1. MUNAWAR ALI KHAN (CHAIRMAN): --The case of the appellant, Mr. Ali Gul Shah, which is undoubtedly a case of great hardship, has been described in the memo of appeal as follows. The appellant joined Government service in 1971 as Sub-Engineer in the Irrigation and Power Department. Three years later in July, 1974, he was appointed as Assistant Engineer (BPS-16) in the Peoples Works Programme. Then came the Martial Law, which replaced the Democratic Regime.
2. Following the promulgation of MLO-55, like many other cases the appellant's appointment was also referred for scrutiny by the relevant Select Committee. After his clearance by the said Committee, his appointment stood regularized vide the Minutes of the Committee's meeting held on 11-7-1978.
3. The appellant continued to work in the capacity of Assistant Engineer (BPS-17) until he was found surplus and on 17th January, 1979, he was referred to the Administrator, Hyderabad Municipal Corporation for absorption in Local Council Service (Engineering Branch). In his letter dated 28th May, 1979, addressed to the Administrator, Hyderabad Municipal Corporation, the Secretary, Local Government Department listed the conditions on which some surplus Engineers of R.W.P. Were to be absorbed in the Local Council Service. The Administrator was further required by the letter to obtain the appellant's consent for the said conditions so that the case of his appointment in the Local Council. Service was finalized. Although the appellant vehemently protested against the arbitrary decision with regard to his absorption in the Local Council Service, yet left with no option he reluctantly accepted the terms and conditions for his appointment in the said service, and consequently he was absorbed in the said service. However, he kept on making representations to various authorities until he was intimated, by the letter dated 19th February, 1992 of the Secretary, Local Government Department that his request for the benefit of the past pay drawn by him in the defunct Rural Development Parogramme Department was considered and rejected. Dissatisfied with the said order, he filed Constitution Petition No.D-269 of 1992 in High Court but the same was dismissed in limine vide the judgment of High Court dated 28-11-1992. Since the appellant was declared as civil servant by the said judgment he preferred departmental appeal on 9-1-1993 to the Chief Secretary from the order dated 19th February, 1992 hereinabove. As the said appeal remained undecided for the statutory period of 90 days he approached this Tribunal in the present appeal filed on 12-4-1993.
4. We heard Mr. Fazle Ghani for the appellant and Mr. Abdul Latif Ansari, A.A.-G. For the official respondent. With the assistance of the said learned counsel we also went through the relevant record.
5. As provided in section 4 of the Sindh Service Tribunals Act, 1973, the Service Tribunal can intervene in exercise of its jurisdiction only when a final order, original or appellate of a departmental authority is involved in the appeal filed before it. `Prayer' made in the memo of appeal does not refer to any such order. However, in the Constitution petition filed by the appellant in the High Court he had challenged the Local Government Department's letter dated 19-2-1992 whereby the appellant was informed that his request for the benefit of the past pay drawn by him in the defunct Rural Development Programme Department was considered and rejected. It appeared from the said letter that all he desired was that in his new assignment in the Local Council Service (Engineering Branch), he should be allowed the benefit of the pay he was drawing before his induction in the said new service. But that is not his "prayer" made in the memo of appeal. By his "prayer" the appellant has sought a sort of declaration that he was entitled to count all his service right from 1971 up to date and the corresponding benefits or else he would suffer untold hardship vis-a-vis his colleagues who have received due promotions, increments and other benefits. Thus the relief sought by the appellant is vague and his appeal is liable to be dismissed as not maintainable for the reason its vagueness.
6. Be that as it may, we would like to first dispose the legal objections raised by the learned AA: G. His first objection was that the appellant had ceased to be a civil servant before he filed the present appeal. In support of his contention he relied upon the appellant's own admission contained in para. 3 of his memo of appeal. For proper appreciation of the learned A.A: G.'s argument, it would be worthwhile to reproduce the relevant portions of the said para, which read as under: "3.On May 28, 1979, by his Letter No. SLGB/6(155)-ENGG/1747/1979, Karachi, dated 28th May, 1979, vide Annexure `E', the Secretary, Government of Sindh, advised the Administrator, Hyderabad, Municipal Corporation that the appellant's appointment in Grade-17 in the former Local Council Service would be considered as fresh entrant and the appellant should give his consent in writing so that his case of appointment as Assistant Engineer Grade-17 may be processed further. The appellant immediately protested against the arbitrary and illegal orders of the Government of Sindh (Annexure `F---). But his request was turned down ..........................Having received no sympathetic response from the Government of Sindh, the appellant was compelled to accept the new terms and conditions------------------------..
7. The Secretary's letter, dated 28th May, 1979 mentioned in para. 3 hereinabove throws further light as to how the appellant's service in Government Department was changed into Local Council Service and on what terms and conditions he accepted the said change in his service. It would therefore be useful to reproduce the aforesaid letter in verbatim as under: -- Immediate Registered Government of Sindh, Housing Town Planning Local Government and Rural Development Department No.SLGB/6(155)-Engg/1747/1979, Karachi, dated the 28th May, 1979.
8. To, The Administrator, Hyderabad Municipal Corporation, Hyderabad.
9. Subject: Appointment of Mr. Ali Gul Shah as Assistant Engineer in Grade-17 in the former Local Council Service (Engineering Branch Some surplus Engineers of R.W.P. Were earlier appointed in the former Local Council Service (Engineering Branch) on the following terms and conditions: -- (1)He will be considered as a fresh entrant in the service and allowed minimum of the pay in Grade-17 i.e. 900--50--1,150/60--1,750 from the date he joins the post. His seniority in the cadre will count from the date he joins the post where posted and takes over the assignment.
10. (2)His appointment will be temporary on a probationary period of two years. His services can, however, be terminated at short notice without assigning any reasons.
11. (3)If his work and conduct is not found satisfactory during period of probation, the Government may before the expiry of the said period, dispense with his services.
12. (4)In case he wants to leave service, one month's notice will be required or in lieu thereof fifteen days pay and allowances will be forfeited.
13. (5)He will be governed by the West Pakistan Local Councils and Municipal Committees Service Rules, 1963 as amended from time to time and by such other rules as may be specified by Government.
14. (6)No benefit of his previous services under the Government or any other organization, if any, will be admissible to him on his appointment to the former Local Council Service.
15. 2.It is requested that consent of Mr. Ali Gul Shah to the abovementioned terms and conditions may please be obtained in writing and forwarded to this office immediately so that the case of his appointment as Assistant Engineer in the former LCS (Engineering Branch) in Grade-17 may be processed further.
16. (Sd.)
17. For Secretary to Government of Sindh".
18. After careful perusal of the above documentary proof, no doubt was left in our mind that the appellant who started his service career with Government service, was forced by circumstances to reluctantly accept the appointment of Assistant Engineer in Local Council service, after he was rendered surplus in the Government Department. Of course the poor man had no choice in the matter. We have all the sympathy with the appellant because we are appalled at his helplessness, which in our opinion has been unduly exploited. From the terms and conditions offered to him for his new appointment, the condition at S.No.1 was so oppressive that it robbed him of not only past service of nearly eight years but also of the salary and other emoluments he had earned during the said period of his service. This was obviously done contrary to basic principle and the longstanding practice in vogue. In such cases of the change in service, at least the last emoluments of the persons involved in the change of service are invariably protected. If any precedent is needed in support of this view, we would like to refer to the revolutionary change reflected by the nationalization of private schools and colleges. In that case the last emoluments of the teachers coming from private schools and colleges were given due protection. To alleviate the sufferings of the appellant and save him from further litigation, authorities concerned would be well advised to show their goodwill even at this belated stage and redress his grievance at least with regard to his pay, even though the appellant may not be in a position to bring legal pressure on them particularly when he had himself accepted all the conditions of service including the oppressive one referred to above.
19. Following the appellant's absorption in Local Council Service (now known as Sindh Councils Unified Grades Service), as discussed above, his connection with Government service stood completely severed. His own admission in last line of para. 4 of the memo. Of appeal is that the date of his absorption in Local Council Service was 23rd January, 1979. From that date onward he has obviously been performing his functions and doing his duties in connection with the Local Council concerned. In return he has been drawing his pay etc. From the said council's funds. As such he has ceased to be a civil servant from the said date. As for his appointment, reference may be made to Sindh Council Unified Grades Service Rules, 1982 (hereinafter referred as the said rules). As provided in clause (c) of sub-rule (1) of rule 4 of the said rules the Minister incharge is the appointing authority for posts in BPS-17. Thus the Government functionary continues to be appointing authority of the appellant who is admittedly working as Assistant Engineer (BPS 17).
20. Moreover from the above date of the appellant's absorption in Local Council service he was governed by the Sindh Local Government Ordinance, 1979, and the rules framed thereunder. But as provided in section 3 of the Sindh Civil Servants Act, 1973, the terms and conditions of service of a civil servant shall be as contained in the said Act and the rules framed thereunder. Had the appellant continued to be in service of Government after his absorption in Local Council Service, he would have been considered to be on deputation to the Local Council concerned. In that case the question of treating him as fresh entrant in service and curtailing his pay back to the minimum of the scale (BPS-17) would not have arisen at all. However, the appellant's learned counsel relied upon thejudgment of High Court delivered in the Constitution petition filed by the appellant, wherein the appellant was declared as civil servant and Service Tribunal having exclusive jurisdiction to entertain appeal with regard to the appellant's grievance. In this connection we put a question to the learned counsel if the judgment of the High Court was binding on the Service Tribunal. His reply to the above question was in the negative. Since we are of the view that the appellant is not a civil servant, this Tribunal has no jurisdiction to interfere in his case.
21. The next objection of the learned AA: G. Was that the appeal is hopelessly time-barred. As pointed out above it is not clear from the "prayer" what order the appellant has sought to be set aside. In this situation it can only be presumed that the order, which he had challenged in the Constitution petition had aggrieved him. That order was passed on 19-2-1992 whereas the present appeal has been filed on 12-4-1993. The perusal of the memo of appeal would indicate that time-gap between the date of the impugned order and that of the present appeal was due to the fact that the appellant had first approached the High Court. The point of laches (i.e. Limitation) was also considered by their Lordships of High Court but somehow it was not held to be the reason of dismissal of the petition. Even otherwise in view of our findings that the appellant was not a civil servant, he had rightly approached the High Court. After dismissal of his petition by that forum he should have filed appeal in Supreme Court instead of coming to this Tribunal. But for his failure to do so, he could not be wholly responsible. After all he was led to believe by the judgment of High Court that the Service Tribunal was the appropriate forum for redress of his grievance. Therefore up to the decision of High Court, which came on 2&11-1992, the appellant could not be responsible for the delay. Thereafter he filed departmental appeal on 9-1-1993, paving the ground for approaching the Service Tribunal. He was expected to go in departmental appeal immediately after dismissal of his Constitution petition. Instead he took a little more than a month in filing departmental appeal.
22. This delay was so short that it could easily be overlooked. Accordingly the learned AA.-G.'s objection with regard to the limitation did not carry much weight. Consequently, his third objection that time-barred departmental appeal had no value in the eye of law until the delay involved in it was condoned by the departmental appellate authority, was obviously untenable.
23. As a result of above discussion the appeal must fail on the grounds of jurisdiction as well as vagueness of prayer. Accordingly it is dismissed with no order as to costs.