JUGOTEKSTIL IMPEX, 61001, LUBIJANA YUGOSLAVIA Versus SHAMS TEXTILE MILLS LTD.
SYED ALLY MADAD SHAH (CHAIRMAN).‑‑‑ Appellant Mr. Amir Jan, lastly serving as Deputy Census Commissioner, Population Census Organisation, Peshawar, has preferred this appeal against Office Memorandum dated 21st August, 1988, issued from the Statistics Division, for his reversion to the Agricultural Census Organisation as a Deputy Agricultural Census Commissioner (Tech.), BPS‑18. I t. .1 1 ; I,
2. The appellant's case is that he, on recommendation by the Federal Public Service Commission, was appointed as a Deputy Agricultural Census r Commissioner (Grade 18) with effect from 16‑9‑1980. Apprehending that the post of the Deputy Agricultural Census Commissioner he was appointed to was not likely to continue after May, 1981, he made an application for continuance of the post or for his permanent absorption in the Population Census Organisation against an equivalent post in Grade‑18. He was transferred to the Population Census Organistation where he took over charge. as the Deputy Census Commissioner (Grade‑18) with effect from 1st March, 1981 (F.N.) as per notification dated 16th March, 1981 issued by the Statistics Division. He continued serving there until he was transferred back to the Agricultural Census Organisation under the impugned order dated 21‑8‑1988, which was notified in the Notification dated 5th October,1988. He made departmental; representation/appeal on 27‑11‑1988. Awaiting order on the! representation/appeal for 90 days, he preferred, this appeal on 5‑3‑1989.
3. The appellant has contended that he was permanently transferred to the Population Census Organisation and there was no justification for sending him back to the Agricultural Census Organisation. The learned counsel representing him urged at the hearing of the appeal that the appellant's transfer to the Population Census Organisation was on permanent Basis under the provisions of Rule 7 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and he was not liable to have been reverted to the Agricultural Census Organisation. He placed reliance on the cases reported in P L D 1983 S C 100. 198.5 P L C. (C.S.) 564 and P L D 1965 S C 208. He next urged that the notification dated 16‑3‑1981, where under the appellant was transferred to the Population Census Organisation had been acted upon and it could not be rescinded and he placed reliance on the cases reported in P L D 1969 S C 409 and PLD1971SC846.
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4.The appeal is directed against the Secretary to the Government of Pakistan, Establishment Division; the Secretary to the Government of Pakistan, Statistics Division; and the Census Commissioner, Government of Pakistan, Statistics D;vision. Written objections have been filed by Section Officer (Lit) Establishment Division. Preliminary objections have: been taken in the written objections that the appeal is not maintainable in law or facts and is also bad for non‑joinder of necessary parties and it is also barred by proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973. The case of the department on facts is that the appellant was initially appointed against a temporary post in the Argicultural Census Organisation and he was later transferred to the Population Census Organisation at his request as to save him from termination of his service on the expiry of the tenure of the temporary post and he continued serving there as the rules did not permit appointment by transfer in the Population Census Organisation and a post was created in the Agricultural Census Organisation as to revert him to that organisation. The departmental representatives reiterated almost the same facts at the hearing of the appeal. The representative from the Statistics Division Mr. Abdul Haleem. Section Officer stated that the appellant's case was recommended for regularisation in the Population Census Organisation; and so was stated by the Deputy Population Census Commissioner, Mr. Riar Rabbani, Mr. All Abid, Section Officer from the Establishment Division, contended that rules then existing did not provide for appointment by transfer in the Population Census Organisation and, therefore, the appellant's transfer to that Organisation was deemed to be under section 10 of the Civil Servants Act, 1973 and he could not claim his permanent absorption in that organisation He disclosed that the case of the appellant was submitted to the Prime Minister for regularisation of his service but it was sent back for reconsideration and in due course of time the appellant was reverted to the Agricultural Census Organisation, where he was initially appointed.
5. The facts of the case, which cannot be controverted, are comprehensively stated in the Summary which was submitted to the Prime Minister by the Secretary Incharge, Statistics Division through the Secretary, Establishment Division in December, 1985, reproduced below:‑
" SUMMARY FOR THE PRIME MINISTER
Subject: APPOINTMENT OF MR. AMIR JAN KHAN, DEPUTY CENSUS COMMISSIONER, POPULATION CENSUS ORGANISATION, PESHAWAR.
Mr. Amir Jan Khan was appointed as Deputy Census Commissioner, in BPS‑18 in Agricultural Census Organisation, Lahore, an attached department of Statistics Division as a nominee of FPSC with effect from 16th September, 1980 against a purely temporary post sanctioned up to 31st May, 1981 only. Since the post was temporary, he applied for absorption by transfer against an equivalent vacant post of Deputy Census Commissioner in Population Census Organisation, another attached department of this Division.
2. In Population Census Organisation, there are two posts of Deputy Census Commissioner (Grade 18) borne on promotion quota. The Departmental Promotion Committee could recommend only one person out of the two eligible for promotion as no other person in the organisation was eligible. Since Census work was at that time in full swing, it was considered necessary to fill the post immediately. In view of the urgency, it was proposed to the Establishment Division to accord approval to fill the vacant post by transfering Mr. Amir Jan Khan, Deputy Agricultural Census Commissioner (Grade‑18) from Agricultural Census Organisation. On receipt of the approval of Establishment Division (copy placed below), Mr. Amir Jan Khan was transferred to Population Census Organisation for appointment as Deputy Census Commissioner for a period of three years with effect from 1st March, 1981.
3. Subsequently, the question of seniority of Mr. Amir Jan Khan in the Population Census Organisation arose. The case was against taken up with the Establishment Division, who advised this Division to rescind the notification under which Mr. Amir Jan Khan was transferred from Agricultural Census Organisation to Population Census Organisation.
4. Agricultural Census Organisation were advised accordingly. They have contested this decision on the plea that the transfer of Mr. Amir Jan Khan was made on his own request in view of his becoming surplus after three months (on 31st May, 19811 and not under section 10 of the Civil Servants Act .
5. His period of appointment by transfer under section 10 in the Population Census Organisation was, therefore, extended in consultation with the Establishment Division vide their O.M. No. 8/22/81‑E(4), dated 3rd September, 1984, for another two years i.e. from 1st March, 1984 to 28th February, 1986 with the hope that the matter will be resolved during this period. Simultaneously, his case was also initiated for permanent absorption against a vacant post of Deputy Census Commissioner (BPS 18) in the Population Census Organisation. This proposal could not get through from the Establishment Division and they advised vide their O.M‑R.5, dated 10th October, 1985 that the case of Mr. Amir Jan Khan may be initiated under section 23 of the Civil Servants Act, 1973 for appointment in the Population Census Organisation.
6. Mr. Amir Jan Khan has been serving in this organisation since March, 1981 he has neither been absorbed, on regular basis in Population Census Organisation and consequently nor given seniority and thus cannot avail of normal service benefits like promotion to higher scale/post. This state of uncertainty is certainly causing frustration to the official.
7. Mr. Amir Jan Khan has over the last more than four and a half years and particularly during the 1981 Census has now acquired sufficient knowledge/experience in census taking/surveys. If his services are regularised it will help in retaining a trained and experienced person in the Population Census Organisation for the next National Census of Pakistan.
8. It is, therefore, proposed that appointment of Mr. Amir Jan Khan, Deputy Census Commissioner in the Population Census Organisation may be regularised under section 23 of the Civil Servants Act, 1973 (copy placed below) from the date of his joining the Population Census Organisation i.e. 1st March, 1981.
9. Approval of the competent authority is solicited to the proposal made in para.8 above.
SD/‑
SYED HABEEB HUSSAIN
Secretary Incharge
Secretary, Establishment Division:
The above Summary was submitted to the Prime Minister by the Establishment Secretary with the following recommendations:‑
10.This is a fit case for invoking the President's powers under section 23 of the Civil Servants Act, 1973.
11.The Prime Minister is requested to advise the President to approve the proposal in para.8.
SD/‑ Aftab Ahmad Khan,
Establishment Secretary.
Secretary to the prime Minister:
Estt. Divn. U.O. No. 47‑4‑85‑CP.4, dated 19‑2‑1986:"
It is stated by the Establishment Division that the Summary submitted to the Prime Minster was sent back for re‑consideration and the Statistics Division was advised to take action. The Establishment Division advised the Statistics division to revert the appellant to the Agricultural Census Organisation. In pursuance of the advice so rendered by the Establishment Division, the Statistics Division issued Office Memorandum dated 21st August, 1988 and a notification dated 5 th October, 1988, both reproduced below:‑ ,FY; ,a ~~,
"GOVERNMENT OF PAKISTAN '
STATISTICS DIVISION
No:SD.SO (A‑II) 19‑1/82‑548. Islamabad, the
21st August, 1988.
OFFICE MEMORANDUM
Subject:‑ APPOINTMENT OF MR. AMIR JAN KHAN, DEPUTY CENSUS COMMISSIONER IN PCO :
In the light of instructions/advices issued by the Establishment Division and conveyed to PCO/ACO vis‑a‑vis their notes No. 6/5/81‑PCO(Admn), dated 11‑7‑88 and No. ACO.P.3/4‑57 Estt, dated 30‑6‑88, the matter has again been examined in this Division and the Secretary has been pleased to advise as under:‑
(i) As per orders of the Establishment Division Mr. Amir Jan Khan will revert to ACO against newly‑created post of DACC (Tech.) BPS‑18.
(ii) No officer will get demoted as a new post of DACC (Tech.) has been created in the ACO.
(iii) Seniority of Mr. Amir Jan Khan which at the moment is neither in PCO nor in ACO, as the officer as per record of this Division had gone to PCO on his own option i.e. he had left the ACO. However, his seniority vis‑a‑vis his colleagues in PCO/ACO will separately be decided by the Establishment Division.
Sd/‑ ASGHAR ALI KHAN
Deputy Secretary."
"GOVERNMENT OF PAKISTAN STATISTICS DIVISION
Islamabd, the 5th October, 1988.
NOTIFICATION
No. SD. SO (A‑1I) 19 (1)/82. In pursuance of orders contained in the Establishment Division U.O. No. 47/4/85‑CP.4, dated 8‑2‑1988 and 15‑6‑1988 and in continuation of Statistics Division's O.M. of even number dated 21st August, 1988, Mr. Amir Jan Khan, Deputy Census Commissioner (BPS‑18) Population Census Organisation, Peshawar is reverted to Agricultural Census Organisation, Lahore for appointment as Deputy Agricultural Census Commissioner (BPS‑18) with immediate effect. His further posting orders will be issued by the Additional Agricultural Census Commissioner, Lahore.
SD/‑ ABDUL GHANI
Section Officer."
6. The pertinent question for consideration is as to what was the nature of the order of the transfer of the appellant from the Agricultural Census Organisation to the Population Census Organisation. In this context, reference may be made to the relevant provisions of the Civil Servants Act, 1973 (hereinafter referred to as the Act) and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (hereinafter mentioned as the Rules). Section 10 of the Act and Rules 3, 7, 8 and 9 of the Rules are relevant for the purpose. They are reproduced below:‑
"CIVIL SERVANTS ACT, 1973:
Section 10. Posting and Transfer.‑‑ Every civil servant shall be liable to serve any where within or outside Pakistan, in any post under the Federal Government, or any Provincial Government or local authority, or a corporation or body set up or establishment by any such Government: Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region. Provided further that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve.
CIVIL SERVANTS (APPOINTMENT PROMOTION AND TRANSFERI RULES, 1973:
Rule 3. (1) Appointments to posts shall be made by any of the following methods, namely:
(a) by promotion or transfer in accordance with Part II of these rules; and
(b) by initial appointment in accordance with Part III of these rules.
(2) The method of appointment and the qualifications and other conditions applicable to a post shall be as laid down by the Ministry or Division concerned, in consultation with the Establishment Division.
Rule 7.‑‑ Promotion and transfers to posts in Grades 2 to 18 shall be made on the recommendation of the appropriate Departmental Promotion Committee and promotions and transfers to posts in Grades 19 to 21 shall be made on the recommendations of the Central Selection Board: provided that posts in Grade 18 which carry a Special pay would also be referred to the Central Selection Board if proposed to be filled by promotion or transfer.
Rule 8.‑‑ Only such persons as possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or the Central Selection Board, as the case may be.
Rule 9.‑‑ Appointments by transfer shall be made from amongst the persons holding appointment on a regular basis in the same grade in which the post to be filled exists.
7. The appellant's contention is that his transfer to the Population Census Organistion was under the provisions of Rule 7 of the Rules, and it amounted to his regular appointment in the Organisation he was transferred to. On the other, hand, the contention of the Government is that the appellant's transfer to the, Population Census Organisation was under the provisions of section 10 of the Act. Rule 3 of the Rules provides that appointments to posts shall be made either; by promotion/transfer in accordance with Part 11 of the Rules; or by initial appointment in accordance with Part 111 of the Rules. Rule 7 of the Rules provides that promotion and transfers to posts in Grades 2 to 18 shall be made on the recommendations of the appropriate Promotion Committee; provided that promotion or transfers to posts in Grade‑18 carrying special pay will be made on the recommendations of the Central Selections Board. Rule 9 of the Rules provides that appointments by transfer shall be made from amongst the persons holding appointment on regular basis in the same grade in which the post to be filled exists. In the appellant's case, his transfer to the Population Census Organisation was not processed through the Departmental Promotion Committee or the Central Selection Board, as provided under Rule 7 of the Rules, but the order of his transfer was made with the concurrence of the k Establishment Division just to accommodate the appellant as to save him from anticipated termination of his service and also to meet the urgent requirement of the appointment of Deputy Census Commissioner (Grade‑18) against a departmental promotion seat which could not be filled in by way of regular transfer, as clearly stated in paragraph 2 of the summary submitted to the Prime Minister. 1n that case, the appellant could not conceive of his regular absorption in the Population Census Organisation and it was a right decision by the concerned departments that his transfer was deemed to be under section 10 of the Act. The added reason for this view is that the appellant could not be absorbed in the Population Census Organisation even if it were desired so. Reference in this respect may be made to the method qualifications and other conditions laid down for appointment to the posts in the Population Census Organisation under the Statistics Division as per Notification dated 9th April 1980, wherein it is provided that 50% of posts of Deputy Census Commissioners (Grade‑18) shall be filled in by direct recruitment by the Public Service Commission and the remaining 50% of the posts shall be filled in by promotion, provided that if no suitable person is available for promotion, the vacancy or vacancies shall be filled in by direct recruitment. There was no provision at the relevant time for filling in the post of Deputy Census Commissioner (Grade 18) by transfer. As such, the question of regular absorption of the appellant in the Population Census Organisation by transfer did not arise. Of course, the rules have been revised in the year 1989, whereby 75% posts of Deputy Census Commissioners in BPS‑18 are to be filled in by promotion and the remaining 25% by initial appointment, provided that if no suitable person is available for promotion, the post reserved for promotion shall be filled in by initial appointment and failing that by transfer. Even under the revised rules, the scope for appointment by transfer is available if the post allocated for promotion cannot be filled in by initial appointment. It follows the appellant could not find his regular absorption in the Population Census Organisation in any manner. The cases relied upon by the learned counsel for the appellant do not advance the appellant's case in view of the reasons recorded above. Those cases are P L D 1983 SC 100; 1985 P L C (C.S.) 564 and P L D 1965 S C 208. In those cases, the question of the nature of appointment until further orders was considered. In the appellant's case also, his appointment in the Population Census Organisation was until further orders but that expression is immaterial in view of the conclusions drawn above that the appellant could not find regular absorption in that Organisation. The learned counsel for the appellant also pressed in aid the cases reported in P L D 1969 S C 409 and P L D 1971 S C 846 on the principle of locus poenitentiae . The nature of the order of transfer of the appellant to the population Census Organisation that it was until further orders left power with the competent authority to rescind it and, therefore, the principle of locus poenitentiae enunciated in those cases could not be pressed in aid by the appellant. Thus, the appellant does not have a case to succeed.
8. The respondents have taken objection to the maintainability of the appeal on the ground that the appellant did not avail of the remedy of departmental appeal and, therefore, the appeal is hit by subsection (1) of section 4 of the Service Tribunals Act, 1973. The appellant's case is that he did make representation dated 27‑11‑1988 and that met the requirement of preferring departmental appeal. The representation was made to the Secretary, Statistics Division, who is of course, the Head of the Department but the impugned orders were issued under the orders of the Establishment Division as the Establishment Secretary is the appointing authority under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and, therefore, the Secretary, Statistics Division was not the appellate authority. The appellant did have remedy of departmental appeal under Rule 4 of the Civil Servants (Appeal) Rules, 1977, which he did not avail of, as discussed above. In the circumstances, the appeal is not maintainable under proviso to subsection (1) of section 4 of the Service Tribunals Act, 1973 which provides that where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973 or any rule, the appeal shall not lie to the Tribunal unless such appeal, review or representation is made and no order has been received until the period of ninety days. Accordingly, the appeal is not maintainable on that ground.
9. For the reasons recorded above, the appeal is liable to be dismissed on merits as well as on the ground of non‑maintainability and is dismissed as such. No order is made for costs.
M.Y.H./548/Sr. F. Appeal dismissed.