ABDUL HAMID KHAN (MEMBER): --The appellant, Muzaffar Ali, joined service as Junior Clerk in the Public Health Circle, Lahore of the former PWD (B&R Branch) on 14-3-1950 and was confirmed as such on 3-2-1961. He was promoted as SDC with effect from 10-5-1958 and then as Accounts Clerk on 11-8-1958. He was, however, reverted from the post of Accounts Clerk on 20-11-1961 due to reduction in the posts of Accounts Clerk.
2. On 1-2-1966 three Sub-Divisions of the former PWD (B&R Branch) were transferred en bloc to the Lahore Improvement Trust (now LDA). The appellant was also transferred alongwith other staff but the terms and conditions of transfer were not settled. He, however, continued to have his lien against the post of SDC in the PWD (now C&W Department) which, according to him, was never terminated.
3. In 1976, some ten years after the transfer/deputation, the LDA invited options from the aforesaid staff for their permanent absorption in the LDA. The appellant showed his willingness to be absorbed in the Authority. As he was asked to resign first from his parent Department whereafter his case was to be considered for permanent absorption in the LDA, the appellant did not accept the offer and insisted that he may first be absorbed and then he would submit his resignation failing which he might be repatriated to the parent Department. The Authority did not accept his conditional option and, therefore, repatriated him to his parent Department vide orders dated 5-7- 1981. The Highways Department accepted the appellant's repatriation and posted him vide order dated 9-8-1981 in the Highways Circle, Lahore. The LDA also deposited leave salary and pension contribution for the period the appellant remained with the Authority vide letter dated 4-10-1983 which were accepted by the C&W Department and the Accountant-General, Punjab.
4. After his repatriation the appellant submitted an application on 23-8-1981 for his pro forma/regular promotions and confirmation with effect from the date from which his juniors had been so promoted/confirmed. The Departmental Promotion Committee while considering his case observed that under rule 10.6, CSR Punjab Volume I the appellant had a right to pre forma promotion as Accounts Clerk with effect from 14-12-1967 i.e. The date from which his next junior Malik Nisar Ahmed had been promoted. He was accordingly given pro forma promotion as Accounts Clerk with effect from 14-12-1967 vide order dated 24-1-1982: Subsequently, the appellant was promoted as Head Assistant on the basis of his restored seniority vide order dated 24-10-1983.
He was also cleared for regular promotion as such by the Departmental Promotion Committee on 12-11-1984 subject to the decision of the appeal filed by one Muhammad Shafi, which was, however, rejected subsequently on 15-11-1984 by the competent Authority.
5. The matter was later referred to the Regulations Wing of the SGA&1 Department on 2-10-1986 who observed that the Departmental Promotion Committee which cleared the appellant for promotion was not properly constituted as it was attended by only two members instead of its full strength of three. The matter was again placed before the DPC, duly constituted on 6-4-1989, which again approved the appellant for promotion and the recommendations of the Committee were conveyed to Government or 9-1-1986. The matter was again referred to the SGA&I Department who this time came up with yet another objection and observed that since the appellant had opted for absorption in the LDA and as he had failed to revert to the parent department within the stipulated time he therefore, by operation of the deputation policy on the subject would continue on deputation and should be considered to have been absorbed by the borrowing Authority and as such the competent authority in the C&W Department could not accept hi: repatriation. In the circumstances he could at best be treated as having joined his parent Department afresh from the date he joined duty on return from the LDA. The appellant thereafter filed a writ petition in the High Court on 19-8-1990 which was ultimately disposed of with the direction that the appellant's case should be decided by the Secretary, S&GAD on merits and it accordance with law. The S&GAD reiterated its earlier observation an ultimately decided the case against the appellant. The S&GAD's decision was conveyed to him on 5-9-1991 against which he filed a representation to the Government on 24-9-1991 which was rejected on 5-1-1992/13-1-1992 whereafter he has now knocked at the doors of the Tribunal for the redress of his grievance.
6. The learned counsel for the appellant contended that the orders of promotion dated 24-1-1982 and 23-11-1983 regarding pro forma promotion of the appellant were issued by the competent Authority in accordance with the prescribed manner and their validity could not thus be brought into question. These orders were duly implemented and acted upon and as such the same had attained absolute finality and no locus poenitentiaewas left with the respondents to reconsider or recall those orders. Reliance was placed in this connection on PLD 1989 SC 407; 1990 SCMR 1414; PLD 1991 SC 118 etc. He contended that the orders dated 24-1-1982 and 3-11-1983 issued by the competent authority were still operative as these had not been withdrawn or cancelled specifically by the competent authority. In fact, the competent authority and the next higher authority viz. Respondents Nos. 1 and 2 still hold the view that the appellant's was a genuine case. The observations made by the Regulation Wing of the S&GAD are irrelevant and extraneous as the appellant's repatriation has no bearing on his pro forma promotion as the same was due to him with effect from 14-12-1967 i.e. From a date much earlier than the date of his repatriation which took place in July 1981. Under the provisions of rule 10.5 of CSR Vol. 1, Part I the competent authority should have promoted the appellant in 1967 when his next junior was so promoted even if the appellant was on deputation at the relevant time. Under the rules repatriation is not a condition precedent for the grant of pro forma promotion or pro forma promotion in absentia.
7. Further contended that the appellant could not be made responsible for delay in his repatriation.
It was for the lending department/Government to ensure compliance of their own policy. They should have ensured that the appellant was repatriated by the borrowing agency within the stipulated time. The appellant should not be made to suffer on account of the inaction or lapses on the part of the departmental authorities. Reliance was placed on PLD 1991 SC 1118; 1991 PLC (C.S.)
1036; 1990 SCMR 1170. It is a settled proposition of law that, pro forma promotion once again cannot be withdrawn at all. Reliance was placed on 1981 SCMR 1799 and 1989 PLC (C.S.) 487 and 1991 PLC (C.S.) 513, both of the Lahore High Court. The impugned decision of the S&GAD and consequential orders are retrospective in effect. The appellant's return to his parent department was accepted "as his repatriation" which was duly implemented by the authorities and this decision has remained in the field for the last over a decade. This repatriation could not be converted into a fresh appointment and that too retrospectively from 1981 which is not only illegal but highly unjust. The decision is also contrary to the substantive provisions of Rule 3.17(a) of CSR Pb. Vol.I. Part I under which "a Government servant's lien against a post may in no circumstance 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".
7-A. According to the learned counsel the decision is highly unfair and injurious to the appellant in that it has the effect of completely washing away his entire service of 31 years. Apart from being highly oppressive and-unjust the decision is also completely illegal and contrary to the provisions of the rules and the law especially when it has been given retrospective effect and taken without giving him any opportunity of showing cause. If at all there was any irregularity on the part of the appellant in overstaying in the LDA in contravention of the deputation policy even then it stands condoned by Government. This is in view of the law as laid down in various judgments reported as 1980 PLC (C.S.) 105 (Lahore High Court), uphold by Supreme Court vide PLD 1973 SC 144 and 1989 PLC (C.S.) 256 wherein it has been held that if a rule was not observed by the authority concerned, in this case the rule of recalling the appellant from deputation then that rule should be deemed to have been relaxed.
8. Whereas the respondents Nos. 1 and 2 have not controverted any of the above contentions, respondents Nos. 3 and 4 i.e. The Secretary, S&GAD and the Chief Secretary, Punjab have stated that: (i)in their advice dated 18-6-1990 subsequently confirmed vide letter dated 1-8-1991 they had explained the position relating to the appellant's lien, absorption and repatriation, as recapitulated in para.5 supra and that after he had opted to be absorbed in the borrowing agency i.e. The LIT/LDA he could not be repatriated after a long period of 14 years; (ii)the department was not competent to grant pro forma promotion to the appellant as according to S&GAD's instructions issued vide letter No.SORII (S&GAD)2-59/78, dated 11-10-1980 if the selection authority i.e. DPC or the Provincial Selection Board recommends pro forma promotion, the case is required to be referred to the S&GAD for approval. Since this procedure was not followed by the C&W Department, pro forma promotion granted to the appellant was violative of the instructions.
(iii)S&GAD's letters dated 18-6-1990 and 1-8-1991 were not a direction, but were in the nature of advice as the formal decision was to be taken by the competent authority.
9. We agree with the learned counsel for the appellant that the appellant could not be held responsible for the delay caused in the matter of his repatriation for which only the LDA and the C&W Department were responsible. As far as the policy on the subject is concerned, according to Finance Department's letters dated 9-2-1974, 1-1-1975 and 22-1-1980 the period of deputation cannot exceed three years whereafter the deputationist should revert to his parent department or opt to be absorbed in the borrowing organisation for which he is required to resign from Government service. If the deputation exceeds 3 years, the official is to be given a grace period of 6 months to make up his mind. On the other hand, under the aforesaid letter of 1-1-1975 the borrowing authority is given a period of 3 months to complete the formalities and to take a final decision whether to absorb the official permanently or to send him back to his parent department.
10. In the context of the instant case the following points have to be kept in view while examining this case: (a)the appellant and other employees of the PWD (B&R Branch) were transferred en bloc without settling their terms and conditions of deputation. It was for all intents and purposes a permanent `deputation' which was later to be converted, it seems, into absorption in the LIT/LDA subject of course to the consent of the officials concerned. A parallel may possibly be drawn between these employees and some of the employees of the Irrigation and Power Department who too were transferred to en bloc to WAPDA on deputation without the facility of deputation allowance. They are still serving in that organisation. The en bloc transfer/deputation in the instant case was thus qualitatively different than and distinguishable in its ramifications from the ordinary deputation of an individual. The instructions contained in the circular letters of Finance Department pressed into service by respondents 3 and 4 cannot thus be applied to the case of the appellant in their pristine form. The two situations are quite different and distinguishable.
(b)it was after full ten years that the borrowing agency i.e. LDA invited options from the deputationist for their absorption in the LDA.
Under the aforesaid letter dated 1-1-1975 of Finance Department it was the borrowing agency, which was to "take the final decision whether to absorb such officials permanently as requested by them or send them back to their parent departments". Under this deputation policy of Government the normal tenure of 3 years of deputation could only be extended, ------ on the request of the borrowing agency; ------in conclusion with the Finance Department; and ------with the consent of the competent authority; In such cases a summary is then required to be put up to the Chief Minister by the Administrative Department through the Finance Department for obtaining approval. Further, before taking up the case as detailed above, the deputationist is also given timely intimation to decide and exercise his option for absorption in the borrowing agency. The appellant had given his option in 1975 for permanent absorption in LDA. In these circumstances how can one blame him for failure to revert to his parent department in violation of the policy------.". If any one failed to comply with the above instructions it was the Authority who "failed to take the final decision" as also his parent department who failed to recall him from the deputation. Why punish the appellant for "the inaction and lapses" on the part of the LDA and the C&W Department? Whereas the latter took almost five years to come to the conclusion that the official be repatriated the C&W Department did not even give it a thought. The S&GAD has expressed the view in its letter, dated 18-6-1990 that "the competent Authority in the C&W Department could not have accepted his repatriation. In the circumstances he could at best be treated as having joined his parent Department afresh from the date he joined duty on return from LDA". S&GAD has been unduly unkind to the appellant for no fault of his. If the LDA could not absorb him and the C&W Department "could not have accepted his repatriation", where then did he stand? Where should he have gone? The fact, however, is that he was repatriated by the LDA with the consent of the appellant and he was taken back in the fold by the C&W Department with open arms and that completed the deal. Thus in view of the case-law cited by the appellant wherein it was held that if a rule was not observed by the authority concerned, then that rule should be deemed to have been relaxed, we do not find the appellant responsible for overstaying. The responsibility for the same lies squarely with the LDA and the C&W Department. His repatriation in the circumstances even after a lapse of 14 years was valid moreso as it was accepted by the C&W Department without any reservations.
(c) S&GAD's circular letter of 11-10-1980 clearly tends to override the statutory provisions of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Under these rules the Departmental Selection/Promotion Committees and Provincial Selection Boards had been constituted to make recommendations for initial recruitment and appointment by promotion or by transfer for posts as may be specified from time to time. The appointing authorities for these posts have been specified in rule 6 ibid. These rules nowhere provide that even after the approval of the appointing authority based on the recommendations of the Selection Authority (DPC or the PSB, as the case may be), should still be subject to the approval of any other authority. A striking feature of rule 6 ibid in that it starts with the words "Notwithstanding anything to the contrary contained in any service rules------..". This manifestly makes this rule a non-obstante clause with an overriding and all pervasive effect over all other provisions on the subject, including the SGA&ID's letter of 11- 10-1980. As observed by their Lordships of the Supreme Court of Pakistan in the case reported as PLD 1965 SC 106" no letters issued by the executive authorities could take the place of properly framed rules and they could not override any general rules of the service that had relevance". The implication is clear that executive instructions could take the place of the prescribed rules only if these are issued to fill a vacuum in the rules and further that these are issued by the rule-making authority. "The principle of law that appears to emerge clearly from a long line of authorities is that in order to qualify as statutory rules capable of creating rights and obligations enforceable at law, the departmental instructions must have been issued by the same authority as has, in law, the power to make rules". (PLD 1988 Lahore 553). In another case cited as PLD 1973 SC 144 "it has further been held that "if a rule is capable of amendment it could be so amended by the competent authority by means of an instruction embodied in a circular or memorandum". However, in view of the construction of rule 6 of the Punjab Civil Servants (Appointment and Conditions of Service)
Rules, 1974 and its all pervasive effect, the law laid down in the authorities is not attracted to this case. In the instance case the procedure for appointment through promotion has been laid down in-great detail in the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. As already stated, the appointing authorities have been specified and the selection authorities constituted. Thus the S&GAD's circular letter dated 11-10-1980 which does purport to have been issued by or in the name of the rule-making authority i.e. The Governor and which requires that the cases of pro forma promotion should be referred to that Department for final approval even if the same had been recommended and approved by the appropriate Selection Committee/Appointing Authority is, therefore, ultra vires the aforesaid rules. Since the orders of pro forma promotion of the appellant were issued by the competent authority on the recommendations of the appropriate selection authority i.e. The Departmental Promotion Committee no locus poenitentiae was left with the concerned authority to recall the impugned orders of pro forma promotion on the erroneous view that the same had not been approved by the S&GAD.
(d)If the letters dated 18-6-1990 and 1-8-1991 of the S&GAD were in the nature of advice and were not meant to be "administrative orders" why then insist on compliance of the advice? It also means that for valid reasons the Incompetent authority could ignore the advice, which in fact it did as the orders dated 24-1-1982 and 3-11-1983 issued by the competent authority are still in the field as these have not been recalled or cancelled. In fact the C&W Department still holds the same view that the appellant has a genuine case as indicated by them in their internal and external correspondence but more specifically in the written objections filed by them before this Tribunal.
11. Under the deputation policy if an official is on deputation with an autonomous or local body or with another Government or another Department, his case for promotion has to be considered even in absentia on his turn and if cleared he is to be informed of the decision and given an, option to revert to his parent department within 3 months of the date on which his promotion falls due or within 3 months of the communication of the decision to him, whichever is later. If he fails to revert in time, he should be promoted when he actually returns from deputation subject, of course, to the conditions laid down for the purpose.
11-A. These aspects of the case have most succinctly been discussed in quite some detail in the Civil Revision No. 712-D of 1986 (LDA v. Karim Bakhsh Nasir) by the learned Chairman, then Akhtar Hassan, J of the Lahore High Court, and again in a recent Appeal No. 589/91 (Sabir Hussain Wadhera v. Secretary, Irrigation and Power Department etc.) wherein the following was the ratio decidendi of the above cases: (i)The period of deputation runs from the date on which the Government servant makes over charge of his office in the lending department and terminates on the date on which he resumes it in his parent department on repatriation (Rule 10.18 of CSR Pb., Vol. 1, Part 1).
(ii)Deputation can only be terminated through a tripartite agreement between the parties to the contract i.e. The lending department, the borrowing agency and the deputationist and not unilaterally by any one of them; (iii)Lien cannot be terminated of the deputationist even with his consent if the result would be to leave him without a lien or with a suspended lien upon a permanent post.
12. Rule 6 has an overriding effect on all other service rules on the point of competence of making appointment to various posts by the relevant authorities enumerated therein. Rule 6 reads as under: "Notwithstanding anything to the contrary in any Service Rules the authorities competent to make appointment to various posts shall be as follows: ............
13. A bare reading of the rule would indicate that it is non-obstante in nature which means that it overrides all other service rules relating to the competence of the concerned authorities in making appointment whether initial or by promotion which in turn may be either actual or pro forma. The, S&GAD's letter, dated 11-10-1980 on the other hand makes it incumbent that I S&GAD's approval be obtained even if the Selection Authority has recommended grant of pro forma promotion and the appointing authority has c also approved it. Obviously such a requirement is not envisaged-by the rule and such approval by that department falls outside the purview of Rule 6 and I stands completely overridden. It will have no efficacy.
13-A. As regards the matter of resignation before absorption, when the appellant was asked to resign in 1976 the pre-condition of resigning from the parent department-for the purpose of absorption in the borrowing agency had already been withdrawn vide circular letter No. FD.SR.II.6- 57/73, dated 24-1-1983 and the amendment made effective from 5-3-1980. This letter laid down that in view of the amendment made in rule 2.11 of the Civil Services Pension Rules "a civil servant who with the proper concurrence of the competent authority leaves service under the Government of Punjab and seeks absorption/employment under an autonomous, semi-autonomous/local body, where service is pension-able, is not required to resign from Government service and the Government if it is so requested is liable to share pensionary liability for the period of service rendered by such a civil servant under the Government in accordance with the Government Rules".
Thus the insistence of LDA i.e. The borrowing agency that the appellant should first resign before his case for absorption could be considered was without any basis and out of tune with the changed circumstances.
13-B. The appellant is thus not to be held responsible for overstay as it was the responsibility of the parent department to notify and recall him in time nor was he required to resign his post in the Communication and Works Department for absorption ' in the LDA. He was repatriated on 5-7-1981 whereas the requirement of resignation had already been done away with effect from 5-3-1980.
14. In view of the foregoing and the fact that the orders of promotion/pro forma promotion were issued by the competent authority after observing the prescribed manner as per provisions of section 4 of the Punjab Civil Servants Act, 1974 and rule 6 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974; that the orders were duly issued,, implemented and acted upon and thus attained finality leaving no locus poenitentiae with the respondents to reconsider the matter (PLD 1989 SC 407; 1990 SCMR 1414; PLD 1991 SC 118); that appellant's delayed repatriation has no bearing, as shown above, on his pro forma promotion; that under rule 10.5 of CSR Punjab Vo1.I, Part I the competent authority should have promoted the appellant in absentia to the next higher post in 1967 when his junior was promoted even though he was on deputation; that the failure of the C&W Department to recall the appellant from deputation must have created an impression on his mind that "he could remain on deputation till recalled or informed otherwise"
(1990 SCMR 1170; judgment dated 30-6-1992 in Civil Revision No. 712-D of 1986 -- Lahore High Court and dated 20-12-1992 in Appeal No. 589/91); that repatriation duly accepted by the C&W Department could not now be converted into "fresh appointment" and that too retrospectively from 1981; that the decision is contrary to the provisions of rule 3.17(a) of CSR Vol. I, Part I which lays down that "a Government servant's lien on a post may in no circumstance be terminated even with his consent, if the result will be to leave him without a lien or with a suspended lien upon the permanent post"; that the effect of the impugned order dated 18-6-1990 is that appellant's 31 years' service under the Government stands completely washed away which is highly oppressive, unjust, illegal and contrary to the provisions of law and rules, we declare the advice dated 18-6-1990 and 1-8-1991 of the S&GAD as of no consequence, the requirement of approval by the S&GAD for pro forma promotion as unnecessary and outside the purview of rule 6 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and the various orders of fixation of the appellant's seniority, promotions and pro forma promotion issued by the competent authority as valid. Resultantly, the appeal is accepted and the impugned orders are set aside. There are no orders as to costs.