' ABDUL JABBAR KHAN (CHAIRMAN).--M. Ikramul Haq has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Federation of Pakistan through Secretary, Establishment Division, Cabinet Secretariat, Rawalpindi and Government of Punjab through Chief Secretary, Civil Secretariat, Lahore, as respondents.
2. By virtue of this appeal he has prayed that order of respondent No, 1, dated 15-11-1980, retiring the appellant from service with immediate effect in purported exercise of powers under clause (ii) of section 13 of the Civil Servants Act, 1974 be declared illegal and without any effect.
3. Brief facts of the case are that the appellant who initially joined service in the Punjab Government in the Education Department on 28-3-1951, as a Lecturer was appointed in the Foreign Affairs Group, Government of Pakistan, on 12-10-1973, in Grade-19 through Lateral Entry Competitive Examination. He was selected on merit and after his joining the Foreign Affairs Group and subsequent training at the Pakistan Administrative Staff College, Lahore, he was posted as Counsellor, Embassy of Pakistan, Vienna (Austria), which post he held till 30-12-1975, when he was transferred to the Foreign Affairs Ministry, Islamabad. The appellant also stood the test of section 12-A and was cleared by the High Powered Review Board, vide D.O. Letter dated 10-6-1978. However, under section 13(ii) of the Civil Servants Act, the respondent No, 1 ordered the retirement of the appellant w,e,f, 16-11-1980. The appellant submitted a review petition to the respondent No, 1 on 11- 12-1980 but received no reply within 90 days of the petition. The appellant on 9-3-1981, preferred an appeal to the Federal Service Tribunal. The appeal was admitted to regular hearing. The final hearing was adjourned from time to time and thereafter arguments from both sides were heard on a number of times. The last hearing took place on 15-8-1983, when the judgment was reserved.
That on 13-9-1983, the appellant visited Islamabad and after inquiring at the office of the Federal Service Tribunal, came to know that his appeal had been decided vide judgment dated 5-9-1983.
He collected a copy of the judgment dated 14-9-1983, and applied for certified copies of judgment and appeal complete with annexures which were supplied to him on 12-10-1983. The Federal Service Tribunal held that the appellant being undoubtedly a permanent employee of the Punjab Government and admittedly not having been confirmed in the Service of Federal Government ought to have moved the Punjab Service Tribunal. Hence this appeal.
' We have heard the learned counsel for the appellant, learned District Attorney as well as learned counsel Hafiz Tariq Naseem on behalf of Federal Government and have perused the record of this case carefully with their assistance.
5. Learned counsel for the appellant has submitted that as the appellant had not been confirmed against any post under the Federal Government therefore, he continued to retain his lien against a permanent post substantive) under the Government of the Punjab. It has been further pointed out that a required by sub-para. (b) of para. 1 of the Establishment Division Letter No,1/8/J3/AEC, dated 20-11-1973, the appellant's consent to the termination of his lien against the substantively held post in the Punjab Province has not been obtained, therefore, for all intents and purposes appellant continues to be 'civil servant' under the Punjab Government. He has also relied on the judgment of Ghulam Mustafa Qazi v. Federation of Pakistan and Government of Punjab through Chief Secretary Punjab, decided by this Tribunal on 13-2-1982.
6. Learned counsel for the appellant in the alternative has submitted that the appellant had only put in 7 years 6 months and 3 days of service under the Federal Government and 22 years 6 months and 3 days of service with the Punjab Government before his selection to the Foreign Affairs Group of the Federal Government, and in this manner he had not completed 25 years' service under either Government to come within the purview of section 12(ii) of the Punjab Civil Servants Act, 1974, relating to the retirement of Government servants. He has challenged section 13(ii), which according to him has been held un-Islamic by the Full Bench of the Sharia Court of Pakistan.
7. With regard to the delay in filing this appeal before this Tribunal he has submitted that under section 14 of the Limitation Act the period spent with due diligence was liable to be excluded. He has also pleaded that as the order was basically a void order without jurisdiction the period of delay was liable to be condoned. For this he has relied on the following rulings:-- ' PLD 1969 Lah. 1039, PLD 1967 SC 506, PLD 1970 Lah. 559, Privy Council 1929 AIR 103, Privy Council 1929 AIR 108, PLD 1961 SC 105,PLD 1966 SC 788 and PLD 1958 SC(Pak.) 104.
' Lastly he also relied on the judgment of Justice Shah Abdur Rashid, Chairman, Federal Service Tribunal, in his case with a note of Brig. Abdur Rashid, S.I. (M) (Retd.), Member.
8. On the other hand learned District Attorney has adopted the comments filed by the Education Department in extensor. Similarly learned counsel appearing on behalf of the Federal Government has adopted the comments submitted by the Section Officer, Litigation Section, Cabinet Secretariat, Establishment Division, Rawalpindi. It has been argued on behalf of the Federal Government that the appellant was a civil servant in the Central Government and was retired after completing 25 years' service qualifying for pension as such Punjab Service Tribunal has no jurisdiction to adjudicate upon this matter. He has also raised point of non-joinder as according to him, Ministry of Foreign Affairs, Islamabad has also to be impleaded. He has taken a strong exception to the appeal on the point of limitation by submitting that he should not have gone to a wrong forum and if he considered himself a civil servant of Punjab Government, he should have preferred the appeal before the Punjab Service Tribunal.
9. We have given our anxious thought to the arguments advanced by the parties and first of all will advert to the point of limitation which has been vehemently raised by the learned District Attorney as well as learned counsel for the Federal Government. In this matter we will first refer to the judgment of the Federal Service Tribunal. Learned Chairman of the Federal Service Tribunal, after hearing the arguments at length and discussing a number of rulings cited before him, came to a positive conclusion that the appellant being a confirmed employee of the Provincial Government and having a lien on the permanent post in the Province, would remain a deputations with the Federal Government as long as his lien in the Provincial Government is not terminated or unless he reverts to the Province. He further observed that the respondent failed to satisfy him that the appellant had no lien with the Provincial Government. It was ultimately decided by him that he was of the opinion that the appellant being on deputation from the Province to the Federation, was not a civil servant, as such he could not invoke the jurisdiction of the said Tribunal. He further concluded that the Federal Service Tribunal would leave it for the appellant to approach the appropriate forum for remedying the wrong done to him, with a recommendation that the Federal Government could also undo the wrong, if it so desired, by rescinding the order of retirement of the appellant and by reverting him to the Province, leaving it to the Governor to pass such order as he would deem fit. It will be useful to refer to the note of Brig. Abdur Rashid, S.I. (M) (Retd.) Member which is reproduced below:- "It is true that the term `deputations' has not been defined in law. However, it could not be denied that deputation implies, implicitly or explicitly, the element of borrowing and lending. In the instant case this important element is missing. This would mean that the appellant was not a deputations because not only that there is no lending and borrowing in this case, the fact that he has been retired by the President under section 13(h) of the Civil Servants Act, 1973, he has been, for all intents and purposes, treated as a civil servant within the meaning of the definition. This is as far one position goes. However, in this situation our jurisdiction stands barred under section 13(1) of P.C.O.
1981.
' The other position, beneficial to the appellant, is that if he was treated as a deputations, as is the essence of the above judgment, then the orders purported to have been passed by the competent Authority in exercise of section 13(ii) of the Civil Servants Act (LXXI of 1973) must also be regarded as void a initio. This would then lead us to the logical conclusion that since the appellant happened to be a confirmed employee of the Punjab Provincial Education Department the Governor alone was competent to pass any orders he deemed appropriate. All that the Federal Government would, in this situation be competent to do was to revert the appellant to the Provincial Government.
' Whether we take one position or the other, the fact of the matter is that the appellant has been rendered jobless. For the Federal Service Tribunal to say at this stage that the appeal is not competent and that we have no jurisdiction is tantamount to denial of justice to an aggrieved and talented civil servant even though legally this may be the position. Whichever forum, the appellant turned to now and it would, most probably, be Punjab Service Tribunal, his appeal may be dismissed as time-barred. The appellant has to be saved from such a cool de sac and this is the way I look at the present appeal.
' I am glad that the learned Chairman in his foregoing judgment has stated: "The Federal Government can also undo the wrong if it so desires by rescinding the order of retirement of the appellant and by reverting him to the Province, leaving it to the Governor to pass such order as he deems fit." I would build on this foundation and say that this is a fit case for resubmission to the President under section 23 of the Civil Servants Act, 1973, which reads as under:- "Saving.--Nothing .--Nothing in the Act or in any rule shall be construed to limit or abridge the power of the President to deal with the case of any civil servant in such manner as may appear to him to he just and equitable: ' Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favorable to him than that provided by this Act or such rule."
10. After referring to the judgment of Justice Shah Abdur Rashid, Chairman, Federal Service Tribunal and Brig. (Retd.) Abdur Rashid, Member, the point for consideration which emerges before us is, whether the appellant was at fault in filing appeal before the Federal Service Tribunal or his action was an action of due diligence before a forum which apparently, according to him, was a correct forum for the purpose. In the alternative whether the appellant's act was an act of laches for which he should be held responsible.
11. There is no denial of the fact that the appellant was retired under section 13(ii) of the Act, 1973, by the President of Pakistan, therefore, his initially filing of appeal would be before the Federal Service Tribunal for getting the said order set aside. It is also a fact which cannot be denied that the Federal Service Tribunal admitted this appeal to regular hearing and took 2-1/2 years to decide the matter of jurisdiction, a matter which should have been initially taken and decided so that the period of limitation could have been saved in favour of the appellant. It is a recognized Rule of Procedure that once an appeal is admitted to regular hearing, it is considered that the appellant had a prima facie case in his favour and therefore, he would continue contesting the same till the judgment is delivered either against him or in his favour. In the present case we observe without any fear of contradiction that the point of jurisdiction remained unsettled for a pretty long time and it was only when it was so settled that the appellant had filed this appeal before this Tribunal. It is also a matter of record that learned Member, Brig. Rashid has observed that as the appellant had a permanent lien in the Education Department of the Provincial Government, the impugned order would be ab initio void. This being so we will take into consideration section 14 of the Limitation Act which is not directly applicable to the case before this Tribunal yet the Tribunal while acting under C.P.C. Can take into consideration this aspect. The language of the said section runs as follows:-- "(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court, which from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature is unable to entertain it."
' It will be useful to refer a number of Rulings cited by the learned counsel for the appellant. In PLD 1969 Lah. 1039, their Lordships of the High Court Justice Anwarul Haq and Justice Shafiur Rehman, JJ. Held that bar of limitation cannot be raised when the impugned order was void and without jurisdiction. Similarly in PLD 1961 SC 105 it has been held that: Delay-diligently making representations to Government all through, from 1949, when he suffered injury to 1957, when he filed petition. In this way that person who pursued the matter with diligence was entitled to the condonation of delay. In PLD 1967 SC 506 Abdul Qadir v. Government West Pakistan, their Lordships of the Supreme Court of Pakistan held as under: "As against this the learned Advocate-General appearing on behalf of the Government of West Pakistan, has contended that since the writ petition was filed in 1963, to challenge the validity of an order passed in August, 1960, it was in any event, barred on the ground of laches and should have been dismissed as such. But I am unable to accept this contention, for, it appears that the appellant immediately after the order was communicated to him filed an appeal therefrom and this appeal was dismissed by the Additional Inspector-General of Police on the 29th of December, 1960. From this order the appellant made a further representation by what has been described as a mercy petition to the Inspector-General of Police, himself, and this was rejected only on the 29th January, 1962. The appellant has now, with the leave of this Court, filed further documents to show that thereafter he moved various higher authorities, including the Home Secretary to Government of West Pakistan, and the President of Pakistan on the 19th of November, 1962, as also gave notice under section 80 of the Code of Civil Procedure to the Government. His representations were finally rejected on the 7th November, 1963, by Memorandum No, H.P.1112-13/63, and it was within one month before this that he moved the High Court on the 3rd October, 1963. It cannot in the circumstances, be said that his petition under Article 98 was barred on the ground of laches."
' In PLD 1970 Lah.
559. Justice Muhammad Afzal Zullah now on the Supreme Court of Pakistan and Justice Ghulam Rasul K. Sheikh, as he then was, held as under: "Laches has often been defined as such negligence or omission to assert a right, as, taken in conjunction with the great lapse of time and other circumstances, causes prejudice to adverse party. If a person seeking remedy has not committed such a delay as would cause prejudice to the other side that would amount to waiver or acquiescence on the part of the person seeking the remedy, technical plea of laches, by itself would not be sufficient to bar the remedy. After discussing the law of the land their Lordships were of the opinion that in this case, admittedly, no other party has been affected by the delay in filing the petition, even if it is held that the same is without any reasonable explanation. Proceeding on the basis that the remedy sought in this petition is against a continuing wrong and that the delay, if any, has not prejudiced any other party, we repel the contention raised by the learned counsel for the respondents."
' Similarly in the AIR Privy Council their Lordships of the Supreme Court held that time spent in prosecuting in good faith before an arbitrator having no jurisdiction should be excluded.
12. In view of the law so cited above as well as view taken by the Federal Services Tribunal particularly when it has been held by them that the order was ab initio void, we condone the delay in this case as no limitation runs against a void order.
13. A case of identical nature came before this Tribunal earlier when Ghulam Mustafa Kazi filed an appeal before it. The salient features of the said case are as under: Ghulam Mustafa Qazi started his career as Assistant Engineer in P.W.D., D & R Secretariat of the Punjab Government, by virtue of his selection by the Public Service Commission, and promoted to the rank of Superintending Engineer on 23-1-1973. In the year 1975, he appeared in the competitive examination for the post of Joint Secretary in the All Pakistan Unified Grade. After selection he joined on 14-11-1975 as Joint Secretary to the Federal Government in Grade-20 subject to the conditions laid down in Establishment Division's letter dated 21-10-1975, viz. "In case you hold a permanent post, substantively under the Provincial Government you will be entitled to retain a lien thereon in accordance with the rules, until you are confirmed in a post in the Secretariat Group." It may be mentioned here that under identical conditions the appellant also joined the Central Government. The said Mr. Ghulam Mustafa Qazi was appointed as Director-General, Population Planning, Punjab and in that capacity he served as such and later on transferred and posted as O.S.D. Establishment Division with Headquarter at Lahore. It was at this stage that Ghulam Mustafa Qazi received impugned order dated 22-11-1980, passed by the President of Pakistan under section 13(ii) of the Civil Servants Act, 1973, whereby he was retired from service with immediate effect. In this case it was found by us that the appellant had not been confirmed against any post in the Federal Government and continued to retain his lien in the Provincial Government. Two issues were struck down in this case i,e, :
(1) Whether the status of the appellant was that of deputationist, holding his lien with the Provincial Government; or
(2) Whether he had become, for all purposes, an employee of the Federation subject to the rule- making powers of the President.
We took the same view as has been taken by the Federal Service Tribunal by holding that unless a civil servant working in the Federal Government is confirmed by the said Government, he would be for all intents and purposes, a civil servant of the Province, subject to the rule-making authority of the Governor. This view has also been held in the Mian Zakauddin Shafi and others. In the present case also the Provincial Government has admitted that he holds a permanent lien with the Provincial Government and the Federal Government has also conceded that he was not confirmed with the Federal Government. Ultimately this Tribunal came to the following decision:-- "In view of our above analysis of the two opinions of the Establishment Division and Law Division on this issue which runs contrary to each other and the law laid down in this behalf by their Lordships of the Supreme Court of Pakistan and that of the High Court, we have no hesitation to hold that a civil servant, even though joining the Federal Government through a process of selection, would be deemed to remain on deputation with the said Government unless and until he stood confirmed in his new assignment. Any other view to the contrary would mean that we will be allowing lien of the said servant to be destroyed and thus depriving him of his vested interest once for all.
14. In view of the above, while following our earlier view in the case of Ghulam Mustafa Qazi as well as agreeing with the broad principle of interpretation of the word "deputation" by the Federal Service Tribunal and taking into consideration the note of Brig. (Retd.) Abdul Rashid, Member, we are of the considered opinion that the order of President of Pakistan (Respondent No, 1) was without jurisdiction and thus void a initio. The appellant is reinstated in service with all back benefits and is directed to report to the Governor of the Province whose employee he is and where he holds a permanent lien under him. It would be for the Governor to decide what proper action he wants to take against the appellant. The appeal is accepted and the impugned order is set aside. However, there will be no order as to costs. Judgment be communicated to the parties.