' SAIDUZZAMAN SIDDIQUI, J.---The above appeal with the leave of this Court is directed against the judgment of Federal Service Tribunal, dated 27-3-1994.
2. The appellant while serving in Pakistan Army with the rank of Lt. Colonel, was sent on secondment to the Ministry of Foreign Affairs as Director (B-19) with effect from 1-11-1981 vide Notification dated 3-11-1981. Before expiry of his 3 years' deputation period, the appellant addressed the following letter to Director (Organization) Ministry of Foreign Affairs on 5-5-1984:-- "Subject: Tenure of Deputation with. Ministry of Foreign Affairs.
' The undersigned was posted to the Ministry of Foreign Affairs in October 1981 on deputation from Pakistan Army. I assumed the charge of Deputy Chief of Protocol in Grade 19 at the Headquarters on November 1, 1981 and have since then served at Karachi and Quetta as Deputy Chief of Protocol.
2. I am nearing completion of 3 years stay at the Ministry without having known the total period of deputation. The following points need to be clarified with regard to my continued stay with the Ministry: a. What is the total period of deputation with the Ministry? b. Whether on completion of 3 years stay I would be asked any option for extension of deputation or I will be required to apply for the same? c. I am completing 18 years of Commissioned Service in Pakistan Army on 7 May, 1984. Thereafter, I qualify to be equated with Consellor as per the current service rules. What action is warranted at my end in this regard?
(Sd.) Lt.-Col. (Abdul Latif), Deputy Chief of Protocol, 5-5-1984. Tel.: 824914 Director (Organization)"
' In response to his above letter, the appellant was informed by the Ministry of Foreign Affairs vide their letter No, Estt. (1-B)-4/22/81 dated 26-2-1984, as follows:- "Subject: Terms & Conditions with Ministry of Foreign Affairs in respect of Col. Abdul Latif.
' Please refer to your note dated 5-5-1984 on the above subject and to say that the points raised by you are clarified as under:-
(a) The normal tenure of deputation is 2 and 3 years. However, you will be governed by the Pakistan Army Order No,666/60 of 1960.
(b) After completion of three years service, the case for extension of deputation period may be forwarded to G.H.Q. Through Ministry of Defence to Ministry's requirement and your willingness.
(c) As you were specifically deputed to this Ministry as D.C.P., the question of being equated with a Counsellor, therefore, does riot arise. However, it may be added that in accordance with Ministry of Foreign ' Affairs O.M. No,Estt (IC)-8/4/77 dated 11-84982, Colonels are to be equated with Counseller (on the diplomatic side) irrespective of the number of years of service rendered."
(Sd).
(Asad Ezdi Shah)
Section Officer"
' The appellant has not placed on record any order of competent authority to show that after expiry of his initial period of deputation of 3 years, he was allowed to continue in the service of Foreign Ministry. However, from the comments filed by the respondents before the Federal Service Tribunal as well as before this Court, which have not been denied, the following facts are discernible.
3. On expiry of the period of 3 years deputation in Foreign Ministry, the appellant was allowed extension of one year up to 31st October, 1985. Further extension in the period of deputation of appellant in the Foreign Ministry, when asked for, was declined by the Ministry of Defence.
Notwithstanding the refusal by the Ministry of Defence to extend further the period of his deputation and a direction by the Foreign Ministry to report back to Army, the appellant addressed a petition to the then Prime Minister of Pakistan, in 1986 on which the Prime Minister ordered that " the appellant should not be disturbed from the present assignment at Quetta". Under the above order of Prime Minister, the appellant continued in the service of Foreign Ministry, the appellant continued in the service of Foreign Ministry. In May 1988, the Foreign Ministry submitted a summary to the Prime Minister recommending that no further extension in the deputation period of the appellant be allowed. However, the then President of Paksitan (General Ziaul Haq) granted two years further extension in the period of deputation of appellant up to June 1990. Before expiry of the extended period of his deputation, the appellant was asked by the Ministry of Foreign Affairs to report back to the Army. At this stage of confidential communication was addressed by M.S. Branch of the Army to Ministry of Defence and a copy of it was forwarded to Ministry of Foreign Affair.s with reference to their letter No, DCP/PER/90 dated 14-2-1991 which reads as follows: - ' CONFD MS BRANCH (MS 2-A)
Subject: TRANSFER OF DEFENCE SERVICES OFFICERS TO CIVIL CADRE ' Our letter No,0354/2550/MS-14 of 23 Jan 91 refers.
' The officer is serving in Ministry of Foreign Affairs since last 19 years and has always obtained Above Average reports. Having remained away from the main stream of the Army for such a long time, the officer has missed the chances to attend various professional courses, thus reducing his circulation value in the Army. It is, therefore, strongly recommended that the officer be absorbed permanently in Ministry of Foreign Affairs.
(Sd.)
Lieutenant-Colonel. For Military Secretary, (Muhammad Iqbal Akbar Khan).
Min of Def D.24 (C-IV)
No, D354/2550/MS-2A of 10 Apr 91 CONFD Copy to:- ' Ministry of Foreign Affairs Government of Pakistan Quetta.
' With reference to their letter No,DCP!PER/90 of 14 February, 91.
4. It appears that the above recommendations were not accepted by the Ministry of Foreign Affairs and consequently the following notification was issued on 1-2-1992 reverting the appellant to Ministry of Defence:-- "Government of Pakistan Ministry of Foreign Affairs Islamabad, 1st February, 1992.
NOTIFICATION ' No, Catt.(1-B)-4/22/81. Consequent upon the decision of the competent authority to revert services of Lt. Col. Abdul Latif, Deputy Chief of Protocol (BPS-19) in the Ministry of Foreign Affairs, Camp Office, Quetta, back to his parent Department, Ministry of Defence, he has been relieved of his duties w.e.f, 1st February, 1992.
(Sd.)
(Muhammad Sarfraz A. Khanzada), Section Officer. "
5. The appellant on being relieved from his assignment from the Ministry of Foreign Affairs, instead of reporting back to his parent office (Army) made a direct representation to the then Prime Minister on 10-2-1992, which was as follows: "To ' The Prime Minister, Islamic Republic of Pakistan, Prime Minister's Secretariat, ISLAMABAD ' Sub:-REPRESENTATION AGAINST FOREIGN OFFICE DECISION. Sir, ' I avail this opportunity to address you directly after noticing that the Ministry of Foreign Affairs is not inclined to administer justice in handling my career case.
2. You were kind enough to grant me an audience at Governor's House, Quetta on 3rd September, 1991 and instruct me to forward details in writing. Accordingly, I mailed two copies of application, one through Military Secretary to the Prime Minister and the other through Foreign Office regarding my induction for your kind consideration. On 3rd February, 1992, the Ministry of Foreign Affairs conveyed to me that I have been relieved of duties w.e.f, 1st February, 1992 and advised me to report to G.H.Q., Ministry of Defence for duties.
3. I had earlier requested the Ministry of Foreign Affairs on 19 December, 1991 to grant me 492 days earned leave before reverting me to the Army which has also been refused without assigning any reason. Under the Joint Services Instruction No,4/1985, Officers of Defence Services seconded to Civil Ministries are entitled to avail earned leave during period of secondment. Thus the leave earned has also been ignored like my decade long services.
4. I consider it a ruthless and humiliating manner to dispose of a Government official who has been a member of Foreign Service Team for over ten years. The prolonged absence from the Army has cost me my career in uniform where my contemporaries are senior Brigadiers and now due for consideration to Major Generals shortly. Whereas, I am due to retire from the Army during the current year.
5. On April 10, 1991, General Headquarters, Rawalpindi had strongly advocated my case for permanent absorption in the Foreign Service of Pakistan on the basis of my excellent performance which remained unattended till date. I am now 45 years old, in 26th years of commissioned service with 15 years in active military service and over ten years with the Ministry of Foreign Affairs. Having stayed away from main stream of Pakistan Army for so long, I have lost touch with latest advancements in the profession. My services will not be of much use to the Army anymore.
6. In view of the gravity of the situation, I request you to kindly intervene into the matter and administer justice before it is too late for me. My submission is that I fully qualify to be absorbed in Civil Service on merit on the basis of my past 10 years performance, as judged by the Governors of Chief Ministers of Balochistan and Senior Officials of the Foreign Office. Therefore, instead of relieving me of duties so suddenly without even granting me leave, my case should be reviewed in all fairness and I should be permanently absorbed in Foreign Service or Civil Service (APUG) under relaxation of rules as per past precedences. Yours obediently, (Sd.)
(Lt. Col. Abdul Lateef), Deputy Chief of Protocol, Ministry of Foreign Affairs, ISLAMABAD.
Quetta 10th February, 1992."
6. On the above representation of the appellant, the then Prime Minister issued direction on 24-3- 1992, for induction of the appellant in Foreign Service in relaxation of rules. The appellant was, accordingly, inducted as Director of First Secretary (BPS-19) in the Foreign Service of Pakistan, w.e.f, March 25, 1992' ide letter dated April 30, 1992 which read as follows:- ; "No, R & T-1/14/91 Government of Pakistan, Ministry of Foreign Affairs ' Islamabad April 30, 1992.
' From: Mr. Sajjad Ashraf, Director (Organization). To ' Lt.-Col. Abdul Lateef, Deputy Chief of Protocol, Ministry of Foreign Affairs, Camp Office, Quetta.
' Subject: INDUCTION INTO THE FOREIGN SERVICE OF PAKISTAN. Sir, ' I am directed to convey the approval of the competent authority to your induction as Director of First Secretary (BPS-19) in the Foreign Service of Pakistan w.e.f, March 25, 1992.
2. Your senoirity in the Foreign Service of Pakistan will be determined under the existing rules. Your obedient servant, (Sd.)
(Sajj ad Ashraf), Director (Organization)."
' The appellant did not challenge his above induction order in the Ministry of Foreign Affairs at any stage. It is also an admiited position that the appellant retired from the Army on 20-5-1992, after about two months of his induction in the Foreign Service. However, on 4-6-1992 he addressed the following letter to the Chairman Gradation Committee, Ministry of Foreign Affairs, Islamabad:- "To ' The Chairman, ' Gradation Committee, ' Ministry of Foreign Affairs, ' Islamabad.
' Through Proper Channel ' Subject:- Seniority in Foreign Service of Pakistan.
Sir, ' I understand that the Ministry is currently engaged in review of seniority of officers of Foreign Service of Pakistan under your able guidance. I would therefore, like to avail this opportunity to apprise you of my seniority position as indicated in Ministry of Foreign Affairs letter of appointment No, R&T-1/14/91 dated April 30, 1992 attached as annexure ' A'. a. I have been inducted as Director of First Secretary (BPS-19) w.e.f, March 25, 1992 whereas I had atually assumed the same post in the Ministry as Director/Deputy Chief of Protocol on November 1st, 1981 on secondment from Pakistan Army. b In response to any earlier reference the Ministry had intimated with counsellors irrespective of the number of years of service rendered vide their O.M.No, Estt (IC)-8/4/77 dated 11-8-1982 mentioned in the reply attached as annexure 'B'. c. In a number of cases, Defence Services officers have been assigned seniority with effect from date of joining the Ministry on deputation and not the date of induction as done in my case.
2. The Committee may kindly examine available precedences regarding grant of seniority and equation with diplomatic ranks in respect of Defence Services officers inducted in Foreign Service of Pakistan in post 1977 period and consider my request for grant of ante date seniority from the initial date of joining the Ministry (1st November, 1981).
Your obedient servant (Sd.)
(Abdul Lateef), Direcor/Deputy Chief of Protocol, Quetta 04-6-1992."
7. The appellant made a representation to the Prime Minister of Pakistan on 21-6-1993 praying for antedating his induction in the Foreign Ministry with effect from 1-11-1981 with the rank of a Counsellor and after waiting for 90 days preferred service appeal before Federal Service Tribunal which has been dismissed. Leave was granted in the above case to consider the following contention: - "Mr. Mashir Pesh Imam has quoted three examples of discrimination and has cited the cases of Brig. Zamir Ahmed Khan, Brig. M. Ziaul Haq, and Brig. M. Aslam Hayat Qureshi who have been taken up from Army to the Foreign Office and their services were subsequently regularized by giving them seniority from the dates of their induction in Foreign Office. The learned Attorney General states that this position is factually correct but it was done in the days of President Muhammad Zaiul Haq and these inductions were against the rules and laws.
2. In the circumstances, we feel that this is a fit case for grant of leave so that the question whether the above cited cases are distinguishable or not to be followed can be thrashed out in detail. Leave is granted."
8. The learned counsel for the appellant mainly contended that the appellant is entitled to claim seniority from the date he was sent on deputation to Ministry of Foreign Affairs from the Army. The learned counsel for the appellant further contended that in case of Brigh (Retd) Zamir Ahmed, Brig Muhammad Ziaul Haq and Brig Qureshi Muhammad Aslam Hayat, the respondent allowed them seniority from the date they initially joined the civil service but in the case of appellant, he was not allowed seniority from the date he originally joined the Foreign Ministry which amounted to discrimination. The learned counsel for the Federation supported the judgment of Federal Service Tribunal.
9. From the facts stated above, it is quite clear that after completion of 3 years initial deputation period, the Ministry of Defence extended the deputation of appellant for one year only and thereafter, refused to further extend his deputation period but the appellant was not willing to got back to his parent department (Army). The appellant managed to stay on in the Ministry of Foreign Affairs on the strength of various orders passed on his representation from time to time by the Prime Minister and the President. However, none of these orders could amount to induction of appellant in the Foreign Service. The induction of appellant in the Foreign Service was approved by the Prime Minister only on 24-3-1992 and accordingly, his induction in the Foreign Service was notified w.e.f, 25-3-1992. The order of the Prime Minister allowing induction of appellant in Foreign Service in relaxation of rules was not effective from a retrospective date so as to entitle the appellant to claim seniority from that date. This Court examined the effect of the order of the competent authority granting seniority retrospectively to the members of Armed Forces inducted in Police Service in the case of Jehangir Mirza v. Government of Pakistan (PLD 1990 SC 1013). The relevant observations in Jehangir Mirza's case were as follows:- "In the absence of seniority being a vested right, the rule-making authority or the appointing authority could for sufficient reasons disturb it. In the present case this was expressly done in the case of Police Officers, when the President formally approved of the principle that the officers of the Armed Forces inducted into the Police Service of Pakistan shall have seniority of regularization from the date of their induction and not from the date of regularization. He was competent to pass such an Order and having done so, the respondents shall benefit from it if from no other provision and or principle noticed above."
10. From the above observations, it is quite clear that the appointing authority while approving induction of Personnel of Armed Forces in other services, for sufficient reasons, may allow him seniority from the date of induction into such service, notwithstanding the contrary provision in the rules that seniority is to be counted from the date of regularization of the appointment.
11. The secondment of Armed Forces Officers into Ministries (other than Defence), departments of Central/Provincial Governments, autonomous bodies and Corporations is governed under the instructions appearing at pages 20 of 23 of the Esta Code which read as follows:- "It has been decided that Armed Forces Officers seconded to civil Ministries (other than Defence), departments of the Central/Provincial Governments, autonomous semi-autonomous bodies and Corporations etc. Will be governed by the following terms and conditions:--
1. Tenure
(a) Officers will normally be seconded for a period upto three years extendable, in exceptional circumstances, by one year by the Government, after which the officer will normally either be recalled to the parent service or released. No extension in service will be allowed to officers who complete age/service limits for retirement during secondment.
(b) If the deputation of an officer tends to become indefinitely prolonged, permanent absorption of the officer concerned in the civil cadre by retiring him from the parent service, would be considered.
(c) In case of an emergency, the parent service will have the option of withdrawing a deputed officer without notice, if necessary.
(d) An officer will have the option to request for return to him parent service if he feels that his service career is adversely affected by continued deputation.
2. Pay and allowances
(a) The deputationists will be entitled to pay of rank, Command/staff/Charge Pay, Instructional Pay, Qualification Pay, Flying Pay/Submarine Pay/Special Service Group Pay/Technical Pay/Disturbance Pay, Kit Allowance and Non-Practising Allowance drawn by them in the Military service immediately before their secondment in addition to 20% of pay of the rank as special compensatory allowance.
(b) Entertainment Allowance.---Entertainment Allowance may be allowed according to the equivalence of rank formula at the rate admissible on the civil side.
(c) Senior Post Allowance---This allowance will not be admissible in addition to Command/Staff/Charge/Instructional pay etc.
3. Pension including disability/Family Pension.
(a) Pension including disability/family pension will be granted to officers under relevant Military Pension Rules. They will count the period of service with the borrowing Ministries/Departments etc. As qualifying service for pension in the Army/Navy and Air Force.
(b) The claims that the officers or their families may have in respect of the disability or death during the period of their employment under the borrowing Ministry/Department etc., or arising out of any disability contracted in such service, shall be determined solely in accordance with the relevant Military Pension Rules as amended from time to time, and the entire cost of any such pension shall be borne by borrowing Ministries/Departments etc. These Ministries/Departments wills also be liable to bear proportionate share of any gratuities/pensions that may be admissible to these officers in respect of their service under Military Rules. In case of Officers on deputation to a Non-Government body,the pension contribution for pension admissible to them under relevant Military Pension Rules, in respect of Service rendered by them on deputation will be payable by the borrowing agency.
4. Leave
(a) The officers will continue to be governed by Military Leave Rules.
(b) Leave account of the officers will be maintained by the parent services in consultation with the borrowing organisations and leave will be granted by the appropriate authorities in borrowing organisations under intimation to Service HQ/OORO/Record Office concerned. Leave earned in the borrowing organisations will be availed of, as far as possible, before reversion to the services.
5. Rank---Acting/temporary rank will be retained/relinquished as if the officers had continued in Military Service in the appointment last held.
6. Promotion in the Services.---While on secondment they will not be entitled to acting/temporary promotions. However, substantive/substantive temporary promotions will be made upto the rank held at the time they were seconded to civil department. This paragraphs does not apply to AMC 'officers.
7. Travelling Allowance/Daily Allowance/Conveyance Allowance. As admissible under civil rules.
8. Accommodation etc.
(a) Government accommodation will be provided under civil rules and rent will be paid under those rules.
(b) Normal water/electricity charges prevalent at the station will be paid.
(c) No Service accommodation/furniture will be provided.
9. Purchase of rations from service sources and other purchases from canteen stores Depts/Officers shops etc.---They will not be entitled to make the above purchases.
10. Provision of Batman.---Batman will not be provided.
11. Cost of Passage/TA for joining post in the Ministry/Department and returning therefrom.---This will be borne by the borrowing Ministry/Department etc.
12. Defence Service Offices Provident Fund Contribution.---The officers will continue to contribute towards DSOP Fund.
13. Advance.---The officers may be allowed House Building ' Advance/Motor Car Advance from the relevant Services Budgets as permissible under relevant Service Rules.
14. Discipline.---The officers will continue to be governed by the provisoins of their respective Service Act/Rules/Laws. Day to day conduct and discipline will be governed by the rules of the borrowing Ministries/Departments etc. Concerned.
15. In addition to the above, all other special concessions or perquisites such as free residential accommodation, use of transport at Government expense etc. Which, otherwise normally go with a particular appointment to which the office may happen to be seconded, will also be admissible to him.
16. The above perquisites are without prejudice to any improvements which the borrowing department may sanction in individual cases under special circumstances in consultation with their financial authorities.
17. Government letters containing the above terms will be issued in individual cases by the borrowing ministries/departments etc.
18. The provisions of this JSI are not applicable to:-
(a) Officers serving in the Civil Armed Forces (who will continue to be governed by their existing rules); and
(b) Officers who are absorbed in the civil department.
19. This JSI shall take effect from the 14th December, 1981.
20. JSI No, 46/59, PAC-666/60 and Ministry of Defence letter No,401/64/PS-3 (a) 4005/2-A, dated the 5th June, 1965 may be treated as Superseded by this JSI."
12. It is quite clear from the above instructions that an officer of Armed Forces serving against a civil post on secondment continues to be a part of Armed Forces in matters of Pay and Allowances, Pension including Disability/Family Pension, Leave, Rank and disciplinary matters. Therefore, the appointment of an officer of Armed Forces on deputation to a civil post does not amount to his induction into the civil service. The induction of officer of Armed Forces on regular basis in civil service is regulated by the terms and conditons contained in Establishment Division O.M.No, 14/5/78-D-III dated 10-2-1980, O.M.No, 14/5/78-D-III dated 11-2-1980, O.M.No, 1/19/80-IC-I dated 4- 12-1980, O.M.No, 14/5/78-D-III dated 14-7-1981, O.M. No, 14/5/78-D-III dated 16-7-1981, O.M. No 1(19)/80-1.C.1 dated 11-8-1981, O.M.No, 8(4)/81- C.P-V dated 11-1-1983, O.M. No,l(3)86-C.P.6 dated 1-1- 1987, O.M. No, 1(3)/86-C.P.6 dated 14-1-1987, O.M.No, 1/22/80-Ind-Cell dated 29-11-1980, O.M.No, 1/19/80-1C (Pt)/C.P.5 dated 1-3-1982 and O.M.No, 1 (3)/86-C.P.6 dated 14-3-1988: These O.Ms. Issued by Establishment Division from time to time appear at pages 164 to 177 of Esta Code (1989 Edition): The first mentioned O.M. Dated 10-2-1980, contains the detailed procedure and terms and conditions approved by the President of Pakistan for induction of officers of Armed Forces into civil service. The subsequent O.Ms. Are in the nature of amendments and clarifications of the first mentioned O.M. The first mentioned O.M. Dated 10-2-1980 is in five parts. Parts 1, II and III deal with the induction of officers of the rank of Major or equivalent who may retire and have retired on completion of the prescribed age or service limit. Part IV deals with induction of officers of the rank of Major or equivalent who retire or have retired before completion of the prescribed age or service limit as well as officers of the rank of Lieutenant Colonel and above and equivalent ranks, who may retire or may have retired either after completion of prescribed service of age limit or before such completion.
13. The appointment of appellant as Director (B-19) vide notification dated 3-11-1981 was squarely covered by the instructions appearing at pages 20 to 23 of Esta Code reproduced above. It is an admitted position that the appellant retired from the military service after his induction was approved by the competent authority, on 20-5-1992. Therefore, the contention of the appellant that his induction in the civil service may be considered from 1-11-1981, when he came on deputation, is misconceived, as he continued as a member of Armed Forces until his retirement from Army on 20-5-1992.
14. The learned counsel for the appellant has however, contended that the Government in the cases of Brig (Retd) Muhammad Aslam Hayat Qureshi, Brig (Retd) Zamir Ahmed Khan and Brig.
Muhammad Ziaul Haq while approving their induction in civil service allowed them seniority from the date they assumed charge in the civil service which amounted to discrimination. The notifications inducting Brigadiers, Muhammad Aslam Hayat Qureshi, Zamir Ahmed Khan and Ziaul Haq into civil were issued on 1-10-1981, 11-4-1981 and 3-1-1984 respectively, at a time when the country was governed under the Martial Law. The notifications issued by the Government in respect of above three officers of Armed Forces inducting them in civil service, specifically allowed them seniority from the date when they first joined the civil service. Such an action on the part of the President was possible in view of the decision of this Court in the case of Jahangir Mirza v.
Government of Pakistan (supra). In the case of the appellant, in the notification inducting him in civil service issued on 3-11-1991, he was not allowed seniority from the date he came on deputation from army and therefore, to this extent his case was distinguishable from the above named three officers. Apart from it, the contention of the appellant that he was discriminated, as in his case he was not allowed seniority from the date he first came in civil service on secondment from military, could not be decided in the absence of the relevant material showing that the above named three officers also came on secondment .From army under the same circumstances and terms and conditions on which the appellant was sent to the civil service.
15. In view of the above discussion, we do not find any ground to interfere with the judgment of the learned Federal Service Tribunal. The appeal is, accordingly, dismissed but in the circumstances of the case, there will be no order as to costs.