' AJMAL MIAN, J.---Leave to appeal from the judgment dated 20-11-1988 passed by the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, in Appeal No, 240(L)/86- 01d/95(R)/87-New filed by the appellant dismissing the same, was granted to consider the question, whether in view of the various provisions particularly section 5 of the Pakistan Railways Police Act, 1977 (Act No, VII of 1977), hereinafter referred to as the Act, the appellant had become the employee of the Federal Government.
2. The facts to be noted are that the appellant joined Punjab Railways Police service as P.S.I.
(Prosecuting Sub-Inspector) in the District Police, Punjab, in the year 1958. He was promoted as P.I.
(Prosecuting Inspector) in the year 1969. After that in the year 1971 he was posted as P.I. Railway Police, Punjab. He was confirmed as such on 1-1-1974. Upon promulgation of the Pakistan Railways Police Ordinance (Ordinance No, XLI of 1976) on 25-10-1976, a separate Force called as the Pakistan Railways Police was established whereby all the persons holding any rank or post upto the rank of Superintendent under the Railway Police of any of the Provinces stood transferred and appointed to the corresponding ranks or posts in or under the Pakistan Railways Police as notified by the Federal Government. The appellant and the other persons working in the Railway Police of the Provinces became employees in the aforesaid newly constituted Force. It may be observed that the aforesaid Ordinance was replaced by the Act on 9-1-1977. The appellant while working in the Pakistan Railways Police was promoted as D.S.P. (Prosecuting Deputy Superintendent of Police) by the Inspector-General Police, Punjab, vide notification dated 9-5-1977. He continued serving with Pakistan Railways Police. He was promoted to the rank of Superintendent of Police, Railways (BPS- 18) in the Pakistan Railways Police with effect from 3-4-1982.
3. It may also be pertinent to mention that respondent No, 5 was appointed as an A.S.I. (Assistant Sub-Inspector) in the Punjab Police in the year 1966. He was promoted as S.I.P. (Sub-Inspector of Police) in due course of time. He was inducted into Federal Security Force as an Assistant Director (BPS-17) through notification dated 3-5-1976. Upon the disbandment of the Federal Security Force upon repeal of the Federal Security Force Act, 1973, the Officers and the members of the said Force were either repatriated to the parent department or were transferred to other Forces except few were retained temporarily for making arrangements with other Forces/Organisations for their absorption with them, for winding up the affairs of the Force. Respondent No, 5 was one of such officers who was so retained. He was assigned the job of Assistant Director, Spl: Cell, Ministry of Interior, vide notification dated 26-12-1977. He was relieved of his above assignment by the Ministry of Interior and his services were placed at the disposal of the Pakistan Railways Police for temporary appointment as Deputy Superintendent of Police (BPS-17) through notification dated 31- 1-1978. In pursuance whereof he was appointed as such through a notification dated 23-2-1978 issued by the Inspector-General, Pakistan Railways Police, Lahore. After that by a notification dated 9-12-1981 issued by Railways Board, Ministry of Railways, he was appointed as Deputy Superintendent of Police in the Investigation/Prosecution Wing of Pakistan Railways Police in Grade 17 on regular basis with effect from 31-12-1980 against the quota reserved for direct recruits, under Rule 15(2) of the Pakistan Railways Police Rules, 1980, and his seniority was to be counted from the date of his regular appointment. However, subsequently upon respondent No, 5's representation he was allowed to count his seniority from 30-4-1976 i.e, the date of his joining the Federal Security Force through the notification dated 2-4-1986.
4. It appears that the Inspector-General of Pakistan Railways Police circulated a seniority list of Grade 17/18 officers of Pakistan Railways Police vide letter dated 20/22-4-1982 wherein the appellant was placed at S. No, 2 and respondent No, 5 was shown at S. No,
3. The appellant's date of appointment to Grade 17 was mentioned as 6-5-1977 and the date of respondent No, 5 for the appointment in above grade was shown as 31-12-1980, whereupon respondent No,5 made representation for determination of his seniority with effect from 30-4-1976. It will suffice to observe that first respondent No, 5's above representation was rejected but eventually the above seniority list was revised and respondent No, 5's seniority was to reckon from 30-4-1976 as per letter dated 2-4-1986 addressed to the General-Manager/Police, Pakistan Railways, Lahore, from the Railway Board.
5. Against the above re-fixation of the seniority of respondent No, 5, the appellant preferred departmental appeal on 30-4-1986. The appellant waited for 90 days as prescribed under section 4 of the Service Tribunals Act, 1973, and thereafter he filed the aforesaid appeal in which he arraigned five respondents including Government of Pakistan, Railway officers and respondent No,
5. The above appeal was resisted by the Government of Pakistan as well as by the Railways administration and it was inter alia pleaded that the Tribunal had no jurisdiction as the appellant was not a civil servant of the Federal Government as he remained the employee of the Punjab Police. The above objection prevailed with the Tribunal and consequently the appellant's aforesaid appeal was dismissed by the judgment under appeal. He, therefore, filed the above appeal with the leave of this Court.
6. Mr. Riyasat Ali, learned A.S.C. Appearing for the appellant, has vehemently contended as follows:- -
(i) that upon the promulgation of aforesaid Ordinance No, XLI of 1976 by virtue of section 5 thereof, the appellant had become the employee of the Pakistan Railways, and
(ii) that in any case the appellant had become employee of the Pakistan Railways upon enforcement of Rule 5 of Pakistan Railways Police Rules, 1980, hereinafter referred to as the Rules.
' On the other hand, Mr. Muhammad Afzal Siddiqi, learned Deputy Attorney-General appearing for the official respondents and Mr. Fazal Elahi Siddiqi, learned A.S.C. Appearing for respondent No, 5, have urged that the finding recorded by the Tribunal that the appellant remained the employee of Punjab Police, is in consonance with the provisions of section 5 of the Ordinance and of the Act and Rule 5 of the Rules. They have further submitted that the appellant could not have become a permanent employee of the Pakistan Railways till the time his lien over his substantive post in the Punjab Police would not have been terminated and he would have been confirmed by the Pakistan Railways and till then his position was of a deputationist.
7. In order to appreciate the above contentions of the learned counsel for the parties, it may be pertinent to refer to the relevant provisions of the Act and the Rules. Mr. Riyasat Ali has relied upon sections 3, 4, 14 and 19 of the Act and Rule 5 of the Rules, whereas Messrs Muhammad Afzal Siddiqi and Fazal Elahi Siddiqi have referred to above section 5, Report of the Committee to Re-organise Railway Watch & Ward and Railway Police dated May, 1975, and Estacode.
8. It may be observed that section 3 of the Act contemplates that notwithstanding anything in any other law for the time being in force, the Federal Government may constitute, control and maintain a Force to be called as the Pakistan Railways Police for performing within such territorial limits as the Federal Government may by notification in the official Gazette, specify the functions referred to in clauses (a) to (j) to subsection 1 of the above section. It further provides that without prejudice to the power conferred on by or under the Act, the Federal Government may in relation to the Pakistan Railways Police exercise all powers which under the Police Act, 1861 (No, V of 1861) and the code exercisable by the Provincial Government in relation to the Provincial Police. It may also be mentioned that section 4 of the Act lays down that the Pakistan Railways Police shall be constituted in such manner as may be prescribed by rules and that the head of the Pakistan Railways Police shall be Inspector-General who shall exercise his power and perform his functions under the general supervision of the Chief Executive. It may also be stated that section 5 contemplates transfer of Provincial Railway Police and Railway Watch & Ward to the Pakistan Railways Police.
Since the controversy in issue revolves as to the construction of the above section, we intend to reproduce it hereinbelow with Rule 5 of the Rules and to analyse the same. It may also be stated that section 7 empowers the Federal Government to appoint officers of Pakistan Railways, whereas section 8 empowers it to appoint members and ministerial staff. It may further be stated that section 14 of the Act provides that all rights, properties, assets and liabilities of the Railways Police of a Province shall stand transferred to the Pakistan Railways Police on the commencement of the Act. It further envisages the transfer of rights, properties, assets and liabilities under subsection (1) shall be subject to such terms and conditions as may be agreed upon between the Federal Government and the Provincial Government or in the absence of such agreement, as may be determined by the President. It also provides that all rights, properties, assets and liabilities of the Railway Watch & Ward shall stand transferred to the Pakistan Railways Police on the commencement of this Act in such manner and to such extent as may be determined by the Federal Government. It may also be pointed out that section 15 empowers the Federal Government to delegate through a notification in the official Gazette all or any of its powers under the Act except those under section 17 to the Chief Executive or the Inspector-General Police, whereas section 16 authorises the Inspector-General Police to delegate the power with the prior approval in writing of the Federal Government. It may also be mentioned that section 17 empowers the Federal Government by notification to frame rules on the matters referred to in clauses (a) to (e). It may also be pointed out that section 19 deals with the transitional period by providing that till such time as the rules and regulations are framed (i) the persons referred to in clause (a) of subsection (1) of section 5 and the officers and members appointed after the commencement of the Act, shall so far as may be and with the necessary modification, be governed by the Punjab Police Rules, 1934 and (ii) the persons referred to in clause (b) of aforesaid subsection shall, so far as may be and with the necessary modification, be governed by the rules governing the Railway Watch & Ward immediately before the commencement of the Act.
9. It may be pointed out that the Federal Government in exercise of the power conferred by section 17 of the Act through SRO 854(1)/80 gazetted on 18-8-1980 framed the Pakistan Railways Police Rules, 1980, for providing various matters relating to the transfer and appointment, methods of appointment, confirmation, seniority etc. At this juncture, it may be advantageous to reproduce aforesaid section 5 of the Act and Rule 5 of the Rules, which read as follows:-- "Section 5 of the Act:
5. Transfer of Provincial Railway Police and Railway Watch & Ward to the Pakistan Railways Police. - --(1) Notwithstanding anything contained in any other law for the time being in force or any contract, agreement or any condition of service, --
(a) all persons holding any rank or post, not above the rank or post of Superintendent, in or under the Railways Police of any Province; and
(b) all persons holding any rank or post in the Railway Watch & Ward; shall subject to such conditions, as may be laid down by the Federal Government, stand transferred and appointed to such corresponding ranks, posts in or under the Pakistan Railways Police as may be notified by the Federal Government.
(2) If, at any time, the Federal Government considers that the services of any person referred to in clause (a) of subsection (1) are no longer needed by the Pakistan Railways Police, the Federal Government may, by order in writing, revert such person to the Police of the Province to which he belonged immediately before the commencement of this Act."
' Rule 5 of the Rules:
5. Transfer and appointment under section 5.---(1) The persons holding any rank or post in or under the Railways Police of the Provinces and the persons holding any rank or post in the Railway Watch & Ward as specified in column (1) and column (2), respectively of Appendix II on transfer to the Pakistan Railways Police under subsection (1) of section 5 stand appointed to the corresponding ranks and posts specified in column (3) of that Appendix, subject to the following conditions, namely:--
(a) The transfer shall not alter the pay of the transferred to their disadvantage;
(b) The service rendered by the transferees shall count towards leave, pension, provident fund and other benefits applicable to Railway employees; and
(c) The transferees shall be paid from the Railways Budget from the date of their transfer to the Pakistan Railways Police."
10. A plain reading of the above-quoted section 5 indicates that notwithstanding anything contained in any other law for the time being in force or any contract, agreement or any condition of service (a) all persons holding any rank or post not above the rank or post of Superintendent in or under Railway Police of any Province and (b) all persons holding any rank or post in the Railway Watch & Ward shall subject to such condition as may be laid down by the Federal Government stand transferred and appointed to the corresponding ranks, posts in or under the Pakistan Railways Police as may be notified by the Federal Government. It may also be noticed that under subsection (2) of the above section 5 the Federal Government reserved the power that if at any time it considers that the services of any person referred to in clause (a) of subsection (1) are no longer necessary by the Pakistan Railways Police, it may by order in writing revert such person to the police of the Province to which he belonged immediately before the commencement of the Act. It may be highlighted that clause (a) of subsection (1) relates to the persons holding any rank or post not above the rank or post of a Superintendent in or under Railway Police of any Province already referred to hereinabove. In other words, the Federal Government expressly provided in the above section 5 which contemplated the transfer and appointment by operation of law, the right to revert to the Provincial Police concerned any of the persons belonging immediately before the commencement of the Act to the Provincial Police. This right has not been reserved expressly in relation to the persons referred to in clause (b) of subsection (1) i.e, the persons belonging to the Railway Watch & Ward. The obvious reason of the above omission seems to be that the persons belonging to the Railway Watch & Ward were already employees of the Railways.
' Whereas the above Rule 5 of the Rules is in line of section 5 of the Act. It provides that the persons holding any rank or post in or under the Railway Police of the Provinces and the person holding any rank or post in Railway Watch & Ward as specified in column 1 and column 2, respectively, of Appendix II on transfer to the Pakistan Railways Police under subsection (1) of section 5 stand appointed to the corresponding ranks and posts specified in column 3 of that Appendix subject to the conditions contained in the above-quoted clauses (a) to (c).
11. It has been vehemently contended by Mr. Riyasat Ali, learned A.S.C. Appearing for the appellant, that if section 5 is to be read in conjunction with section 14 which provides for the transfer of all rights, properties, assets and liabilities of the Railway Police of a Province to the Pakistan Railways Police and section 19 which caters for transitional period and Rule 5, it becomes evident that the persons who were to be transferred and appointed upon the enforcement of the Act, in the Railways Police were to be on permanent basis. On the other hand, Messrs Muhammad Afzal Siddiqi and Fazal Elahi Siddiqi have urged that in view of the express reservation contained in subsection (2) of section 5 empowering the Federal Government to revert any of the persons belonging to the Provincial Police concerned militates against the above contention. It has been further pointed out by them that unless and until the appellant loses his lien against the substantive post which he was holding in the Punjab Police service and unless he is confirmed by the Federal Government, he cannot be treated as a permanent employee of the Pakistan Railways.
In furtherance of their above submissions, they have referred to para. 20 of the aforesaid Report of the Committee to Re-organise Railway Watch & Ward and Railway Police, which reads as follows:-- "20. The Committee is conscious of the fact that the re-organisation proposals made above are of a far-reaching nature. Their implementation will require lot of hard work and resourcefulness, mainly on the part of the new head of the Pakistan Railways Police. To amalgamate two disparate bodies like Watch & Ward and the Railway Police, is not going to be an easy task. To begin with, the force should consist of the existing Railway Police in different Provinces who may be treated as on deputation to the Pakistan Railways Police, except where specifically recruited to the Railway Police.
In the latter case, the personnel may be directly absorbed in the new force; but those on deputation to the Railway Police from the District Police, should be treated now as on deputation to the Pakistan Railways Police. In course of time, it would be possible for the Pakistan Railways Police to raise and train its own cadres. We have made some recommendations on recruitment and training in the next Chapters."
12. Reference has also been made to the definition of "deputation" given in Estacode 1983 Edition at page 217, which reads as follows:-- "Hitherto the term 'deputation' has not been formally defined. However, according to the practice in vogue a Government servant begins to be regarded as a "deputationist" when he is appointed or transferred, through the process of selection, to a post in a department or service altogether different from the one to which he permanently belongs. He continues to be placed in this category so long as he holds the new post in an officiating or a temporary capacity but ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post."
' Further reliance has been placed by Messrs Muhammad Afzal Siddiqi and Fazal Elahi Siddiqi on the following two cases of this Court:--
(i) Federation of Pakistan through Secretary, Establishment Division v. Arbab Mukhtar Ahmad 1986 SCMR 236; ' in which the facts were that the respondent was recruited as a direct Deputy Superintendent of Police on 21-12-1949 on the basis of the recommendations of the joint Punjab and N.-W.F.P. Public Service Commission. He was promoted to officiate as Superintendent of Police on 11-3-1954, a post in Grade 18. He was confirmed as such on 24-11-1962. Upon the introduction of Lateral Entry Scheme the respondent applied for his appointment under the said Scheme and after competing in the requisite examination in 1975 was selected and appointed as Grade 20 officer in the Secretariat Group on 21-4-1976. According to the respondent he was never posted to any post in Secretariat Group and continued to have a permanent lien in the Police Group. In the Police Group, however, his old colleagues continued getting promotions on due dates and some of them were appointed to Grade 21 posts. It seems that in August, 1980, a provisional seniority list of A.P.U.O. Officers (Grade 18 to 22) was issued but his name was not included. The respondent being aggrieved by the above omission, submitted representation on 27-9-1980 praying for the inclusion of his name in the said seniority list. He also prayed that his seniority be fixed in the Police Group from the date of his continuous officiation as a Superintendent of Police (Grade 18), namely, from 11-3-1954. Since the respondent had not received any reply with regard to aforesaid representation for more than 90 days, he filed an appeal under section 4 of the Service Tribunals Act, 1973, before the Service Tribunal, Islamabad, on 25-1-1981 praying that he be placed in the list of Grade 21 officers immediately below Khawaja Manzoor Hussain and be given all consequential benefits. In the meantime on 18-5-1981 the respondent's aforesaid representation was decided departmentally and he was accorded seniority as an officer of Grade 18 from 24-11-1962, the date of his confirmation in that Group. Since he was not satisfied with the above decision, he proceeded with his aforesaid appeal before the Service Tribunal which was partly allowed and he was accorded seniority in the Police Group with effect from the date of his officiation as Superintendent of Police from 11-3-1954. Against the above order of the Tribunal, the Federal Government had filed appeal. It was allowed partly to the extent that he was accorded seniority in Grade 18 in the Police Group w.e.f, 24-11-1962, the date on which he was confirmed in the above Group as a Superintendent of Police.
(ii) Province of Punjab v. Ikramul Haq and another 1986 SCMR 1994.
' In the above case the facts were that respondent Ikramul Haq started his career as a civil servant by initially joining service in the Education Department of the Government of Punjab on 28-3-1951 as a Lecturer and after being promoted in due course was confirmed in Grade 19 in the year 1972.
Subsequently on 12-10-1973 he was selected and appointed in the Foreign Affairs Group, Government of Pakistan, in Grade 19 through Lateral Entry Competitive Examination. After completing the required training, he was posted abroad and in December, 1975, he was transferred to Foreign Affairs Ministry, Islamabad. His case was examined and cleared under section 12-A, Civil Servants Act, 1973, by the High Powered Review Board in June, 1978. However, through notification dated 15-11-1980 in purported exercise of power conferred by clause (ii) of section 13 of the Civil Servants Act, 1973, the President of Pakistan was pleased to direct in the public interest the retirement from service of the respondent w.e.f, 16-11-1980. The respondent sought review of the said order. Then he preferred an appeal against the aforesaid order of retirement before the Federal Service Tribunal and on the hearing of the appeal, the Federal Service Tribunal itself raised the question of maintainability of the appeal and held that it had no jurisdiction as the respondent was not a Federal Civil Servant but continued to be civil servant of the Provincial Government.
Thereupon, the respondent filed an appeal before the Punjab Service Tribunal which was allowed on the ground that the President had no power to pass an order under section 13 of the Civil Servants Act, 1973. Against the above judgment of the Punjab Service Tribunal, the Punjab Government filed the aforesaid appeal before this Court. The question in issue in the case was, whether the respondent had become a permanent civil servant in the Foreign Affairs Group, Government of Pakistan, on his joining in 1975 as a result of Lateral Entry Competitive Examination.
On the above question this Court has observed as follows:- ' It is an admitted position before us that the respondent was not confirmed in service under the Federal Government and also that he was a confirmed employee of the Punjab Government having a lien on the post he held substantively. These facts are also admitted on the record. In the written statement filed before the Punjab Service Tribunal on behalf of the Federal Government, vide paragraph 4 it was averred that the respondent was an officiating civil servant in the Federal Government and, vide paragraph 8 it was further admitted that he was confirmed. Similarly the Government of Punjab in its parawise comments categorically admitted that the lien of the respondent was not terminated by the Provincial Government during the period of his service with the Federal Government. With these facts being established on the record and not contested before us it could not but be held that the respondent was a deputationist with the Federal Government. The Federal Service Tribunal has referred to the Establishment Manual Volume I Chapter IX, to demonstrate that the departmental authorities in accordance with the practice in vogue have defined a `deputationist' to be a Government servant who is appointed or transferred through the process of selection to a post in a department or service altogether different from the one to which he permanently belongs. Such a Government servant continues to enjoy this status so long as he holds the new post in an officiating or a temporary capacity but ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post. The departmental interpretation referred to by the said Tribunal as having the effect of statutory rule is still being retained, as is evident from the Estacode (1983 Edition) in Chapter III, Part II at page 217.
This Court has also accepted the aforesaid definition of the term 'deputation' in Islamic Republic of Pakistan v. Israrul Haq and others PLD 1981 SC 531. So far as lien is concerned the Fundamental Rules (vide Compilation of the Fundamental Rules and Supplementary Rules Volume I by Hamid Ali) define 'lien' as under:- "'Lien' means the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post including a tenure post, to which he has been appointed substantively."
' In view of the meaning and scope of the terms 'deputation' and 'lien', the matter does not remain within the realm of controversy that the respondent was substantively the holder of a post under the Punjab Government."
13. From the provisions of the Act and Rule 5 of the Rules referred to hereinabove, it is evident that by operation of section 5 of the Act the appellant cannot be considered to have lost his lien over his substantive post in the Punjab Police because of his transfer and appointment under the above section in the Pakistan Railways and to have been confirmed as a civil servant of the Federal Government in view of the express provisions contained in subsection (2) of section 5 empowering the Federal Government to revert any person referred to in clause (a) of subsection (1) of section 5 to the police of the Province at any time by order in writing. This cannot be done unless the person retains his lien over the substantive post in the Provincial Police. The above two cited judgments of this Court clearly lay down the proposition that a confirmed employee of a Provincial Government continues to have his lien over his substantive post in spite of his induction into the Federal service and remaining there for a number of years in different capacities till the time the lien is terminated in accordance with law and the employee is confirmed by the Federal Government. However, we are not inclined to subscribe to the view that because of subsection (2) of section 5 of the Act all the persons referred to in clause (a) of subsection (1) of the above section, shall remain on deputation in the Pakistan Railway Police for all times to come. The above-quoted para. 20 from the Report of the Committee to Re-organise Railway Watch & Ward and Railway Police indicates that initially the transferees under section 5 of the Act from the Provincial Railway Police were to remain on deputation which position is re-affirmed by section 19 of the Act providing a transitional provision but at the same time it was contemplated that the persons transferred from the Provincial Railway Police were to be permanently absorbed in the Pakistan Railway Police. There is no prohibition contained in subsection (2) of section 5 against doing so. The President had accorded sanction for the posts of former Railway Police being created in the cadre of Pakistan Railway Police w.e.f, 1-3-1977 vide Railway Board, Lahore's letter No, Adm(E) 76.P.O. 7/4-I dated 12-3- 1977 of nearly 2500 personnel including in the cadre of officers upto Superintendent and Constables etc. Which is contained in the Inspector-General Police's letter No, 808-E/3. PRP dated 21-3-1977. It may be pertinent to reproduce paras. 3 to 5 of the above letter which read as follows:-- "(3) Transferees from the Provincial Railway Police to Pakistan Railways Police shall remain posted until further orders at the place/stations on your division, where they were posted by the Provincial Governments prior to 1-3-1977. Their last pay certificates and relinquishment and assumption reports be forwarded to the DA.0./Accounts Officer of the Railway Division where the transferees and headquartered. Although audited last pay certificates shall be insisted upon, yet till receipt thereof, payment shall be made provisionally on the basis of unaudited LPCs issued by the bill preparing authorities.
(4) Functioning as disbursing offices/bill preparing authorities, you should henceforth prepare pay rolls on the Forms used on the Railways for the incumbents of the posts transferred to the cadre of Pakistan Railways Police from 1-3-1977 and furnish them to the Divisional Accounts Officer/Accounts Officer for internal check and payment.
(5) Funds should be arranged through the Revised Estimate 1976-77 and Budget Estimate 1977-78."
14. It appears that the above-quoted Rule 5 was a step towards above direction. In the present case, the moot question is, as to whether the appellant has lost his lien over his substantive post in the Punjab Police and whether he has been confirmed by the Federal Government as the Federal Government civil servant or not? The paper book of the above appeal contains some correspondence which is not quite clear on the point. In this regard reference may be made to the following letters:--
(i) Letter No, 19285/E-II dated 16-11-1980 from the Inspector-General of Police, Punjab, Lahore, to the Inspector-General, Pakistan Railways, Police, Lahore, at page 112 of the paper book;
(ii) Letter No, A-1/9-PRP dated 28-12-1980 from the Inspector-General, Pakistan Railways Police to the Inspector-General of Police, Punjab, Lahore, at page 113 of the paper book;
(iii) Letter No, 640/A-III dated 28-1-1985 from the Inspector-General of Police, Punjab, Lahore, to the Divisional Accounts Officer, Pakistan Railways, Rawalpindi, which is at page 93 of the paper book;
(iv) Letter No, A-1/9 PRP dated 17-12-1988 from the Inspector-General, Pakistan Railways Police to the Inspector-General of Police, Punjab, Lahore, which is at page 114 of the paper book;
(v) Letter No, 387 dated 5-2-1989 from the Inspector-General of Police, Punjab, Lahore, to the Inspector-General of Police, Pakistan Railways, Lahore, which is at page 106 of the paper book; It may be advantageous to reproduce the above first two letters, which read as follows:-- "From ' The Inspector-General of Police, Punjab, Lahore.
To ' The Inspector-General, Pakistan Railways Police, Lahore.
No, 19285/E-II dated Lahore, 16-11-1980.
Subject: APPOINTMENT OF OFFICERS OF FORMER PROVINCIAL RAILWAY POLICE-TRANSFER OF THEIR SERVICE RECORD.
MEMORANDUM:-- Please refer to your Memo No, A-8/PRP, dated 26-8-1980, on the above subject.
2. All the three officers were serving in Government Railway Police before their promotion to the present ranks. Therefore, their service record must be available in the office of the S.P./Railway Police, Lahore.
3. As regards their permanent appointment in the Pakistan Railway Police, they may please be asked to give their option in writing that they are willing for their permanent absorption. In that case their liens shall have to be terminated under the rules.
(Sd.)
(ALLAH BAKHSH)
AIG/Estt. For Inspector-General of Police, Punjab, Lahore."
"OFFICE OF THE INSPECTOR-GENERAL, PAKISTAN RAILWAYS POLICE, HEADQUARTERS OFFICE, LAHORE.
A-1/9-PRP Dated 28-124980.
The Inspector-General of Police, Punjab, Lahore.
Subject: APPOINTMENT OF OFFICERS OF FORMER PROVINCIAL RAILWAY POLICE--TRANSFER OF THEIR SERVICE RECORD.
Ref. Your Letter No, 19285/E-II dated: 16-11-1980.
' A list of officers Grade 17 covered by the provision of section 5 of Pakistan Railways Police Act 1977 has already been supplied to you under this office letter No, even dated 26-8-1980. The law does not permit the exercise of any option by the officers nor any further decision can be taken regarding their permanent absorption after the issuance of Notification by the Federal Government on 10-8-1980.
' As regards service record of the officers, the position mentioned in para. 2 of your above-quoted letter is confirmed.
(Sd.) for Inspector-General, Pakistan Railways Police."
15. A perusal of the above-quoted letters indicates that the Pakistan Railways in their above letter dated 28-12-1980 had taken the stand that there was no need for asking the personnel transferred from the Punjab Police Railways to the Pakistan Railway Police the option of their being permanently absorbed in the Pakistan Railways, as according to them there was no need as the law did not permit the exercise of any option by the officers nor any further decision could be taken regarding their permanent absorption after the issuance of notification by the Federal Government on 10-8-1980. However, contrary stand has been taken in the above letter No, A-1/9-PRP dated 17- 12-1988. It may be pertinent to reproduce para. 2 thereof, which reads as follows:- "(2) All the three officers mentioned in this office letter No, A-8/8-PRP dated 26-8-1980 (copy enclosed) were serving in defunct-Government Railway Police before their promotion to the present ranks and they stood appointed to the Pakistan Railways Police under Rule 5 of the Pakistan Railways Police Rules, 1980, read with section 5 of Pakistan Railways Police Act 1977 (VII of 1977) and as such, in view of the law, their lien from the Provincial police has automatically been suspended w.e.f, 25-10-1976 i.e, the date of issuance of P.R.P. Ordinance, 1976. A notification to this effect may please be issued accordingly in respect of all the former staff of defunct-Government Railway Police (transferred to Pakistan Railways Police under section 5 of the Pakistan Railways Police Act, 1977) if not already done so. A copy of the notification so issued by your office may also be supplied to this office early."
' On the other hand, Inspector-General of Police, Punjab, Lahore in his above letter No, 640/A-III dated 28-1-1985 and letter No, 387 dated 5-2-1989 has taken the stand that the persons transferred from the Punjab Railway Police stood appointed in Pakistan Railways Police and that they ceased to have lien in Punjab Police. The above second letter referred to is a reply to the Inspector-General, Pakistan Railways Police's letter dated 17-12-1988. It will, therefore, be advantageous to reproduce the above reply, which reads as follows:-- From The Inspector-General of Police, Punjab, Lahore.
To The Inspector-General of Police, Pakistan Railways Headquarters Office, Lahore.
No, 387 Dated 5-2-1989, Subject: APPOINTMENT OF OFFICERS OF FORMER PROVINCIAL RAILWAY POLICE--TRANSFER OF SERVICE RECORD.
MEMORANDUM:-- ' Please refer to your Memo No, A-1/9-PRP dated 17-12-1988 on the above subject.
(2). There is no justification for issuance of an order as required in your quoted memo because all the incumbents of Punjab Police stood appointed in Pakistan Railways Police by operation of law and their lien in Punjab Police stands automatically terminated.
(Sd.)
(AKHTAR HAYAT)
DIG/HQrs. For Inspector-General of Police, Punjab, Lahore."
16. The Tribunal has not recorded any finding on the above controversy, namely, whether the appellant has lost his lien over his substantive post and whether he has been confirmed or treated as such by the Federal Government/The Railways Board. The answer to the above question will resolve the controversy in issue. Therefore, we are inclined to hold that it is a fit case which is to be remanded to the Tribunal with the direction to implead the Punjab Government and to decide the above question. Since the above issue may affect the other persons transferred from the Provincial Police to the Pakistan Railways Police, the Tribunal should send for the relevant records and the relevant personnel from the Federal and Provincial departments concerned and if it considers necessary, it may record the evidence.
The appeal is allowed in the above terms. However, there will be no order as to costs.