1. ' NASIM HASAN SHAH, J.-This is a case of an officer who is struggling to overcome the action of authorities to deprive him of his service and status for having married the woman he loved, a Brazillian, Julia Pacheco de Canto Castro. His story may be re-counted briefly :- ' The appellant, is a very highly educated young man. He also holds the diploma of a Doctor of Philosophy from the University of Uppsala (Sweden) and knows foreign five languages besides Urdu, and was serving as a Second Secretary (Grade-I8) in the Ministry of Foreign Affairs, Government of Pakistan in the Pakistan Embasay in Brazil, having been taken in the said service with affect from 5-12 1973 under the lateral entry scheme.
2. ' After the change-over on 5th July, 1977, the Civil Servants Act, 1973 was amended by the new Administration and Ordinance XII of 1978-Civil Servants (Amendment) Ordinance, 1978-was promulgated whereby a new Section, namely, section 12-A was inserted in the Civil Servants Act of 1973 after section 12, which was in the following terms :- "12-A-Certain persons to be liable to removal or reversion.-Notwithstanding anything contained in his terms and conditions of service, a civil servant appointed or promoted during the period from the first day of January, 1972, to the fifth day of July, 1977, may be removed from service or reverted to his lower post or grade, as the case may be without notice by the President or, as the case may be, the person so authorised may in the public interest, direct."
3. ' Since the date of appointment of the appellant fell within the period mentioned in section 12-A, his services were terminated vide memorandum, dated 22-7-1978 and he relinquished his charge in t. e afternoon of 7-6-1978. The appellant represented against his removal from service and he was directed to appear before the Federal Public Service Commission. The said Commission, after interviewing the appellant, found that he was fit for retention in service and made a recommendation that he may be retained in the Foreign Affairs Group. The Pre-emption of Pakistan was also pleased to approve the aforesaid recommendation of the Commission and the Ministry of Foreign Affairs was informed of the decision of the President vide Establishment Division's Office Memorandnm No, 24/4/80-A-Y, dated 27-8-1980.
4. ' The appellant, accordingly, reported for duty in the Ministry of Foreign Affairs at Islamabad on 1-9- 1980. The said Ministry refused to allow him to resume duty and instead made a back reference vide letter, dated 2-9-1980 ostensibly to seek clarification whether the appellant could be re- appointed in view of the fact that he had contravened rule 3 of the Government Servants (Marriage with Foreign Nationals) Rules, 1962 (hereinafter called the Rules), by marrying a foreign lady (who was a national of Brazil), on 1-4-1979.
5. ' Taken aback by this development, the appellant made a representation to the Secretary, Establishment Division on 1-10-1980 that his marriage with the foreign national was solemnised on 1-4-1979 i,e, at a point of time when he was not a civil servant (having been removed from service with effect from 7-8-1978) and that, in fact, seven months prior to his marriage sometimes during the first week of September, 1978 had informed the Ambassador for Pakistan in Brazil of his intention to marry said foreign lady. The Ambassador, in turn, had informed the Ministry of Foreign Affairs ride his letter No, Amb. 1/78, dated 19-9-1978 regarding the appellant's intention to marry the foreign lady. The said lady, who was a Roman Catholic Christian by faith, voluntarily and of her own free will embraced Islam on 10-3-1979 and then married the appellant according to Sharia on 1-4- 1979. In the meanwhile, she also applied for a certificate of registration as a citizen of Pakistan and was eventually issued the certificate on the 7-6-1981.
6. ' Since it was on account of appellant's marriage with her that he was being deprived of the appointment, the appellant's wife also made a representation on 7-9-1980 to the President of Pakistan requesting him to intervene in the case of her husband's appointment. The President of Pakistan was pleased to consider the request favourably and directed that as a special case the appellant be inducted in the Secretariat Group in the Government of Pakistan ride letter of Establishment Division No. 1/9/73-R. 1/SS-31, dated 31-8-1981. The appellant on 7-9-1981, however, submitted a representation to the President requesting that the order inducting him into the Secretariat Group be not given effect to and the earlier order passed re-instating him into Foreign Affairs Group in August, 1980, be implemented and that he may be allowed to join that Group in accordance with the earlier order.
7. ' At the same time, the appellant also filed an appeal against the order, dated 31-8-1981 inducting him into the Secretariat Group before the Federal Service Tribunal under section 4 of the Service Tribunals Act, 1973.
8. ' An objection was taken on behalf of the respondents before the Service Tribunal with regard to its competence to hear the appeal. This objection was upheld by the Tribunal is as follows :- "Though in this case, we do feel that the appellant having a brilliant career and having been approved by the Commission for the Foreign Affairs Group, should have been appointed to that Group by relaxation of the rule or by requesting the President to invoke the provisions of section 23 of the Civil Servants Act, 1973, nevertheless, we have no jurisdiction to interfere, because under proviso (b) to section 4(1) of the Service Tribunals Act, 1973, we have no jurisdiction to entertain an appeal from an order determining the fitness or otherwise of a person to be appointed to, or to hold a particular post. This appeal is, therefore, dismissed for want of jurisdiction. However, it is a fit case in which the Establishment Secretary should again refer matter to the President for his orders for appointment of the appellant in any Group, if the appellant sends a fresh application in this regard."
9. ' The appeal was dismissed with the above observation vide order, dated 22-12-1982.
10. ' After the decision of the appeal, the appellant through his counsel applied to the Government, as adversed by the learned Service Tribunal, but no action was taken by the Government. He then sent another application on 3-5-1983 through his counsel and he himself sent three applications on 23-2-1983, 28-11-1983 and 22-12-1983 but to no avail. Neither was any action taken on these applications nor were they put up for orders before the President or otherwise, brought to his notice. In the meanwhile, the order of the appointment of the appellant in the Secretariat Group was withdrawn by the notification dated 28-1-1982.
11. ' The appellant once again moved the Service Tribunal through an application dated 17-7-1983 praying for taking appropriate at the action in the matter and for a direction to the Establishment Division to act in accordance with its order, dated 22-12-1982. The Tribunal, however, refused to interfere in the matter on the ground that it had no jurisdiction to do so ride its order, dated 3- 9.1983. The text of the order is as follows :- "Heard. Since we had no jurisdiction to entertain the appeal, we cannot direct the Establishment Division to take action as suggested in the order, dated 22-12-1982. However, the petitioner is at liberty to get his grievance redressed departmentally or through a forum having jurisdiction in the matter. Rejected."
12. ' Having failed to obtain redress from the Service Tribunal, the appellant then decided to approach the Lahore 'High Court, Rawalpindi Bench, Rawalpindi, through a writ petition (W. P. No, 100 of 1984) for redress of his grievance.
13. ' The stand taken by the appellant before the High Court was that the order of the President re- instating him into Foreign Affairs Group still held the field and that the order of his induction into the Secretariat Group was without any lawful authority and further that his case was not covered by the Government Servants (Marriage with Foreign Nationals) Rules, 1962.
14. ' The writ petition was heard by a learned Single Judge of the High Court who was of the opinion that, in fact, the grievance of the appellant related to the terms and conditions of his service and, therefore, the High Court had no jurisdiction to entertain the writ petition under Article 212 of the Constitution read with the Provincial Constitution Order, 1981. The petition was, accordingly, dismissed vide order, dated 17-3-1984.
15. ' Feeling completely frustrated, the appellant challenged the above order of the High Court by a petition for leave to appeal in this Court (C. P. S. L. A. No, 122-R of 1984) which came up for hearing on 24-6-1984, on which date it was converted into an appeal and fixed for hearing on 27-6-1984, as Mr. Munir A. Sheikh, the learned Deputy Attorney-General for Pakistan and Mr. Sergis Nagi, Deputy Secretary, Establishment Division were present in another case before the Court and after being apprised about the facts of this case and the date fixed for hearing of the appeal, they accepted :notice, ' The appeal was eventually heard on 28-6-1984. During the course of the hearing, the appellant filed another petition for leave to appeal (C. P. S. L. A. No, 188-R of 1984) to challenge the orders of the Service Tribunal, dated 22-12-1981 and 3-9-1981 alongwith an application for condonation of delay. The delay was condoned after hearing Mr. Munir A. Sheikh, Deputy Attorney-General and the last-mentioned petition was also ordered to be converted into an appeal and both the appeals heard together.
16. We are inclined to agree with the High Court that the grievance of the appellant related to the terms and conditions of his service and, therefore, the High Court had no jurisdiction to entertain the appeal under Article 212 of the Constitution. The finding of the Service Tribunal that the case of the appellant related to the fitness of a person to be appointed to a service and that it had no jurisdiction in the matter on this account was not correct. The question of his fitness to be appointed had already been decided by the Federal Service Commission and the appointing authority had approved its recommendation in this respect. Hence the order of the Service Tribunal, dated 22-12-1982 dismissing the appeal of the appellant on the ground that it had no jurisdiction to intervene because under proviso B (b) to section 4(1) of the Service Tribunals Act, 1973 it had no jurisdiction to entertain an appeal from an order determining the fitness or otherwise of a person to be appointed to, or to hold a particular post, is erroneous. The Tribunal had the jurisdiction to hear the appeal and to dispose it of on the merits.
17. ' In view of or above finding the case is liable to be remanded to the Service Tribunal for decision on merits, but as we have heard the appellant and the learned Deputy Attorney-General at length and the entire material is before us, we think it would be appropriate in the circumstances of this case to dispose of the appeal ourselves instead of remanding it back to the Service Tribunal, particularly where the views of the Tribunal on merits are known to be in his favour.
18. ' The Ministry of Foreign Affairs declined to give a posting to the appellant and made back reference to the Establishment Division, allegedly seeking clarification on the ground that the appellant having violated the Government Servants (Marriage with Foreign Nationals) Rules, 1962, was not eligible to be taken back into the foreign service. It was as a result of this reference that although the appellant had been approved for retention in service, in the Foreign Affairs Group, by the President, the question of his re-appointment was re-opened. The question, therefore, arises whether the reference made by the Ministry of Foreign Affairs was justified or not ?
19. ' We note that clause (b) of Rule 2 of Government Servants (Marriage with Foreign Nationals) Rules, 1962, defines a Government servant as follows :- "(b) 'Government servant' means a person in the service of Pakistan to whom these rules apply whether such person is, for the time being, in foreign service or not."
20. Sub-rule (1) of rule 3, which prohibits marriage with a foreign national lays down as under :- "Subject to the provisions of sub-rule (2), a Government servant who marries or promises to marry a foreign national shall be guilty of misconduct and shall be liable to be removed from Government service."
21. However, the appellant had ceased to be Government servant with effect from 7-8-1978 and, therefore, on the date of his marriage, namely,) on 1.4-1979, he was not a Government servant.
22. Consequently, his case did not fall within the mischief of the Government Servants (Marriage with Foreign Nationals) Rules, 1962, in so far as the time of marriage is concerned.
23. ' Even otherwise, the appellant had not only informed the Ambassador of Pakistan in Brazil about his intention to marry but also obtained the necessary certificates from the Embassy of Pakistan in Brazil to enable him to marry. This entire record was before the Federal Public Service Commission when the appellant appeared before it in 1980. The Director-General of Foreign Affairs and Joint Secretary, Establishment Division participated in the proceedings of the Commission when the appellant's case was taken up. The recommendation by the Commission to the effect that the appellant may be retained in the Foreign Affairs Group was made in their presence. And was a conscious decision taken in the full knowledge that the appellant had already married with a foreign national and if any rule against such a marriage was contravened, the same stood impliedly relaxed. The above recommendation having been accepted by the President to re- instate the appellant as Second Secretary into the Foreign Affairs Group, the Ministry of Foreign Affairs unjustifiably referred the matter back to the Establishment Division and thereby got the matter of re-instatement of the appellant which stood decided, re-opened again. The subsequent order of the President directing the appellant's induction into the Secretariat Group was the result of the above-mentioned unwarranted reference made by the Ministry of Foreign Affairs.
24. ' The case of the appellant, therefore, is that as the order of the President re-instating him into the Foreign Affairs Group was not allowed to be implemented on account of this unwarranted reference, the earlier order of the President re-instating him into Foreign Affairs Group should be considered to still hold the field and, therefore, the appellant be deemed to be continuing in service, as a member of the Foreign Affairs Group. It is the submission of the appellant that he had married a foreign lady at a time when he was not a civil servant and that too after informing the Government a number of high ranking officers of the Ministry of Foreign Affairs including Ambassadors had married foreign wives. The Chairman of Pakistan Atomic Energy Commission also had a foreign wife. A majority of these wives were either retaining their original nationality or holding dual nationality while the appellant's wife had acquired Pakistan citizenship, completely renouncing her Brazilian nationality and has also accepted Islam. The Federal Service Commission having found the appellant fit to be reappointed and the appointing authority having approved the said recommendation, the Tribunal should, in the circumstances of the case have accepted his appeal and directed his appointment in the Foreign Affairs Group.
25. ' We cannot accept this argument in its entirety. The order of the President, approving the recommendation of the Federal Service Commission and directing his retention in the Foreign Affairs Group had not been placed on the record. It may be on the Government files but was never communicated to him and cannot, therefore, be held to have attained finality. Subsequently, upon a reference made by the Foreign Affairs Ministry another order to induct him in the Secretariat Group was passed which was duly communicated to him. This order could, therefore, have been passed. However, since the appellant did not take up the post offered to him in the Secretariat Group and did not comply with the terms of the said order, the same was subsequently withdrawn.
26. In these circumstances, to contend that in the presence of the earlier order of the President approving him for appointment in the Foreign Affairs Group, no other order could be passed, is not correct.
27. However, the Service Tribunal could, in the appeal filed before it have directed that the appellant should, in the circumstances noted above, be appointed in the Foreign Affairs Group. We are satisfied that there was no impediment in law to the President approving the re-instatement of the appellant in the Foreign Affairs Group. It was the unwarranted and unjustified reference by the Foreign Affairs Ministry which resulted in the alteration of the erstwhile correct decision.
28. ' Since it was on account of unwarranted and unjustified reference of the Ministry of Foreign Affairs that the earlier decision Of the President approving the recommendation of the Federal Service Commission for retention of the appellant in the Foreign Affairs Group was modified, we would, in view of the facts and circumstances of the case explained above, direct the Establishment Division to refer the entire case of the appellant for orders of the President in respect of the appointment of the appellant in the Foreign Affairs Group.
29. ' The overall result is that the appeal, directed against the judgment of the High Court, dated 17-3- 1984, is dismissed, but the appeal directed against the order of the Service Tribunal, dated 22-12- 1982 is accepted in the terms noted above.
30. ' The parties are left to bear their own costs.