MUHAMMAD RAZA KHAN (MEMBER).---This appeal was unanimously allowed by the Tribunal vide a short order dated 19-6-1997. The facts and the reasons in the background of this appeal are narrated as under:
2. The appellant appeared in the C.S.S. Examination and after selection by the Federal Public Service Commission in 1983, he was inducted in the District Management Group. He was transferred to the Government of Sindh in the year 1988 and while working there, he was promoted by the Federal Government to B-18. The Government of Sindh appointed him to a post in B-20 i,e, ex-P.C.S. Cadre/service with effect from 6-8-1992 on regular basis, vide Notification No, SOI (S&GAD)-3/48/88, dated 15-12-1992.
3. The Establishment Division by Notification dated 31-12-1992 allowed the appellant to retain his lien in District Management Group against a post in B-18 for a period of three years from the date of his appointment under the Government of Sindh. He continued in the Government of Sindh.
Meanwhile, the services of the appellant were terminated by the Government of Sindh by Notification dated 27-10-1993 and in consequence whereof the Establishment Division directed the appellant to report for duty at Islamabad on 13th September, 1994, by 1700 hours, vide Notification dated the 10th of September, 1994. In response to this notification, the appellant vide letter dated 14-9-1994 addressed to the Secretary, Establishment Division, Karachi, informed that he had already submitted joining report on 22nd March, 1994. The Establishment Division vide memo. dated 10th October, 1994 informed the appellant that despite clear instructions contained in the Establishment Division's letter dated 10-9-1994 he had not resumed duty so far and as such he continues to be on unauthorized absence. The appellant responded to this letter on 14-10-1994 and submitted his joining report on 18-10-1994. He was served with a show-cause notice dated 20th October, 1994, by the Establishment Secretary, as Authorised Officer, under rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973. The appellant submitted reply to the show-cause notice, and by Notification, dated 25th October, 1994, he was posted as O.S.D. and on the same day was placed under suspension. Finally, by Notification dated 15-2-1995, the appellant was dismissed from service anda rule 5(1)(iv) of the said Rules. The appellant made a departmental appeal to the President of Pakistan on 5th March, 1995, which remained unresponded. He then preferred this appeal before the Tribunal under section 4 of the Service Tribunals Act, 1973, on 3-7-1995. He has prayed in this appeal that his dismissal order dated 15-2- 1995 be set aside and he be reinstated in service as he is a Grade-18 Officer of the District Management Group with all consequential benefits including the payment of pay and allowances for the period from the date the appellant is legally entitled to his posting in the Service of Pakistan or to pass any other appropriate order. The appellant, simultaneously feeling aggrieved by the order of Government of Sindh also filed appeal before the Sindh Service Tribunal, which was also pending. Before admission of appeal, pre-admission notice was issued to the Secretary, Establishment Division, for comments. The comments were filed and by order dated 15-7-1996, the appeal was admitted subject to all just exceptions. During the pendency of this appeal, further developments took place which are that while hearing the appeal, the learned counsel for the appellant produced copy of Notification dated 26-2-1997, whereby the earlier Notification dated 27-10-1993 of termination of the appellant as ex-P.C.S. (BPS-20) Officer was rescinded. The Government of Sindh subsequently issued another Notification dated 4th March, 1997, whereby the intervening period of the appellant from 27th October, 1993 to 26th February, 1997 was treated as duty for the purpose of pay and allowances and all other consequential benefits. The Government of Sindh by letter dated 19-3-1997 addressed to the Secretary, Establishment Division, requested that order, whereby the appellant was dismissed by the Federal Government, may be reviewed in the light of the latest development whereby the appellant was reinstated in service retrospectively.
This letter was not responded till the appeal came up for hearing on 29-4-1997 and we directed Mr. Zakaullah Jan, Section Officer, Establishment Division to place on record the decision of the Establishment Division and finally on 19-6-1997 he informed the Tribunal 1"- that letter had been responded and the Establishment Division did not agree to rescind the order of dismissal of the appellant.
4. We have heard Mr. Manzoor Ali Khan, learned counsel for the appellant at length. It is argued that the order of dismissal is without jurisdiction as the appellant being aggrieved by the order of termination of his service passed by the Sindh Government filed service appeal in the Sindh Service Tribunal as well as a representation to the Establishment Division on 22-3-1994 which amounts to his joining service under the Federal Government. It is argued that copy of termination order of the appellant was communicated to the Establishment Division but posting order was not issued and on the contrary he was directed to join by 1700 hours on 13-9-1994 by order dated 10-9-1994 and was given three days' time to report when this order was sent to Karachi which was duly responded by the appellant. It is submitted that even then his posting order was not issued by the Establishment Division but before that a show-cause notice was issued when he was neither on the strength of the Sindh Government nor was a Federal Government employee, therefore, all these proceedings are contrary to law. It is also submitted that summary procedure under rule 5 of the said Rules was adopted and no regular inquiry was held. It is contended that in such circumstances, regular inquiry under rule 6 was to be held. He vehemently argued that the appellant was posted as O.S.D. on 25-10-1994 and on the same day he was suspended, and all the proceedings were hurriedly taken to deprive the appellant from getting a fair order of posting. The contention of Mr. Manzoor Ali Khan, on the legal point, is that lien of the appellant was kept for three years and it was up to the appellant to have asked for joining the post under the Federal Government in case his services were terminated and the appellant chose to file appeal before the Sindh Service Tribunal which was pending. He pointed out that by now when the appellant has been reinstated by the Government 9f Sindh, the lien for three years from 31-12-1992 stands terminated. He contended that the appellant was asked to join under the Federal Government so as to initiate disciplinary proceedings and punish him with mala fide intention.
5. Comments have been filed and not a single paper has been annexed with the comments. Mr. Zakaullah Jan, Section Officer, has appeared on behalf of the Establishment Division and resisted the appeal and submitted that order has been passed by the competent Authority after observing the prescribed procedure as per rules. It is argued that the appellant was directed to resume duty but he failed, therefore, for unauthorised absence of 35 days, show-cause notice was issued, and the explanation put forth by him was not found satisfactory and consequently he was dismissed from service.
6. The appellant was an Officer in B-17 of District Management Group and was transferred to the Sindh Government where he was posted in various capacities and while serving there, he was promoted to B-18 on the terms settled by the Federal Government. In the year 1992, as the notification and the papers disclose, the Chief Minister of Sindh, in relaxation of reference to Public Service Commission, appointed the appellant on regular basis in B-20 with effect from 6-8-1992, meaning thereby that he was permanently absorbed under the Provincial Government of Sindh.
Realising this position, he requested the Establishment Division to keep his lien and this request was accepted and by Notification dated 31-12-1992 his lien in B-18 with the Federal Government was retained for a period of three years, and accordingly his lien had to be terminated with effect from 5-8-1995.
7. The appellant's services were terminated by the Government of Sindh vide Notification dated 27- 10-1993 and from that date till 10-9-1994 neither the appellant reported for duty nor asked the Establishment Division about the right of reversion on the basis of his lien being maintained by the Establishment Division nor the Establishment Division bothered to issue any notification but after a period of eleven months, directed the appellant to report for duty in the Establishment Division on 13-9-1994 by 1700 hours. The appellant has not been charged for unauthorised absence for that period. The question before us which requires examination is whether a person, whose lien is maintained, can ask for his posting or was it incumbent upon the appointing authority, where his lien was maintained to direct him to take over. The appellant was on transfer to the Government of Sindh from 1988 to 1992 under section 10 of the Civil Servants Act, 1973, and during that period he had the option to revert back to his original position as he continued to be the Federal Government employee and question of his lien being a transferee does not arise and during that period any disciplinary action if it was proposed to be taken could only be initiated by the Establishment Division. He ceased to be on transfer or on deputation from 6-8-1992 when he was appointed on regular basis in B-20 by the Government of Sindh, and from that day onward he could not be termed as transferee or deputations. The only benefit, the law gives to the lien holders, is that till they are confirmed they had the right of reversion.
8. Normally under the Service Laws a civil servant is supposed to serve in 'the Department or the cadre where he was recruited or originally appointed. However, due to the exigencies of service as well as keeping in view the career prospects of the civil servants, several provisions are made whereby the employee of one service or cadre is transferred, either as a matter of necessity, or at his own option, to any other service, cadre or post. Such transfers are somewhere stated to be foreign posting, posting on deputation and transfers under section 10 of the Civil Servants Act, 1973.
In certain cases a civil servant finds better service opportunities in another department or cadre of the Government where the initial appointment is on probation and the person joining the new service may not be able to adjust in the new circumstances, therefore, with the perMission of the previous authority, he is allowed to retain lien in the previous department for a prescribed period or till he is confirmed in the new department or he is promoted to the higher post. This type of arrangement is also termed, in the service rules, as the 'right of reversion'.
9. The transfers under section 10 of the Civil Servants Act, 1973, are regulated by the said Act and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. The transfers on deputation and foreign postings are regulated by the administrative instructions contained in the ESTACODE.
The issues of retention of lien and right of reversion are regulated by the fundamental rules. In view of the complexity of terminology, several confusions arise and resultantly a civil servant suffers the ultimate loss.
10.A civil servant has been made liable under section 10 of the Civil Servants Act, 1973, to serve anywhere within the country or outside Pakistan and such posting of a civil servant may either be under the 'Federal Government, Provincial Government, local authority, or an autonomous body established by the Government. However, it is provided that during such posting of a civil servant, (to any other department of the Government, Corporations, the Authority or any other Organisation) his terms and conditions shall not be less favourable to him as compared to the terms already guaranteed under the previous service. Thus, a transfer under section 10 of the said Act is a discretion of the Federal Government and consequently a liability or a duty of the civil servant concerned with the only exception that his existing terms and conditions of service should be protected. Such type of transfers are normally ordered by the Federal Government regarding the posting of the civil servants against various posts reserved for the employees belonging to the Federal Government. The present appellant was initially posted out to the Government of Sindh under section 10 of the Civil Servants Act, 1973, in the year 1988. At that time the appellant was an officer of B-18 in the Federal Government and he was transferred in the same scale to the Government of Sindh.
11.Transfer on deputation which is also termed, in the ESTACODE, as transfer to foreign service is normally the result of a contract between the Federal Government and the concerned department or organisation. Therefore, the transfer on deputation is distinct from the transfer under section 10 of the Civil Servants Act, 1973, because the latter one is the exclusive discretion of the Federal Government only whereas the former one is the agreement between the two agencies. Moreover, the transfer under section 10 of the said Act is for an indefinite period and the terms are settled by the Federal Government unilaterally whereas the transfer on deputation is for a fixed period only and the terms are settled bilaterally by the consent of the two departments. The Federal Government or the department in which a civil servant was working is termed as the 'lending authority' and the department, Government or organisation requiring the service of such a civil servant is called the 'borrowing authority'. The terms and conditions alongwith the period of deputation are negotiated and settled between both the departments etc. subject to the condition that the terms are not less favourable to the civil servant concerned. The borrowing authority can initiate disciplinary action against a deputationist, however, no final order can be passed and the report of such a disciplinary proceeding is submitted to the lending authority for an appropriate action by the Authorised Officer or the Authority in the lending department.
12. Contrary to both these concepts the retention of lien or right of reversion is based on entirely different principles. If a civil servant is appointed regularly in a new department, with the permission of the previous one, he is allowed to retain a lien in the previous department i,e, the parent department, and the civil servant concerned has the right to revert back to his parent department only on the happening of certain eventualities and not otherwise. The lien is retained by the parent department for a prescribed period or till the permanent absorption of such a civil servant in the new department. Thus, contrary to the transfer under section 10 of the said Act and the transfer on deputation, the civil servant is placed in an entirely different situation under the arrangement or retention of lien.
Firstly, it is his option that he chooses to join the new department and not the discretion of the parent department or the agreement between the one or the other departments.
Secondly, during the retention of lien the civil servant concerned practically cease to have any connection with his parent department except for his right to revert on the happening of certain events.
Thirdly, the parent department is ceased to have any right for recall the person concerned and similarly the new department is not authorised to repatriate such a civil servant to his parent department.
Fourthly, the new department is competent to take any action against the person concerned irrespective of the fact whether he had any connection with any other department or Government.
Fifthly, the civil servant concerned does not have a right to ask for his repatriation to his parent department in the normal situations except when the post against which he was appointed is abolished or he faces retrenchment or loses his service in the new department otherwise than the dismissal from service.
Lastly, the right of reversion continues till the expiry of the agreed period or the absorption i,e, the confirmation of the civil servant in the new department or his promotion to the next higher post, whichever is earlier.
Thus, the appointment in such a situation is entirely new and the person concerned practically severs his relationship with the parent department except the right of reversion.
13. With this view in the background, the appellant was transferred under section 10 of the Civil Servants Act, 1973, to the Government of Sindh in 1988. He was then in BPS-18. This position continued for four years. Thereafter, he was appointed against a regular post on a regular basis in BPS-20 with effect from 6-8-1992. Since this was a fresh appointment on regular basis against a higher post, therefore, practically the appellant ceased to be a civil servant of the Federal Government with effect from 6-8-1992. The original order dated 15-12-1992 appears to have been passed without the concurrence of the Establishment Division. However, the Establishment Division issued ex post facto sanction of retention of lien to the appellant vide order dated 31-12-1992 for a period of three years. Hence, the appellant had the right of reversion till 5-8-1995.
14. As stated hereinbefore, the services of the appellant were terminated on 27-10-1993 and he had a right to revert to the parent department just after the said date. The Establishment Division, being the parent department, was bound to accept him against a post in BPS-18 till 5-8-1995. However, in view of the above discussion the Establishment Division was not competent to issue a direction to the appellant to join the service in the parent department nor was it competent to take any disciplinary action against him for his failure to join the said service. Similarly, the appellant did have a right to report to the Federal Government for duty but this was his option only. It appears that he simply informed the Federal Government about the termination of his service by the Government of Sindh but he preferred to seek his legal remedy by way of service appeal etc. and, therefore, he had no intention of joining the service of the Federal Government for almost one year. and even thereafter. He was irregularly compelled by the Federal Government to join and consequently he reported for duty. Thus, the letter issued by the Establishment Division on 10-9- 1994 directing the appellant to report for duty by 13-9-1994 was without any legal basis. The second letter dated 10-10-1994 declaring the appellant on unauthorised absence was also without any justification for the reasons that the presence is required of a civil servant who belongs to a particular service or department. Since the appellant had severed his connection with the Federal Government, therefore, he could not be treated to be absent' either authorized or unauthorized, till he resumes his duty in the Federal Government and thereafter commits any breach. For the first time the appellant reported for. duty vide joining report dated 18-10-199$ and the posting order. of the appellant as O.S.D. was issued on 25-10-1994. Thus, it can be presumed that the appellant exercised his right of reversion on 18-10-1994 whereas a show-cause notice was issued by the Authorised Officer on 20-10-1994 relating the period when the appellant had practically not joined the service by exercising his right of reversion. Therefore, the show-cause notice had no support from the legal provisions and the charge of 'unauthorised absence' from 13-9-1994 till 18-10-1994 was without any basis.
15. Even the charge of absence from 27-10-1993 till 18-10-1994 has no force. As stated earlier, the appellant could not be asked to report for duty till he exercised the right to. report as such and, at the most, the appellant could have been charged (after his voluntary report) about his failure to exercise the right of reversion for a period of almost one year after the termination of his service by the Government of Sindh. On this ground the report for duty could also be refused and the lien of the appellant could be terminated for his wilful negligence to exercise the right of reversion expeditiously. However, none of the said actions was taken rather the appellant was compelled to report for duty only to face disciplinary proceedings and consequently to be dismissed from service. The entire proceedings with effect from 10-9-1994 till 15-2-1995 were without any legal authority as stated hereinabove and, therefore, cannot be upheld.
16. For the foregoing discussion we are convinced that the impugned order dated 15-2-1995 was without any legal force and, therefore, the dismissal of the appellant was unwarranted. The situation developing thereafter also suggests the same sequence of events. The appellant had been pursuing the remedy before the Sindh Service Tribunal and had also approached the Provincial Government where he is reported to have been reinstated and the order of termination from service dated 27-10-1993 has been recalled with all the consequential benefits and, therefore, the appellant is presumed to be in service of the Government of Sindh continuously from 1992 till to-day without any break and, at the most will be deemed to have retained the lien till 5-8-1995 i,e, the expiry of the period of three years from the date of his selection against the said post.
Consequently we accept this appeal and set aside the order dated 15-2-1995. The request of the prayer regarding consequential benefits etc. has already been allowed by Government of Sindh.
15. No order as to costs.
16. Parties to be informed accordingly.