' SYED DEEDAR HUSSAIN SHAH, J.---Petitioners seek leave to appeal against the judgment of the Federal Service Tribunal, Islamabad, dated 8-12-2000, whereby Shah Muhammad Chaudhry respondent's appeal was allowed.
2. Brief facts of the petition are that the respondent was originally in service of the Government of Punjab and was posted as Instructor (Mech.) in B-17 in Government Polytechnic Institute, Sargodha.
In the year 1981, in open competition, the Selection Board of the petitioners selected the respondent as Superintending Engineer (Mechanical) in PSE-IV with three advance increments vide letter dated 11-6-1981. Since he was already in Government service, he joined the petitioners on deputation, where he worked with full devotion and dedication for about eight years. In the meanwhile, steps were taken for absorption of the respondent. His parent department also allowed him move-over from B-17 to B-18 with effect from 1-12-1984. In the year 1984, the petitioners managed a fellowship with the Australian Development Assistant Bureau. Respondent successfully undertook the study and also qualified Post-Graduate Diploma in Transport. Keeping in view his meritorious and unblemished service with the petitioners, as Superintending Engineer (Mech.), with the approval of the competent authority, a High Powered Committee recommended his absorption as Deputy General Manager in PSE-V w.e.f 7-10-1989 on regular basis in view of his long service for 30 years up to 6-10-1989. The recommendations were approved by competent authority on 14-4- 1990. Consequently, respondent' was directed to get release/retirement from the parent department vide Memorandum dated 18-9-1989. Since the respondent was assured by The High Powered Committee and higher Management of the petitioners that he would be given the post of DGM within nine months from the completion of his deputation period i,e, 6-10-1989, he was compelled to submit an application for his voluntary retirement with effect from 6-10-1989. All this process was carried on at the instance of the petitioners, with the result that the respondent was retired from his parent department. When the notification pertaining to his release/retirement was received, he was absorbed as DGM (Tech.) with effect from 7-10-1989 vide Notification dated 18-4- 1990. The respondent thereafter remained posted as DGM with the petitioners up to 21-7-1992. In the meantime,. Rationalization Committee was formed by the petitioners, and on the recommendations of the said Committee about 9000 officers were supposed to be brought at 1-1- 1998's position, therefore, the respondent was reverted from the post of DGM to that of the post of Manager (Tech.) vide letter dated 21-7-1992. The respondent filed departmental appeal on 20-8- 1992, which was rejected on 10-11-1992. Thereafter, Reinstatement Review Committee was constituted and such recommendations were made. Subsequently, another Committee was instituted in the year 1996. During this period the respondent used to send appeals and the last of them was filed on 24-10-1997, which was finally responded on 31-12-1998, against which he filed service appeal on 3-2-1999 but the same was dismissed by the Federal Service Tribunal on 21-4- 1999. Feeling aggrieved, the respondent approached this Court through C.P. No,363-K of 1999, which was allowed and setting aside the judgment of the Tribunal the case was remanded to it for decision on merits.
3. After hearing the parties the Federal Service Tribunal found that the respondent during the course of proceedings had been retired from service on 1-2-1999, as such the Tribunal allowed the appeal, set aside the order, dated 21-7-1992 and observed that the respondent was entitled to difference of pay and allowances as he was entitled to get the same being DGM, and the petitioners were, directed to pay difference of pay and pensionary benefits right from the day when he was reverted till his retirement, hence this petition.
4. Mr. M.G. Dastgir, learned counsel for the petitioners, inter alia, contended that the Federal Service Tribunal did not appreciate that the respondent was reverted as DGM by the letter, dated 21-7-1992, the departmental appeal filed by him on 20-5-1992 was rejected on 10-11-1992, therefore, the appeal filed by the respondent on 3-2-1999, after his retirement and expiry of about 7 years was time-barred and it was rightly dismissed by the Tribunal on 21-4-1999. That the respondent should have approached the appropriate and competent forum within time, but on the contrary he arbitrarily and at his own risk spent valuable period in making unauthorized appeals for which there was no legal provision; that the judgment passed in the abovementioned C.P. No, 363-K of 1999 does not show that the question of limitation was conclusively decided by this Court, that the case of the respondent was past and closed transaction and he was not entitled to the benefit of section 2-A of the Service Tribunals Act, 1973, that the promotion of the respondent as DGM was contrary to Pakistan Steel Mills. Officers Service Rules, and it was rightly recalled reverting the respondent to the post of Manager.
5. Mr. Ali Akbar, learned Advocate-on-Record for the respondent, vehemently contended, that the order of the Tribunal was challenged by the respondent through C.P.No,363-K of 1999, referred to above, which was accepted, the order of the Tribunal was set aside and the case was remanded to the Service Tribunal for decision, on merits, and the observations made by this Court, in any case, were rightly considered by the Tribunal that the case of the respondent was duly considered by the High Powered Committee, which promoted him as DGM
6. We have heard the learned counsel for the parties and perused the material available on record.
It is an admitted fact that the respondent was inducted into service of the petitioners in a very open and transparent manner by inviting application and holding proper interview and at the behest of the petitioners he got himself retired from Education Department, Government of Punjab. . It is also borne out from the record that no charge of misconduct or corruption was ever made against the respondent, inasmuch as he served the petitioners with dedication and devotion with blotless record. His case was pending before the Review Committee and after decision of the Committee he approached the Federal Service Tribunal, but on technical grounds his appeal was dismissed and the said order was set aside by this Court. It would be pertinent to refer to the relevant paragraphs of the impugned judgment which read as under:- "7. As regard, the question of limitation concerned, the point so agitated by the learned counsel for the respondents already stands resolved in para. 4 of the order in C.P. No,363-K of 1999 by the Hon'ble Supreme Court of Pakistan, which is as under:- "4. Perusal of the impugned judgment of the Tribunal indicated that such fact has been completely overlooked by the Tribunal in its impugned judgment. In case the petitioner's case had been referred to the said Committee and there it remained pending for decision, there was no occasion for him to approach the Tribunal unless a final decision was taken in this regard. Consequently, the finding of the Tribunal that the case of the petitioner had become time-barred appear to he requiring reconsideration."
' Even otherwise in case the respondents would have been vigilant, they could have made such mention in the reply letter, dated 31-12-1998 that the appeal of the appellant was already rejected but this mention doesn't find place therein. Bare perusal of the letter would show that the same was purely rejected on merits, in such circumstances, it cannot be said at this stage that the appeal filed by the appellant is hit by limitation. Similar is the position of the other ground taken by the learned counsel for the appellant that he worked for three years as DGM from 1989 to 1992 under the order of the respondents, then the appellant could not have been reverted by the respondents by issuing mere letter of reversion without affording proper chance to defend him. In such a situation, it has rightly been argued that legal right had been accrued to the appellant, as such, under the rule of locus poenitentiae, the appellant could not have been thrown away, as has been done in this case.
8. As regard the question that the appellant was wrongly promoted, we are of the view that the stand taken by the respondents in their letter, dated 21-7-1992 is purely based on wrong assumption as it was not at all a case for promotion but absorption which is clearly mentioned in Memorandum dated 18-4-1990 ibid. Since the reversion had taken place without charge- sheet/show-cause notice and without affording any chance to the appellant to defend his case, we are of the view that the same cannot be sustained. It is pertinent to bring on record that the appellant during the course of proceedings has retired as is evident from his application dated 14- 12-1998 and the date of his retirement as shown therein is 1-2-1999, in such circumstances, there is no question of reinstatement because the appellant had since retired. As such, now there remains question of benefits consisting of difference of pay and so also the pensionary benefits.
Accordingly we accept the appeal set aside the impugned order, dated 21-7-1992 and hold that the appellant is entitled to 'difference of pay and allowances as he was entitled to get the same being DGM, as such respondents are directed to pay difference of pay the pensionary benefits right from the day when he was reverted till the date he retired."
' In view of the order of this Court as well as of the Tribunal, the contentions of the learned counsel for the petitioners are not tenable.
7. We do not find misreading or non-reading of evidence, or misconstruction of law. The impugned judgment is based on the well-settled principles laid down by this Court. Moreover, no question of public I , importance is involved in this petition.
8. For the foregoing reasons, we find no substance in this petition, which is accordingly dismissed and leave is declined.