ROSHAN ALI MANGI (MEMBER).---The background of this appeal is that the appellant joined Army on 14-8-1981, and remained in that service upto 29-8-1985. Thereafter, through an open advertisement the appellant was selected for appointment of Medical Officer (B-17) vide order dated 8-10-1987 and initially posted at Cantonment Board Hospital, Gujranwala. The appellant joined his duties as Medical Officer w,e,f, 21-10-1987. He was confirmed in B-17 w,e,f, the date of regular appointment w.e.f 21-10-1987 vide letter dated 4-9-1990.
2. The appellant was posted at various stations all over Pakistan and presently he is posted at Cantonment General Hospital Karachi Cantt. as Medical Officer.
3. The appellant came to know about Ordinance No, IV of 1978 which was issued on 28-1-1978 to amend the compulsory service, in the Armed Forces Ordinance, 1971 whereby new section 9-A was inserted in the said Ordinance, whereby those Medical Practitioners, who were released from the services with armed forces, after having rendered satisfactory services under the said Ordinance, for a period not less than two years on entering into the Federal or Provincial 'Service, shall' be entitled to count their armed forces services towards his seniority. And his pay in such employment shall be fixed after giving him credit of the service so rendered.
4. In this regard the Establishment Division also had issued clarification dated 4-8-1986 to the effect that section 9-A of the Compulsory Service in Armed Forces Ordinance was Special law and the same overrides section 8 of the Civil Servants Act, 1973.
5. It this regard the Establishment Division also had issued a clarification dated 4-8-1986 to the effect that section 9-A of the Compulsory Service in Armed Forces Ordinance was a Special law and the same over rides section 8 of the Civil. Servants Act, 1973.
6. Therefore, the appellant moved an application on 4-12-1990, to the authority of counting his service in Pakistan Army for the purpose of seniority as well as the benefits in pay. Accordingly a reference was made to the Director, Military Land and. Cantonment, Lahore vide letter dated 10-6- 1991 for the purpose and condonation of the period of interruption from 30-8-1985 to 20-10-1987 before appellant joined service,
7. The appellant was granted the requested benefits vide letter dated 6-6-1995 under section 9-A by virtue of gaining seniority the appellant became eligible for promotion to the next higher grade.
Therefore, he made an application for promotion. To his surprise, that instead of granting him promotion, an order was passed on 8-3-1997, whereby the benefits granted under' section 9-A, were withdrawn from him. And for the benefit allowed in pay amounting to Rs,21,149 instructions were sought from the Director, Military Land and Cantonment vide letter dated 7-5-1897, for recovery.
8. Being aggrieved by the said impugned order i,e, dated 8-3-1997 and communicated to the appellant on 15-4-1997, the appellant preferred a departmental appeal on 3-5-1997, which has not been responded to, so far, even after the expiry of mandatory period of 50 days. Hence he has filed present appeal before the Tribunal.
9. We have heard the learned counsel, appearing for the appellant, who pleaded that impugned order passed by the respondent was mala fide to deprive the appellant of promotion which became due. The two benefits allowed to the appellant under section 9-A, were permissible under the law, and were availed of by the appellant. And that this had created vested right of the individual, and could not be withdrawn, under the principle of locus penitential. In this regard he relied on PLD 1969 SC 407.
10. The learned counsel for respondent, admitted that the concession for counting the compulsory service of not less than two years, in the armed forces towards seniority and pay has been allowed to such medical practitioners who after release from armed forces, have entered in the employment of the Federal or Provincial Government. However, in the instant case, he observed that the appellant, after release from the army has entered the employment of Cantonment Board which is neither a Federal nor Provincial Government Service as such he is not entitled to counting of his service towards seniority and pay. Accordingly the benefit fixation of pay allowed to the appellant have been withdrawn vide letter dated 6-6-1995.
11. The learned counsel for the appellant rebutted the above view of the learned counsel for the respondents. He counter argued that the appellant is a civil servant. In this respect, he relied on section 2(b) of the Civil Servants Act, 1973 which reads as: 'Civil servant' means a person who is member of All Pakistan Service or of Civil Service of Federation or who holds a civil post in connection with affairs of the Federation, including such post connected with defence."
12. The learned counsel stressed, that the post held by the appellant is connected with defence as the Cantonment Board looks after, the affairs of areas which are raised by defense forces. To strengthen his point, he referred to the Cantonment Service Rules, 1954. The rules governing the pay, allowance, transfer and fringe benefits admissible to Federal employees, are also applicable in the case of appellant. And it has been provided in clause (2) of the Annexure-I that there cannot be departure from this policy in any case,. And this has further been strengthened by the clarification of Establishment Division vide its letter dated 4-8-1988 to the effect that section 9-A of the Compulsory Service in the Armed Forces Ordinance, 1971 is a special law, whereas section 8 of the Civil Servants Act, 1973, contains a general provision. The former, therefore, shall prevail over the latter. Since appellant is a civil servant, and connected with defense, hence, this law will apply to his case.
13.We have perused the relevant references, and are satisfied that appellant is a civil servant, and is connected with the defence service. We also drew strength, from the appointment letter of the appellant which has been issued by the Additional Director Military Lands and Cantonments. It is obvious from the Organization issuing such an appointment letter. At the top of its right side it reads: No,92/477/G/AD(P&A)/ML&C/87 Government of Pakistan Ministry of Defence Military Lands and Cantonment Deptt.
Rawalpindi, the 8th October, 1987.
14.It is obvious from the above that Military Lands and Cantonment is one of the organization of the Ministry of Defence. As such, the objection of the learned counsel for the respondents is repelled.
15.The learned counsel for the respondents raised another objection that the appeal is time- barred. According to him, the order of withdrawal of the benefits allowed to the appellant was passed on 8-3-1997. However, the appellant to the departmental appeal on 3-5-1997, as such it was time-barred as it should have been preferred within the period of one month.
16.The appellant's counsel, on the other hand, brought out that it was communicated to the appellant on 15-4-1997. We asked the counsel for respondents, to submit some document to prove that it was delivered to the appellant in time i,e, on 8-3-1997. However, he could not submit anything to support his objection. On the contrary he observed that the onus was on the appellant.
But we are of the view that proving the delivery of the impugned order in time lies with the respondent. Taking the date of receipt of the letter as 15-4-1997 the departmental appeal made on 3-5-1997 would be within time.
17.According to the learned counsel for the respondents the appellant should have submitted his departmental appeal to the Secretary of Defence, but instead he made it to the D.G. Cantonment Boards.
18.It is a settled law, and has been held by the superior Courts that if the appeal is sent in wrong channel, those people should send it to proper authority. Yet another point that emerges from this objection is that the learned counsel himself admits, though indirectly, that the appellant was the Federal Government employee that is why, he raised objection that he should have filed his departmental appeal to the Secretary of Defence, and hence amenable to the rules of Federal Government.
19.The upshot of the discussion in preceding paragraphs is that, we accept the appeal and set the relevant impugned order aside and direct the respondents to restore the benefits, already allowed to him, if recovery made, be refunded to the appellant.
20.No orders as to cost. Parties be informed.