' ABDUL QADEER CHAUDHRY, J.---This appeal by leave of the Court has been filed against the judgment of the Federal Service Tribunal, dated 30-8-1988.
2. The facts of the case are that the appellant and respondent No,1 were employed as Assistants in the Department .Of Bureau of Emigration of Overseas Employment, Government of Pakistan. The appellant was senior to respondent No,1. The appellant had been transferred to the office of Labour Attache as Community Welfare Attache, Embassy of Pakistan, Dubai, vide Manpower Division Memorandum dated 16-4-1979. While posting him abroad, the following condition was laid down in the aforesaid memorandum:-- ' He will not be considered for promotion to the higher post during the period of his posting abroad but he will retain his seniority against the post of Assistant. After his transfer to Pakistan, he will resume duty as Assistant and will be considered for promotion to the higher post against the next vacancy becoming available thereafter."
3. The appellant was recalled to Pakistan. He applied for grant of sixty days leave which was granted by the competent authority on 13-2-1984. He was relieved of his duty at Dubai on 13-2-1984 with the direction to report for duty at Islamabad after availing of six days joining time. The appellant after expiry of his leave joined duty on 21-4-1984 in the Bureau's Headquarters. Prior to his resumption of duty a meeting of the Departmental Promotion Committee was held on 10-4-1984 and the respondent Khursheed Ahmad junior to the appellant was promoted. The appellant was not considered for promotion on the ground that he was not eligible for promotion in terms of his posting order dated 16-4-1979 and because he had proceeded on leave without physically joining the Bureau.
4. The respondent No,1 is not present as he is serving abroad. Notice was issued to him but it does not appear that the notice for this date of hearing was served upon him therefore we have to examine whether we can proceed against him in his absence. According to Order XIV, Rule 2 of the Supreme Court Rules where an appeal has been admitted by an order of this Court, the Registrar shall notify the respondents of the order of this Court granting leave to appeal, and shall also transmit a certified copy of the order to the Registrar of the High Court concerned.
5. The Registrar had issued notice to the respondent in terms of Order XIV, Rule 2 on 20-1-1990. He specifically directed him to enter an appearance within 30 days of the receipt of the notice as provided by Rule 1, Order XIV. The respondent had received this notice and submitted a reply that he has been posted in Copenhagen, Denmark. Thus, the compliance of the rule has already been made and it was for the appellant to have made arrangement for his appearance. If he could not appear in person he could have appointed an attorney to appear on his.Behalf. Order XVI, Rule 1 provides that "the respondent shall enter an appearance within 30 days of the receipt of notice from the Registrar regarding grant of leave to appeal to the appellant, under Rule 2, Order XIV, but he may enter an appearance at any time before the hearing of the appeal on such terms as the Court may deem fit". Order XVI, Rule 5 contemplates that "A respondent who has not entered appearance shall not be entitled to receive any notice relating to the appeal from the Registrar".
According to Order XX, Rule 3, "A party to an appeal who appears in person shall furnish the Registrar with an address for service and all documents left at that address, or sent by registered post to that address, shall be deemed to have been duly served." According to Order XIX, Rule 3, "the Registrar shall, subject to the provisions of Order XVI notify the parties to the appeal of the date fixed for hearing". The report of the department shows that the notice sent by the office of this Court to the respondent was sent to the place of his posting and he had duly received it and acknowledged the same. It was addressed to the Assistant Registrar of this Court and copy forwarded to the Director, Bureau of Emigration. Sufficient compliance of the rules has been made and the respondent could not choose to make any arrangement to contest the appeal. The Service Tribunal had accepted the appeal of the respondent for the following reasons:- "It is an admitted position that the respondent Shafqat Sultan was deputed to serve outside the country on the condition that he would not be considered for promotion to higher post during the period of his posting abroad, but he would only retain his seniority in the post of Assistant and on his return to Pakistan he would resume duty as Assistant and he would be considered for promotion to the higher post against the next vacancy becoming available thereafter. It seems that it was in the context of that position that the respondent Shafqat Sultan's case for promotion was deferred at the meeting of the Departmental Promotion Committee held on 10-4-1984.
6. We have not been able to agree with the finding of the learned Tribunal. The appellant could not be deprived of his right of promotion. He was not posted abroad on deputation. He was transferred in the exigency of service and his terms and conditions remained the same. His seniority remained the same. Rule 11 (Part B) of Rules of Business, provides that "No Division shall, without previous consultation with the Establishment Division, issue, or authorise the issue of any orders, other than orders in pursuance of any general or special delegation made by the Establishment Division, which involve:-
(c) .
(d) a change in the terms and conditions of service of Federal Civil Servants; (e)
(f)
(g)
(h)
(i)
7. Section 3 of the Civil Servants Act provides that the "terms and conditions of service of a civil servant shall be as provided in this Act and the rules". Under section 8(2) the seniority of a civil servant shall be reckoned relation to the in service or other civil servants belonging to the same cadre.
8. The appellant was senior to the respondent. His rights could not be abridged and the condition attached in the letter of his transfer is illegal. The appellant remained in service without any break.
He returned to Pakistan to join his duty at Islamabad in his own department. He was on leave when his case for promotion was considered. He could not be ignored on any principle of law.
9. In the result, the appeal is allowed and the judgment of the Service Tribunal is set aside. As the respondent has been proceeded ex parte, the result of this-appeal be communicated to him.