' Justice (R) Sayed Zahid Hussain, Chairman.--Sana Ullah Pirzada, appellant was Junior Clerk in the Deputy Commissioner Office, Rawalpindi, who on 28.06.1980 by Order of the Commissioner, Rawalpindi Division alongwith others was transferred to Islamabad. He was transferred as a Junior Clerk, Deputy Commissioner's Office, Islamabad with effect from 01.07.1980. It is his case that he continuously has performed the duty in the Office of Deputy Commissioner, Islamabad - Respondent No, 2 since his transfer with unblemished record. According to him a tentative seniority list dated 28.01.2009 of Junior Clerks (LDC) was circulated wherein he was shown at SI.No, 32 and was shown "on deputation" with effect from 01.07.1980. He made a representation before Respondent No, 1 that his placing in the seniority list was incorrect and that he was senior to all others. Since the said representation was not decided/responded he filed Constitutional Petition before the Islamabad High Court (W.P.No, 2907/2012) and as a result of direction issued by the learned High Court, his representation was taken up by Respondent No, 1 and was rejected on 09.10.2012 where-after he has filed this appeal under S.4 of the Service Tribunals Act, 1973 praying that the tentative seniority list dated 28.01.2009 may be set aside and "the appellant be shown senior from Respondents No, 3 to 33 and the orders dated 28.01.2009 and 09.10.2012 may kindly be declared as illegal and that the appellant was never appointed on deputation in the office of Respondent No, 2 and the appellant is entitled for seniority from the date of his transfer i.e, 01.07.1980".
2. Para-wise comments have been received from Respondents No, 1 & 2; whereas after publication of notice in the daily. "Naw-iWaqt" Respondents No, 3 to 6 and 10 to 32 were ordered to be proceeded ex-parte on 09.06.2015:
3. The learned counsel for the parties have been heard.
4. It is contended by the learned counsel that it was en-block posting/transfer ordered by the Commissioner, Rawalpindi on 28.06.1980 and not a deputation. With reference to Article 3 of the President's Order No, 18 of 1980 i.e, Islamabad Capital Territory (Administration) Order, 1980 dated 31.12.1980, it is contended that their conditions of service were protected. He has placed reliance on PLD 1996 Supreme Court 771 (Muhammad Arshad Sultan vs. Prime Minister of Pakistan and others) to distinguish the case of the appellant from a deputationist.
5. In the para-wise comments stating the brief history the position taken by the official respondents is that all such employees like the appellant were treated on transfer from Rawalpindi to Islamabad as on deputation in the ICT administration under the Presidential Order No, 18/1980 where-after options for permanent absorption in ICT were invited from all the deputationists but the appellant did not exercise his option for absorption when the others were offered. It is further mentioned that in a later summary of absorption dated 10.02.2005 his name was included but due to non-submission of requisite ACRs he could not be absorbed and that was the reason that in the seniority list dated 28.01.2009 he was shown "On Deputation". It is, however, mentioned that the "appellant would be entitled to inter-se seniority, upon absorption, in the relevant cadm from the date of conversion of posts on permanent
6. The fundamental question arising in the case is as to whether the Order of the Commissioner, Rawalpindi Division dated 28.06.1980 whereby employees from Rawalpindi Office were posted/transferred to the Office of Deputy Commissioner Islamabad was of sending them or deputation or can be treated so; and whether the seniority of such persons is to be fixed from the date of transfer or absorption? In order to find answer to this the provisions of the relevant law i.e, Civil Servants Act, 1973, Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Civil Servants (Seniority) Rules, 1993 and the Rules/Instructions of the competent authority issued from time to time need to be taken into consideration.
7. There is no denial of the fact that the appellant was a Junior Clerk in the Office of Deputy Commissioner, Rawalpindi, appointed with effect from 23.04.1980. By means of the Order of the Commissioner Rawalpindi Division dated 28,06.1980, he was transferred to the Office of Deputy Commissioner Islamabad where he has continuously served. Though the said transfer order does not make mention of any provision of law, yet reference to the provisions of Civil Servants Act, 1973 would show that U/S.5 appointment to a civil service is to be made in the prescribed manner by the competent authority and U/S. 10 every civil servant "shall be liable to serve anywhere within or outside Pakistan in any equivalent or higher post under the Federal Government". The manner prescribed for appointment is laid down in the Civil 'Servants (Appointment, Promotion and Transfer) Rules, 1973. Rule 3 thereof envisages appointment by promotion, by transfer and by initial recruitment. Part-II of the Rules deals with the appointment by promotion or transfer. Rule 9 takes care of appointments by transfer to be made from among st the persons holding appointment on a regular basis in the posts in the same basic pay scale or equivalent to or identical with the posts to be filled. The appellant claims to have been appointed in the Office of Deputy Commissioner, Rawalpindi on regular basis. The Order of the Commissioner dated 28.06.1980 whereby the appellant (SI No, 9) was posted/transferred shows that he was Junior Clerk, Deputy Commissioner's Office Rawalpindi and was transferred as a Junior Clerk, Deputy Commissioner's Office Islamabad.
The said Order nowhere makes mention that the posting/transfer was on deputation. It needs no reiteration that the appointment on deputation is a distinct concept whereby the deputation retains his lien in the parent department/office.
8. Another important provision is Rule 4 of Civil Servants (Seniority) Rules, 1993 which reads as follows: "4. Seniority on appointment by transfer.--Seniority in service, cadre or post to which a civil servant is appointed by transfer shall take effect from the date of regular appointment to the service, cadre or post: Provided that--
(a) persons belonging ,to the same service, cadre or post selected for appointment by transfer to a service, cadre or post in one batch shall, on their appointment, take inter se seniority in the order of their date of regular appointment in their previous service, cadre or post; and
(b) persons belonging to different services, cadre or posts selected for appointment by transfer in one batch shall take their inter se seniority in the 'order of the date of their regular appointment to the post which they were holding before such appointment and, where such date is the same, the person older in age shall rank senior.
' The perusal of proviso (a) & (b) above would show that the seniority in the "previous service, cadre or post" is protected. It is consistent with the provisions of S.3(ii) of the Act that "the terms and conditions of service of any person to whom this Act applies shall not be varied to his disadvantage" and also the provisions of S.10 of the Act that "every civil servant shall be liable to serve any where within or outside Pakistan, in any equivalent or higher post under the Federal Government".
9. In the case of Muhammad Arshad Sultan, a distinction between a deputationist and posting/appointment by transfer was noted with reference to the provisions in the ESTACODE. The subject has been dealt with in Volume 1 of ESTACODE latest Edition 2007 at page 408 (SI.No, 33) containing Instructions. Para-5 lays down that when a transfer has been made in the public interest the interest of the person concerned should be protected in his parent office until he is confirmed in the borrowing office, which would enable him to occupy on reversion to his parent office. Such is a mode of appointment on deputation from one office to the other. However, Para-6 deals with the issue of "seniority on transfer from one office to another". It is as follows: "6. Seniority on transfer from one office to another.--(i) The instructions in the foregoing paragraphs regulate the position' of a deputationist in his parent office, As regards seniority in the office to which he transferred, determined, in the following manner:-
(a) When it is open to the person concerned to accept or refuse an offer of appointment in another office, he should count his seniority in the new office from the date of his transfer to that office.
(b) When a person is compulsorily transferred to another office as a result of conscription, or alongwith the post and his work, he should be allowed to count his previous continuous service in the grade towards seniority in that grade in the new office".
There is nothing on the record to suggest or show whether the appellant had the option to accept or refuse an offer of appointment in the other office nor there is any thing to show that he was compulsorily transferred to the other office. These are perhaps the determinative factors of his position and status, in the transferred office i.e, Islamabad. Para-7 of the instructions deals with "Transfers as a result of conscription". It reads as follows: "7. Transfers as a result of conscription.--The interests of the person transferred compulsorily to another office as a result of conscription should be adequately protected in his parent office as stated in paragraph 5 above."
So much value is accorded to the interests of the employee while transferring to other offices.
10. The perusal of all such provisions/Instructions would show that even in case when the transfer is akin to deputation the interests of the persons transferred are to be taken care of by keeping lien in the parent office. There is nothing of that sort evident from the Order of the Commissioner dated 26.08.1980 where-under the appellant was posted and transferred to the Office of Deputy Commissioner, Islamabad. It only leads to the conclusion that he was transferred for good for all intents and purposes.
11. The stance of the respondents that such transference from Rawalpindi to Islamabad were treated on deputation under the Presidential Order No, 18/1980 is in apt inasmuch as the perusal of the said Presidential Order does not show that any such condition was laid down nor it gives option to any authority to treat such persons or deputation. Rather Article 3 of the Presidential Order ensures this continuity in service of such persons.
12. It may be mentioned that the seniority is such a matte which is liable to changes from time to time due to inductions retirement of the incumbents. Such is the principle laid down by the Honorable Supreme Court of Pakistan in 1986 SCM R 68, Ch. Nazar Muhammad and another v.
Government of Punjab and 38 others that "seniority lists are liable to change from time to time on account of new inductions into service and various grades thereof There is no finality to the list. It has however to conform to the rules for the time being applicable to its preparation, maintenance and revision. The seniority list of 1957 will not of its own force be decisive of the correctness and validity of the subsequent lists." Thus there is no fixity to in The competent authority is empowered to make changes and correction therein keeping in view the relevant circumstances. In order to remedy the wrong and undo the injustice it is legally permissible to make correction instead of perpetual injustice and unfairness to any person.
13. Be that as it may nothing has been brought on record to short as to when how and under what dispensation the appellant was treated a on deputation and how any such options were given to others as was not availed by the appellant. In the absence of such material it is not possible to settle the issue with accuracy or definiteness. In such a situation the Hon'ble Supreme Court in the case of Muhammad Arshad Sultan observed "However, as the record before us does not show that whether at the time respondents were asked to exercise their option for absorption or transfer of their services to 0.M.G they had the right to refuse or not the offer, the controversy cannot be decided finally in these appeals". Accordingly, setting aside the orders passed by the Service Tribunal as well as the departmental authority, remanded the case to the departmental authority for re-determination of the seniority.
14. Faced with such a situation when there is no sufficient/all the material before us we are constrained to follow a similar course and remand the matter to the departmental authority to decide it by keeping all aspects of the matter in view by affording opportunity of hearing to the appellant and others interested.
15. It is informed that the appellant has already retired from service it will thus be just and fair that the matter is decided within a period of three months.
16. The appeal is accepted to the extent indicated above with no order as to costs.
(R.A.) .