' CH. A RAHMAN KHAN (MEMBER).--Syed Wilayat Shah, the appellant, has come in appeal against the impugned order dated the 24th of July, 1985, whereby his departmental appeal dated the 23rd of .January, 1984, was rejected by the competent authority.
2. The facts of the case are that at the time of the creation of the Securities and Stock Exchange Authority of Pakistan, hereinafter referred to as the SEAP, as an attached Department of the Ministry of Finance in 1970, most of the staff was provided by transfer from the Ministry of Finance. The appellant who was then a temporary Assistant holding a lien on the post of Lower Division Clerk, was also transferred as Assistant/Cashier to SEAP vide Office dated 25-11-1970. The extracts of the said order arc reproduced below:- "No, F.1/22/70-Admn. IV Government of Pakistan Ministry of Finance Islamabad, the 25th November, 1970.
OFFICE ORDER NO. 263/70 ' The following staff of the Ministry of Finance arc transferred to the ' Securities and Stock Exchange Authority, which has been declared as a Attached Department of this Ministry:- ' Assistants.
(1) Mr. Muhammad Ashhed.
(2) Mr. M.K. Hanafi.
(3) Mr. Wilayat Shah.
(2) Messrs Ashhed and Hanafi are permanent Assistants. They will hol their lien against their permanent posts of Assistants in the Ministry. Mr Wilayat Shah is a permanent L.D.C. But a temporary U.D.C. And temporary Assistant. He will hold his lien against his substantive post o L.D.C.
Only. The liens of these officials will he retained in the Ministr till such time they are permanently absorbed in the Authority. . U.D.Cs. .
(1) Mr. Abdul Mannan.
(2) Mr. Abdur Rahman.
(3) These two U.D.Cs. Are temporary employees and replaceable by C.P.S.C. Qualified candidates.
On their transfer to the Authority, they . Will sever all connections with this Ministry.
(4) The staff transferred to the Authority will not get any deputation or special pay in addition to their grade pay."
' It was contended that according to the Office Order, referred to above, the appellant was permanently transferred to SEAP while retaining his lien on a substantive post of Lower Division Clerk in the Ministry of Finance till such time as he was permanently absorbed in the Authority. This point was further clarified by para. 4 of the above said Office Order whereby the appellant would not get any deputation or special pay in addition to his grade pay.
3. It was submitted that while serving with the SEAP, the appellant was promoted as Superintendent (B-14) on 12-8-1972 and later on as Administrative Officer (B-16) with effect from 27-1-1974, His promotion to the post of Administrative Officer was approved by the Secret Ministry of Finance, under the existing rules vide notification dated 12-3-1974. It was contended that the appellant continued to work satisfactorily as Administrative Officer when suddenly without assigning any reasons, his services were placed at the disposal of the Ministry of Finance vide notification dated 14-10-1976. The extracts of the said notification are as follows:- "No, 1(24) Admn/74-3168, Islamabad, the 14th October, 1976. . NOTIFICATION.
' Mr. S. Wilayat Shah, Administrative Officer, who has been holding appointment on deputation from the Ministry of Finance is relieved of his duties this day afternoon the 14th October, 1976 and his services are placed at the disposal of the Ministry of Finance."
4. It was pointed out by the learned counsel for the appellant that in spite of the fact that vide Office Order dated 25-11-1970, the appellant was transferred along with others to SEAP without any deputation or special pay, the name of the appellant was mentioned as a deputationist. This was a severe shock for the appellant and he was rendered absolutely helpless. As a matter of fact, the appellant remained under this shock for a long time hoping to be either charge-sheeted for any imaginary misdeed or would be reported upon adversely in the Annual Confidential Report.
Meanwhile, the appellant took up his assignment in the Ministry of Finance as an Assistant and continued to work quietly. However, he submitted his first representation on 22-6-1977 requesting for the following:- "(a) the SEAP might be asked to arrange to pay me the deputation pay for the period from 1-12- 1970 to 14-10-1976; and
(b) I may also be considered for appointment as Section Officer in the Finance Division as was decided in March, 1974."
This request of the appellant was rejected vide Ministry of Finance Memorandum dated the 4th October, 1977.
5. It was further submitted that the appellant appeared in the Section Officers' departmental examination and was, as a result, appointed as Section Officer with effect from 12-4-1982. At this stage the pay of the appellant was fixed taking into consideration his pay as Assistant in the Ministry of Finance and not keeping in view the pay of the Administrative Officer which he was supposed to draw while serving with the SEAP. It was strongly contended by the learned counsel for the appellant that since the appellant was clearly prevented from performing the job of Administrative Officer without assigning any reasons vide Notification dated 14-10-1976 and without any fault on his part, it would have been appropriate to, at least, allow him the adjustment of pay as Section Officer now on the basis of the pay that he would have drawn as Administrative Officer at the relevant time. A statement showing the difference of pay due to his wrong reversion is given below for perusal: DatePay as S.O Based on Assistant---s PayPay as S.O Based on Administrative Officer---s payGross Difference Rs Rs Rs 13-14-19821000.00 1210.00 210.00 1-12-19821050.00 1270.00 220.00 1-7-19831960.00 2440.00 480.00 1-12-19832080.00 2560.00 480.00 1-12-19842200.00 2680.00 480.00 1-7-19852200.00] 2680.00] 220.00] 268.00] 528.00--- =2420.00] =2948.00]
6. The appellant's case was referred to the Establishment Division who while admitting the fact that he (the appellant) was reverted wrongly, did not accede to his request of adjustment of his pay as prayed for in his representation. The extracts of the Office Memorandum dated 29-8-1983 of the Establishment Division are reproduced below in extcnso: "No,1/17(I)/83-R.VI. Rawalpindi, the 29th August, 1983.
OFFICE MEMORANDUM ' Subject:-REPRESENTATION OF SYED WILLAYAT SHAH AGAINST HIS REVERSION FROM SEAP TO FINANCE DIVISION.
' The undersigned is directed to refer to the Finance Division (Investment and Capital Issues Wing)
O.M. No, F.1(41)-INV.IV/82, dated the 13th August, 1983 on the subject cited above and to say that there is no doubt that appointment of Mr. Willayat Shah as Assistant in the SEAP was an appointment by transfer and he was genuinely promoted as Superintendent and Administrative Officer. He was not a deputationist in the SEAP. It is also true that the action of SEAP in reverting him to the post of Assistant in the Finance Division was incorrect and had no basis. However, the Finance Division did not take any action by enquiring as to how and why the official was reverted to it. It simply accepted him. The official himself did not represent at all against his reversion. He has, therefore, sought redress now after a lapse of six years. It would be difficult to force the CLA, the successor of SEAP, to keep Mr. Shah on its roll from 1976 to 1982 while he continued to work in the Finance Division as Assistant.
(2) In view of the above it does not seem to be a fit case for just dispensation now. If the Finance Division still feels that the advice of the Law Division is needed then it may refer the case to that Division along with our views.
(4) This issues with the approval of Joint Secretary (Regulation)."
' It was submitted that the appellant received the information regarding the rejection of his representation as stated above, vide the Ministry of Culture, Sports and Youth Affairs Division's memo. Dated the 27th of December, 1983, which is appended below:- "MEMORANDUM"
' Subject:- Representation of Mr. S. Wilayat Shah against his reversion from SEAP to Finance Division.
' With reference to his representation dated 16th August, 1982 on the subject mentioned above Syed Wilayat. Shah,. Section Officer in this Division is informed that his request was examined in the Finance Division in consultation with the Establishment Division and Ministry of Law, but it is regretted it could not he acceded to."
' On receipt of the above memorandum the appellant submitted a departmental appeal addressed to the Minister of Finance, dated 23-1-1984. His appeal was rejected vide memo dated the 24th of July, 1985, conveyed to him by memo. Dated the 15th of August, 1985.
7. It was strongly contended by the learned counsel for the appellant that it is abundantly clear from the above correspondence that the appellant had been subjected to very unfair treatment.
He was prevented from performing the job as an Administrative Officer without assigning any reason and reverted to a lower post which resulted both in financial disadvantage and personal disrepute to the appellant. It was such a severe shock that the appellant got almost paralyzed and was not able to pursue his case as envisaged in the Rules. However, the moment he came out of the shock he pursued his case most diligently and it has been clearly established and admitted by the Establishment Division vide their 0.M., dated 29-8-1983 that the appellant was indeed maltreated and he deserves a better deal. His departmental appeal was rejected only on the ground that it was an old case and it was a bit difficult for the Establishment Division to make the SEAP or the Corporate Law Authority, the successor of SEAP, to agree to his request of creating a supernumerary post at such a belated stage. It was, therefore, submitted that the impugned order may be set aside and in view of the extenuating circumstances as explained above, the appellant be allowed the fixation of his pay as requested in his appeal to avoid a continuous loss of pay and allowances which he can ill-afford.
8. The learned counsel for the State contended that the appeal of the appellant was hopelessly time-barred because the appellant after his reversion to his parent Ministry, did not file the appeal within the specified period of 30 days from the date of his reversion i,e, with effect from 14-10-1976.
The first representation that the appellant ever made was dated 22-6-1977 after a period of almost eight months. It was also contended that while reverting the appellant to his parent department, there was no need of assigning any reason for his reversion as he was holding his lien in that Division against a permanent post of Lower Division Clerk. It was further submitted that the appellant was not on deputation to SEAP because that was an attached department of the Ministry of Finance in 1970 when the appellant was transferred. Therefore, he could not be considered on deputation. But till then his reversion to his parent Division could not be refused because during his period of service with the SEAP he was not absorbed against any permanent post. The appellant was rightly reverted and accepted by the Ministry of Finance against the lien that he retained there.
The creation of supernumerary post of the Administrative Officer to accommodate the appellant was not considered feasible at this belated stage by the Establishment Division as advised by the Law Division (now Justice Division), because he had not worked against any such post during the period of almost six years that he had been reverted since 14-10-1976. The request of the appellant regarding the fixation of his pay in B-16 was also rejected by the Auditor General of Pakistan and the Regulation Wing of the Finance Division because it was not covered under the Rules. It was, therefore, vehemently contended that the appeal may be dismissed as incompetent.
9. We agree that there has been apparently an inordinate delay in filing the appeal initially but the psychological impact of his reversion, to our mind, explains the delay in this case on his part.
However, his departmental appeal dated 23-1-1984 which was rejected and conveyed to him vide memo., dated 15-8-1985 does not mention limitation as the reason of rejection. This, therefore, is the final impugned order. Counting from 15-8-1985, his present appeal, in our opinion, is well within the prescribed time. There is, however, an application for condensation of delay and in view of the circumstances explained in the above paras we condone any delay and consider the case on merit.
10. We have gone through the record produced before us and have given our anxious thoughts to the circumstances which led to the background under which-the appellant was reverted to his parent Department. In our considered opinion the appellant was wrongly prevented from performing his job for no fault of his own and without assigning any reason. In, 1973 SCMR 304 Province of Punjab v. Syed Muhammad Ashraf and two others the HonourAble Supreme Court had dismissed the petition holding that "a civil servant who, for no fault of his own, is wrongly prevented from rendering service to the State in the higher post to which he is admittedly entitled, he should be given salary for the higher post". In our view, the law of estoppel is not applicable because the appellant never agreed by his deed or in writing to his wrongful reversion voluntarily. The assumption of charge of lower post by the appellant cannot merely be quoted as his willful acceptance of reversion. He had, in fact, no other choice but to assume the charge of a lower post.
11. We also agree with the views of the Establishment Division to the extent that at this belated stage it may not be administratively convenient to ask the Corporate Law Authority (successor of SEAP) to create a supernumerary post to accommodate the appellant. However, we are of the considered view that the appellant while he is not being reinstated as Administrative Officer, should not be made to suffer financially when there is nothing in the way of administration to accede to his request of fixation of his pay. We, therefore, modify the impugned order under section 5(1) of the Service Tribunals Act, 1973, and direct that the pay of the appellant be fixed on the basis of the presumptive pay that he would have drawn had he continued to hold the post of Administrative Officer in SEAP. He will, however, not be entitled to any back benefits. Ordered accordingly.
12. No order as to costs.