' MUHAMMAD RAZA KHAN (MEMBER).---The appellant joined the service in the Foreign Office as UDC in 1962. He was promoted as Assistant in 1976. In the year 1980 he fell ill and was declared to be permanently incapacitated by the relevant Medical Board and, therefore, unfit for any kind of service vide the report, dated 10-1-1981. Consequently the appellant was retired from service on the medical grounds and disability pension was allowed to him. At that time, the appellant was 41 years old, having eighteen years' service at his credit. It appears that, after 3-1/2 years, the appellant recovered from the said disability and he requested the Department for his reinstatement in service. He was referred to another Medical Board which declared him fit for service vide report, dated 11-8-1985. It is alleged on behalf of the appellant that his appointment was delayed and the matter was referred by the Foreign Affairs Division to the Establishment Division and finally the summary was moved to the Prime Minister whereafter the Foreign Officer was allowed by the Establishment Division to re-employ the appellant after obtaining another opinion of the Medical Board. The second Medical Board was held on 22-4-1996 whereafter, the appellant was reemployed vide, memo. Dated 5-6-1996 as an Assistant in BPS.11. Five months thereafter the appellant filed a representation asking for the benefits for the intervening period and for action under CSR-519. This representation was forwarded by the Ministry of Foreign Affairs to the Establishment Division on 17-3-1997 and consequently the present appeal has been filed on 21-3- 1997 asking for the conversion of fresh appointment into reinstatement in service with all the consequential benefits.
2. As a result of notice the comments were filed on behalf of respondent No,
1. We have listened to the arguments of the learned counsel for the appellant and the representative of the respondents.
3. At the very outset it may be stated that the appellant had filed the present appeal under section 4 of the Service Tribunals Act, 1973, but no order, either original or appellant is in the field from which he may be deemed to have been aggrieved. He was re-employed in service vide an order, dated 5-6-1996 and if the appellant had been aggrieved from the said order, he should have filed appeal/representation within a period of 30 days thereof. The representation filed on 23-11-1996 was barred by time and even the same has not been decided as yet so that the appellant might challenge the appellate order. An application for condonation of delay has been filed on behalf of the appellant wherein it has been stated that the appellant remained upset "due to insurmountable difficulties surrounded by the adverse circumstances for which he could not prefer departmental appeal against the unjust and illegal modus operandi of the respondents" and, therefore, it was prayed that the delay in filing the departmental appeal, if any, may be condoned.
Under section 7 of the Service Tribunals Act, 1973, the provision of section 5 of the Limitation Act has been made applicable to the appeals to the Tribunal but the said section has not been made applicable to the Civil Servants Act, 1973. Therefore, if an appeal to the Tribunal is filed beyond the prescribed period of 30 days from the appellate order the Tribunal can certainly look into the grounds mentioned in the application for condonation of delay to examine whether there was any justification for each day of delay. However, the Tribunal cannot condone the delay in filing the departmental appeal because such an appeal/representation is not filed before it an, therefore, section 7 of the said Act will not be applicable to the departmental appeal/representation. So far as the present appeal is concerned it is certainly within 120 days from the date of filing the departmental representation and, therefore, the question of condonation of delay does not arise.
However, the departmental representation was certainly belated and section 5 of the Limitation Act is not applicable to the filing of the departmental appeals or the representations and hence the delay in that regard cannot be condoned, at least by this Tribunal.
4. As stated earlier there is no order whereby the appellant may be aggrieved with regard to the vested terms and conditions of his service. The order, dated 5-6-1996 cannot be considered to be the original impugned order affecting adversely the terms and conditions of the service of the appellant because the said order is the original order whereby the appellant has been re- employed into service. That order has itself created the terms and conditions of service of the appellant and, therefore, the same order cannot be considered to be adverse to the terms and conditions created by itself. There must be an earlier order whereby the appellant was vested with certain rights and then the order, dated 5-6-1996 can be presumed to be adversely affecting the said vested rights or there may be any subsequent order whereby the terms and conditions guaranteed vide, letter, dated 5-6-1996 should be claimed to have been violated. An order can never be considered to be creative and violative itself.
5. The claim of the appellant is that he should have been given the benefit of CSR-519 and should have been restored to his original position with all the consequential benefits. Although the Respondent-Department has stated that with the promulgation of the Fundamental Rules, the said Civil Service Regulation has become inoperative yet the perusal of the said Article 519 of the CSR also show that it does not help the appellant in any manner. The said Article is reproduced as under:-- "(519) There is no bar to the re-employment of an officer who has regained health after obtaining invalid Pension, or if an officer is Invalid as being incapacitated for employment in a particular Branch of the Service, to his re-employment in some other branch of the Service. The rules in such a case as to refunding gratuity, drawing pension, and counting Service, are the same as in the case of reemployment after compensation pension."
6. A perusal of the said Article will show that the term "re- employment' has been used and not the term "reinstatement". With the reinstatement in service a person is entitled to continue the previous position held by him prior to the happening of particular event whereas the term "reemployment" denotes that a person is employed afresh. Hence even under the said CSR the appellant could demand his re-employment and by the impugned order, dated 5-6-1996 he has been re- employed and thus, subject to our discussion in the rest of the paragraphs, the impugned order does not violate the said regulation as well. At the most, by taking benefit of the said regulation, the appellant can ask for the counting of the previous service rendered by him prior to invalidation on medical grounds but the said regulation does not authorize a civil servant to demand the continuation of service with all the consequential benefits of fixation of pay, seniority etc. Etc. Like the benefits permissible at the stage of reinstatement in service. With this view of the matter, we hold that the prayer for conversion of fresh appointment into reinstatement on the basis of CSR- 519 in misconceived.
7. It was argued on behalf of the appellant that since he was declared medically fit in 1985, therefore, he should have been considered to the benefits of service at least from 11-8-1985 when he was declared fit for service. As stated in the preceding paragraph, it was not the right of the appellant to have asked for reinstatement after the removal of the cause of invalidation as per CSR-519 but it was the discretion of the Department to have passed the orders of his re- employment or otherwise. Reinstatement is a right of the civil servant, if so permissible by law, but re-employment is not a right of the civil servant and it was the discretion of the employer department. The Department has considered the appellant's case in 1985 but since, as stated by the representative of the Department, the re-employment was not within the purview of the Foreign Affairs Division, therefore, the case had to be processed by the competent Authority. Had it been a case of reinstatement, the. Foreign Affairs Division was certainly competent to have issued the orders but in case of re-employment the relevant authority had to be approached. In this process the Foreign Affairs Division, having all the sympathies with the appellant, approached the Establishing Division for his re-employment on the basis of the second opinion of the Medical Board of 1985. However, the Establishment Division advised that the approval of the Prime Minister was necessary for re-employment and consequently the Summary was processed and after obtaining the necessary green signal from the authorities concerned, the orders were passed for the re- employment of the appellant. Thus, there is no violation of any vested right of the appellant and he has been treated in accordance with law, rules and the regulations, particularly CSR-519.
8. It may also be mentioned that the appellant had earlier filed Appeal No,228(R) of 1991 which was dismissed on 19-5-1992 followed by a Miscellaneous Petition for review bearing No,134 of 1992 which was also rejected on 14-3-1993..In the said proceedings the appellant had demanded his reinstatement in service with effect from 1985 and the same was dismissed on technical grounds.
However, the appellant did not seek appropriate remedy and thus the findings had attained finality and the relief with effect from 1985 could not, therefore, be allowed in view of the said judgment.
9. , In view of the foregoing observations we do not find any force in this appeal which is hereby dismissed with no order as to costs.
10. Parties to be informed accordingly.