' S. ABDUL JABBAR KHAN, (CHAIRMAN)-- Professor Abdus Sattar Chohan, on deputation to King Faisal University, Damam, Saudi Arabia, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Government of the Punjab through Secretary to Governemnt of the Punjab, Education Department, Lahore and Chief Secretary to Government of the Punjab, Lahore, as respondents.
2. By virtue of this appeal he has prayed that the impugned order dated 1-2-1982, in so far as it ignores the appellant for promotion as Professor to Grade 19 may be set aside and respondents be directed to promote the appellant to Grade 19 w,e,f, 30-8-1981, or to consider the appellant for promotion to Grade 19 w,e,f, 30-8-1981.
3. Brief facts of the case are that the appellant joined Government service in the Education Department as Lecturer and earned promotions to the posts of Senior Lecturer and then as Assistant Professor. Vide order, dated 19-4-1979, Governor of the Punjab allowed the appellant to serve in Saudi Arabia for the period of 5 years on various terms and conditions stipulated therein. In accordance with condition No, V of the deputation order, the appellant's lien as Assistant Professor was maintained as he was a confirmed Assistant Professor. When the appellant came to Pakistan in July, 1982, he came to know that Punjab Government had ordered promotions of eight Assistant Professors through notification, dated 1-2-1982, wherebty Haji Muhammad Khan, junior to the appellant was also promoted as Professor in Grade 19. He made a representation to Government, dated 20-7-1982, in which he requested that his promotion in Grade 19, as Professor, may be ordered in absentia w,e,f, 30-8-1981. However, no decision on this representation was conveyed.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.
5. Learned counsel for the appellant has submitted that according to the deputation order, dated 19-4-1979, a condition was incorporated in the same as condition No, V, in which it was stated that "lien of a confirmed Government servant will remain in the parent Department. He will be given substantive or officiating promotion as the Authority competent to order promotion may decide in accordance with rule 10.5 of C.S.R. (Punjab) Vol. I, Part I." Learned counsel for the appellant has argued that in view of the abovementioned condition which was part and parcel of his assignments on deputation abroad, the respondent Government was not within its competence to withhold his promotion in absentia as the same had been duly agreed between the parties and no deviation could be made from the same. Learned counsel for the appellant has relied on the substantive provision of section 9 of the Punjab Civil Servants Act, 1974, as well as rule 4.13 of the C.S.R. Vol.l, Part I and rule 10.5 of C.S.R. (Pb.), Vol. I, Part I. Lie has further relied on the law laid down by the Supreme Court of Pakistan reported as PLD 1965 SC 106 as well as decision of this Tribunal in case of Syed Kabir Hussain Shah and Bashir Ahmad Kamlana 1983 PLC (C.S.) 1231. He has also further relied on the judgment of the Federal Service Tribunal reported as 1980 PLC (C.S.) 356.
6. On the other hand learned District Attorney has adopted the parawise comtnents filed by the Deputy Director (Admn.) for Director Public Instruction (C), Punjab, Lahore, and submitted that the claim of the appellant had been turned down on the basis of the promotion Policy of the Central Government as contained in letter, dated 31-10-1982, which was duly adopted by the Provincial Government. According to the learned District Attorney, the said letter of the Central Government, now duly adopted by the Provincial Government the appellant could only be considered for promotion, when he had returned to his country on completion of his deputation period and was in a position to earn a favourable report at least for one year. It has been argued that in view of the above position the Provincial Selection Board was justified in deferring the case of the appellant to fulfil the requirement so laid down in the above-mentioned Policy Letter of the Central/Provincial Government.
7. We have given our anxious thought to the arguments so advanced by the parties and have perused the record and find that there is hardly dispute about the established fact that the notification, dated 19-4-1979, by which the appellant was sent on deputation by the Governor of the Punjab to Saudi Arabia, for a period of 5 years, contained clause (v), which is reproduced as under:-- "(v) The lien of a confirmed Government servant will remain in the parent Department. He will be given a substantive or officiating promotion as the authority competent to order promotion may decide in accordance with rule 10.5 of C.S.R. (Pb.), Vol.1, Part I."
According to this condition, the authority in the case of the appellant would be under obligation to consider him for promotion vis-a-vis his juniors, even though he was absent from the country and serving abroad on a valid deputation. If the Policy Letter of the Central Government would not have been in the field, the case of the appellant was absolutely simple and there could be no two opinions about the same that it was mandatory for the authority to consider and decide his case for promotion vis-a-vis his juniors, even though he was still serving abroad. There is no denial of the fact that there is a Policy Letter of the Central Government, which would be a sheet anchor of 'the case of the respondents, therefore, we are required to resolve this legal issue as to what would be the value of this Policy Letter and how far it could affect the claim of the appellant, which has been duly incorporated in the terms and conditions of his deputation abroad so concurred by the Governor of the Punjab.
8. To resolve this issue we will first of all refer to section 9 of the Punjab Civil Servants Act, 1974, so relied upon by the learned counsel for the appellant, which we reproduce below:-- "Section.
9.-- Posting and Transfer.-- Every civil servant shall be liable to serve anywhere, within or outside the Province, in any post, under the Government of Punjab or Federal Government, Provincial, Local Authority or body or corporation, so set up by the Government, provided that where a civil servant is requried to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve."
The bare reading of this section clearly reveals that the appellant who was serving abroad under the orders of the Governor of Punjab, therefore, his interest had to remain intact and he would not be subjected to any less favourable conditions by virtue of his said service. It would be useful to reproduce Note 4 under rule 4.13 of C.S.R. (Pb.), Vol. I, Part I, as well as rule 10.5 ibid as follows:-- Note 4.-- (The following guiding principles are laid down for the working of the convention usually known as "next below the rules":--
(i) Government servant out of his regular line should not suffer by forfeiting officiating promotion which he would otherwise have received, had he remained in his regular line.
10.5--A Government servant transferred to a foreign service, shall remain in the cadre or cadres, in which he was included in substantive or officiating capacity immediately before his transfer. He may be given such substantive or officiating promotion in those cadres as the authority, competent to order promotion, may decide. In giving promotion such authority shall take into account;
(a) nature of work performed in foreign service; and
(b) the promotion given to juniors in the cadre in which the question of promotion arises.
(ii) In any individual case, the competent authority may grant a Government servant, out of his cadre or cadres, but in his own line, such promotion, as it considers, he would have got, had he not been transferred to a foreign service."
According to proviso of section 23(2) of Punjab Civil Servants Act, 1974, all existing rules shall, in so far as these rules are not in consistent to the Act, be deemed to be the Rules made under this Act.
9. The perusal of this rule vis-a-vis section 9 of the Punjab Civil Servants Act, 1974 and section 23 of the same Act, will further confirm that the appellant had to be treated according to the said Rules as they had a statutory status. The argument of the learned District Attorney that it was obligatory upon the appellant to earn one year report after he had arrived back to the country according to the Policy letter of the Central Government so adopted by the Provincial Government is hardly convincing, when we refer to PLD 1965 SC 106, 'wherein their Lordship of the Supreme Court of Pakistan held that all executive instructions which run counter to the statutory rules on the same subject, are void and should be ignored. We, in our own judgment cited as Syed Kabir Hussain Shah, etc. As quoted in the earlier part of our judgment, have resolved the issue and have held that instructions of the Central Government which were in contravention of the statutory rules, could not be effective and were liable to be ignored. In that case also, the Central Government had issued instructions that in case where civil servants had been re-instated (under MLO-23, they would not be given original seniority vis-a-vis those who were continuing in service. It will be useful to reproduce passage from our said judgment which is as under-- - "What we find is that if there would have been no letter/office memo. From the Establishment Division addressed to all the Chief Secretaries to Provincial Government, the normal rules would have been the guiding principle for fixation of seniority of the appellants. Therefore, what we are required to adjudge is whether this memo, would prevail over the rules of the seniority formulated by the Governor from time to time or not. It is settled principle of law that an office memo, or a letter from howsoever high authority it may be, will have no effect against the statutory Rules promulgated by the Governor in this behalf. Reliance is placed for the principle so enunciated by us as above on the law laid down as under:-- PLD 1961 SC 166 at p. 175, 1981 PLC (C.S.) 422 para.10.
Their Lordships of the Supreme Court in the above-noted authority have observed as under:-- "It follows from the foregoing discussion that the letter of the Chief Secretary, dated the 16th February, 1949, conveyed an instruction which contravened the provisions of the statutory Rules of 1943, which were then and are still in force. The concession of seniority which was by this letter withdrawn from "war service candidates appointed to non-reserved vacancies" was one which was provided for them by the statutory Rules of 1943, and could not be withdrawn by a mere instruction. If the Government had desired to make the change, they could only have done so by amazing the Rules or making a fresh rule, and the question might then have been raised whether the withdrawal of a concession could be made with respect to persons already in service with retrospective effect."
10. We have also perused the advice of the Services, General Administration and Information Department duly vetted by the Law Department which was made available to us during the course of arguments, and find that the said advice has also held that the provision of existing Policy is introduced by the Circular Letter and that of the promotion policy now prepared by the Federal Government are violative of Punjab Civil Servants Act, 1974, in so far as it would deprive a civil servant from promotion during the -period of deputation on the date he would have been so promoted if he had not been sent on deputation. We do not want to reproduce the entire advice of the said Department in this judgment but at the same time, have placed a photostat copy of the same on the record, Annex. A/1 a perusal of which will reveal that both Services, General Administration and Information Department as well as Law Department said the same what we are now holding in our this judgment.
11. We have taken into consideration the objection of the learned District Attorney with regard to the delay in filing this representation before the Departmental authority and find that the same is liable to be repelled on the ground that the appellant being abroad could not know what was happening at home and it was only when he came back to his country on 17-7-1982, he knew that his rights had been affected.
We therefore, condone the delay, keeping in view the limitations of the appellant as well as legal position that the policy of the Central Government adopted by the Provincial Government was void ab initio, as it was ultra vires of the provisions of the Punjab Civil Servants Act, 1974, as well as Rules framed thereunder.
12. In the light of the above discussions in which we have analysed the entire legal position vis-a- vis the stand taken by the learned District Attorney on the strength of written comments of the Department, we are of the considered opinion that the Policy Letter of the Central Government as adopted by the Provincial Government is liable to be ignored and the Provincial Selection Board/Provincial Government should take into consideration the provisions of the Punjab Civil Servants Act, 1974 and those of the C.S. R. (Pb.) Vol. 1, Part I on the subject as well as service record of the appellant, while determining his suitability for promotion in N.P.S. 19, from the date when his next junior Haji Muhammad Khan was promoted.
13. We proceed to accept the appeal, set aside the impugned order, dated 1-2-1982 in so far as it ignores the appellant for promotion as Professor to Grade 19 and direct the respondent to consider the appellant for promotion to Grade 19, w,e,f, 30-8-1981, the date when his next junior Haji Muhammad Khan was so promoted.