RANA RIFAT SAEED (MEMBER).---The appellant, Qazi Shamsuddin, had been appointed as Research Officer (B-17) with effect from 15-10-1973 vide notification dated 31-10-1973 and he had been confirmed as such with effect from 6-3-1974 vide notification dated 27-11-1975. During 1976 Economists and Planners Group had been created and the incumbents/officers holding prescribed qualifications for group posts under Federal Ministries/Divisions had been treated as inducted/transferred to the Group. Since the appellant had been possessing prescribed qualifications and holding the post which fell in the Group, he became a member of Economists and Planners Group.
2. During 1977 the appellant had been selected by the FPSC against a post of Assistant Chief (B-18) which also fell in the said Group and he had been appointed as such with effect from 15-8-1977 vide notification dated 2-3-1978. Again during 1991 the appellant had been selected by the FPSC as Deputy Chief (8-19) in the Energy Wing and had been appointed as such with effect from 21-4-1991 vide notification dated 12-5-1991. But this post of Deputy Chief (B-19) was an ex-cadre post and fell outside the Economists and Planners Group. The appellant had taken over the charge as Dy. Chief with effect from 21-4-1991 vide notification dated 12-5-1991 and his services were to remain under probation for 1-2 years in his new assignment.
3. On 29-4-1992 appellant had written to the Senior Chief of his Department that he, being a confirmed officer of Economists and Planners Group, should be posted back in the Group. The letter reads as under: "Energy Wing My name for promotion in the Economist Group is likely to mature. It is, therefore, requested that Admn. May issue necessary orders for my posting as AC/AEA, Ministry of Finance under the Economist Group.
(Sd.)
(Qazi Shamsuddin)
Deputy Chief 29-4-1992 Senior Chief J.S.A."
But the respondent-Department had not agreed vide their following reply sent on 30-5-1992: "MEMORANDUM Subject: PROMOTION OF OFFICERS FROM BPS-18 TO BPS-19 IN THE ECONOMISTS GROUP.
Reference his note for repatriation to the Economists Group as Assistant Chief/Assistant Economic Adviser (BPS-18), Qazi Shamsuddin, Deputy Chief, Energy Wing is informed that there is no provision in the rules under which he could repatriate to the Economists Group. The title of lien does not render the benefit of consideration for promotion. Qazi Shamsuddin can only invoke this right, if he has been left without a job in the Energy Wing."
4. The appellant had made representation replied/rejected by the respondent-Department dated 5-8-1992. He had made another appeal addressed to Prime Minister on 25-8-1992 for consideration of his repatriation and for regular promotion in his parent group. But this appeal was not considered and it was replied back by the department 6de letter dated 14-11-1992 informing him that his name from the seniority list of Economists Group had been struck off. As. Such he could not be repatriated. The letter reads as under: -- "MEMORANDUM Subject: PROMOTION OF OFFICERS FROM BPS-18 TO BPS-19 IN THE ECONOMISTS GROUP In continuation of Admn. II section's memo of even number dated 30th May, 1992 on the abovementioned subject, Qazi Shamsuddin, Deputy Chief, Energy Wing is informed that his name from the seniority list of Economists Group has been struck off in the light of ruling of the Establishment Division already communicated to him vide memo. Of even number dated 30-5- 1992."
5. The appellant had made another representation/appeal to the Prime Minister on 13-12-1992 against such unilateral decision of the department for striking his name of the seniority list and which was against the relevant rules. The learned counsel had mentioned that discrimination and mala fide had been done to the appellant, because vide notification dated 1-3-1977, the respondent-Department had previously allowed repatriation and promotion to one Rafiq Ahmad Chaudhry, a permanent Research Officer of the Group why the same analogy and principle had not been followed in his case and the appellant had been restrained from repatriation and consideration of promotion in his parent group, the reasons were not known? Obviously this was a discriminatory and mala fide action of the Department done to the appellant. Since he had requested for repatriation in the group during his probation in his new assignment, he should have not been refused by the respondent-Department. The learned counsel had added that in fact the department was interested to promote his junior against a regular group vacancy of Deputy Chief by keeping the appellant away from the group.
6. He had further mentioned that the appellant was a confirmed officer of the group and the department under the normal rules could not on its own, and unilateral take an adverse action to strike the name of the appellant from the seniority list of the Group, because he was in any way to be considered a deputations as per SI. No. 208 at page 294 and SI. No. 29 at page 334 of ESTACODE 1989 Edition and Sl. No. 29 reads as under: - "Sl. No. 29: Hither to the term `deputation' has not been formally defined.
However, according to the practice in vogue a Government servant begins to be regarded as `deputationist', when he is appointed or transferred, through the process of selection, to a post in a department or service altogether different from the one to which he permanently belongs, he continues to be placed in this category so long as he holds the new post in an officiating or a temporary capacity, but ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post."
He had also referred to the following judgments in support of his contention: -
1. 1983 SCM R 756-768, 2. 1980 SCM R 566-5613, 3. 1986 SCM R 1994--1999,
4. PLD 1988 (SC) 531.
7.The appellant had, therefore, prayed as under: -- "in view of the facts and circumstances stated above and the legal position explained, it is respectfully submitted that--
(i) it may be declared that the appellant has a right to revert to the post of Assistant Chief on which he was serving last in the Economists Group and to be considered for promotion on his turn alongwith his other colleagues.
(ii) it may also be declared that appellant has a right to be considered for promotion in the Economists Group to the post of Deputy Chief, BPS-19, in absentia or at the most by recalling him to original post, when his turn of promotion comes alongwith others.
(iii) it may further be declared that O.M. Dated 14-11-1992, whereby the name of the appellant was struck off the seniority list of members of Economists Group is ultra vires the powers of the respondents and is illegal."
8. The learned counsel for the respondent-Department had stated that no harm had been done to the appellant, as in the Energy Wing he had already been holding a post of Deputy Chief (B-19) and there was no justification for his repatriation and consideration of his promotion against the post of Deputy Chief in the Economists and Planners Group. Therefore, his name had been deleted from the seniority list in order to provide a chance for promotion to another junior Assistant Chief. But the representative of the Establishment Division had not agreed with this contention and had stated that since the appellant was under probation, when he had requested for repatriation to his parent Group, he should have been allowed by the department to repatriate against the post of Assistant Chief (B-18) which he held left before joining the Energy Wing. He had mentioned that being a confirmed officer he could not be ignored or his name unilaterally deleted from the seniority list by the department. Therefore, the action of the respondent-Department for not allowing the appellant to repatriate was not supported by the relevant rules. He had also informed that new rules for confirmation had been issued vide SR0.285 (i)/93 dated 15-4-1993 and these did not support the unilateral action of the respondent-Department.
9. Under the aforementioned circumstances and after hearing the parties, it is established that a definite lawful right of the appellant for repatriation/reversion as Assistant Chief/AEA (B-18) to his parent group did exist, when he had not been confirmed in his new assignment as Deputy Chief (B- 19) Energy Wing and when he was still under probation there and the action of the respondent- Department to strike his name off the seniority list of the Economists and Planners Group was unlawful, mala fide and ultra vires. We, therefore, accept the appeal and direct the respondent- Department to allow him repatriation/reversion as Assistant Chief/AEA (B-18) in his parent group, to revive his name as per his original inter se seniority position in the seniority list of the group as Assistant Chief/AEA (B-18) i.e. The post he had left before joining Energy Wing and to consider him for regular promotion as Deputy Chief in the group and with all consequential actions.
10. No order for costs. Parties be informed.