1. MUNAWAR ALI KHAN (CHAIRMAN.)-Appellant, Bahadur Ali Zaidi was employed as Assistant in the Ministry of Industries, Government of Pakistan when his services were placed at the disposal of provincial Government of West Pakistan by Order No. Admn.(1)/3(6)/62, dated 18th June, 1982. His transfer was the result of reorganization of the said Ministry in the light of changes with regard to allocation of subject between the Federal Government and Provincial Government in the new Constitution of 1982. Some of the subjects relating the industrial field which were previously the responsibility of the Federal Government were assigned to the Provincial Government. Following the transfer of his services to the Provincial Government, the appellant moved for his absorption in the office of the Regional Directorate, Karachi. Having failed to secure his posting in the said office, he addressed a direct application to the said Directorate for appointment in one of the vacancies then existing in that office. On his application, he was appointed in Regional Directorate on the conditions specified in the Order of his appointment bearing No. KR/IND/Estt: /62, dated 11th December, 1962. One of the conditions of his appointment was that he would be given seniority in the cadre of Assistants with effect from the date of his assumption of duties. The appellant accepted the appointment, inter alia, on the said condition relating to determination of his seniority.
2. Meanwhile the Federal Government had issued the guidelines vide its Letter No. 1/12/62-IC(RP), dated 17th November, 1962 for absorbing those employees of the Central Government who were affected by re-organization as a result of constitutional changes and were transferred to the Provincial Government. By its Letter No. O&N(IC)-2/63, dated 14-1-1964, the defunct-Government of West Pakistan more or less adopted the aforesaid guidelines issued by the Federal Government. As provided in these guidelines, seniority of the affected employees was to be determined with reference to his date of continuous appointment to the grade. Since the seniority clause mentioned in his appointment order was not in consonance with the guidelines issued by both the Federal Government and Provincial Government the appellant felt aggrieved by the said clause.
3. However, he agitated his grievance in that respect for the first time in 1984 vide his representation, dated 21-2-1984 addressed to the Director of Industries and Mineral Development. Government of Sind, Karachi. After his representation was rejected by the said officer vide his Order No. S-IND-E- 7(34)/80/3548, dated 7-5-1985, the appellant preferred departmental appeal to the Secretary to Government of Sind, Industries Department. As no decision was made by the appellate authority within the statutory period of ninety days, the appellant has approached the Tribunal with prayer that the impugned order passed by the Director be set aside and he may be allowed seniority from the date of his continuous officiation in the specified grade.
4. We have heard the arguments of the learned counsel for the appellant as well as the learned Assistant Advocate-General on behalf of the official respondents and have also referred to the mass of documents relevant for disposal of the appeal.
5. It is not controverted that as a result of re-organization of the Ministry of Industries, Government of Pakistan, in the light of Constitutional changes, the services of the appellant were placed at the disposal of the Provincial Government. It is also not disputed that the appellant was to be absorbed by the Provincial Government in accordance with the guidelines issued by the Federal Government and duly adopted by the Provincial Government. As laid down in the said guidelines the seniority of the, appellant was to be reckoned from the date of his continuous officiation in his grade. However, on his appointment in the Regional Directorate, Karachi, he was not allowed the benefit of the above guidelines but instead it was specifically mentioned in his appointment order that his seniority would count from the date of his assumption of duties in the said Directorate.
6. The point that falls for our determination is whether ,the condition relating to seniority specified in the appointment order of the appellant was legally correct. The argument put forth on behalf of the appellant was that the said condition being inconsistent with the policy decisions taken by both the Federal Government and the Provincial Government as reflected in their guidelines referred to above was illegal, and therefore, not bining on the appellant. On the other hand the stand taken on behalf of the Provincial Government was that the appellant did not avail his right of absorption through the Provincial Government but instead chose to approach the Regional Directorate, Karachi directly for his appointment in one of the existing vacancies in the said Directorate and, therefore, he could not claim his seniority to be fixed in accordance with the policy guidelines issued by both the Governments.
7. We have given our best thought to the argument addressed at the part. It appears that appellant's services were placed at the disposal of Provincial Government by letter, dated 18th June, 1962 issued by the Ministry of Industries, Government of Pakistan. It was rightly addressed to the Secretary, Government of West Pakistan, Industries Department, Lahore. This letter was later superseded by another letter, dated 19th September, 1962 by which too the Secretary, Provincial Government was informed that as the appellant was granted leave for three months and fifteen days with effect from 31st June, 1962, his services would be deemed to have been placed at the disposal of the Provincial Government, after the expiry of the said leave. However, before the expiry of the leave, the appellant represented to the Secretary, Government of West Pakistan, Industries Department Lahore, that as his mother was seriously ill, he was not in a position to join at Lahore. He requested the Secretary to give him posting in the Office of Regional Directorate, Karachi. He also informed the Secretary that he had already made such application for his appointment in the Regional Office, a copy whereof was endorsed to him by the Federal Ministry of Industries. It appears that the appellant had also succeeded in getting telegram sent to the Secretary.
8. Provincial Government by Section Officer of Federal Ministry of Industries, recommending his absorption in the Office of Regional Directorate. Despite these efforts made by the appellant for his absorption in Regional office located at Karachi, we have not been shown any order passed by the Provincial Government ordering his absorption and Consequent posting in the said office. It is clear that the transfer of the appellant was from one Government to another Government (i.e. From Federal Government to Provincial Government). As such the Provincial Government alone was competent to order for absorption of the appellant and issue his posting order. No doubt the appellant made representation to the Secretary, Government of West Pakistan requesting him that after expiry of his leave he' should be absorbed and posted in the Regional Office of the Directorate at Karachi but he has not produced any proof to show that his representation was accepted and he was absorbed and posted in the Office of Regional Directorate. The letters and telegrams issued by the Ministry of Industries to the Secretary, Provincial Government as well as to the Directorate Regional Office were only recommendatory in nature. Even otherwise the Federal Government was not empowered to issued any mandatory directive to the Provincial Government for the appellant's absorption in the Regional Office at Karachi. There is no trace on the record to indicate that the Provincial Government had accepted the recommendations of the Federal Government. Neither the appellant nor, his counsel was able to refer to any document by which the Provincial Government who above was the competent authority to order absorption of the appellant, had formally absorbed him and ordered his posting in Office of Regional Directorate. In absence of such material, the appellant's absorption in the Regional Office cannot be held have been made by the Provincial Government.
9. The above conclusion finds support from the appellant's own admission that he made direct application, dated 29th October, 1962 to the Head of Regional Directorate for his appointment in one of the vacant posts under him. As pointed out above the said Directorate was not competent to order the appellant's absorption in accordance with the policy decisions made by the Federal Government and the Provincial Government. Therefore, his direct application to the Regional Directorate given as impression as if he waived his right to be absorbed by order of Government and agreed to his appointment in the Regional Office of Karachi regardless of whether tie was absorbed in continuation of his previous service or was treated as a fresh he accepted the appointment with express condition that for the purpose of seniority he would be treated as fresh appointee. The appellant was free to take exception to such condition. But instead he went a step further and gave his written acceptance of the appointment. His written acceptance filed with the written statement records as follows:-- "Sir, with reference to your Letter No. KR/IND/ESTT/11483/85/62, dated 11th December, 1962, giving me the offer of appointment for the post of Assistant, I beg to submit that I accept the offer of appointment with terms and conditions laid down therein. Accordingly I beg to report myself for duty today the 21 December, 1962 (forenoon)."
10. After giving such acceptance in the unambiguous terms the appellant cannot turn round to say that it was not binding on him. His argument was that he had accepted the conditions of his appointment under compulsion. We see no trace on the record indicating as to who had compelled him to accept the said conditions. May be he was compelled by private reasons namely the illness of his mother. If that was so, he had to thank himself for the said acceptance of the appointment. In any case that could not be accepted as a reason for holding that the appellant had accepted the appointment on the specified conditions under coercion.
11. We have all the sympathies with the appellant particularly when his mother was ill and for that reason he insisted upon his posting at Karachi. But that was for the concerned authority to consider. As painted out above the Provincial Government alone was competent to order his absorption and posting in the Regional Directorate's Office at Karachi. Unfortunately the appellantst did not succeed in obtaining such order in his favour. In normal course as soon as his services were placed at the disposal of the Provincial Government, he should have formally reported to the said Government for duties. Thereafter, in view of his domestic difficulties he should have persuaded the Government to order his absorption and posting in the Office of Regional Directorate, Karachi. Even though he made representation to the Secretary for his posting in the Regional Office, Karachi, the appellant has not been able to produce any order of the Provincial Government passed on his representation. It is rather an admitted position that the Provincial Government had neither ordered the appellant's absorption and posting at Karachi nor had approved the action of the Regional Directorate of his appointment in the said office. It is obvious that the appellant had got the appointment in the Regional Office, Karachi by his own efforts and without intervention of the competent authority namely the Provincial Government. In such a situation the guidelines issued by the Federal Government as well as Provincial Government for absorption of displaced employees of the Federal Government would not be applicable to him.
12. If his absorption had been made by order of the Provincial Government, ordinarily he would have been absorbed in the Provincial Secretariat. In that case his seniority would have been determined in relation to seniority of the Assistant working in the said Secretariat Subsequently if for any reason, he was posted outside the Secretariat' in the Karachi Regional Office, his seniority would have remained; unaltered. Under no circumstances, his Seniority would have created any difficulties for the assistants working in the Regional Directorate. Even otherwise there was no justification to make the officials of the said Directorate suffer in their seniority on account of appellant's appointment in the Directorate. Thus, if he was absorbed in accordance with the guidelines of the two Government he would get the benefit of his seniority vis-a-vis the Assistants working, in the Provincial Government's Secretariate and not in the Regional Office of Karachi.
13. Apart from above, he did not agitate for his seniority immediately after his appointment. He slept over the matter for nearly two decades. His appointment was made in 1962 but he made representation for his' seniority for the first time in 1984. It is a well-known maxim of law that delay defeats equity. The delay that appellant made in agitating for his seniority did not entitle him to the desired relief even on equitable grounds. For above reasons we see no substance in his appeal, which is accordingly dismissed.
14. M.Y.H./99/Lb/S