ABDUL HAMID KHAN (MEMBER).---The appellant, Amir Ahmed, was initially appointed as Assistant Director on ad hoc basis in the Industries Department on 1-11-1976. Subsequently, he was selected in the same capacity through the Punjab Public Service Commission on regular basis, which he joined on 24-8-1977. Later on he competed for the Central Superior Services and was selected to the Accounts Group. He joined the Civil Services Academy on 18-10-1984 after relinquishing charge in the Industries Department on 17-10-1984. During the course of training his services were terminated by the Federal Government vide order dated 19-6-1986 under section 11(1)(i) of the Civil Servants Act, 1973 whereafter he reported for duty in the Directorate of Industries on 16-12-1986 but was not allowed to join by respondent No.1/Secretary Industries as Assistant Director on the plea that since he was working against a temporary post before his appointment under the Federal Government his lien was, therefore, not retained. The representation filed by him before respondent No.1/Chief Secretary was also turned down vide order dated 7-10-1989 whereafter he filed an appeal before this Tribunal. As it was not a speaking order inasmuch as it did not reveal any reasons for rejection of the departmental appeal, the Chief Secretary was directed to pass a fresh order on merits in accordance with the law after hearing the appellant. The Chief Secretary finally disposed of the departmental representation vide order dated 22-5-1990 and hence the present appeal before this Tribunal.
2. The respondents have seriously objected to the claims of the appellant and have pointed out that he was not confirmed as Assistant Director before he left to join the Academy for the reason that a probationer could only be confirmed against a substantive vacancy subject to satisfactory completion of the probationary period; that he was holding a temporary post and his service record was also replete with adverse remarks; that even if a substantive vacancy was available he could still not be confirmed due to his unsatisfactory service record; that his work and conduct was found to be unsatisfactory even under the Federal Government with the result that his services had to be terminated during the period of probation; that as he had not been confirmed against the post of Assistant Director before his induction in the Accounts Service under the Federal Government he could not retain his lien in the Industries Department; that only 8 permanent posts of Assistant Directors existed in the Industries Department whereas the appellant occupied the 9th position in the seniority list of Assistant Directors and as such he could not have been considered for confirmation; that although a permanent post of Assistant Director became available with effect from 1-9-1982 but even then he could not be confirmed as he had not completed 4 years of probation before he left the Department to join the Academy; that he could not be considered to have been holding the post of Assistant Director substantively as he was not formally confirmed against the said post and in any case he could not normally be confirmed because of his all round unsatisfactory record of service and that the appellant neither sought the retention of his lien nor his lien was retained by the Department.
3. The moot point in this case is whether a permanent post of Assistant Director was available in the Industries Department, which he was holding substantively before he joined the Academy and whether the appellant's lien was or could be suspended or terminated by the Department after he left it on 17-10-1984.
4. Eight permanent posts of Assistant Directors became available with effect from 1-7-1980 vide sanction order dated 7-5-1980. The seniority list of BS-17 officers of the Mineral Development Wing of the Directorate as it stood on 1-6-1983 and notified on 11-1-1984 shows that lien was held on 5 of them by those senior-most Assistant Directors who had been promoted as Deputy Director One of them viz. S. Baqir Hussain was removed from service with effect from 30-4-1983. Thus at least one post of Assistant Director on which S. Baqir Hussain held his lien was available after his removal from service at the time when the appellant left for the Civil Services Academy on 17-10-1984. As he occupied the nineth position in this list, the appellant immediately became eligible to be adjusted and confirmed against this post on completion of his four years period of probation. Although he joined service as Assistant Director through the Public Service Commission on 24-8-1977 but even if we count it from the date 8 permanent posts of Assistant Directors became available i.e. From 1-7- 1980, even then he had more than completed the four years period of probation before he left for the Academy on 17-10-1984 and has, therefore, to be considered to have been confirmed against the said post with effect from 1-7-1984. The respondent-Department's claim that the appellant "was presumed to be working against a permanent post with effect from 1-9-1982" is without any foundation.
5. The respondent-department has contended that "a probationer can only be confirmed against a substantive vacancy and not against a temporary vacancy" and that the appellant "was not holding a post of Assistant Director (Mineral Development) substantively or permanently because he was not formally confirmed against this post". The foregoing discussion clearly shows that at least one permanent post of Assistant Director was indeed available at the end of the extended period of probation on which the appellant could lay claim for confirmation. The Department has explained that "under sub-rule (5) of rule 7 ibid (Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974), satisfactory completion of service against a substantive vacancy is a precondition of confirmation." Be that as it may but at the same time, however, sub- rule (4) of rule 7 ibid provides that " if no orders have been made by the day on which the maximum period of probationer expires, the probationer shall be deemed to have been confirmed in his appointment from the date on which the period of probation was last extended or may be deemed to have been so extended". Admittedly, even the extended period of probation of the appellant expired, after the post of Assistant Director had been made permanent on 1-7-1984. Thus in the light of the provisions of rule 7(4) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 reproduced above, the appellant stood confirmed with effect from 1-7-1984 against the post of Assistant Director vacated due to the removal from service of S. Baqir Hussain for which purpose issuance of a formal order was not a necessary condition. Sub-rule (5) of rule 7 ibid is not relevant in the circumstances of this case as no orders were passed by the competent Authority as envisaged in this sub-rule.
6. As regards the question of retention of lien the respondents have stated that the appellant "was relieved of his duties (to report at the Academy) without any condition regarding retention of his lien" and that he "neither sought retention of his lien nor was his lien retained by the Department", This again is a misconceived notion of lien. Under rule 3.14 of the CSR Punjab "a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired by him on any other post". It has been shown above that the appellant was holding a permanent post of Assistant Director. Substantively with effect from 1-7- 1.980 and as such he had acquired a lien against that post ever since. As he was not confirmed against a post in the Accounts Group under the Federal Government he did not, therefore, cease to hold lien against his previous post of Assistant Director. Under rule 3.17 ibid "---------a Government servant's lien on a post may in no circumstances be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post". Thus the contention of the respondent-Department that the appellant had not sought retention of his lien in the Industries Department is not tenable. In the given circumstances it was not at all necessary for him to make: any such request. On the other hand it was incumbent on the Department to retain his lien on its own.
7. In view of the foregoing we hold that the appellant was holding a permanent post of Assistant Director on 17-10-1984; that he stood confirmed, under rule 6(4) .Of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, against that post with effect from 1-7-1984; that he had acquired lien on the said post from that date and that when he returned from the Academy he was still holding lien against the said post of Assistant Director. His lien could not, therefore, be terminated, which in fact the respondent department did not terminate by issuing any formal order to that effect. Resultantly his services as Assistant Director could not be dispensed with on account of the misconceived notion that the appellant's lien stood terminated as he had neither requested for its retention nor was it retained by the Department.
8. For all these reasons we accept the appeal, set aside the impugned orders and reinstate the appellant in service with all back benefits with effect front the date his services were wrongfully terminated. There are no orders as to costs.