' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---These three appeals by special leave of this Court arise out of the judgment of the Federal Service Tribunal, Islamabad, dated 19-12-1993 whereby the appeal of Farid Muhammad (Appellant in C.A. No, 539/94) was partially accepted under which not only his plea of repatriation from the National Council for Conservation of Wildlife (NCCW) to the Ministry of Food and Agriculture was allowed but he was also directed to be adjusted above his immediate juniors (appellants in C.A. No, 540/94). '
2. Farid Muhammad appellant started his career as Lower Division Clerk in the Ministry of Food and Agriculture on 21-12-1960. He was promoted as Stenotypist with effect from 2-3-1964. Wildlife Enquiry Committee (WEC) under the control of respondent No, 1 was constituted somewhere in 1969. Farid Muhammad was selected for appointment as Stenographer (in WEC) vide Office Order dated 12-5-1969. In the meantime, Wildlife Enquiry Committee was redesigned as National Council for Conservation of Wildlife (NCCW). It was declared as an Attached Department of Ministry of - Food and Agriculture (Agriculture Division) on 23-1-1978. He was confirmed as Stenographer by the Ministry of Food and Agriculture in the NCCW. The grievance of Farid Muhammad before the Federal Service Tribunal was that "his junior Steno typists had been promoted as Stenographers and then as Private Secretaries whereas he had not been considered for promotion at all and had been ignored illegally and without any reason whatsoever". In consequence, he moved an application to respondent No, 1 on 11-10-1992 "for his repatriation and also to do away the wrong done to him but his request was arbitrarily turned down on 14-1-1993" after a span of 24 years. He filed an appeal to the Minister concerned on 1-4-1993 which was not responded to. Ultimately on 8- 7-1993 he preferred an appeal before the Service Tribunal "against refusal of his repatriation, non- grant of his seniority over his juniors Messrs Irshad Ahmad etc., who had been wrongfully promoted as Private Secretaries to the Secretary vide Notification dated 30-12-1987". It was further prayed that he was entitled to 20% of Secretariat Allowance with effect from 1-7-1988.
3. Secretary to Government of Pakistan in the Ministry of Food, Agriculture and Cooperatives, Inspector-General of Forests/Member Secretary, National Council for Conservation of Wildlife
(NCCW) and Secretary, Establishment Division, who were arraigned' as respondents, contested the appeal moved by Farid Muhammad by filing their written objections. According to them, Farid Muhammad was appointed as Lower Division Clerk and stenotypes in the Ministry purely on temporary basis. It was pleased by the three respondents that on his appointment as Stenographer in WEC (which was later on re-designated as (NCCW) with effect from 12-5-1969, Farid Muhammad had "severed all connections with the Food and Agriculture Division where he was also confirmed with effect from 19-11-1975 at his own request. It was further averred that on 23- 1-1978 NCCW was declared as an Attached Department of Food and Agriculture Division. It was also pointed out that "since he was already confirmed Stenographer of NCCW he was not eligible for confirmation as Stenotypes or L.D.C. In Food and Agriculture Division. It was also urged that the appeal was hopelessly barred by limitation. In this connection, it was maintained that he filed a departmental appeal which was dismissed on 14-1-1993 whereas Farid Muhammad filed an appeal before the Tribunal on 7-7-1993 after a period of 5 months and 17 days. It was lastly urged that Farid Muhammad was not promoted as Stenographer in WEC but was appointed as such with effect from 12-5-1969 on certain terms and conditions including the one that if in case he accepted the offer "he would sever all connections with the Ministry as he was a purely temporary Government servant" and further that having accepted the offer "he severe all his connections with the Division" and that "he was never confirmed against any post in the Food and Agriculture Division".
4. The Service Tribunal examined the case and without .Reference to or determination of the plea of limitation raised by the respondents held that on his appointment as Stenographer in the WEC on 12-5-1969 and his confirmation in November, 1975, in the NCCW "which was then a part and parcel of the Ministry" but when it was declared as an Attached Department on 23-1-1978, the Ministry should have asked the appellant's option either to serve the Ministry or serve NCCW" and having not followed this course, "he should have been repatriated to the Ministry and at least adjusted above his named immediate juniors when he was appointed as Stenographer in WEC. His prayer for Secretariat Allowance Was, however, not acceded to. Muhammad Aslam Shad and six other appellants in Civil Appeal No, 540 of 1994 have challenged the propriety and legality of the findings of the Service Tribunal almost on the same grounds as have been agitated by Federation of Pakistan and others in Civil Appeal No, 541 of 1994.
5. In leave granting order it was noted that--- "Civil Appeal No, 539 of 1994 was filed by Farid Muhammad against the rejection of his prayer for secretariat allowance. Federation of Pakistan and others have challenged the said order in C.P. No, 9344 on the ground that petitioner having abandoned his lien in the appellant Department .
Cannot be repatriated after a period of about 25 years. Muhammad Aslam and others were to be affected by the repatriation of Farid Muhammad, have also challenged the same order in C.P.
93/94.
' After hearing the learned counsel for the parties as all concerned are aggrieved by the said order, we grant leave to appeal to consider the grievance of the parties raised in their respective petitions for leave to appeal."
6. Farid Muhammad, appellant, who argued his appeal in person, submitted that notwithstanding the finding that while holding the post of Stenographer in the NCCW which formed part (If the Ministry, the appellant has been unlawfully denied the Secretariat Allowance particularly when the NCCW's Headquarters were functioning in Islamabad proper. In support of the order of the Tribunal granting him the right of repatriation to the Ministry, Farid Muhammad placed reliance on the two authorities of this Court, namely, Province of Punjab v. Muhammad Ikramul Haq and another (1986 SCM R 1994) and Mazhar Ali v. Federation of Pakistan and others (1992 SCM R 435).
7. Mr. Shah Abdur Rashid, learned counsel for Muhammad Aslam Shad and others, appellants in Civil Appeal No,540/1994, contended, firstly, that the appeal before Service Tribunal was incompetent for non-joinder of the appellants and respondents Nos.5 to 40 who were directly affected by the order repatriating Farid Muhammad (respondent No,4 in C.A. No,540/1994) and according him seniority over them; secondly, that the appeal of Farid Muhammad before the Service Tribunal was barred by limitation, in that, his departmental appeal dated 11-10-1992 was rejected on 14-1-1993 and, therefore, he should have approached the Tribunal within thirty days but instead he made another ' so-called' incompetent appeal dated 31-3-1993 after 76 days to the Minister for Food and Agriculture and wasted time till 7-7-1993 when he preferred appeal before the Service Tribunal; thirdly, that respondent No,4 had no right to be repatriated to the Ministry on two-fold grounds (i) that he was a temporary Stenotypist who was not entitled to retain any lien on transfer or appointment to another Department and (ii) that, in any case, his lien stood terminated on his confirmation in NCCW with effect from 19-11-1975 and, therefore, the impugned order of the Tribunal allowing respondent No,4 to join the Ministry after his confirmation in the NCCW which was an Attached Department was without lawful authority.
8. Raja Muhammad Bashir, learned Deputy Attorney-General, appearing on behalf of the Federation of Pakistan and others (in C.A. No,541/94) and respondents Nos.1 to 3 in C.As. 539 and 540 of 1994), besides adopting the arguments of Mr. Shah Abdur Rashid, learned counsel for the appellants in C.A. No,540/1994, contended that Farid Muhammad respondent could not be legally repatriated to the Ministry and adjusted over the employees who had been promoted in the Ministry between the period from 13-5-1969 to 11-10-1992 moreso when he had been confirmed in NCCW with effect from 19-11-1975 as a Stenographer whereafter he had tacitly severed all his connections with the Ministry and had ceased to be on the cadre/strength of the Ministry.
9. We have considered the respective stands of the parties taken up in all the three connected appeals. We would address ourselves to the following crucial issues:--
(i) Whether Farid Muhammad respondent had been confirmed in NCCW?
(ii) If issue No, (i) is in the affirmative, whether he still retained his lien in the Ministry of Food, Agriculture and Cooperatives?
(iii) Whether he is entitled to the Secretariat Allowance while he was the employee of the NCCW?
(iv) Whether the appeal of Farid Muhammad before the Tribunal was incompetent on the ground of his omission to implead the appellants as respondents Nos.5 to 40 in his appeal?
(v) Whether his appeal before the Tribunal was barred by limitation?
There is voluminous documentary evidence in the shape of Office Orders and Office Memoranda made available on paper book of C.A. No,541/94 at pages 69, 74, 84, 90 and 92 to establish that Farid Muhammad held permanent lien on the post of Stenographer in the NCCW. Farid Muhammad claimed to be on deputation to the WEC and then NCCW. The term 'deputation' has not been formally defined. It has been quoted with approval in Islamic Republic of Pakistan v.
Israrul Haq and others (PLD 1981 SC 531) which is to the following effect:-- "However, according to practice in vogue, a Government servant is to be treated on deputation, when he is appointed or transferred through process of selection to the post in the Department or service altogether different from the one to which he permanently belonged. He continues to be placed in this category as long as he holds the new post in an official 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." (Underlining is for emphasis).
' When he reverted from the post of Superintendent in the Ministry of Industries to the NCCW, the aforesaid principle was followed. Reliance has been emphatically placed by Farid Muhammad on the precedents of this Court in M. Ikramul Haq's and Mazhar Ali's cases supra. In both the cases, the civil servants were the confirmed employees of the Punjab Government but on deputation to the Federal Government. It was, therefore, held that authority competent to pass the order of retirement in their cases was the Government of Punjab as contemplated by section 12 of the Punjab Civil Servants Act (LXXI of 1973) and not the Federal Government. The ratio of these authorities is thus not attracted to the appeals before us.
10. The learned Deputy Attorney-General has invited our attention to the definition of 'lien' laid down in Civil Servants (Confirmation) Rules, 1993, which reads as under:- "Lien means the title of a civil servant to hold substantively a post on which he has been confirmed.
In this context, rule 6 is reproduced hereunder:-- '6. Termination of lien.--(1) The lien of a civil servant who is reduced in rank or reverted to a lower post as a consequence of action taken against him under the Government Servants (Efficiency and Discipline) Rules, 1973, shall be terminated against the post from which he is reduced in rank or, as the case may be, reverted to a lower post:.
Provided that such civil servant shall acquire a lien against the lower post.
(2) A civil servant shall cease to hold lien against a post if he takes up an appointment on selection in an autonomous body under the control of Federal Government, Provincial Government, local authority or private organization.
(3) Notwithstanding the consent of a civil servant, his lien on a post under the Federal Government shall not be terminated until he acquires lien on any other post.
(4) A confirmed civil servant who, of his own accord, joins some other service, post or cadre on regular basis shall have, after being selected through a regular selection process, the right of reversion to the previous post against which he shall hold lien only during the period of his probation on his new service, post or cadre'."
A conjunctive reading of rule 6 supra would affirm our finding that on selection of and/or confirmation on another post in another organization in the Federal Government, the Provincial Government, local authority or private organization, a civil servant shall cease to hold lien against a post in his parent department or authority or organization.
11. In this view of the matter, we have no manner of doubt that Farid Muhammad (respondent No,4) having been confirmed as Stenographer in the NCCW ceased to hold lien in the Ministry of Food and Agriculture. He had claimed relief from the Tribunal against the appellants and respondents Nos.5 to 40 in Civil Appeal No,540 of 1994 without impleading them as parties notwithstanding the fact that he was directed by the Tribunal to be placed above C them which, besides being absolutely unwarranted under the law, is also violative of the principle of natural justice enshrined in the maxim: ' audi alter= partem' i,e, no one should be condemned unheard. The appeal by Farid Muhammad was thus incompetent.
12. The request of Farid Muhammad- for repatriation was turned down by the competent authority on 14-1-1993 whereas the appeal before the Tribunal was filed on 8-7-1993 apparently after six months and six days and was thus barred by limitation. No application for condonation of delay was moved. The appear was hopelessly barred by time Strangely the Tribunal had not adverted to this objection one way or the other. We are, therefore, of the considered view that appeal before the Tribunal ought to have been dismissed as time barred.
13. In Civil Appeal No,539 of 1994 filed by Farid Muhammad, appellant therein challenged the order of refusal by the Tribunal to grant him the Secretariat Allowance. The decision of the Tribunal refusing to grant this relief is in accord with the law laid down on the proposition by this Court in: (i)
Brig. (Retd.) Abdur Rashid v. Secretary, Establishment Division and others (1991 SCM R 1288) and (ii)
Government of N.-W.F.P. v. Muhammad Siddique Khattak (PLD 1993 SC 245). In the former case it was held by this Court that: "An allowance is payable upon its being made applicable to a particular class of persons. In the instant case, it is an admitted position that the allowance in question has not been made payable to the personnel attached to the Central Board of Film Censors. In this view of the matter, there has not been any violation of the terms of the service. No provision of any law or any statutory rule has been pointed out by Mr. Ansari whereby it has been provided that if a particular allowance is made payable to a particular class of civil servants, the other civil servants would also be entitled to such allowance. In the absence of any such provision, the petitioner could not have maintained a service appeal before the Tribunal. The petition has, therefore, no merits. Leave is accordingly refused."
The petitioner being the employee of an Attached Department in the Ministry of Food and Agriculture is, therefore, not entitled to the said allowance. In consequence, his appeal is dismissed with no order as to costs.
14. Civil Appeals Nos.540 and 541 of 1994 are allowed, the order of the Federal Service Tribunal dated 19-12-1993 directing the repatriation of Farid Muhammad, respondent No,4, to the Ministry of Food and Agriculture and to place him above the appellants herein is set aside and his appeal before the Tribunal stands dismissed. There will, however, be no order as to costs.