MUHAMMAD RAZA KHAN (MEMBER).---The appellant had joined the service as Appraiser in the Valuation Department in 1984. In 1989 he was transferred, although temporarily, to the Appraisement Department yet vide an order dated 10-7-1990 he was absorbed in the Appraisement Department on permanent basis and he was to count his seniority in the said Department with effect from 1989 and he was also mentioned in the Seniority List at Serial No,126. In 1993 the appellant requested for mutual transfer with the private respondent No,4 which was accepted and vide an order dated 6-12-1993 the mutual transfer order was issued whereafter both the said officials joined their new assignments in February, 1994. In December, 1996, a decision was made by the Appraisement Collectorate to repatriate the transferee from Valuation Department and consequently the Respondent No,4 was ordered to be relieved from the Appraisement Department to report in the Valuation Department. However, this order was modified on 26-12-1996 holding that the respondent No,4 has been absorbed on the permanent strength of the Appraisement Collectorate. The appellant filed a representation on 20-1-1997 asking for his repatriation to the Appraisement Department and for placing him in the proposed Seniority List which was likely to be issued. This representation followed by another one, on 30-1-1997, was finally decided by the Central Board of Revenue against the appellant holding that since the transfer has been effected to the Valuation Department at his own request, therefore, he will reckon his seniority in the Valuation Department with effect from 6-12-1993. The present appeal has been directed against the said order of 4-4-1997, dispatched on 9-5-1997 and received by the appellant on 14-5- 1997.
2. The appellant has mainly relied on the fact that the orders of transfer of 1993 on mutual basis were merely of a transitional nature and that since he was not absorbed in the Valuation Department, therefore, his lien in the Appraisement Department could not be terminated. He has also challenged the orders passed on 28-12-1996 to be without lawful authority. Since the appellant originally belonged to the Valuation Department and his lien in the said Department was terminated on his absorption in the Appraisement Department and, therefore, he had suffered a loss of service of five years for the fixation of seniority and if the mutual transfer back to the Valuation Department was considered to be a permanent absorption and he was to count his seniority with effect from 1993, he will have to suffer a further loss of four years service. Thus, in the alternative, he has prayed for the restoration of his original position in the seniority of Valuation Department from 1984 on the basis of similar precedents ordered by the respondent-Department.
3. The respondent-Department contested the case whereas the private respondent No,4 did not file any written objection and was accordingly placed ex parte.
4. We have heard the arguments on behalf of the parties and perused the record. At the outset it may be stated that the view point of the respondent-Department is mainly based on the confirmation rules and it has been stated in the comments and vehemently repeated by the representative of the respondent-Department that since the transfer of the appellant has been ordered in 1993 "on his own accord; therefore, after the expiry of the period of probation, he will be deemed to have been absorbed in the new department and his lien would stand terminated in the previous department. The Department has erred in appreciating the difference between an appointment and a transfer. When a person joins any department or service as a result of appointment, he is to be on probation for a specified period but there has been no provision prescribing the period of probation in the cases of transfer. Mutual transfer simply indicates that two civil servants are exchangihg their positions with the consent of both the departments but the transfer effected by such a process remains a transfer simpliciter and cannot be interpreted to mean the appointment by transfer. Mutual transfer is a transfer on temporary basis whereas the appointment on transfer is a regular appointment in a particular department as a result of transfer from the previous one. For such an appointment on transfer one has to pass through the process of selection and is finally ordered to be appointed. That is why the relevant rule has taken care of the prerequisites. Sub-rule (4) of rule 6 of the Confirmation Rules provides:-- "(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."
5. Thus, for the termination of lien of a permanent civil servant from his original department three prerequisites have to be satisfied. Firstly, that the civil servant concerned joins the other department on regular basis; secondly, that such joining is the result of his selection and thirdly that the selection has to be through a regular selection process. If these three conditions are satisfied and a civil servant has consented for such joining, he will have no claim about his lien in the previous department after the expiry of the probationary period. Applying the said rule to the case in hand, one comes to the conclusion that all the three conditions have not been satisfied in this case. Firstly, the joining in the other department was on a temporary basis as indicated in the order of mutual transfer that it was to remain effective "until further orders". Secondly, there has been no process of regular selection and thirdly he has not been selected in the new department as a result of such regular selection process but he requested for the change of position with the private respondent and the same was approved. There was neither any advertisement nor any applications for appointment nor even any tests or interviews or the proceedings of the Selection Committee are available. Hence the orders of 1993 cannot, at all, be interpreted as the appointment by transfer but the order was only a simple transfer in the same manner as admittedly the appellant had been transferred between the two departments in 1987 and 1988 and then in 1989. Since it was a transfer, thus, there was no period of probation prescribed and there was no question of confirmation and the lien in his permanent parent department could not have been terminated.
6. The Central Board of Revenue was also misled to believe as if the appellant had been absorbed in the Valuation Department as a result of his transfer in 1993 on his own accord. It is correct that the transfer was made on his own accord but there had been no order of absorption of the appellant in the Valuation Department and, therefore, we hold that the appellant was retaining his lien with the respondent No,1 i,e, the Collect orate of Appraisement and his transfer to the Valuation Department was only a transitional and a temporary phenomenon. The learned counsel for the appellant had argued in detail that the order dated 28-12-1996 was based on the exercise of an authority not vested in the officer concerned. As a result of a Notification dated 20-10-1994, the earlier Notification dated 19-11-1989 whereby the powers of inter-Collect orate/Directorate transfers were delegated by the Central Board of Revenue to the Collect orates/Directorates concerned.
Thus, by cancellation of such delegation, the Collectorates had no authority to order the absorption/transfer/retention of any official and hence the order dated 28-12-1996 was without lawful authority and, therefore, void. This has been an established practice now that the orders passed by an incompetent authority cannot be validated by its approval by the competent Authority at a later stage. Thus, the order dated 28-12-1996 was without lawful authority and the impugned order dated 4-4-1997 was based on incorrect information, and misinterpretation, furnish to the Central Board of Revenue.
7. It may also be mentioned, as stated earlier, that the appellant had been transferred originally without his consent in 1989 to the Appraisement Department, however, later on he was absorbed there by the order passed on 10-7-1990 issued by the Central Board of Revenue. The appellant suffered the loss of five years of his service but as a result of mutual transfer of a transitional nature if it is presumed that the appellant has been re-absorbed in the Valuation Department with effect from December, 1993, then the appellant will be suffering an irreparable loss of nine years of valuable length of service for no fault on his part. Even if he is to be absorbed in the Valuation Department, the seniority will be reckoned with his batch of 1984 because the earlier transfer of 1989 was not at his behest.
8. It has to be noted that the order of absorption of the appellant in the Appraisement Directorate was passed on 10-7-1990 by the Central Board of Revenue. This order could not be negated or rescinded by any authority subordinate to the Central Board of Revenue and hence the impugned original order dated 28-12-1996 is defective on this account as well. Even during the interregnum of 1989 to 1994 the Collect orates were delegated the authority to approve and issue transfer orders but they had not been delegated the authority to determine the absorption or to deprive the civil servants from their vested right of seniority. The delegate has to function within four corners of the order of delegation and cannot exceed therefrom.
9. In view of the verdict of the Supreme Court reported as 1992 SCM R 435 the lien cannot be terminated even by the consent of the civil servant unless the prerequisites thereof are satisfied.
Thus, we are of the opinion that the mutual transfer ordered in 1994 was of a transitional nature as indicated in the phrase "with immediate effect and until further orders" and in view of the dictum reported in PLD 1965 SC 208, it was merely a temporary arrangement and did not amount to a final order. The order of absorption has not been issued nor the requirement thereof has been met and, therefore, the impugned order is defective from every angle.
10.As a result of the above discussion we accept this appeal, set aside the impugned order and direct that the appellant may be treated to be a permanent employee of the respondent No,1 and he should be shown in the Seniority List of the said respondent in accordance with the same order as per the earlier list issued in 1992 subject to changes by afflux of time.
11.No order as to costs.
12.Parties to be informed accordingly.