' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---The relevafacts for the disposal of this service appeal are that the appellant, Mr. Ross Masud was initially appointed as Section Officer in the Office Management Group (O.M.G.) on 8th March, 1969 after qualifying the C.S.S. Examination held in 1968.
A post of Deputy Legal Advisor (B-19) was advertised in the Ministry of Foreign Affairs to which he applied and was selected by the F.P.S.C. He joined that post in the Ministry of Foreign Affairs on 18- 12-1977. He was deputed to work as Assistant Secretary-General of the Asian African Legal Consultative Committee at New Delhi from March 1981 to May, 1984 and on completion of his tenure, he joined the Ministry of Foreign Affairs as Deputy Legal Advisor in May, 1984. He was again deputed to work as Director, Wafaqi Mohtasib Secretariat in June, 1984 and was repatriated to the Ministry of Foreign Affairs vide Notification, dated May, 1994 issued by the Establishment Division. In the meantime, while he was working in the Wafaqi Mohtasib Secretariat, he came to know about the promotion of his junior, respondent No, 3, Mr. Ghulam Rasul, as Deputy Legal Advisor from B-19 to B-20. On repatriation he filed appeal on 19-5-1994 to his parent department, i.e, Ministry of Foreign Affairs, where he rejoined on 30-5-1994, and was appointed as O.S.D. And since then he is continuing in the same capacity in B-19. He again submitted his appeal on 2-6-1994 which has not been disposed of and ultimately, he filed this appeal before the Tribunal on 8-9-1994 with the prayer that respondents 1 and 2 be directed to consider him for promotion to upgraded post of Deputy Legal Advisor (B-20); and in case he is approved for promotion on the basis of his performance evaluation record, he may also be allowed pro forma promotion to that post from the date his junior respondent No, 3 was promoted to B-20 and also seniority.
2. Mr. Fazal H. Chaudhry, the learned counsel for the appellant argued that appellant is a permanent employee of the Ministry of Foreign Affairs and respondent No, 3 was working against a temporary post, against the vacancy of appellant during deputation, whereas the appellant was appointed through F.P.S.C. And he being a permanent employee of the Ministry of Foreign Affairs and being senior to respondent No, 3, he, on his reversion to parent department, was to be considered for pro forma promotion to B-20 as Deputy Legal Advisor.
3. Dr. G.S. Khan, the learned counsel appearing for respondent No, 3, argued that the appellant was inducted into O.M.G. And earned lien in that Group; his lien could not be terminated, and therefore, the appellant still to be considered on deputation with the Ministry of Foreign Affairs. The other legal points raised by Dr. G.S. Khan were that the appellant remained out of Foreign Affairs for ten years in the Wafaqi Mohtasib Secretariat, therefore, he has lost all rights in the Ministry of Foreign Affairs and was not eligible for repatriation to Foreign Affairs and should not have been taken back. As such, he has no right to get B-20. It is argued that on humanitarian grounds, the appellant has been taken back in the Ministry of Foreign Affairs, as such, he cannot claim seniority and other service benefits as of right.
4. Mr. Zakaullah Jan, Section Officer, has appeared on behalf of the Establishment Division, alongwith the learned Standing Counsel. It is argued that the appellant is no more on the panel of O.M.G. As he was regularly appointed by F.P.S.C. In the Ministry of Foreign Affairs and after the expiry of probationary period, the appellant had become regular employee of the Ministry of Foreign Affairs. It is argued that the appellant was deputed to Asian African Legal Consultative Committee, New Delhi and the Wafaqi Mohtasib Secretariat in the public interest, therefore, he cannot lose his rights in his parent Ministry of Foreign Affairs and he was never confirmed in the Wafaqi Mohtasib Secretariat as it was a tenure post.
5. We have considered the submissions of the parties. There are some disputed questions which are to be resolved in this appeal. They are:--
(i) Whether the appellant still holds lien in the O.M.G.?
(ii) What is the nature of his appointment in the Ministry of Foreign Affairs?
(iii) Whether the appellant was deputed to two Organisations in public interest, and with what consequence?
(iv) Whether the appellant had a right to be reverted to Foreign Affairs?
(v) Whether respondent No, 3 was promoted as D.L.A. Vice appellant; or there was any other post of D.LA. Which he was holding permanently; and with what consequence?
6. To resolve the controversy and to arrive at a just conclusion, we summoned the personal record of the appellant and the respondent No,3. It appears that the appellant after qualifying C.S.S. Examination held in 1968, was appointed as Section Officer in the OMG on 8th March, 1968. In pursuance to an advertisement, he applied for the post of Deputy Legal Advisor (D.LA.) in B-19 in the Ministry of Foreign Affairs and after due clearance by F.P.S.C., he was appointed as D.L.A. Vide Ministry of Foreign Affairs letter dated 17-12-1977 where he joined on 18-12-1977. He was placed on probationary period of one year which was extendable by another year and on completion of the probationary period, he was eligible for confirmation as D.LA. This point was clarified by the Ministry of Foreign Affairs and confirmed vide their U.O. Dated 25-9-1982 addressed to the Establishment Division. On taking up new appointment by way of direct recruitment through F.P.S.C., his appointment as DLA under the Ministry of Foreign Affairs in B-19 was a regular appointment. He severed all his connections with the O.M.G. And deemed to be an officer of the Ministry of Foreign Affairs, and was liable for confirmation as D.LA. But there is no order of his confirmation in the Ministry of Foreign Affairs on the record. Since the probationary period was not extended in 1977, the appellant was eligible for confirmation. It is interesting to note that the appellant had hardly served the Ministry of Foreign Affairs for about three years when he went on deputation in March, 1981 to Asian African Legal Consultative Committee as Assistant Secretary-General and reverted to parent office in 1984 and after about a month or so, his services were again placed at the disposal of Wafaqi Mohtasib for posting as Director vide Establishment Division Notification dated 28-6-1984 and worked there till his repatriation to the Foreign Office vide Notification, dated May, 1994 issued by the Establishment Division. The appellant in the Wafaqi Mohtasib Secretariat worked as Director till 2/1992 and thereafter, as Director-General till he was repatriated. It may also be observed here that no terms and conditions were settled while deputing the appellant to Wafaqi Mohtasib where he served for about ten years in violation of the rules that a civil servant can serve on deputation , for a maximum period of five years. Moieover, it was also not a transfer under section 10 of the Civil Servants Act, 1973. It is, therefore, clear that the appellant was interested in serving outside the Foreign Office and getting the benefits of deputation but since he was sent on deputation by the competent Authority, these questions are irrelevant and not subject-matter. We fail to understand under what circumstances he was allowed to remain away from the Ministry of Foreign Affairs, for which he was recruited for, and that too without settlement of terms and conditions. But the fact cannot be denied that he was regular employee of the Ministry of Foreign Affairs having been appointed after selection by F.P.S.C. According to law and ultimately had to come back as he had achieved lien under FR-14 on that post and, therefore, his service rights could not be infringed under any circumstances. Moreover, he was not responsible and it was for Government functionaries to have taken care at appropriate time.
7. Respondent No, 3, Mr. Ghulam Rasul was appointed as Assistant Legal Advisor in the Ministry of Foreign Affairs in B-18 on 1-10-1973. He was allowed current charge of the post of Deputy Legal Advisor (B-19) with effect from 29th March, 1981 for a period of three months vide sanction letter, dated 20th May, 1981. He was promoted as Deputy Legal Advisor (B-19) on the recommendations of the C.S.B. In the meeting held on 28th September, 1981 against a resultant vacancy of the appellant when he proceeded on deputation to Asian African Legal Consultative Committee, vide Establishment Division 0.M., 'dated 25th November, 1981. The post of D.L.A. Held by him was upgraded from B-19 to B-20 as personal to him with effect from 7-4-1994 vide sanction letter dated 14th April, 1994 but it cannot be deemed to be a regular promotion to B-20. The post of DLA still continues to be in B-19. There is no dispute that the appellant having been appointed as D.LA.
Through F.P.S.C. Was senior to respondent No, 3, and therefore, on repatriation, had to be posted as D.L.A. And not as O.S.D., because he was appointed against a regular vacancy of D.L.A. And respondent No, 3 was promoted as D.LA. Against the resultant vacancy caused by the appellant on his posting abroad, and on return he cannot be deprived of his original post of D.LA. In these circumstances, we allow the appeal and direct the respondent Ministry of Foreign Affairs to restore the appellant to his original post of Deputy Legal Advisor which he held before his posting to Wafaqi Mohtasib. With regard to his pro forma promotion, it may be observed that respondent No, 3 was given B-20 as personal. In case appellant is appointed against his substantive appointment, he may take up the matter with the department, if so advised. We are sorry we cannot order his appointment in B-20. It is for the department to examine the situation in view of above observations.