CH, MUHAMMAD ARIF, J.---Leave was granted to consider whether the Tribunal was justified in remanding the case to the department after the services of the respondent had been terminated in terms of his appointment, letter.
2. Respondent was working in the Ministry of Defence Production Division, Project P.711, Taxila Cantt., ever since 1-2-1975, in BPS-18. He succeeded in obtaining his appointment as Principal/Project Director. Polytechnic Institute for Boys, in BPS-19 in the Ministry of Education, S and TE Wing, Government of Pakistan through Letter No.F.5-2/87 (Agrotech), dated 16-10-1989. After his selection/appointment, the approval of the Secretary, Defence Production Division was also formally communicated for the release of the respondent to appoint him as Principal/Project Director, Polytechnic Institute for Boys, Islamabad vide DPD U.O. No.5/107/DP-6/89, dated 13-11-1989.
He continued working in his said post for about 3-1/2 years when his services were terminated on 26-5-1993 under the Government of Pakistan, Ministry of Education (S & TE) Wing 'Notice' under the signatures of Zahid Ahmed, Senior Research Officer, which reads thus:- "In compliance with the decisions of the Board of Governors of Polytechnic Institute for Boys, Islamabad meeting, dated 17th May, 1993; Mr. Viqar-ul-Haq Principal/Project Director, Polytechnic Institute for Boys, Islamabad is informed that his service will no longer be required after 26-6-1993 (A.N.). As such the period from 27-5-1993 to 26-6-1993 (A.N.) be treated as notice period as per terms and conditions of his appointment contained in the Ministry's letter of even number, dated 16th October, 1989."
' His departmental appeal against order, dated 26-6-1993 remaining unsuccessful, he made an appeal under section 4 of the Service Tribunals Act (No.LXX of 1973). This was allowed by the Federal Service Tribunal on 30-9-1993 with the observation that the' case of the respondent be referred to the Establishment Division for giving effect to the law on the subject in relation to his lien with his parent department. The operative part of the Order, dated 5-10-1993 reads as under:-- "The appellant (respondent herein) shall be reinstated into service and is also held that the appellant shall be considered to have worked continuously as Principal/Project Director from the date of so-called termination vide order, dated 26-5-1993 which was void and taken in violation of the Civil Servants Act, 1973. The case is, therefore, remanded to the respondent Department for resolving the issues in consultation with the Establishment Division and his last/parent Department under the above directions. If after fresh decision, the appellant still feels aggrieved, he will be at liberty to approach the Federal Service Tribunal in this context.
3. We have heard Raja Abdul Ghafoor, Advocate-on-Record in support of the case of the appellants and Mr. Shah A. Rashid, learned counsel appearing on behalf of the respondent. Raja Abdul Ghafoor has argued that as the services of the respondent were dispensed with by the competent Authority i.e. The Board of Governors of Polytechnic Institutes for Boys as per the terms and conditions of his appointment letter, the learned Federal Service Tribunal was in error in remanding the case to the* Department. According to him, the question regarding availability or otherwise of any lien to the respondent is of no importance as the Federal Government had specifically pleaded that the HIT was made a party in the case "... To the extent that his lien should have been retained/protected in his parent department (HIT) till his permanent absorption in the Ministry of Education." Respondent's parents department had also pleaded before the Federal Service Tribunal that he was not on deputation with the Ministry of Education, therefore, he was not supposed to return to HIT against his previous post which had been filled there, through departmental promotion.
4. Mr. Shah A. Rashid has vehemently contended that the respondent was possessed of the right to be repatriated to his parent department by the Ministry of Education, if it were to terminate his services there as proviso to clause (i) to subsection (1) of section 11 of the Civil Servants Act, 1973 mandates to the effect. He has also pressed into service F.R. No.14-A (a) to contend that the lien of a Government servant on a post can in no circumstances be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post. Cases reported as Mazhar Ali v. Federation of Pakistan/President of Pakistan through the Secretary, Establishment Division, Cabinet Secretariat and 2 others (1992 SCM R 435) and Syed Sajjad Hussain v. Secretary, Establishment Division, Cabinet Secretariat, Islamabad and 2 others (1996 SCM R 284) have also been pressed into service for maintaining the order of the Federal Service Tribunal.
5. We have considered the arguments addressed at the bar and have also been taken through the available material. It may be noticed at the very outset that the Secretary (Defence Production)
Defence Division, Ministry of Defence, Government of Pakistan was one of the respondents before the Service Tribunal but he neither joined the appellants in this appeal nor the appellants have even so much as impleaded them as respondent. It is not the case of the appellants that the respondent was confirmed on any post by the Federal Government. The observation in the impugned order, dated 5-10-1993 that the termination of the services of the respondent "as no longer required after 3-1/2 years" by appellant No.1 was in conflict with the provisions of the Civil Servants Act, 1973 particularly with section 11 thereof", as he was to be reverted to the last/parent Department", has not been shown to be suffering from any taint whatsoever. The aforementioned F.R. 14-A(a) reads thus:-- "Except as provided in clause (c) of this rule and rule 97, a Government servant's lien on a post may in no circumstances be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post."
' This rule, alongwith others and the matter in relation to the retention of his lien by a civil servant on the post in his parent department, came up for decision before this Court on more than one occasions and both the precedents relied upon by the learned counsel appearing on behalf of the respondent appropriately lend support to the impugned judgment, dated 5-10-1993 when it is held that lien of a permanent civil servant cannot be terminated even with his consent and that the same could be terminated only when he was confirmed against some other permanent post.
There is nothing on the record to show that respondent was confirmed under appellant No.1 and, therefore, the entitlement of the petitioner to retain lien in his parent department is beyond any question. The direction issued by the Federal Service Tribunal in its judgment, dated 5-10-1993 has not been shown to be lacking in any measure whatsoever. The recognition of the right of the respondent to go back to his parent department and to have the matter resolved by all concerned with their mutual mediation/consultation, after his case is referred to the Establishment Division for .The said purpose, cannot but be upheld.
6. For all that has gone before, the appeal is dismissed leaving the parties to bear their respective costs.