A. O. RAZZ-UR-REHMAN (MEMBER).-The appellant was appointed as a temporary Stenotypist in the Directorate-General, T&T, Islamabad, by an order of the Director-General, dated 13-11-1975. One of the conditions of the appointment was that he would be on trial for a period of 3 months in the first instance, during which he was to acquire the prescribed speed, "failing which his appointment would terminate automatically'". Some time later, he was informed that, in view of this condition laid down in the appointment letter, he would be required to appear in shorthand and typewriting test on 12-11-1976, in the room of the Administration Branch, T & T Directorate-General, Islamabad.
According to the appellant, the examination notified for 12-11-1976 was not held and, therefore, he could not appear at the said examination. Again, next year, by an order, dated 27th May 1977, he was required to appear at the test on 10-6-1977. This time also, according to the appellant, the test was not held on the date fixed for the purpose and, therefore, he again could not appear at the test. After some time. That is, on December, 1978, a provisional seniority list was circulated by the Department, in which the appellant was shown as having entered service and also as having been appointed as Stenotypist with effect from the said date. Subsequently, on 5-7-1980, he was directed to appear at the shorthand and typewriting test, which was going to be held on l0-7-1980, at 15-00 hours, in the Conference Room of the Office of the Director-General, failing which, he was warned, his services were liable to be terminated under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. In response to this communication, the appellant appeared at the examination and passed the same. After some time, that is, on 16-12-1980, the Director-General issued an order purporting to regularise the appointment of the appellant alongwith that of 8 other Stenotypists. This order stated that these Stenotypists had been working on ad hoc basis in N. P. S. 8 and their appointments were being regularized were. f. The date of the order. On 14-1-1981, the appellant represented to the Director-General against this order, on the ground that he had been appointed not on ad hoe basis but on trial basis, against a temporary post of Stenotypist ; that the date of his appointment was 2211-1975, and that the date of appointment shown in the order referred to was incorrect. He further stated that, by showing the date of his appointment as 16-12- 1980, he had been made junior to many of the later entrants. He, therefore, prayed for the restoration of his original seniority, with effect from 22.11-1975, as shown in the provisional seniority list circulated on 17-12-1978. In response to this representation, the appellant was informed, by a letter, dated 21st May, 1981, that, since he had failed to qualify at the shorthand and typewriting test during the trial period, he could not be given seniority from the date of the original appointment.
Before this order of rejection was received by him, the appellant addressed an appeal to the Secretary, Ministry of Communications, on 4-5-198.1, praying for a direction to the Director-General to withdraw the office order showing the appellant as having been appointed as Stenotypist with effect from 16-12-1980. No reply to this representation appears to have been received. However, on 17-6-1981, he filed his appeal before this Tribunal. This was within one month of the receipt of the reply to his representation to the Director-General, T 3c T on 21-5-1981. Having been admitted, it came up for regular hearing on 2-8-1983 and is being disposed of by this order.
2. On the legal plane, the appeal was contested by the respondent on the ground that it was hit by proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973, as the appellant had not made any repre--sentation against the decision of the Director-General to the next higher authority. On facts, it was contended by the respondent that it was clearly mentioned in the appellant's letter of appointment that he was on trial basis for 3 months, during which he must acquire the prescribed speed of 80 words per minute in shorthand and 40 words per minute in type--writing, failing which his appointment as Stenotypist would terminate automatically ; that the Department took a very lenient view and gave him many chances, which were in the interest of the appellant; that he appeared in the test held on 17-7-1980 and qualified at the same; and that his appointment was, accordingly, regularised and his seniority maintained from the date on which he qualified at the test and was approved by the Departmental Selection Committee.
3. Taking up the technical objection first, it is noted that the appellant had made a representation to the Director-General on 14-1-1981 against the order, dated 16- 12-1980 regularising his services with effect from that date. Evidently, he treated the order dated 16-12-1980 as a final order, whereas it was actually not so. The order, dated 16-12-1980 was just an order, published after the meeting of the Departmental Selection Committee, on the basis of the result of the shorthand and typewriting test, at which the appellant had appeared in response to the Department's direction. It cannot be treated as a final order, because it did not settle any dispute or controversy. Therefore, when the appellant made a representation against this order to the Director-General on 14-1-1981, he raised certain questions which called for a definite decision. The order passed on this representation is, therefore, to be treated as a final order. This final order was actually passed on 21-5-1981 and that is the impugned order, so far as this Tribunal is concerned. Apparently, when the appellant approached the Tribunal under section 4 of the Service Tribunals Act, through the appeal filed on 18-6-1981, he did so without having appealed against the final order of the departmental authority.
He also appears to have done this without exhausting. The departmental remedy, as required under the Act. However, when we. Look at the matter more closely and consider the point that the departmental representation was made by the appellant on 14-1-1981 and when, failing to get a reply for quite some time, the appellant preferred an appeal before the. Secretary, Ministry of Communications, who was the appellate authority, on 4-5-1981, he would be taken to have exhausted the departmental remedy. The non---receipt of a reply by the appellant to his representation for more than 3 months and a half should be taken to be rejection of the representation and, therefore, the appeal made to the Secretary, on 4-5-1981 would be considered to be the departmental appeal if this view of the matter is not taken, the intention of the law, which provides a forum to civil servants for ventilating their grievances in regard to service matters, would be completely frustrated if the departmental appellate authorities refuse to attend to complaints and grievances of their civil servants and do not give a reply to their representations within a reasonable time. In the instant case, the Director-General could have given a reply to the appellant's representation much earlier than he did, and, therefore, when the appellant, after waiting for over 3 months and a half, preferred an appeal before the departmental appellate authority, he was fully justified in pre--suming that his representation had been turned down. For this reason, we are prepared to treat his appeal to the Secretary as a departmental appeal. A as contemplated in provision (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973.
However, his appeal before the Tribunal, on 18-6-1981, within less than one month and a half of his appeal to the departmental appellate authority, was clearly premature and, therefore, liable to dismissal on that ground. All the same, since, even after the passage or the statutory period of waiting of 90 days prescribed in this connection, no reply to his departmental appeal was received, the present appeal has matured by the time it was admitted for hearing on 4-1-1982. The appeal is, therefore, not hit by proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973 and the technical objection raised in that behalf is rejected.
4. After hearing both the parties at length and perusing the relevant record, we find that, although the -appellant's appointment as Stenotypist in the T & T Department, with effect from 20-11-1975, on the basis of the appointment letter issued to him, on 13-11-1975, was against a temporary post of Stenotypist, "on trial basis for a period of 3 months, in the first instance", the Director-General wrongly stated, in his letter dated 5th July, 1980, addressed to the appellant, requiring him to appear at the shorthand and typewriting test to be held on 10th July, 1980, that he was a Stenotypist on ad hoe basis. We also find that, whereas the provisional seniority list of Stenotypists, circulated on 17-12-1978, showed the date of appoint--ment of the appellant as 22-11-1975, the order of the respondent regularised the appointment of the appellant with effect from 16-12-1980, B We are unable to understand how the regular appointment of the appel--lant, which was on trial basis against a temporary post, was, after the appellant had already served for about 5 years, converted into an "ad hoc" appointment. The letter offering the appointment to the appellant clearly stated that he was being offered "a temporary post of Stenotypist on trial basis for a period of 3 months in the first instance". It also stated that he was required to acquire the prescribed speed in shorthand and typewriting, -failing which his appointment would terminate automatically". The appellant's contention is that he had acquired the prescribed speed, which was borne out by, the very appreciative testimonials given to him by the officers under whom he had worked and. That was why his services were not terminated after the trial period of 3 months. The contention of the respondent is that, because the appellant had failed to qualify at the prescribed test, he could not count his seniority with effect from the date of his original appointment. It has also been contended by the appellant that, although he was not required under the terms of the appointment to appear at the shorthand and typewriting test held by the Department, the two tests for which notices were given to him were never held and therefore, there could be no justification for penalising him for not appearing at these tests. Further, it was stated, on his behalf, that, conceding that it was necessary for him to qualify at the test, having appeared and qualified at the test held, on 10-7-1980 he should be taken to have fulfilled the con--dition of qualifying at the prescribed speed laid down in the letter of appointment and should; therefore, be accorded seniority with effect from the original date of his appointment and not with effect from the date on which he was approved by the Departmental Selection Committee after having qualified at the test.
5. We do not agree with the appellant's view that the condition of appearing at shorthand and typewriting test not having been laid down in the letter of appointment, the appellant could not be required to appear at any such test. The very fact that the letter offering him the appointment clearly mentions that he must attain the prescribed speed in shorthand and typewriting within 3 months implies that the Department could hold a test for ascertaining whether he had acquired the prescribed speed. However, since the testimonials clearly indicate that he had acquired a high standard in shorthand and typewriting, it is believable that he had acquired the prescribed speed.
Moreover, the claim of the appellant that, although he had been given notices for appearing at the test to be held on 12-11-1976 and 10-6-1977 were never held, has not been refuted by the respondent, who was required to produce documentary evidence in this behalf but failed to do so.
During the hearing, it was asserted on behalf of the respondent that the test- were held, on 12-11- 1976 and 10.6-1977 respec--tively. When asked to substantiate this claim, the learned counsel for the State and the Departmental Representative wanted time to consult the relevant papers and produce documentary evidence and the case was, therefore, stopped for a couple of hours to allow them time to look up the departmental record brought by them for reference at the time of hearing. At the end of this period, they could not lay their hands on the relevant documents and, therefore, they asked for and were given permission to submit the same after a couple of days for the perusal of the Members of the Bench. Subsequently, on 6-8-1983, the Departmental Representative pro--duced photostat copies of some notings, dated 10-7-1980 and 17-7-1980 on a departmental file on which the question of exempting the appellant and other Stenotypists from appearing at the shorthand and typewriting test was considered. These noting, indicate that, in July, 1980 certain observa--tions were made on the file with regard to what had happened in 1976 and 1977. This, by itself, is not a conclusive evidence of the fact that the disputed tests were actually held on the dates mentioned. The contention of the appellant being that they are not correct statements, conclusive evidence of the test having been held on 12-11-1976 and 10-6-1977 could have been obtained with reference to the documents pertaining to those tests. Since those documents have not been produced, the matter remains in doubt and it cannot be claimed that the Department has been able to establish its claim that the tests were actually held on the dates mentioned.
6. From the photostat copies of the notings referred to in paragraph above, it appears that these notings were made on the assumption that the appellant and others belonging to his category were appointed on 14-11-1975 on ad hoc basis. We are surprised that such a statement should have been made on the file because it is an obvious contradiction of the undeniable fact that the letter of appointment issued to the appellant and ether Stenotypist, recruited alongwith him stated that they were being appointed on trial basis against temporary posts. Consequently, we hold that there was no justification for the Department calling the appellant an ad hoc Stenotypist after the lapse of about 5 year from the date of his original appointment as a temporary Stenotypist ap-- pointed on trial basis. Even if we ignore the excellent testimonials given to the appellant by a number of officers, under whom he had worked, which gives the impression that he must have acquired the prescribed speed, the fact that the appellant's appointment as Stenotypist was not terminated, and that, in the test held on 10-7-1980, he qualified, would entitle him to count his seniority with effect from the date of his original appoint--ment, since, there bang no break in service during the period, he could not be treated as a fresh appointee, after the so-called regularisation by the Departmental Selection Committee on 16-12-1980. Also, there being no justification for treating his original appointment as ad hoc, the. Question of regularisation did not arise at all. Therefore, since he had been in service with effect from 22-11-1975, without any break, the so-called regularisation by the Departmental Selection Committee could only be considered to be a decision to end the trial period and continue the appointment till further orders.
7. The respondent Department could' not adduce any argument in support of their stand that the appellant could be deprived of the benefit of service rendered by him between 22nd November, 1975 and 16th December, 1980, in course of which he earned very good reports from the officers under whom he worked and that this continuous service of over 5 years could be completely ignored for the purpose of counting of his seniority in service. Apart from the absence of any rule, the stand of the department is contrary to logic and common sense and directly in conflict with the general notions of natural justice. If the employee was found fit for appointment and continued to be retained in service, which, at the end of 5 years, was also confirmed against the temporary post, it passes all understanding how the entire service rendered by him could be treated as never having been rendered. Had the appellant's service been terminated at the expiry of the trial period, or even later, for his alleged failure to pass the test and had he been subsequently appointed on 16-12-1980, he would only have counted his seniority from the date of the fresh appointment. But, since his service was unbroken for the entire period there could be no justification for depriving him of the benefit of his service prior to the date on which the Departmental Selection Committee approved him for appointment, after he had qualified in the test held on 10-7-1980.
8. In the light of the above we have no option but to allow the appeal and to order that the appellant shall be deemed to have been appointed on regular basis, with effect from 12-11-1975, and to have continued as such all the time since then. His seniority as a Stenotypist shall, therefore, count from the said date.
9. No order as to costs.
10. Parties to be informed.
11. This order shall be applicable mutatis mutandis to Appeals Nos. 122 (R)/1981, 123 (R)/198L and 125-(R)J1981, where the facts and circum--stances are similar to those of this case.