' A.O. RAZIUR RAHMAN (MEMBER).-- The facts relevant to the disposal of this appeal are that the appellant was a member of the Federal Secruity Force at the time the said force was disbanded on the repeal of the F.S.F. Act, 1973 on 1-12-1977. As a result of the disbandment all the rights, assets, liabilities and obligations of the force were transferred to the Federal Government, who, after terminating the services of such of the personnel whose retention was not considered desirable in the public interest, transferred the others to different organizations of a similar nature, like the Coast Guards, the Frontier Constabulary, the Civil Armed Forces, the Airport Security Force, the Police and the Pakistan Rangers, in pursuance of a decision of the C.M.L.A. On the subject. The appellant, by an order, dated 15-1-1978, was transferred to the Pakistan Rangers, with immediate effect, and was ordered to be taken on the strength of the Rangers. After this transfer, the appellant continued to serve at various places in the Pakistan Rangers till 25-10-1979, when his services were terminated by an order issued by the Officer Commanding, Headquarters Troops, Pakistan Rangers, Lahore, on the ground, as stated in the impugned order that:- "As per direction of the Federal Government received under Ministry of Interior No, 14/18/78-FSF-I, dated September 1, 1979, all ex-F.S.F. Personnel including you held against supernumerary posts, who have not been absorbed in Pakistan Rangers are to be discharged from service."
' Against the above order, the appellant came before the Tribunal under section 4 of the Service Tribunals Act in Appeal No, 97(L)/1979, which was heard and disposed of by the Tribunal by an order, dated 23-2-1982. When the said appeal came for hearing before the Tribunal it was discovered that the appellant had not exhausted the departmental remedy, provided under the law, under section 22 of the Civil Servants Act, 1973. The appellant was, therefore, directed to exhaust the departmental remedy before coming to the Tribunal. Meanwhile, it was recommended to the competent departmental authority that the delay in making the appeal be condoned. In pursuance of the order of the Tribunal, the appellant preferred his departmental appeal to the Secretary, Ministry of Interior on 17-4-1982. Since he did not get any reply to this representation, after having waited for the statutory period of 90 days, he came in appeal before us again on 8-8- 1982. The appeal, having been admitted, was finally heard on 19-2-1984 and is being disposed of by this order.
' Although this point was not raised in the written objections filed on behalf of the respondents, at the time of hearing, a preliminary objection was raised by the learned State counsel that the appeal was not competent and was hit by proviso (a) to section 4(1) of the Service Tribunals Act, which lays down that no appeal lies to a Tribunal unless the aggrieved civil servant has preferred his departmental appeal and a period of 90 days has elapsed from the date of the appeal. It was contended by the learned counsel that, in the instant case, the departmental appeal had been addressed directly to the appellate authority, namely, the Secretary, Ministry of Interior and not through the normal departmental channel and, therefore, it was not a proper appeal and, as such, the requirement of proviso (a) would not be considered to have been fulfilled. In this connection, he drew our attention to the Supreme Court ruling contained in the appeal reported in PLD 1981 SC 612.
3. We have given our thought to the technical objection raised above but are unable to accept it, for the reason that, although the representation was made directly to the appellate authority and not through the head of the Pakistan Rangers under whom the appellant was serving before the termination of his service, in our opinion, this cannot constitute a reason for treating the departmental appeal as invalid. The Tribunal has consistently taken the view that, whenever a civil servant makes a departmental appeal or representation or application for review of a departmental order, if such representation is made to the wrong quarters, it is the duty of the authority receiving the application or representation to forward it to the proper authority. In this case, if the representation had been wrongly sent directly to the appellate authority, it was the duty of the appellate authority to send it down to the original authority who passed the impugned order, for processing it according to the rules. In view of this, we repel the preliminary objection and proceed to discuss the case on merits.
' The case of the appellant is that after the disbandment of the F.S.F., the appellant was transferred to the Pakistan Rangers, wherein he was absorbed on regular basis. He was even given a regular number as J.C.O. And treated as a regular number of the Force. According to the West Pakistan Rangers Ordinance, 1959, vide proviso to section 2(d) ibid, all persons who received pay for 6 months or more are to be deemed to be members of the Force and their service cannot be terminated on mere 15 days' notice. The notification, dated 30-11-1977 stated that he had relinquished charge of the post as Inspector in the F.S.F. On the afternoon of November 30, 1977 and that his services had been placed at the disposal of the Pakistan Rangers, with effect from the same date. Subsequently, after having been given training in the Rangers Organization, he was posted to one of its units, vide a memo., dated 27-6-1979, which shows that the officer was taken on the strength of the Indus Rangers w,e,f, 1-3-1978 (forenoon).
5. The stand of the respondents is summarised below:
(1) The appellant and other ex-exmployees of the F.S.F. Had ceased to be in Government service with the disbandment of the Force.
(2) The appellant and a number of others were taken on the strength of the Pakistan Rangers only as an ad hoe arrangement and they were being retained against and paid for only supernumerary posts, specially created from time to time, pending final decision as to whether and which of them would be retained in service.
(3) It was finally decided by the President that those supernumerary personnel of the F.S.F. Who could not be absorbed in the organization should be discharged from service.
(4) According to them, the termination of services of the appellant and others was ordered in pursuance of the President's directive and this could not be impugned, as done by the appellant, as being contrary to the provisions of section 11(2) of the Civil Servants Act, 1973, because their services had come to an end with the disbandment of the Force on 1-12-1977 on the repeal of the Federal Secruity Repeal Ordinance, 1977.
6. The position that emerges, from the above recital of the stands taken by the two sides, is that the crux of the question is whether, after the Force had been disbanded and its personnel either discharged on the ground of being undesirable for retention in the public interest or transferred to the Pakistan Rangers and other like organizations, those who had been transferred to these organizations are to be treated as having been retained in service or merely kept in waiting pending a final decision regarding their absorption.
7. For the determination of the above question, reference to some relevant documents is very necessary:
(a) The minutes of the C.O.S. To the C.M.L.A., dated 1-11-1977, recording the decision of the C.M.L.A. On the question of the disbandment of the F.S.F. And the disposal of its manpower, clearly show that all those persons who were not to be discharged on the disbandment of the Force or placed on supernumerary establishment, pending finalization of the criminal cases against them, were to be transferred to other organizations to meet the shortage on their manpower. The relevant portions of these minutes are reproduced below: "(1). All personnel seconded to F.S.F. Will revert to parent department.
(2) Services of all undesirable officers and members of F.S.F. As given in para. 5 ante be terminated as per existing procedure. A list of such personnel will be submitted for the approval of the C.M.L.A.
As soon as possible. Persons involved in criminal cases will be transferred to supernumerary establishment as advised by F.I.A. Pending their cases.
(3) Contract of the employed personnel will be terminated in accordance with the terms of the contract.
(4) All other personnel will be transferred to the following organizations to meet the shortage of their manpower:-
(a) Coast Guards.
(b) Frontier Constablary.
(c) Rangers.
(d) C.A.F. North.
(e) C.A.F. South.
(f) Airport Security Force.
(g) Police of the 4 provinces."
(b) Letter, bearing No, SC/7/3-Accts, issued by the Special Cell, Ministry of Interior on 17-4-1979, on the question of final payment of G.P. Fund to some ex-F.S.F. Personnel on the strength of the Pakistan Rangers, clearly shows that, according to the M/s Interior, who were implementing the decision of the C.M.L.A. Relating to the disposal of the manpower of the defunct F.S.F., those personnel who had been transferred to the Pakistan Rangers had not ceased to be the employees of Government and their G.P. Fund accounts could not be treated as closed. For a proper understanding of the contents and import of this letter, it is reproduced in full:- To ' The Officer Incharge, Central Record Office, Pakistan Rangers, Ghazi Road, Lahore.
' Sub: Final Payment of G.P. Fund in respect of Mr. Muhammad Nawaz Sub-Inspector Account No, FSF/179 and ASI/94 Muhammad Hanif A/c No, FSF/59.
' Reference your letter No, Records/9090910, dated 8-2-1978 on the above subject. The final payment of G.P. Fund cannot be made on retirement, discharge/dismissal or on death. ' As the abovenamed officials have been transferred to Pakistan Rangers, therefore, final payment cannot be made. You are, therefore, advised to have them allotted the new G.P. Fund Account Numbers from the A.G. Punjab, Lahore and they make a reference to the A.G.P.R., Rawalpindi requesting them to inform the existing credit balance to A.G.(Pb.), Lahore for credit into the new account of the subscribers.
(Sd.)
' Abdul Majid, Officer Incharge Special Cell ' Copy to: The A.G.P.R., Rawalpindi. The last deduction of the G.P. Fund from the Federal Security Force Personnel was made through their salary bill for the month of November, 1977 and no advance was received by them from their G.P. Fund account. It is, therefore, requested that their G.P. Fund credit balance may please be transferred to the A.G., Punjab, Lahore on receipt of the new G.P. Fund Account No, from the Pakistan Rangers.
(Sd.)
' Abdul Majid, Officer Incharge Special Cell.
(c) Letter No,2/5/SC, issued by the Special Cell of the Ministry of Interior on June 14, 1978 bears as its subject the following:- "Permanent absorption of personnel of the defunct F.S.F. To the Pakistan Rangers".
' It is addressed to the Director-General, Pakistan Rangers, Lahore and states, inter alia, that:- "Inspector/106 Muhammad Siddique and Sub-Inspector 513 Noor Muhammad are being relieved and directed to report to the Headquarters, Pakistan Rangers, Lahore. They may please be taken on the strength of the Pakistan Rangers w,e,f, 1-6-1978 and returned to the Special Cell, Ministry of Interior, Islamabad for temporary duty."
It is apparent from this letter that the posting of the officers mentioned was neither on deputation nor an ad hoc arrangement nor an adjustment against a supernumerary post but a permanent absorption in the Pakistan Rangers. Not only this, even on their posting to the Special Cell of the Ministry of Interior, they were to be treated as being on the strength of the Pakistan Rangers.
(d) All the posting orders, relating to the transfer of the ex-F.S.F. Men to the Pakistan Rangers beginning with headquarters F.S.F. Memo. No,P-1/E-II/77-Vol.I, dated November 20, 1977 and including those, dated 15th and 28th January, 1978, state their subject as either 'Disbandment of the F.S.F. Absorption of F.S.F. Personnel in the Pakistan Rangers' or 'Disbandment of the F.S.F. Transfer of members to the Pakistan Rangers'. All these orders convey the impression that the persons being transferred to the Pakistan Rangers were no longer members of the F.S.F. But they had been retained in service on the disbandment of the Force and transferred to the Pakistan Rangers for absorption.
(e) A D.O. Letter No, 3002/X/A/225, dated 3rd January, 1978 from Lt. Col. Syed Hassan Jaffar, A.A. And O.M.G. Headquarters Pakistan Rangers to Mr. Abdul Hameed, J.S., Ministry of Interior clearly shows that not only the transfer of the Ex-F.S.F. Personnel to the Pakistan Rangers was intended by the Ministry of Interior to be a permanent transfer but that the Pakistan Rangers organization also treated it as such and proceeded to re-organize the Force accordingly. For a full appreciation of the matter, this letter is also reproduced in full:- ' Lt.-Col Syed Hassan Jafar, ' A.A. & O.M.G.
' HQ Pakistan Rangers, 98-A, Upper Mall, Lahore-3.
' Tele: 82927 ' No,1302/X/A/225, 3rd January, 1978.
' Mr. Abdul Hameed, Joint Secretary, Ministry of Interior, Islamabad.
' My dear Mr. Ilamid, ' As per posting Order No, p-1/E-11/77/Vol-IV, dated 28th November, 1977 a total of 3797 Ex-F.S.F.
Personnel have been transferred to Pakistan Rangers. This strength will be utilised for raising of five additional wings. The new wings will require all sorts of office equipment and stores. It is understood that a number of typewriters and duplicators and other office equipment belonging to the defunct F.S.F. Is now available in the Special Cell.
' I shall be grateful if necessary sanction for transfer of maximum number of typewriters and duplicators and other office equipment is issued to enable us to meet our requirement for the additional wings. Our minimum requirement will be 30 typewriters and 10 duplicators.
' Your co-operation in the matter will be highly appreciated. With best wishes and regards.
' Yours sincerely, (Sd.)
(Syed Hassan Jafar)"
8. As against the above very clear testimony of the documents on record to the fact that the transfer of the appellant and other Ex-F.S.F. Personnel to the Pakistan Rangers was a regular and permanent transfer for the purpose of the absorption and not on ad hoc or temporary arrangement, it has been stated on behalf of the respondents, in their written objections, that (a)
"After the disbandment of the F.S.F. The appellant has no legal right to be retained in service of Pakistan. If the appellant was given a chance to serve for some time, it was just on humanitarian ground and the Federal Government feeded the appellant on month to month basis sanction of funds"; and (b) "the appellant was neither absorbed in some Government department nor was given any right to be retained in service".
' It has further been stated that: "transfer of the appellant to the Pakistan Rangers was in consequence of the termination of his service in the defunct F.S.F. On its disbandment and was not a 'transfer' in the normal course of service or within the meaning of section 10 of the Civil Servants Act, 1973."
' It has also been argued that: "the appellant could not be absorbed in the Pakistan Rangers for want of vacancy by the end of October, 1979 and hence he was rightly discharged from service after due notice."
' Besides, it has been claimed that as many as 354 persons were absorbed in the Pakistan Rangers, "which shows that every effort was made by the Rangers as well to absorb the ex-F.S.F. Personnel.
However, rest of them could not be absorbed due to want of vacancy and were discharged in accordance with the instructions contained in the Ministry of Interior letter of 1-9-1977".
' Further, to counter the contention of the appellant that, if for want of non-availability of post, some ex-F.S.F. Personnel had to be retrenched, the principle of termination on the basis of juniority should have been followed as laid down in section 11(2) of the Civil Servants Act, 1973, the respondents have taken the stand that, "the service of all the employees of the F.S.F. Came to an end with the disbandment of the Force.
The provisions of section 11(2) of the Civil Servants Act, 1973 are not attracted in this case."
9. As we have already seen there is no merit in the stand of the respondents that the transfer of the appellant and others to the Pakistan Rangers did not amount to retention in service of these persons. The C.M.L.A's. Directive is very clear that after the disposal of undesirable persons, including those involved in criminal cases, all other personnel would be transferred to other organizations to meet the shortage of their manpower. The Ministry of Interior, who were fully aware of the requirements of each organization and the extent of their shortage, had decided on the number of persons to be transferred to each orginization, in implementation of the decision of the C.M.L.A. Had there been any doubt on the point, they would not have transferred these persons without any conditons or reservations. Nor would they have insisted that these persons were still in service and, therefore, final payment of their G.P.Fund could not be made. It is, therefore, an afterthought to suggest that these persons had not been absorbed in the Pakistan Rangers by the time they were removed from service. The Rangers orginization itself treated them as having been absorbed in implementation of the C.M.L.A's. Decision. However, in this connection, the respondents are relying on a letter, dated 1-9-1979, issued by the Ministry of Interior to the Chief Secretaries of Punjab and Sind and the Director General, Pakistan Rangers, which reads as under:- "Sir, ' I am directed to state that the question of continuance or otherwise of the remaining supervisory staff of defunct F.S.F, has been placed before the President/C.M.L.A. In accordance with the directive of the President/C.M.L.A. The remaining supervisory personnel should be absorbed/discharged without any further delay. In case those who cannot be absorbed they may be discharged after due notice from the service.
' The absorption/discharge of such personnel should be completed by the end of October, 1979 as the Federal Government will not pay, pay and allowance for this staff after that date.
' Receipt of this letter may please be acknowledged."
10. It is clear from the above letter that the order of the President was the result of some problems arising from the shortage of funds for payment to the ex-F.S.F. Personnel transferred to the Pakistan Rangers and other orginizations. This fact, however, cannot alter the undisputable fact that the C.M.L.A's. Decision of 1st November, 1977 was that, with the exception of undesirable elements, all other ex-F.S.F. Personnel were to be absorbed in other organizations and that, in pursuance of this decision, the appellant and many others were transferred to the Pakistan Rangers and they continued to serve there from 1-12-1977 to 21-9-1979 a period of almost 2 years. During this period, they were never told that their posting in Rangers was only on humanitarian grounds and for a short period and that their services would be terminated if no job could be found for them in the Rangers. The orders of the Ministry of Interior transferring these persons for absorption in the Pakistan Rangers having been implemented in pursuance of the C.M.L.A's. Directive, a definite and positive step had been taken and it was no longer open to the competent authority to recede from this position and undo the action already taken. Although we believe that the action of the Ministry was perfectly in accordance with the C.M.L.A's. Directive, even if we were to concede that it was a departure from the strict terms of the said directive, the Ministry's orders having taken effect and the appellant and others of his category having availed of the benefits of this action, a vested right had been created which could not be taken away by a subsequent order purported to have been issued by the President. In this connection, our attention was also drawn to a ruling given by the Law Division vide Memo. No,1/9/R/79, dated 14-9-1979, issued by the Ministry of Interior to the Headquarters, Pakistan Rangers Lahore, wherein it has been stated that, on repeal of the F.S.F Act, 1978, the F.S.F. Stood disbanded and, in consequence thereof, the services of the ex-F.S.F. Were terminated. It was further stated that the orders of transfer of the personnel to other organizations would amount to fresh order of appointment. If this ruling of the Law Division be accepted as correct, which the department had actually accepted, their contention that the appellant and other ex-F.S.F. Personnel had not been appointed as members of the Force would clearly appear to be ridiculous.
11. Apart from the above, there is incontestable evidence on record that the distribution of manpower among the different organizations on the disbandment of the F.S.F. Was decided upon by the Ministry of Interior, in consultation with and with the consent of these organizations and that the personnel transferred to the Rangers were sent there on permanent basis and not as a temporary, stop-gap, or ad hoe arrangement. In the minutes of the meeting held in the Ministry on 29-11-1977, it has been clearly stated that "Final position of distribution of manpower will be as in Annexure I".
' This final decision is preceded by the following passage of the minutes: "Civil Armed Forces representatives expressed their reservations with regard to absorption of upper subordinate and officers of the Federal Security Force mainly on the ground that the rank structures of F.S.F. And C.A.F. Did not correspond with each other and that insurmountable administrative difficulties were inherent in the implementation of the decisions to absorb such personnel. F.C. Baluchistan, therefore, preferred not to get any manpower of the_Federal Security Force and those already offered to them except the Nursing Staff and the Band personnel were agreed to be transferred to the Rangers who showed readiness to absorb them against their augmentation plan. The D.G. Coast Guards expressed his inability to absorb five A.Ds offered to him and the D.G., Rangers agreed to have them."
12. To support his stand that, on the date of termination of his services, the appellant was a member of the Force and he could not be removed from service on mere 15 days' notice, but in accordance with the rules relating to termination of service of a member of the Force, he drew our attention to section 2(g) of the West Pakistan Rangers Ordinance, 1959, in the proviso to which it has been laid down that, if any person on the strength of the Force receives pay from the Force for a period of 6 months or more, he is to be treated as a member of the Force. The appellant and others, who were not only taken on th strength of the Force but also given their regimental numbers, had served the Force for about 2 years and could not but be treated a members of the Force. The respondents had nothing to say to counted this argument and we do not see any justification for rejecting this and not treating the appellant and others as regular members of the Force on the date of the impugned order.
13. From the above discussions, our understanding of the whole case is that the C.M.L.A. Had decided that all those persons who were undesirable should be removed from service, that those against whom criminal cases were pending should be kept on supernumerary list for the purpose of finalizing the cases against them and that the rest should be absorbed in other organizations after the disbandment of the F.S.F. In pursuance of this decision, a number of persons were transferred to the Pakistan Rangers. After some time, because of the vested interests of the older members of the Force, efforts were made to eliminate as many as possible of the newcomers, whose presence adversely affected the prospects of the older members. As a result of the pressure exercised by these persons, as many as 268 persons were relieved in September-October, 1979.
The excuse put forward now, on behalf of the department, that this was done on account of non- availability of posts, looks somewhat absurd, when we find that, within a few months of these terminations, about 100 persons were promoted to various ranks within the Force, which clearly shows that shortage of vacancies could not be a valid ground for the termination of the service of the concerned persons. During the arguments, however, it was pleaded on behalf of the respondents that suitability for retention or otherwise, as adjudged by the relevant officers, was also taken into account before the termination was ordered. This stand clearly contradicts the plea of shortage of vacancies taken in the written objections. However, even apart from this contradiction, there is no merit in the plea that the appellant's services were dispensed with on the ground of his unsuitability for Rangers. According to the learned counsel for the Respondents, training was given to all F.S.F. Men at Mandi Bahauddin during January to March, 1978 and, after the completion of this training, services of 52 of them were dispensed with on the ground of unsuitability. Since the appellant's services were not dispensed with at that time, it is clear that he was not found unsuitable. Therefore, the termination of his services after about 2 years could not be defended on the ground of unsuitability.
14. So far as we can see, the directive of the President, as contained in the Ministry's letter of 1st September, 1979, if correctly interpreted, does not modify or rescind his earlier directive as reported by the C.O's. To the President on 1st of November, 1977. The new directive relates to those who had not been absorbed in any organization. The appellant and many others alongwith him had been absorbed and there could be no going back on that. Therefore, they could not be discharged merely because, for some reason or the other, whose validity or reasonableness has not been explained, the Rangers organization did not like to keep these persons.
15. From the facts and figures produced before us, it is seen that 268, out of a total of 3,797 persons transferred to the Pakistan Rangers, were relieved of their jobs. We are unable to accept the position that the Government could not find jobs for them within the Pakistan Rangers, after they had been found fit for retention in service, subsequent to the disbandment of the F.S.F. And after they had survived a training period. If at all, it was impossible to find jobs for these persons, the principle laid down in the proviso to section 11(2) should have been followed, instead of the arbitrary manner resorted in the impugned order.
16. In the result, we allow the appeal and order that the appellant shall be re-instated in service with effect from the date of termination, alongwith the consequential benefits. However, arrears of pay and allowances can be paid to him only if it is established that he was not gainfully employed elsewhere during the said period or that if he was so employed, the emoluments received by him were less than the arrears due to him, in which case the arrears payable to him shall be only to the extent of the difference. {{TABLE TEXT}}
17. No order as to costs.
18. Parties to be informed.
19. This judgment shall also apply, bearing Nos,517, 518, 519, 520, 521, mutatis 522, 523, mutandis, 524, 525, to appeals 526, 527, 528, 529, 530, 531, 532, 533, 534, 535, 536, 537, 538, 539, 540, 541, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 554, 555, 556, 557, 558, 559, 560, 561, 562, 563, 564, 565, 566, 567, 568, 569, 570, 571, 572, 573, 574, 575, 576, 577, 578, 579, 580, 581, 582, 583, 584, 585, 586, 587, 588, 589, 590, 591, 592, 593, 594, 595, 596, 597, 598, 599, 600, 601, 602, 603, 604, 605, 606, 607, 608, 609, 610, 611, 612, 613, 614, 615, 616, 617, 618, 619, 620, 621, 622, 623, 624, 625, 626, 627, 628, 629, 630/L/1982.