1. ' SAEEDUZZAMAN SIDDIQUI, J.---The appellant, a former employee of erstwhile East Pakistan, was absorbed in service in the Intelligence Bureau with effect from 23-10-1976, though repatriated to Pakistan on 18-9-1974, The appellant represented against the Gradation List of D.C.I.Qs. Circulated by the department on 11-1-1990 wherein his name appeared at Serial No,10. The objection of the appellant against the Gradation List was that his seniority in the service should have been fixed taking into account the service rendered by him in former East Pakistan, the period he remained a P.O.W. And the period (18-9-1974 to 22-10-1976), during which he kept waiting for posting on repatriation to Pakistan. The appellant's. Representation, however, was rejected by the department against which he preferred an appeal before the Federal Service Tribunal, which was disposed of as follows:-- "The learned Standing Counsel, Hafiz SA. Rahman, has presented in the Court a judgment by the Honourable Supreme Court in Civil Appeal No,205 of 1988 (Federation of Pakistan v. Zaki Ahmad Siddiqui) delivered on 21-5-1991 in which their Lordships have observed that the services rendered as POW would be counted and continued for the purposes of pension etc., because this was an act of State. (Copy of the judgment is attached). This gives the appellant a new cause of action and he is, therefore, allowed to approach the right forum afresh, if he so desires.
(2) The appeal is disposed of accordingly."
2. ' The appellant thereafter made a representation to the Prime Minister of Pakistan with the prayer that the period from 16-12-1971 to 22-10-1976 during which he remained a POW in the former East Pakistan and kept waiting for posting after arrival in Pakistan be treated as period spent on duty for the purpose of fixation of his seniority in terms of Ordinance XI of 1983 and the judgment of this Court in the case of Federation of Pakistan v. Zaki Ahmad Siddiqui (Civil Appeal No,205 of 1988), dated 21-5-1991. The aforesaid representation/appeal of the appellant was partly accepted and the period spent as POW was allowed to be counted towards seniority of the appellant. However, the period spent by the appellant from 18-9-1974 to 22-10-1976 while waiting for posting in Pakistan was not allowed to be counted towards his seniority. The appellant preferred an appeal against the decision of the departmental authority which was dismissed as time-barred by the impugned judgment. Leave was granted by this Court in the above appeal to consider whether the period spent by the appellant from 18-9-1974 to 22-10-1976, while waiting for posting in Pakistan should be allowed to be treated as a period spent on duty for the purposes of his seniority and pensionary benefits.
3. ' The learned counsel for the appellant contended before us that in the case of Federation of Pakistan v. Zaki Ahmad Siddiqui (supra), this Court approved the judgment of Federal Service Tribunal whereby the period during which a former employee of the then East Pakistan remained a POW and out of employment after repatriation to Pakistan, was directed to be counted for the purposes of his pensionary benefits. It is also contended by the learned counsel for the appellant that the view taken by the Tribunal that the appeal filed by the appellant before the Tribunal against. The order of departmental authority was time-barred, is erroneous on its face as the appeal was filed within the prescribed period of limitation from the date of communication of the decision of the departmental authority.
4. ' The learned counsel for the Federal Government, on the other hand, firstly, contended that the case of Zaki Ahmad Siddiqui (supra) relied by the appellant did not lay down that the period spent by a former employee of East Pakistan while waiting for posting after repatriation to Pakistan could be treated as on duty so as to be counted for seniority in service. It is next contended by the learned counsel for the respondent that the appeal filed by the appellant before the Tribunal in 1992 was clearly time-barred as the grievance of the appellant related to the refusal of departmental authority to treat the period from 18-9-1974 to 22-10-1976 spent by the appellant in waiting for posting after repatriation to Pakistan, towards his seniority. According to learned counsel, the appeal should have been filed by the appellant in 1976 when the department declined to accept the claim of the appellant. After hearing the learned counsel for the parties, we are of the view that this appeal must succeed.
5. ' It is an admitted position that the appellant was an employee in the former East Pakistan and was repatriated to Pakistan after the fall of Dhaka on 18-9-1974. It is also not disputed that the appellant was absorbed in service on 22-10-1976 and thus he had to wait for posting from 18-9-1974 to 22-10- 1976 after repatriation to Pakistan. Sections 3, 4 and 5 of Ordinance XI of 1983 which provide for appointment seniority and pension of former employees of the Government of East Pakistan to posts under the Federal Government, read as follows:-- "(3) APPOINTMENT.---An employee may, with the approval of the competent authority, be appointed to an existing or supernumerary post in the Grade as far as practicable, equivalent to the scale of the former post of such employee from the date he holds such post.
6. ' EXPLANATION.---In this section, "competent authority" in relation to a post means the authority competent under the Civil Servants Act, 1973 (LXXI of 1973) to make appointment to that post.
(4) SENIORITY.---The service rendered under the former Government of East Pakistan by an employee shall count towards seniority in the Grade of the post to which he may be appointed under section 3.
(5) PENSION.---The service rendered under the former Government of East Pakistan, which qualified for pension under that Government, by an employee who is appointed to a post under section 3 shall count for the purposes of pension under the Federal Government."
7. ' After promulgation of Ordinance XI of 1983 Government of Pakistan vide O.M. No,2/28/72-Vig (Vol- III) dated 8-6-1983, issued the following instructions regarding absorption, seniority and pension of former employees of Government of East Pakistan:-- "(i) All employees of Government of East Pakistan or of autonomous bodies in East Pakistan who repatriated or who migrated from East Pakistan after 16th December, 1971 and up to 31st December, 1974 may be absorbed as far as practicable in equivalent grades in existing or supernumerary vacancies in the Federal Government/Provincial Governments or in autonomous bodies as the case may be; and
(ii) The employees of Government of East Pakistan mentioned in (i) above may be allowed seniority in accordance with the earlier decision of the Government applicable to employees of the Government of East Pakistan who were on deputation to the Federal Government on 16-12-1971 and who were absorbed in posts in West Pakistan as published vide Establishment Division O.M.
8. No,2/28/72-RC(Estt) dated 16th April, 1978. Employees of autonomous bodies should be allowed seniority from the date of their regular appointment to these posts in West Pakistan.
(2) The Government decision covers employees appointed to posts in Federal Government, Provincial Governments or in autonomous bodies set up, managed or controlled by the Federal Government or Provincial Governments. An Ordinance to implement the decision relating to the employees, of former Government of East Pakistan appointed to Federal posts has now been published in the Gazette of Pakistan, Extraordinary, Part I dated the 25th May, 1983, as Ordinance No,XI of 1983 (copy enclosed).
(3) The Ministries/Divisions are requested to bring the decision mentioned in the foregoing paragraph to the notice of all concerned in the Ministry/Division, direct the autonomous bodies under their administrative control to implement the decision and amend their rules wherever necessary, in accordance with the Government decision.
(4) The Provincial Governments may also promulgate their own Ordinances in respect of the employees of former Government of East Pakistan who have been appointed in Provincial posts."
9. ' In Federation of Pakistan v. Zaki Ahmad Siddiqui (supra), the respondent was appointed as a Lecturer in the former East Pakistan on 28-1-1967. He was repatriated to Pakistan after the fall of Dhaka on 23-3-1974 and was selected through Federal Public Service Commission (F.P.S.C.) as a Lecturer on 31-5-1980. He claimed seniority as Lecturer in BPS-17 w,e,f, the date of his appointment in East Pakistan, namely, 28-1-1967 including the period he remained out of job after arrival in Pakistan on repatriation until his selection through F.P.S.C. On 31-5-1980. On refusal by the department to allow him seniority after counting the above period as on duty, he approached the Federal Service Tribunal which accepted his appeal holding that in view of sections 3, 4 and 5 of the Ordinance, he was entitled to count the period spent by him as a POW from 1-7-1971 to the date of his repatriation to Pakistan and further period up to the date of his appointment as Lecturer through F.P.S.C. In Pakistan, for the purpose of pensionary benefits under the Federal Government.
10. This Court on an appeal filed by the Federal Government against the above decision of Federal Service Tribunal in the case of Zaki Ahmad Siddiqui (supra) approved the decision of the Tribunal and maintained the order of the Tribunal allowing the period he remained out of employment after arrival in Pakistan on repatriation to be counted for his pensionary benefits. We, therefore, see no reason to take a different view in the present case and we, accordingly, hold that the period spent by the appellant while waiting for appointment after arrival in Pakistan on repatriation from former East Pakistan should be treated as period spent on duty for the purpose of seniority and pensionary benefits. The Tribunal has found that the appeal preferred by the appellant before the departmental authority was time-barred and as such his appeal before the Tribunal was not maintainable. We are unable to uphold the view taken by the Tribunal in the above case. The appellant's earlier appeal before the Tribunal was disposed of on 1-8-1991 with the observation that in view of the judgment of this Court in the case Federation of Pakistan v. Zaki Ahmad Siddiqui (supra) the appellant had a fresh cause of action for making a representation to the departmental authority. The appellant, accordingly, made a fresh representation/appeal to the departmental authority on 25-9-1991 which was partly allowed by order dated 9-1-1992. The appellant claims that the decision on his appeal was communicated to the appellant on 21-9-1992. This fact is not disputed by the respondent. The appellant preferred his appeal before the Tribunal on 4-2-1992 which was dismissed as time-barred by the Tribunal through the impugned judgment. Since the order of departmental authority rejecting the second representation/appeal of appellant was passed on 9-1-1992 and the decision was communication to the appellant on 21-2-1992, his appeal before the Tribunal filed on 4-2-1992 was within time. The departmental authority did not reject the representation/appeal of the appellant as time-barred but decided it on merit. In these circumstances, the Tribunal could not treat the departmental representation/appeal of the appellant as time-barred and thus the appeal before it beyond time as well. We, accordingly, see no force in the contentions of the learned counsel for the Federal Government. The appeal is, accordingly, allowed and it is directed that the period spent by the appellant while waiting for his posting on repatriation to Pakistan from 18-9-1974 to 22-10-1976 will be counted for the purpose of determination of his seniority and pensionary benefits.