
13. No order as to costs. MUHAMMAD IRSHAD KHAN (MEMBER).-I agree.