' CH. HASAN NAWAZ (MEMBER).---On 6-7-1983, Directorate of Revenue Receipt Audit, Lahore issued a seniority list of Audit Assistants representing the seniority position obtaining on 31-12-1982 (Annexure `A'). Syed Sajjad Hussain Shah appellant, now an Accountant in the Directorate, was mentioned against serial No, 15 of the list. It may here be pointed out as a material fact that the name of Mr. Shabbir Hussain Chauhan respondent No, 3 did not find place in this list. Subsequently, the Directorate revised the seniority list of Auditors/Audit Assistants as it stood on 1-1-1975. In the revised list (Annexure-B) issued on 12-10-1983 the name of Mr. Shabbir Hussain Chauhan which had hitherto not been there, was mentioned against serial No,10 whereas Syed Sajjad Hussain Shah appellant who was shown against serial No,15 in the seniority list of 6-7-1983 was relegated to the 18th position.
2. Objections having been invited against the revised seniority list, the appellant addressed representation dated 8-11-1983 (Annexure-C) to the Director Revenue Receipt Audit Lahore, where an exception was taken to the inclusion of respondent No, 3's name in the list on the ground that he had never been on the strength of the Directorate. The appellant averred that the seniority list was revised only to include the name of respondent in it.
3. Before any decision on this representation was communicated to the appellant, another seniority list (Annexure-D) was circulated on 20-5-1985. Respondent No, 3 was shown against serial No,6 whereas the appellant was mentioned against serial No,15 of this list. The officials concerned were asked to submit objections, if any, against the list within one month of its issuance. The appellant preferred representation dated 19-6-1984 (Annexure-E) to the Auditor General of Pakistan (Respondent No,1) against this list.
4. The statutory period of ninety days having gone without any response, on 17-10-1984 he filed the present appeal under section 4 of the Service Tribunals Act, 1973 praying that the seniority list of 20-5-1984 be modified so as to exclude the name of respondent No,3 and that he (appellant) be given all consequential benefits.
5. These are the facts in the background: The Directorate of Revenue Receipt Audit was established in November, 1973. Through aM.No, 309- GB.III/41-73, dated 13-11-1973, the Auditor General of Pakistan invited options from the staff of all the Audit and Accounts Offices under his control for transfer to the Directorate. One of the terms of transfer, according to this letter was that the staff on joining the new Directorate will sever their relations with their previous offices except where a person holds a lien in another office in which case his lien will remain intact, until he is confirmed in the new Directorate. There is no dispute about the fact that the appellant who had been working in the office of Director of Audit Defence, Karachi joined the new Directorate on selection in consequence or an option given by him.
6. Respondent No,3 who belonged to the Office of Accountant-General Punjab, Lahore was working on deputation at the relevant time in the office of Auditor General of Pakistan, Lahore since 1-3-1971.
On 14-11-1973, he too gave an option for transfer to the new Directorate. It may be mentioned as a relevant circumstance that on 20-11-1973, before he had been finally selected, he was promoted as Audit and Accounts Assistant (NPS-11) on 1-7-1973 by the Accountant-General, Punjab. On 442-1973 he was provisionally appointed by the Auditor General of Pakistan alongwith Mr. Muhammad Ashraf Audit Assistant of Establishment Section to work in the Directorate. It was mentioned in the office order of 4-12-1973 that their transfer will take effect on final selection. Thereafter, he was informed by letter No,57-DRRA/ 21-74 dated 1-3-74 that he was selected for transfer to the Directorate on the basis of option given by him. Like it was done in the case of O.M. Dated 13-11-1973, it was mentioned in this letter of 1-3-1974 as one of the conditions of transfer that the staff on joining the new Directorate will sever their relations with the previous offices, except where a person holds a lien in another office in which case his lien will remain intact until he is confirmed in the new Directorate.
' On 5-3-1974, respondent No,3 was relieved of his duties in the office of Auditor General of Pakistan, Lahore with the following office order: "OFFICE OF THE AUDITOR GENERAL OF PAKISTAN LAHORE No, 1935-Estt/102-73, Dated: 5 March, 1974 OFFICE ORDER ' Consequent upon their selection in the office of the Directorate of Revenue Receipt Audit, Lahore M/s. Abdul Rauf Qureshi, SA.S. Accountant, Muhammad Ashraf Audit and Accounts Asstt. And Shabbir Hussain Chohan Audit and Accounts Assistant are relieved of their duties in the office of the Auditor General of Pakistan, Lahore on the afternoon of the 4th March'74 with the directions to report for duty in that office immediately.
(Sd.) (SHAMSUL HAQUE) Asstt. Accounts Officer"
8. After having been so relieved, respondent No,3 was directed to report for training from 5-3-1974 to the Assistant Director, Customs and Excise Training ' School, Lahore by letter No, 63-Admn/RRA/1-73, dated 4-3-1974, which makes the following reading: "OFFICE OF THE DIRECTOR, REVENUE RECEIPT AUDIT, CENTRAL GOVERNMENT OFFICES BUILDING GULBERG-III, LAHORE ' No,63-Adimn/RRA/1-73, dated: 4th March, 1974 ' To ' The Assistant Director, Customs and Excise Training School, Lahore.
' Sub: TRAINING OF REVENUE RECEIPT AUDIT STAFF IN THE CUSTOMS AND EXCISE TRAINING SCHOOL WALTON LAHORE ' Please refer to the Director of Inspection and Training (Customs and Central Excise) Karachi, letter No,2(5)-DIT/Trg/73, dated 26th feb'74, on the above subject addressed to the C.B.R., Islamabad and copy endorsed to you.
' The marginally noted officials of this office have been directed to report to you for training from 5th March, 1974. Some more would be deputed as soon as they join this directorate. They may please be given training for the prescribed period of one week as decided by the CBR. After the completion of training a report may please be forwarded to this office intimating the names of the officials trained and a broad outline of the training given to them.
(Sd.)
(A.G. RUHI)
Deputy Director of R.R. Audit, Lahore."
9. The Director, Revenue Receipt Audit was informed through letter C.N.18-Admn/73/6-19-21, dated 15-3-1974 by authorities of the Training School that training was scheduled to conclude on 18-3- 1974 and the trainees, including respondent No,3, will be deemed to have been relieved on the afternoon of 18th March, 1974. Then, after he had been so relieved the following office order was passed on 3-4-1974: "OFFICE OF THE AUDITOR GENERAL OF PAKISTAN LAHORE No,2163-Estt/102-73 KW OFFICE ORDER ' The orders of transfer of Mr. Shabbir Hussain Chohan an Audit Assistant to the Directorate of Revenue Receipt Audit Lahore as contained in this Office Order No,1935-Estt/102-73 K.W., dated 5th March, 1974 are hereby cancelled with retrospective effect.
(Sd.)
(SHAMSUL HAQUE) Asstt. Accounts Officer"
' No, 2164-Estt/102-73 KW dated: 3-44974"
10. The gist of the appellant's case is that after having been relieved of his assignment in the Training School by the Assistant Director (Training), respondent No,3 never joined the Directorate of Revenue Receipt Audit, Lahore because orders of his transfer were cancelled by the Auditor General of Pakistan through office order dated 3-4-1974 with retrospective effect and that there was no justification for mentioning his name in the seniority list of Audit Assistants/Senior Auditors issued by the Directorate on 20-5-1984 when it was mentioned that he was on deputation to the Auditor General's Office.
11. The appeal was opposed by the respondents on various grounds such as limitation, competency and maintainability. Detailed address to their pleadings will be made at the appropriate stage and it will be sufficient to say that the decision of this appeal hinges only on one question, namely whether respondent No,3 ever joined the Directorate of Revenue Receipt Audit thus acquiring the right to be shown in the seniority list of Audit Assistants/ Senior Auditors.
12. There is no denial of the fact that after training in the Customs and Excise Training School Walton Lahore, respondent No,3 never served with the Directorate of Revenue Receipt Audit. The pleadings of respondents Nos.1 and 2 on this point are worth notice. In paragraph-1 of the written statement, they made the following averments: "The Auditor General of Pakistan vide Office Order No,1935-Estt/102-73, dated 3-74 (Appendix-V) relieved him of his duties on the afternoon of 4th March, 1974 with the direction to report for duty in that office immediately. Thereafter, there was complete silence in this respect in all the concerned offices till September, 1982."
13. The matter came to light with the Directorate's letter dated 11-10-1982 addressed to the Auditor General of Pakistan. It is to the following effect: "OFFICE OF THE DIRECTOR, REVENUE RECEIPT AUDIT, 6th Floor, Accountant General's Office Building, LAHORE No,442-Admn/DRRA/4-73/Vol.III/KW dated 11-10-1982 ' To ' The Auditor General of Pakistan, Central Government Offices Building, Gulberg-III, Lahore, 'Attention: Deputy Auditor General (SR.)
' Sub: SELECTION OF STAFF FOR DIRECTORATE OF REVENUE RECEIPT AUDIT ' On the formation of this Directorate in 1974, certain staff was selected from the P.A.D. Offices and transferred to the Directorate for Permanent absorption. Among them was one Mr. Shabbir Hussain Chohan, Audit and Accounts Assistant, who alongwith M/s. Abdul Rauf Qureshi, S.A.S. Accountant and Muhammad Ashraf, Audit and Accounts Assistant, was relieved from your office on 4-3-1974 (F.N.) vide your Office Order No, 1935-Estt/1-2-73, dated 3-74 with the directive to report for duty in this Directorate. M/s. Qureshi and Ashraf joined the Directorate on 5-3-1974 (F.N.) and 4-3-1974 (A.N.) respectively, but any clue regarding the joining of this Directorate by Mr. Shabbir Hussain Chohan, Audit and Accounts Assistant is not forthcoming from the records of this office.
' From a separate correspondence exchanged with the Customs and Excise Training School, Walton, Lahore, it is learnt that Mr. Chohan did receive training at the school alongwith other staff of this office during the period from 53-1974 to 18-3-1974. Since then, however, the official has neither been shown on the strength of this Directorate, as all the relevant records are silent on the issue nor are his whereabouts known.
' In view of the above, the factual position with regard to the services of Mr. Chohan may kindly be looked into and this office advised accordingly.
(Sd.) (MANSOOR ALI) Director. Phone No, 310878 "
14. Respondents Nos.1 and 2 have made a mention of this letter in paragraph-2 of their written statement. They said that according to this letter respondent No,3 was relieved from the Auditor General's Office on 4-3-1974 alongwith M/s. Abdur Rauf Qureshi, SA.S. Accountant and Mohammad Ashraf Audit and Accounts Assistant, with the directive "to report for duty to the Directorate of Revenue Receipt Audit" and that M/s. Qureshi and Ashraf joined the Directorate on 5-3-1974 and 4- 3-1974 (A.N.) respectively", but respondent No, 3 did not join the Directorate and was still working in the Office of Auditor General. The position adopted by respondents Nos. 1 and 2 on the subject is as follows: "Respondent No,3 was retained in the Office of Auditor General in public interest. He is being treated as deputationist and on the basis of this position, the seniority list (impugned) was revised which is in accordance with the rules."
15. The word "retained" in the respondent's 'pleadings is clearly indicative of the fact that respondent No,3 never joined the Directorate either before or after the training. As a matter of fact he was not allowed to join his new assignment' and according to the Auditor General's case he was retained in that office in public interest. Further, the use of phrase "is being treated as deputationist" is also very significant. If respondent No,3 was in fact a deputationist from the Directorate to the Auditor General's Office, it should have been plainly and clearly so pleaded. Respondents could have said that he is a "deputationist" instead of saying that "he is being treated as deputationist".
We are inclined to say that the expression used by the respondents is suggestive of the fact that he was not a deputationist from the Directorate to the Auditor General's office.
16. In Islamic Republic of Pakistan v. Israrul Haq and 23 others (PLD 1981 SC 531), it was held that 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 temporary capacity, but cease to be regarded as such either on confirmation in the new post or on reversion to his substantive post. The appointment of a person on deputation obviously requires the observance of certain formalities.
Nothing has, however, been produced by the respondents to show that those formalities were fulfilled in this case. As a matter of fact there could be no occasion for any such observance, considering that he never belonged to the Directorate and there could, therefore, be no question of his appointment or transfer to any post in the office of the Auditor-General.
17. These considerations apart, we regard it as a rank case in so far as the matter of respondent No,3's deputation is concerned, which is because according to his own case he was retained in the office of Auditor General in the public interest. This retention was inconsistent with the incident of deputation which involves appointment or transfer to another department or service. Furthermore, another important fact is that the order retaining him in the office of Auditor General has not been placed on record, with the result that it is not possible for us to determine the exact nature of his tenure in that office. On the basis of the pleadings of the parties and from what is available from the record, we can say it with conviction that he was not a deputationist from the Directorate.
18. The pleadings of respondent No,3 are also important. It has been stated that after completion of training at Customs School, Walton, he was directed to join the office of Auditor General of Pakistan in the public interest. Accordingly respondent No, 1 cancelled the relieving order of 5-3-1974 through order dated I 3-4-1974. There is nothing in these pleadings to show as to who directed him to join the office of Auditor General of Pakistan. Respondent No,1, according to respondent No,3's own case, cancelled the relieving order of 5-3-1974. To say nothing of other circumstances appearing from the record, it is clear from his pleadings that he remained in the office of Auditor General after training and that his continuation in that office could not be termed as deputation. A closer application to his written statement would rather show that he has not even pleaded that he joined the Directorate of Revenue Receipt Audit after conclusion of the training programme.
19. The importance of office order dated 3-4-1974 can hardly be overemphasized. It has not only been relied upon by the appellant in support of his case, respondent No,3 has also made a mention of this order in his pleadings. This office order cancelled order dated 5-3-1974 whereby respondent No,3 was relieved of his duties in the office of Auditor General of Pakistan with effect from the afternoon of 4-3-1974 with the direction to report for duty in the Directorate. It was pleaded in the written statement as also argued by his counsel that order dated 3-4-1974 did not amount to cancellation of the order of his selection/allocation for the Directorate. The learned counsel contended that this order cancelled the relieving order of 5-3-1974 and not the order of his selection/transfer to the Directorate. We fail to appreciate the difference. Order dated 3-4-1974 makes it abundantly clear that it cancelled the order of 5-3-1974 regarding transfer of respondent No,3 to the Directorate. In any case, we regard it only a matter of academic discussion because even if the order dated 5-3-1974 was for the purpose of relieving, its cancellation made the whole difference, in that order dated 3-4-1974, provides us with conclusive evidence of the fact that he never joined the Directorate after conclusion of the training programme. The cancellation of earlier order of 5-3-1974 with retrospective effect was intended to convey the message that respondent No,3 should not be taken to have ever been assigned to the Directorate. This was so irrespective of the fact that he went to the Training School for training.
20. If the order of 3-4-1974 was not intended to produce this result, its passage was clearly unnecessary and redundant. If respondent No,3 was to come to the Auditor General's office on deputation, there is no reason whatsoever why the order of his relieving dated 5-3-1974 should have been cancelled. As a matter of fact, this tenure as a deputationist in the office of Auditor General could be physically possible only if the order of 5-3-1974 had been allowed to stay and he had actually joined the Directorate. His deputation involves a relationship with the Directorate which could be possible only if the order of relieving dated 5-3-1974 had been allowed to stay. This was, however, cancelled and we are in no doubt about the result which is that respondent No,3 continued to serve in the Auditor General's office and he never joined the Directorate. We are inclined to hold that other circumstances apart, even the pleadings of the parties are enough I E to establish that the appellant's case is not without substance.
21. Office Order No,265-Estt/36-67, dated 20-1-1981 is another valuable piece of evidence in support of the appellant's case. It says that Mr. Shabbir Hussain Chauhan, Audit Assistant Grade-II (respondent No,3) belonging to the office of Accountant-General Punjab, Lahore presently on deputation in this office has been appointed on selection basis to officiate with immediate effect as Clerk Incharge against the post of Accountant Grade-16. The order leaves no room for doubt about the matter in dispute. It clearly shows that he was on deputation to the office of Auditor General of Pakistan from the office of Accountant-General Punjab and not from the Directorate. He still belongs to the Office of Accountant-General, Punjab..
22. Office order dated 29-8-1977 placed on record by the respondents Nos.1 and 2 is also in point. It shows that the deputation period of respondent No,3 was extended upto 28-8-1978 and that his parent office was that of Accountant-General Punjab, Lahore. Extract from the gradation list of Audit and Accounts Assistants of the office of Accountant-General Punjab as on 31-12-1979 and 31- 12-1980 also bears out that Mr. Shabbir Hussain Chauhan was on deputation to the office of Auditor General from that of the Accountant-General, Punjab.
23. There is another circumstance worth notice. It has been seen that one Mr. Muhammad Ashraf was selected for transfer to the Directorate alongwith respondent No,3 by order dated 4-12-1973.
During the course of arguments the appellant produced office order dated 27-3-1974 which said that Mr. Mohammad Ashraf Audit Assistant of the office of Accountant-General Punjab, Lahore reported for duty in the Directorate on 4-3-1974. No such order has however been produced by respondent No,3 in support of his case.
24. There in fact is nothing on the record to show that he ever reported for duty in the Directorate, like it was done by others who had been selected for transfer. In the absence of any such report, it is not possible to hold that he joined there, particularly in the presence of order dated 3-4-1974.
During the course of arguments, in response to a question the representative of the Directorate stated that various seniority lists were issued after the seniority list of 1-1-1975. None of these lists has, however, been placed on record to show that respondent No,3 belonged to the Directorate and that his name had been mentioned there. The record shows that there has been some correspondence between the Directorate and the Office of Accountant-General of Pakistan regarding respondent No,3's exact position. Letter dated 4-6-1984 also shows that the name of Mr. Shabbir Hussain Chauhan did not appear in any of the gradation lists circulated by the Directorate.
25. We may also make a reference to letter dated 8-12-1982 addressed by the Directorate to the Auditor General of Pakistan. It deserves a detailed address: "OFFICE OF THE DIRECTOR, REVENUE RECEIPT AUDIT, 6th Floor, Accountant-General's Office Building, LAHORE ' No,657-Admn/DRRA/21-74 Dated 8-12-1982 ' The Auditor General of Pakistan, Central Government Offices Building, Gulberg-III, Lahore, ' Sub: SELECTION OF STAFF FOR DIRECTORATE OF REVENUE RECEIPT AUDIT ' Kindly refer to your office memo. No,4267-Estt/180-73, dated 3-11-1982 on the subject.
(2) The understanding expressed in the last line of para. 4 of your letter under reference is not correct. As earlier stated in para. 1 of this office letter No,442-Admn-DRRA/4-73/Vol.III/KW, dated 11- 10-1982 on the subject, there is no clue in the records of this office regarding Mr. Shabbir Hussain Chohan ever joining this office after his training at the Customs and Excise Training School, Walton, Lahore. His name, therefore, does not appear in any of the gradation lists circulated by this office amongst the staff from time to time.
(3) Mr. Chohan was selected for permanent absorption in this Directorate and relieved from duty in the Auditor General's office vide your office order No, 1935-Estt/102-73 K.W., dated 5-3-1974. It appears from the records of this office that the said transfer orders were subsequently cancelled with retrospective effect vide your office order No,2164- Estt/102-73, dated 3-4-1974.
(4) A copy of the said office order dated 3-4-1974 is not available in the records of this office.
However, since the position stated in para-2 of your letter under reference regarding Mr. Chohan's retention in the Auditor General's office from 19-3-1974 onwards in the public interest conflicts with the position that his transfer orders were cancelled ab initio, it is requested that the office order dated 3-4-1974 of your office may kindly be consulted to determine the correct position.
(Sd.)
(MANSOOR ALI)
Director Phone 310878 This correspondence makes it abundantly clear that respondent No,3 never joined the Directorate after selection and training and that he was retained in the office of Auditor General of Pakistan.
The position adopted by the office of Auditor General of Pakistan in response to various letters addressed by the Directorate is quite ambiguous and the averments made by them are clearly evasive. There is no explanation of the fact as to how he was retained in the Auditor General's office. Nor can it be possibly understood from the letter written in response by Auditor General's office as to how could be taken to have been on deputation with them from the Directorate, where he never reported for duty.
26. Reliance has been placed by respondent No,3 on letter dated 31-8-1983, addressed by the office of Auditor General of Pakistan to Mansoor All Director Revenue Receipt Audit Lahore with reference to his letter dated 4-6-1983. We are, however, unable to understand how the contents of this letter can be of any help to his case. They are rather indicative of the fact, like other documents on record, that he did not join the office of Director Revenue Receipt Audit after completion of training. We feel that this letter does not deserve a detailed analysis and it would be sufficient to say that it is not based on sound reasoning. The office of Auditor General seems to have made an attempt to comment on the effect of letter dated 3-4-1974, cancelling the earlier order of transfer with retrospective effect without being in possession of that order.
27. In our view, the only document which can be said to have some tendency to support the respondents' case, even though indirectly, is the Directorate's letter dated 4-3-1974 of which we have already taken a detailed notice. It is addressed to the Assistant Director of Customs and Excise Training School, saying that the marginally noted officials of the Directorate, including respondent No,4 have been directed to report to the School for training from 5-3-1974 and that some more would be deputed as soon as they join the Directorate. It can be argued that this letter is indicative of the fact that respondent No,3 did join the Directorate. A direction to report for training at School could be made only if respondent No, 3 had joined. A direction no doubt was made to him for reporting at the School for training, which was complied with. But, as already pointed out before, there is absolutely no evidence that he joined the Directorate after this training.
The evidence borne out by letter dated 4-3-1974 is not sufficient to support a finding that he had ever established any connection with the Directorate after training and that he remained on its roll even for a single day. This conclusion is not possible if letter dated 4-3-1974 is read in the light of overwhelming evidence which becomes available from other documents on the record. We feel constrained to hold that letter dated 11-10-1982 addressed by the Directorate to the Auditor General of Pakistan is conclusive proof of the fact that respondent No,3 never remained on the strength of the Directorate.
28. It was argued by the learned counsel for respondent No,3 that letter dated 5-3-1974 could not be withdrawn or cancelled by subsequent letter of 3-4-1974, because it had already been acted upon. But this, as we have already seen, seems to be factually incorrect. In view of the conclusion that he never reported for duty at the Directorate, it is not possible to hold that letter dated 5-3- 1974 had been acted upon. Even otherwise, this argument is hardly available in support of respondent No,3's case, because of the consideration that he continued to remain and serve in the Auditor General's office on the strength of this order. It was contended by the appellant's learned counsel that emoluments in the Accountant-General's office were better than he could get in the Directorate and that he himself contrived the passage of order dated 3-4-1974. Be that as it may, there is no denial of the fact that he never challenged its validity and continued to serve in the Auditor General'? Office during all this .Period. Therefore, he cannot now be allowed to turn back and say, and that too in the appeal filed by the appellant, that this order was illegal and that it could not withdraw the earlier order of 5-3-1974.
29 Before taking leave of the matter, we might say that the other points regarding limitation, incompetency and maintainability of the appeal were not argued by the respondent's learned counsel and we will, therefore, take them as having not been pressed. For these reasons the appeal is accepted and respondents Nos.1 and 2 are directed to exclude the name of respondent No,3 from the seniority list of 20-5-1984 with all consequential benefits to the appellant. There will, however, be no order as to costs.
30. Parties to be informed.