FIDA MUHAMMAD Versus MINISTRY OF DEFENCE

ORDER

1. MUHAMMAD DAUD KHAN (CHAIRMAN). ‑The appellant a Havildar Clerk in RIASC from December, 1942 eras released from the Army on 18‑2‑47. In April, 1947, he joined as Clerk in the office of the Assistant Registrar, Coo operative Societies, Rawalpindi when he was called up for employment as Civilian Clerk in RPASC, on 16‑10‑47. He had therefore to resign his job in the office of the Assistant Registrar, Co‑operative Societies to take up the employment in RPASi'. He served the RPASC till 31‑7‑53, when he was discharged from service being surplus. The post held at the time was that of Upper Division Clerk. H joined the MES as Lower Division Clerk on 19‑8‑55, "by his own efforts".

2. The Ministry of Defence (Army Branch) on his representation vide their letter No. 1017/19/36/EI/(E)/7/D3‑A, dated 24‑10‑59 conveyed the sanction of the President for the condonation of the break in service in respect of the official for the period from Ist August, 1953 to 18‑8‑55, to be treated as extraordinary leave without pay and allowance. It was further stipulated that "arrears accruing as a result of this sanction will not be allowed for the past period".

3. Consequent upon the issue of the aforesaid order, the appellant repres ented to the Department that as a result of the 'condonation orders' he became entitled to the post of an Upper Division Clerk, which he held as the time of discharge on 31‑7‑53. The Department interpreted the orders to mean that the official was allowed the benefit of the past service towards refixation of pay in the post held viz that of Lower Division Clerk. The audit however did not accept this interpretation and held that the official was to be treated in service since his original recruitment (16‑10‑1974) and that being a UDC at the time of his discharge from ASC and his pay having been fixed in the grade of UDC on 1‑1‑1949, the case would be one of reversion to LDC's grade, if the entire service was to be counted towards the LDC's grade.

4. As a result, the order of the President, conveying the sanction for the condonation of the break in service etc. (No. 1017/0/36JEI/7/D‑3‑A, dated 24‑10‑1949, was amended through a "Corrigendum" to the effect that " The service rendered by Mr. Fida Mohammad as UDC will count towards fixation of his pay in the grade of LDC" (1017/l9/36/1rI/(E)/505/D‑3‑A, dated 7‑2‑1962).

5. It is contended that the 'amendment' was neither a corrigendum nor an amendment. The original order was modified under the caption 'corri gendum' without reference to the competent authority, namely, the President, under whose authority, the original sanction was conveyed. It was further contended that the amendment was an afterthought, for the reason that the audit authorities had not agreed to the interpretation put by the respondents.

6. There is much force in the contentions put forward. The petitioner's appeal dated 25‑5‑1962 for refixation of pay in the grade of U'` C was rejected vide Ministry of Defence Memorandum No. 1017/19/36/EIE/4754/D‑_t‑A, dated 14‑11‑1962. The civil suit filed abated (Court's order dated 3‑12‑1973 refers).

7. The points for determination however are t

(a) The intent and purpose of the order or the scope and application thereof.

(b) The relevant rules or authority where under the interruption in service could be condoned.

8. The order dated, 24‑10‑1959 is twofold; first, condonation of the break in service or interruption in duty between 1‑8‑1953 and 18‑8‑1955, second treating the period of interruption as extraordinary leave without pay and allowance.

9. As a consequence the past service, both as LDC and UDC under the RPASC (till 31‑7‑1953) was allowed to count towards the service in tae MES, where the petitioner joined as LDC on 19‑8‑1955, thereby condoning the inter ruption in service. The second part of the order treating the period in question, as extraordinary leave without pay would indicate that the 'interruption' was treated as though it was "authorised leave of absence" and did not therefore entail forfeiture of the past service.

10. The Audit interpreted the order to mean that the pay on appointment as LDC was to be fixed in the grade of UDC and that the case would be one of reversion to LDC's grade, if the entire service was to be counted toward LDC's grade. This interpretation' led to the issue of the 'corrigendum'.

11. We have gone through the case carefully and consider that the 'corri gendum' is in the nature of an 'amendment' of the original order of the President and that it was not within the competence of the Department to modify ox amend the order of the President.

12. The question however is one of interpretation of the original order, ignoring the 'corrigendum'.

13. It is evident from the facts that prior to his appointment on 19‑8‑1955 to the post of LDC in the MES, the petitioner had worked is another organisation, RPASC, and it was precisely is the new post and organisation that the benefit of condonation claimed could relate to past service with specific reference o the post of which, the petitioner was appointed. For obvious reasons no claimed could lie to the post of UDC and the question of fixation of pay in the neck post was still open. The mere fact that the period of interruption between tile date of discharge Prim the post an UDC under the PRASC and the date of appointment as LOC under MES was treated as extraordinary leave without ray, would not imply that the official had 'returned' to the original post and would therefore be entitled to the pay last drawn (as UDC); nor could it be inferred that it would be case of reversion. It has to be remembered that it was a cage of fresh appointment under a new organisation. The question therefore was one of filling the appointment held at the time condonation was applied for.

14. Article 422 of the Civil Service Regulation, although not specifically cited in the order, is the relevant Article applicable. The authority competent to fill the appointment held, could impose such conditions as it thought fit in the case.

15. The condonation order has the, effect of counting the previous service qualifying for pension, unless specifically excluded under Article 371‑A. For the purpose of pay instead of allowing advance increments, the benefit of past service has been allowed in the grade of LDC.

16. Apart from the fact that all orders were passed prior to 1‑7‑1969, the request to treat the appellant as UDC and fix his pay in that post while holding the post of LDC in MES is untenable. The benefit claimed had neither been intended, nor was it allowed.

17. The petition is therefore dismissed.

18. Petition dismissed.