CH. HASAN NAWAZ (MEMBER): --As borne out by the notification dated 17-2-1981 (Annexure A), on his appointment as Lecturer in NPS-17, made on the recommendations of Federal Public Service Commission, (FPSC), the appellant assumed charge of the post of a Lecturer in Urdu in Federal Government Degree College for Boys, Peshawar Cantt with effect from 31-1-1981. The notification said that he will be on probation for a period of one year.
2. Notification dated 28-2-1982 (Annexure B), issued on satisfactory completion of his probationary period on 31-1-1982, provided that he will continue as Lecturer "from the retrospective date" on temporary basis until further orders.
3. Applications were invited for the post of District Project Manager in NPS-18 by the Literacy and Mass Education Commission, Islamabad. The appellant applied for this post through proper channel and his application was forwarded to the concerned authority by the Director, Federal Government Educational Institutions by letter dated 25-5-1986 (Annexure C). He was informed by letter dated 16-2-1987 (Annexure C/1) that he had been selected for appointment as District Project Manager and that he would report for duty by 25-2-1987 in case the offer of appointment was acceptable to him with necessary terms and conditions.
4. He informed the Director by letter dated 5-3-1987 (Annexure D) that he had been selected by the Commission for appointment as District Project Manager. It was requested that he may be relieved of his duties at the latest by 10-3-1987 to enable him to report for assumption of charge at Kasur within time. Even the Commission made a request to the Director by letter dated 9-3-1987 (Annexure E) to relieve the appellant to enable hire to join the new post, for which he had been selected under Nai Roshani Schools Programme, which was being implemented "at high priority basis" as part of Prime Minister's Five-Point Manifesto. The joining time was extended till 15.3-1987 by the Chairman of the Commission (Annexure F). The appellant joined his new post on 16-3-1987. His case is that he was relieved of his duties by the competent authority on 15-3-1987.
5. After having so joined, the appellant asked the Principal of Federal Government Degree College for Boys, Peshawar Cantt. By letter dated 3-11-1987 (Annexure G) to provide him with the (a) relieving orders, (b) LPC and (c) notification of the competent authority in the Ministry of Education to the effect that he had been relieved of his duties to join his new post.
6. After several requests made by the appellant in writing to the Principal and the Director, the following letter was addressed on 27-10-1988 by the Ministry to the Director (Annexure M): "No. F.6-3/85-C&G Government of Pakistan Ministry of Education Islamabad, 27th October, 1988.
Subject: Absence from Duty -- Case of Mr. Muhammad Farooq Lectures in Urdu F.G. College for Men Peshawar Reference Directorate's letter No. 04/PF2491/77-FGEI (CA), dated 30-6-1988 on the, above subject.
2.On appointment as District Project Manager BPS-18 at Kasur District, Literacy and Mass Education Commission (LAMEC), Islamabad, Mr. Muhammad Farooq Ahmed, Lecturer in Urdu BPS-17 F.G.
College for Men, Peshawar Cantt. May please be relieved as on 10-3-1987. He will have no lien/right of reversion against his original position, and would cease to be a Government servant w.e.f. Date of appointment to the new post.
3.This issues with the approval of competent authority.
(Sd.)
(Muhammad Dawood Khan), Education Officer."
7. This was followed by notification dated 7-11-1988 which is to the following effect: NOTIFICATION No. 04/PF-491/77-FDEI (CA).---As a result of his selection as District Project Manager (BPS-18) in Literacy and Mass Education Commission (LAMEC), Islamabad, Mr. Muhammad Farooq Ahmed, Lecturer in Urdu F.G. College for Men, Peshawar Cantt. Has been relieved with effect from 10-3-1987 (A.N.).
2. Being temporary Lecturer his name has been struck off the strength of the said institution with effect from the same date.
(Sd.) COL. DIRECTOR FEDERAL GOVERNMENT, EDUCATIONAL INSTITUTIONS (IFTIKHAR ALAM)."
8. In this appeal under section 4 of the Service Tribunals Act, 1973 filed by the appellant after a departmental appeal failed to produce any result, the appellant has challenged the validity of letter dated 27-10-1988 and notification dated 7-11-1988 whereby his name was struck off the strength of the Institution on termination of lien.
9. The gist of appellant's case is that the Ministry of Education were not legally competent to terminate his lien and that he had the right to return to the Institution on abolition of the Nai Roshani Schools Programme. It is pleaded that since he had joined his new functions after having applied through proper channel, the department were bound to relieve him of his duties to enable him to join the Programme.
10. The case set up in defence in the respondent's own words is as follows: The appellant did not wait for formal decision of relieving from the competent authority and joined Literacy and Mass Education Commission on 16-3-1987 without obtaining proper relieving orders from the Department. This was a misconduct on the part of appellant under Government Servants (Efficiency and Discipline) Rules, 1973. The appellant after joining his new assignment under Literacy and Mass Education Commission had requested the Principal, F.G. College for Men, Peshawar for supply of following documents:--
(a) Relieving orders.
(b) L.P.C.
(c) Relieving notification.
The same could not be supplied to him as he did not wait for his approval of relieving by the competent authority.
11. These averments apart, the respondent's case is that the appellant's lien was rightly terminated because he was not a permanent employee.
12. The factual position is not in dispute. As we have already noticed, the appellant assumed charge of the post of Lecturer in Urdu (B-17) on 31-1-1981 in the Federal Government College for Boys, Peshawar Cantt. On the recommendation of the Federal Public Service Commission. He remained on probation for a period of one year. He completed the period of his probation on 30-1- 1982 to the satisfaction of the concerned authority, which fact was notified on 28-2-1982. The notification said that he will continue as Lecturer on temporary basis until further orders. In the background of these admitted facts, the only question which falls for determination is ' whether the fact of appellant's temporary employment as Lecturer under the Ministry of Education, legally authorised the competent authority to terminate his lien.
13. For an answer, recourse will have to be- made to the provisions of F.R.14-A of the F.R. And S.R.
Which makes the following reading: F. R. 14-A. (a) Except as provided in clause (c) of this rule and rule 97, 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.
(b) In a case covered by sub-clause (2) of clause (a) of Rule 14, the suspended lien may not, except on written request of the Government servant concerned, be terminated while the Government servant remains in Government service.
(c) Notwithstanding the provisions of rule 14(a), the lien of a Government servant holding substantively a permanent post shall be terminated on his appointment substantively to the office referred to in sub-rule (1) of rule 97 or to the post of Chief Engineer of the Public Works Department."
14. These provisions leave no room for any ambiguity with regard to the correct legal position. The order of appellant's appointment dated 16-2-1987 as District Project Manager shows that the appointment was "purely temporary terminable on one month's notice from either side" and that it did not confer on him any right to a claim for permanent appointment. He was to remain, in accordance with this order, on probation for a period of one year and on successful completion of this period, he was to be confirmed in the regular cadre of the Commission against "purely temporary vacancy". The order again made it clear that it did not confer on him "the right or title to permanent position in the Commission". On the other hand, the order of his appointment as Lecturer indicates that the post was permanent and that he was substantively appointed against that post. Although notification dated 28-2-1982 indicates that his appointment was on a temporary basis, but there is nothing either in this notification or the earlier one of 17-2-1981 to suggest that the post of Lecturer in Urdu in the College was temporary. We emphasise the fact that his appointment against this permanent post on the recommendations of the Commission was substantive. This being so, the circumstance that his appointment was temporary, would be absolutely irrelevant in so far as the question of termination of lien is concerned. Under F.R. 14-A(a), it could not be terminated under any circumstance even with his consent, because the obvious result was to leave him without a lien or suspended lien upon a permanent post, within the meaning of the Rules.
15. Under F.R. 9 (13), lien means the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post including a tenure post, to which he has been appointed substantively. In the present case, on the abolition of the Nai Roshani Schools Programme, the appellant had the right to hold the post of Lecturer in the College substantively, because it is a permanent post to which he had been appointed substantively within the meaning of F.R. 9(13) of the Rules.
16. For these reasons we hold that the orders regarding termination of appellant's lien conveyed through letter dated 27-10-1988 and Notification dated 7-11-1988 were incompetent and without any legal basis. They are accordingly set aside in acceptance of the appeal. Under the circumstances, the parties are left to bear their own costs. Parties be informed.