' SHAFIUR RAHMAN, J.---Leave to appeal was granted under Article 212(3) of the Constitution to examine whether a civil servant of the Punjab Government can be so treated or dealt with as to be left with no lien on any post while being posted with the Federal Government.
2. The appellant started his career in the service of the Government of the Punjab as Assistant Engineer in the Irrigation Department after being selected by the Public Service Commission. He was promoted to the rank of the Executive Engineer in 1958 and to that of Superintending Engineer on 23rd of January, 1971. While so posted, he was asked to report to the Finance Minister as is clear from the office note of Secretary, Irrigation and Power, dated 29-12-1991 in the following words:-- "Mr. Vaqar Ahmad, Secretary Establishment, Government of Pakistan, rang me up on Sunday, the 26th, asking me to spare Mr. Mazhar Ali, SE immediately and he should be asked to report to the Finance Minister, Government of Pakistan, Dr. Mobashar Hassan,. I have accordingly asked him to do that. I am told that he left today for Islamabad. Further details regarding his appointment with the Central Government and his terms and conditions of service while on deputation may please be asked from the Establishment Secretary, Government of Pakistan."
' The Cabinet Secretariat (Establishment Division), Government of Pakistan also issued a Notification, dated 30th December, 1971 to the following effect:--- "On transfer from the Government of the Punjab, Mr. Mazhar Ali, Superintending Engineer, Irrigation, is appointed to officiate as Officer on Special Duty with the rank, status and pay of the Joint Secretary to the Government of Pakistan, in the Ministry of Finance, with immediate effect and until further orders."
' There was also a formal order issued by the Government of the Punjab, Irrigation and Power Department on 5-1-1972 in the following terms:--- 'The Governor of the Punjab is pleased to place the services of Mr. Mazhar Ali, Superintending Engineer, Irrigation and Power Department at the disposal of the Government of Pakistan, Ministry of Finance, from the date he relinquishes his charge in the Water Allocation and Rates Cell, Government of Punjab, Irrigation and Power Department.
' The terms and conditions of his deputation to the Government of Pakistan will be settled in due course."
3. While with the Federal Government as Joint Secretary, the appellant earned promotion as Additional Secretary. At one stage he was charge-sheeted. A departmental enquiry into his conduct while rendering service to the Federal Government was held and the President by an order, dated 1-10-1983 compulsorily retired him from service. The notification to this effect reads as hereunder:--- "Consequent upon disciplinary action taken under Government Servants (Efficiency and Discipline)
Rules, 1973, the President has been pleased to retire from service compulsorily Mr. Mazhar All (an officer of Secretariat Group in BPS-21) with immediate effect."
4. The appellant sought a review from the President but did not succeed. He then approached the Punjab Service Tribunal which considered his service appeal to be premature and directed him to seek further departmental relief. He thereafter represented to the Governor on 21-1-1986 and filed the appeal with the Punjab Service Tribunal on 31-5-1986. His case before the Tribunal. Was that he was a permanent employee of the Punjab Government and under the Rules had his lien on a post in the Irrigation and Power Department of the Government of Punjab and the impugned orders of his compulsory retirement could not be passed by the Federal Government while he was on deputation there. The Service Tribunal examined the case and without reference to any rule or law on the subject held as hereunder:-- 'The order of the Irrigation and Power Department dated 5-11-1972 showing the appellant on deputation is directly in conflict with the Notification dated 3042-1971 issued by the Federal Government whereby the appointment of the appellant was made. The order of the Provincial Government is otherwise meaningless. It passes one's comprehension that what was the occasion to issue this order after more than 10 months of the appellant having joined Federal Government.
We are, therefore, of the considered view that this notification as well as notification dated 16-7- 1983 are of no legal consequences."
' The Tribunal also held the principle of estoppel fully applicable against the appellant and the operative part of the finding recorded by the Tribunal reads as hereunder:-- "The principle of estoppel is fully applicable. The appellant now cannot be permitted to resile from his earlier position and take up altogether a new and inconsistent plea."
' The appeal was also held to be time-barred. It was, therefore, dismissed.
5. At the hearing before us, a notification of the Government of the Punjab, Irrigation and Power Department, dated 25-11-1989 was produced which reads as hereunder:-- "In order to justly and fairly restore to Mr. Mazhar Ali, his due rights of salary, pensionary and other benefits as a permanent civil servant of Punjab Government, and in view of his meritorious services, the Governor of Punjab, after careful consideration and in exercise of his inherent discretionary powers and prerogative to remove hardship and difficulties, is pleased to order that:---
(1) Notification No.Estt-I/PR-1/76, dated 1-3-1980 by Irrigation and Power Department, Punjab appointing Mr. Mazhar All (BPS-21) continues to be in force; and in consequence he is deemed to have been repatriated to his parent Irrigation and Power Department from 3-6-1978 in the same pay scale as he was enjoying in the Federal Government at the time of his repatriation.
(2) He is allowed to retire on 23-4-1989 on reaching the age of superannuation. He is allowed pensionary and other benefits of continuous permanent service since 28-6-1952, as admissible."
6. In determining the question whether the appellant held a substantive appointment with the Government of the Punjab or not, the Service Tribunal completely ignored and lost sight of the comments of the Government of the Punjab which read as hereunder:--- "6, 7,
8. No comments except that the appellant was a permanent employee of the Irrigation Department, Punjab.
9. The representation has not yet been disposed of as the question of termination or otherwise of his lien has not yet been finally decided.
10. No comments.
(A) Mr. Mazhar Ali joined the Punjab Irrigation Department on 28-6-1952 in Class-I and was confirmed against a substantive post. He was sent on deputation to the Federal Government in December 1971 and was shown as such in the various seniority lists of officers issued by the Punjab Irrigation and Power Department, the last such list being the Seniority List of Superintending Engineers issued on 16-7-1983 where his name appeared at Serial No.12. No orders suspending/terminating the lien of the officer were issued."
' The Federal Government also commented on his status as hereunder:-- "25. (B) Denied. He had a dual capacity. He was an officiating civil servant of the Federal Government and notionally in Punjab Government."
7. The law applicable to such an admitted position on facts finds mention in the Rules 3.13 to 3.17 of the Civil Services Rules (Punjab), Volume I, and Fundamental Rules 13, 14 and 14-A. According to these, the lien of the permanent civil servants cannot be terminated, even with their consent. It can be terminated only when the civil servant is confirmed against some other permanent post. There is nothing on the record to suggest nor any indication or plea that the Federal Government had confirmed him on any post under the Federal Government. In the absence of such a material or evidence, his lien will be retained with the Punjab Government and notwithstanding the non- specification of the terms and conditions of his deputation, he will be deemed to be on deputation with the Federal Government. For that reason, he would be excluded from the definition of civil servant under the Civil Servants Act of the Federal Government on the strength of section 2(1)(b) of the Civil Servants Act. The President will not be competent authority to direct either his compulsory retirement or the termination of his service. The Provincial Government had made the amends as far as it could by the notification just reproduced above in para 5. It could not obviously set aside the order of the President.
8. This appeal is allowed. The orders. Of Tribunal and of compulsory retirement of the appellant by the Federal Government are set aside as without jurisdiction. The question of limitation will not come in between because the Provincial Government all through treated him as its own employee and had dealt with him even during the pendency of the appeal in a beneficial and befitting manner.