' CH. MUHAMMAD ARIF, J.---Brief facts leading to this appeal by leave of the Court against the dismissal of appellant's Appeal No,81 (R) of 1992 on 1-11-1995 by the Federal Service Tribunal Islamabad, hereinafter referred to as 'the Tribunal', are that he was recruited as peon at Air Headquarters, New Delhi, India on 3-5-1945. After partition, the appellant opted for Pakistan and was posted at Air Headquarter, Peshawar. He was transferred and posted to G.H.Q. On 1-7-1950 and, subsequently, obtained promotion as L.D.C. His case before the Tribunal was that having been selected as U.D.C., he went on deputation to C.D.A, Islamabad with effect from 7-11-1962, where he was promoted as Head Clerk. He remained on deputation till 9-10-1997, when he reverted back to his parent department vide G.H.Q. Letter dated 14-9-1997 and posted to Naval Headquarter in Islamabad as L.D.C. During the period from 17-11-1962 to 14-9-1991 his promotion was kept in abeyance by the G.H.Q. For the reasons best known to them. His innumerable applications to the competent Authority for finally resolving his case for senioritv-,zum- promotion did not meet with success. He is still being treated as L.D.C. (B-5) and drawing Rs,454 as basic pay for the last 14- years, without any increment or any other benefit. Including periodic revision of pay. He should have been given pro forma promotion as U.D.C. (B-7) and Assistant (B-11) with effect from 26-11-1968 and 27-7-1977 respectively, as indicated in G.H.Q.
Letter No,0126/498/A.4 dated 12-4-1987. Moreover, his junior, Mr. Wakil-ud-Din, was confirmed as L.D.C. With effect from 16-2- 1970 and another colleague namely Muhammad Ramzan, who remained on deputation with C.D.A with effect from 24-10-1964 to 31-12-1975, like him, was given his due promotion as U.D.0 and Assistant with effect from 31-12-1975 and 1983 respectively but the appellant was discriminated against.
2. On his last representation, the C.M.A. (Pay Section) Rawalpindi observed, on 11-4-1982, as under:-- "In case the lien of P.I 7609 Mr. Muhammad Ramzan was not suspended, terminated he would have enjoyed the same position on reversion to parent department, which, he would have obtained, had he not been transferred vide Rule of F.R. And S.R. Vol.l.".
3. Respondents-Chief Administrative Officer, G.H.Q. Rawalpindi and Deputy Chief Administrative Officer Naval Headquarter, Islamabad were urged by the Controller of the Military Accounts to grant pro forma promotion to the appellant as U.D.C. And Assistant when the same were due to him respectively from 26-11-1966 and 27-7-1977, after getting the period of his stay on deputation, regularized by the competent Authority.
4. The Naval Headquarter moved and recommended his case to the Government of Pakistan for regularization of the disputed period on 5-11-1987 but the same was rejected vide letter, dated 29-10-1991, with the following observations:-- "Further, memo at reference 'B' Ministry of Defence, have not agreed to grant pro forma promotion to NC-297, Mr. Muhammad Ramzan, Assistant for a period he remained on deputation to C.D.A. And other departments/offices."
' Afore quoted order, dated 29-10-1991 was made the subject-matter of a representation, dated 12-11-1991 to the Appellate Authority/Establishment Division. However, it was not responded to within 90 days whereafter Appeal No,81 (R) of 1992 was submitted before the Tribunal on 27-2-1992.
5. After-hearing both sides before it, the Tribunal came to the conclusion that the appellant should have gone back to his parent department and that in that case he would have been posted against some permanent post of L.D.C. And later on promoted to higher posts though initially he would have suffered financially but "would have ultimately got the promotion in his parent department or he should have got himself absorbed in C.D.A. Service as it was done by many other employees.
Since he did neither, he has to suffer for his own action."
6. Paras. 4 to 6 of the Leave Grant Order read thus:-- "4. Feeling aggrieved, the petitioner after filing a departmental representation/appeal which was not responded to preferred a service appeal before the Federal Service Tribunal which was dismissed as time-barred. Petitioner then approached this Court.
His appeal (C.A. 805 of 1992) was allowed by this Court, order of the Federal Service Tribunal dismissing his service appeal on the ground of limitation was set aside and the case was remanded to the Tribunal to decide the appeal on merits. This was vide judgment, dated 30-4-1995.
5. On remand, the learned Tribunal after examining the entire history of the case dismissed the petitioner's appeal holding that when his junior colleagues were promoted as U.D.Cs. Or assistants, he neither agitated against their promotion nor did he try to get back to his parent department to demand the same benefit for himself. Instead, he went on further deputation for three years to Islamabad Model Colleges for Girls as a Head Clerk B-11. It is observed by the Tribunal "He knew that his substantive post was that of a peon, his reversion back to the parent department would obviously have landed him in that post and, as such, it was not acceptable to him as it would have reduced his emoluments,---'. The view expressed by the learned Tribunal was that the petitioner should have gone back to his parent department where he would have been posted against some permanent post of L.D.C. And later on promoted to higher posts or he should have got himself absorbed in C.D.A. Service as was done by many other employees."
7. Hence, this appeal.
8. It may be stated at the very outset that the learned Law Officer, has entered appearance on Court's notice, dated 15-10-1998 and that Mr. Muhammad Shabbir-ur-Rehman GSO-III G.H.Q. Rawalpindi, respondent No,3 has appeared in person to submit that appellant's service record has been misplaced. However, he sought to contend, with reference to the entries in the service book of the appellant, that he was not sent on deputation to C.D.A. He had, in fact, applied for the post of U.D.C. In C.D.A. And was appointed, after selection on 17-11-1962, there. The Officer further submitted that from C.D.A., the appellant went to Energy Resources Cell (Ministry of Fuel, Power and Natural Resources) and remained there up to 31-5-1975. While in that Cell, the appellant applied for the post of Steno-typist in Islamabad Junior Model School where he was appointed on 1-6-1975. He was later appointed as Head Clerk in that School on 1-11-1976 and continued to work as such 9-10-1977. Thereafter, appellant joined Naval Headquarters as L.D.C. On 10-10-1977.
9. We have heard Mr. Shah Abdur Rashid, Learned Advocate Supreme Court appearing in support of this appeal, respondent No,3 Mr. Shabbir-urRehman, in person and Mr. Maulvi Anwar-ul-Haq, learned Law Officer.
10. It appears that the service record of the appellant is not available. Respondent-Mr. M. Shabbir-ur-Rehman, GSO-III G.H.Q., was in possession of an office file containing some relevant material in relation to the service career of the appellant indicating various steps taken by the respondent-authorities in that behalf. The learned Law Officer was directed to procure the record from the authorities concerned but even he had to fall back upon the office file with Mr. M. Shabbir-ur-Rehman, GSO-III G.H.Q.
11. Mr. Shah Abdur Rashid, learned Advocate Supreme Court has argued that the fact that persons junior to the appellant were promoted as U.D.Cs. And Assistants in situations which are totally akin to that of the appellant, his client is also entitled to equal treatment in this matter. Referring to Fundamental Rules 113 and 9(7) it was contended that the appellant was entitled to substantive under/or officiating promotion during the currency of his deputation with C.D.A. Etc. The period of deputation exceeding 5 years was, in fact, regularized on 5-11-1987 by the respondent-Government in the following terms:-- "In relaxation of Rule No,113 F.R., S.R. And S.R. Vol-1, I am directed to convey the sanction of the President of Pakistan to regularize the period of deputation in respect of Mr. Muhammad Ramzan Khan, Assistant Naval Headquarters to Capital Development Authority, Islamabad from 17-11-1962 to 10-10-1977."
According to him, the decisions/reports/judgments in Muhammad Arshad Sultan, Section Officer, Cabinet Division, Islamabad and another v. Prime Minister of Pakistan, Islamabad and others (PLD 1996 SC 771) clearly support the proposition that the term "Deputationist" is defined to be a Government servant who is appointed or transferred through the process of selection to a post in a department or service altogether different from the one to which he permanently belongs. Such a Government servant continues to enjoy this status so long as he holds the new post in an officiating 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. He was also of the view that yet another precedent of this Court namely Syed Sajjad Hussain v. Secretary, Establishment Division, Cabinet Secretariat, Islamabad and 2 others (1996 SCM R 284) also helps his client when it rules that lien of a permanent civil servant could not be terminated even with his consent and same could be terminated only when such civil servant was confirmed against some other permanent post. The arguments of the learned counsel for the appellant were not contested by Mr. Maulvi Anwar-ul- Haq, the learned Deputy Attorney-General for Pakistan, but, Mr. M. Shabbir-ur-Rehman GSO-III was adamant in sticking to his stand, as detailed in the above paras, to the effect that the appellant remained dormant in the matter of coming back to his parent department in time and also in not making any move in relation to obtaining his advancement in his service career and, therefore, the impugned judgment of the Tribunal cannot be interfered with.
12. We have considered the arguments addressed at the bar by the learned counsel for the appellant and have also perused the material brought by Mr. M. Shabbir-ur-Rehman i.e, "office file". The said office file, inter alia, contains the following entry at Serial No,38:-- LOWER DIVISION CLERKS.
"STRENGTH INCREASE.
"36. ............ -G.H.Q.
"37. ........... - do - "STRENGTH INCREASE.
"38. PI-7609 Mr. Muhammad Ramzan, Pt.Peon/Ty.L.D.C.- do - Consequent on his appointment as U.D.C. in the Capital Development Authority , his services transferred to that Authority w .e.f, 17-1 1-1962(FN) and , s.o.s., from the same date."
There is force' in the contention being raised on behalf of the appellant to the effect that the learned Tribunal did neither consider the dicta in Muhammad Arshad Sultan and Syed Sajjad Hussain (supra) nor the appellant could, in law, be denied the increase in his status as an employee. It is trite law that a civil servant cannot contract out of his terms and conditions of service. The situation which presents itself to a civil servant in relation to his deputation-period is to be attended to by his employer in accord with the service law/rules. Fundamental Rules 9(7) reads thus:- "(7) Foreign service means service in which Government servant receives his substantive pay with the sanction of the Government from any source other than the revenues of the Governor-General or of a Province or the Railway Fund (when established).
Fundamental Rules 113 is to the following effect:-- "(i) A Government servant transferred to foreign service shall remain in the cadre or cadres in which he was included in a substantive or officiating capacity immediately before his transfer may be given such substantive or officiating promotion in these cadres as the authority competent to order promotion may decide. In giving promotion, such authority shall take into account--
(a) the nature of the work performed in foreign service, and
(b) the promotion given to juniors in the cadre in which the question of promotion arises.
"(ii) Nothing in this rule shall prevent a member of a Subordinate Service from receiving such other promotion in Government service as the authority who would have been competent to grant the promotion had he remained in Government service may decide."
Here, even the excess in the deputation-period was regularized on 5-11-1987. It is not the case of the respondents that appellant's junior namely Mr. Wakil-udDin was confirmed as L.D.C. With effect from 16-2-1970 and another colleagues of his namely, Muhammad Ramzan, was given promotion as U.D.C. And Assistant with effect from 31-12-1975 and 1983, respectively.
Moreover, there is failure on the part of the respondents to consider the case of the appellant in line with the cases of persons similarly placed as him generally and of Muhammad Ramzan, his name sake, in particular. The observations made by the Tribunal in the impugned judgment that the appellant should have gone to his parent department for posting against some permanent post of L.D.C. And later on promoted to higher posts, cannot but be held to be totally of the mark. The period of deputation in excess of 5 years having been regularized by the respondent-Government on 5-12-1987, there was no impediment any more in the matter of undoing the wrong done to the appellant in this case.
12. The above are our reasons for the short order, dated 19th October, 1998 which reads thus:-- "For the reasons to be recorded later, the appeal is allowed and the judgment of the Tribunal is set aside. The respondents are directed to consider the appellant for promotion as U.D.C. And Assistant from the date his juniors were promoted."# No costs.