' SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Mr. Rashid Ahmad Mughal was a Deputy Director (B-18), Bureau of Emigration and Overseas Employment, Islamabad, when he was appointed as a Labour Attache with the diplomatic status of Second Secretary (Senior Grade) in the Embassy of Pakistan, Baghdad, vide Memo. No, 12-2-(1)/80-Estt., dated the 10th February, 1981, from the date of assumption of charge of the post in the Mission, on the terms and conditions contained therein. By Office Memorandum No, 4/16/81- T.IV, dated the 8th October, 1981, the Establishment Division circulated a formula regarding grant of diplomatic status to those civilian officers of Ministries/Division who are/shall be posted to Pakistan Missions abroad. It is reproduced below:-- OFFICE MEMORANDUM ' Subject:- Grant of diplomatic status to Civilian Officers of other Ministries/Divisions who are posted in Pakistan Missions Abroad.
' The undersigned is directed to say that in consultation with the Ministry of Foreign Affairs, it has been decided that following formula regarding grant of Diplomatic Status shall be applicable to those Civilian Officers of Ministries/Divisions who are/shall be posted to Pakistan Missions abroad:- -
(1) Second Secretary (Junior Grade any designation in future).Grade-17
(2) Second Secretary (Senior Grade or any designation in future).Grade-18
(3) First SecretaryAt least 5 years' service in Grade 18 and cleared by the Special Selection Board in case of non P.C. Officers.
(4) Counsellor. Grade-19
(5) Minister. G rade-20.
(2) It has also been decided that on the appointment' of officers to foreign Missions not only their seniority in accordance with the formula but also their suitability for appointment at that senior level would be taken into account.
' Sd/- ' Javid Akram, ' Deputy Secretary".
' The appellant made representation dated 22-94983 to his parent department viz. The. Manpower Division that he may be conferred diplomatic status of First Secretary from October, 1981 as he had completed five years' service in B-18 on 18-9-1981. He was granted the diplomatic status of First Secretary (B-18) while holding the post of Community Welfare Attache, Baghdad (Iraq), with effect from 24-4-1984, vide notification dated 30th May, 1984, issued by the Manpower Division. Feeling aggrieved, he made representation dated 14-6-1984 to the Secretary, Establishment Division for granting him diplomatic status of First Secretary with effect from 18th September, 1981 when he completed five years' service in B-18. His representation was turned down by the Establishment Division vide Office Memorandum dated 5th February, 1985, communicated to him by the Manpower Division under Memorandum dated 7th March, 1985. He preferred this appeal on 13-4- 1985 to seek relief of getting status of First Secretary in the Embassy of Pakistan, Baghdad with effect from 18th September, 1981.
2. The learned counsel for the appellant has urged that by virtue of Office Memorandum dated 8th October, 1981, the appellant was entitled to get the diplomatic status of First Secretary in the Embassy of Pakistan, Baghdad, with effect from 18-9-1981 when he completed five years' service in B-18. He has made reference to two notifications one dated 13-6-1984 and another dated 29-7- 1984 where under M/s. Manzoor Ahmad and Muhammad Azam were respectively granted diplomatic status of First Secretary in the similar circumstances. According to him, the appellant's placement as a First Secretary with effect from 24-4-1984 has no basis and it is an imaginary date.
3. The appeal has been resisted by the respondents. In their objections it has been eontended that the criteria for giving status of First Secretary was applicable to only those officers who had completed five years service in B-18 before appointment to a diplomatic post. It has further been contended therein that the order dated the 30th May, 1984 where under the appellant was granted diplomatic status of First Secretary with effeet from 24-4-1984 was against the instructions issued by the Establishment Division vide Office Memorandum dated 8-10-1981 and other orders of like nature also were in contravention of those instructions. The learned counsel for the Government has not agreed to the interpretation put by the department on the notification dated 8th October, 1981. However, he has contended that rise in diplomatic status or its determination did not automatically accrue on the completion of the prescribed length of service, but it was dependent on the suitability of an officer to be determined by the competent Authority. He has advanced the plea of limitation, although not agitated in the written objections. He has urged that the impugned order was passed on 30-5-1984 the departmental appeal was filed on 14-6-1984 and two reminders were issued, one on 16-12-1984 and another on 1-1-1985 and reply was sent to the second reminder on 7-3-1985, whereas the appeal had to be filed within 120 days of the order dated 30-5-1984 and it was, therefore, time-barred.
He has placed reliance on the cases reported in 1984 SCMR 864 and 1986 SCM R 782.
4. The appeal, on merits, involves interpretation of the formula policy embodied in the Office Memorandum dated 8-10-1981, reproduced above. It appears from its bare reading that the formula laid therein extends to the civilian officers of Ministries/Divisions who were posted to Pakistan Missions abroad at that time and also to those who were to be posted to Pakistan Missions abroad thenceforth. The interpretation made by the department that the formula was applicable to those officers who had completed five years' service in Grade-18 before their posting to the Pakistan Missions abroad does not seem in consonance with the text of the memorandum. It is clear from its text that the formula was applicable to those who were already posted in the Pakistan Missions abroad and is applicable to those civilian officers posted to the Pakistan Missions abroad thereafter. Thus, the status/rank of the civilian officers who were serving in the Pakistan Missions abroad was to be determined on the basis of the formula as laid down. If the departmental interpretation were to prevail, no civilian officer could rise to the higher rank even if he were promoted to higher grade in the parent department and that does not seem to be the wisdom behind the formula laid down under the said Office Memorandum. Of course, the formula was and has to be observed while considering civilian officers for posting at the Pakistan Missions abroad but it was also intended to apply to the civilian officers who were already posted at the Pakistan Missions abroad.
5. In the appellant's case, he was in B-18 when he was appointed as Labour Attache in the Embassy of Pakistan at Baghdad. In due course of time, he completed five years service in B-18 and became eligible for getting the diplomatic status of First Secretary but subject to the clearance by Special Selection Board. He could not get automatie rise in his diplomatic status but his suitability for the post also was to be considered as per paragraph 2 of the policy letter dated 8th October, 19$1. He was conferred the diplomatic status of the First Secretary with effect from 24-4-1984 vide notification dated 30th May, 1984. It is not indicated as to what was the basis for making the order effective from 24-4-1984. The instances quoted by the appellant, mentioned above, are the instances of grant of higher status with retrospective effect and the appellant's case could also be considered likewise, if there was no impediment in his way. Of course, the retrospectivity of the order had and has to be considered on the recommendation of the Special Selection Board.
6. As regards the question of limitation, the appellant was aggrieved by notification dated 30th May, 1984 whereby he was granted diplomatic status of First Secretary with effect from 24-4-1984 and not from an earlier date after he had completed five years' service in B-18 on 18-9-1981. He filed departmental appeal on 14-6-1984 and he awaited decision thereon till 7-3-1985 when he was informed that his request could not be acceded to. The appeal filed on 13-4-1985 is, therefore, well within the period of limitation of thirty days provided under subsection (1) of section 4 of the Service Tribunals Act, 1973. The cases cited by the learned counsel for the respondents are based on different facts and are not applicable.
7. Consequent to the reasons recorded above, the appellant's appeal is allowed to the extent that he shall be allowed diplomatic status of First Secretary from the date determined or as may be determined by Special Selection Board envisaged under the Office Memorandum dated 8th October, 1981.