NOOR HUSSAIN ZIA Versus SECRETARY, WAFAQI MOHTASIB (OMBUDSMAN)'S SECRETARIAT, ISLAMABAD

SYED ALLY MADAD SHAH (CHAIRMAN). ‑‑‑Appellant Sh. Noor Hussain Zia, while serving as Stenographer, on temporary basis, in the Finance Division, applied through proper channel for the post of a Private Secretary/Stenographer in the Secretariat of the Ombudsman, in the year 1983. He was selected and appointed as a Stenographer (B‑11) under appointment letter dated 23-5‑1983. He was relieved from the Finance Division vide office order dated 26‑5‑1983 and he joined the Ombudsman's Secretariat. He was appointed as Personal Assistant (B‑16) to the Ombudsman vide office order dated 29‑7‑19134. Vide Notification dated 15‑1‑1987, he was appointed as Private Secretary (B‑16) to the Additional Secretary/Member. Subsequently, he was appointed to the upgraded post of Private Secretary (B‑17) to the additional Secretary/Member as per notification, dated 18‑1‑1987. By Office memorandum dated 4‑4‑1991, the Finance Division asked for repatriation of Stenographers serving on deputation in the Ombudsman's Secretariat. The appellant was one of them. He was relieved on 10‑12‑1991 to report for duty in the Finance Division. He preferred departmental appeal to the Ombudsman on 2a‑4‑1991. He was intimated by letter, dated 18‑7‑1991 that his appeal had been rejected. He then filed this appeal on 17‑8‑1991 for setting aside the order of his repatriation to the Finance Division and restoration in the office of the private Secretary in the Ombudsman's Secretariat with all consequential benefits.

2. The appellant has challenged the impugned order of his repatriation to the Finance Division on the grounds that he was employed in the Finance Division on temporary basis and he was relieved to join the Secretariat of the Ombudsman and was given right of reversion for only one year and after the expiry of that period of one year, he could not be reverted back to the 'Finance Division and he became regular member of the establishment of the Ombudsman and he was wrongly treated as being on deputation and the order of his repatriation to the Finance Division was not sustainable. He has also contended that the order of his repatriation was made by the Secretary, Ombudsman's Secretariat, and he was not competent to have passed such order.

3. The appeal is directed against the Secretary, Wafaqi Mohtasib (Ombudsman): the Wafaqi Mohtasib (Ombudsman); and the Secretary, Establishment Division as respondents 1, 2 and 3 respectively. Written objections have been filed by only respondents 1 and 2. They have taken exception to the jurisdiction of this Tribunal on the ground that the institution of the Ombudsman is neither the Federal Ministry nor the Attached Department nor a subordinate office but it is an autonomous organisation. They have also taken the plea that the appellant was not a civil servant. They have contended that the appeal is time‑barred and is also bad on account of miss joinder of necessary parties. They have stated that the appellant was employed in the Ombudsman's Secretariat on deputation from the Finance Division and he was reverted to the same Division on requisition from these and the order of his repatriation was competently made.

4. At the hearing of appeal, the appellant was represented by Raja Muhammad Asghar Khan, Advocate; while the respondents 1 and 2 were represented by Mr. M.S. Khattak, Consultant to the Ombudsman; and the Secretary, Establishment Division was represented by Mr. Zakaullah Jan, Section Officer.

5. The decision of the appeal mainly rests on the determination of the question: what was the nature of employment of the appellant in the Ombudsman s Secretariat. The appellant was, undoubtedly, serving as a Stenographer in the Finance Division on temporary basis and he sought employment in the Secretariat of the Ombudsman by making an application through proper channel. The letter of his appointment dated 23‑5‑1983 addressed to the Finance Division (Annex. II) reveals that the Finance Division was requested to retain appellant's lien on the post held by him in the Ministry till he could be permanently absorbed in the Secretariat, and in case he was holding temporary appointment, he may be allowed one year's protection to revert to his own post. The appellant was relieved on the aforesaid terms and conditions vide office order dated 26‑5‑1983. He served in the Secretariat of the Ombudsman until the order of his repatriation to the Finance Division was made on 9‑4‑1991 and he was relieved on 10‑4‑1991 i.e. after nearly eight years. By virtue of the aforesaid letters dated 26‑5‑1983 and 9‑4‑1991, the appellant was supposed to have severed his connections with the Finance Division after the expiry of one year; but in the meantime the question of retention in the Secretariat of Ombudsman of the Secretariat personnel deputed/relieved to serve there was given deep consideration and after exchange of correspondence it was decided that such personnel may continue serving in the Ombudsman's Secretariat until further orders, no matter that they were allowed specific time for reversion to the parent department and such decision was circulated by the Establishment Division vide Office Memorandum dated 25‑9‑1984. The appellant continued serving in the Ombudsman's Secretariat until further orders on the basis of the, aforesaid decision inasmuch as that he made several representations in the meantime for getting benefits of promotion etc. in the parent department i.e. the Finance Division. The appellant is, therefore, estopped from taking the plea that he severed his connections with the Finance Division after the expiry of one year of his appointment in the Ombudsman's Secretariat. The impugned order of his repatriation to the Finance Division was made on the requisition made by the Finance Division vide O.M. dated 4‑4‑1991 after making correspondence with the Secretariat of the Ombudsman and the impugned order of the repatriation of the appellant .was issued in that context and there was no illegality/irregularity in making such order.

6. As regards certain pleas agitated by the learned counsel for the appellant, one of the plea was that the order of repatriation of the appellant was made by the Secretary in the Ombudsman Secretariat and he was not competent to have passed the order. This fact has been admitted in the written objections but it is clearly mentioned in the letter of requisition that repatriation was sought alter the consent of the Ombudsman contained in that Secretariat O.M. dated 27th March, 1991. Thus, the order of repatriation was made by the competent authority and it was given effect to by the Secretary and this objection is not tenable. The other objection was that the appellant had become a member of the staff of the Ombudsman and he was not liable to have been reverted to the Finance Division and that objection falls flat in view of the legal position enunciated above and the appellant continued to be a civil servant and liable to have been repatriated to his parent department. The respondents also have taken the same objection that the appellant had ceased to be a civil servant and the Tribunal did not have jurisdiction to entertain the grievance of the appellant. This objection by the respondents is misconceived as they passed the order of repatriation of the appellant treating him as a civil servant and did not retain him in their Secretariat and their objection to the jurisdiction of the Tribunal also fails. The representative from the Ombudsman did urge the plea that the Ombudsman Secretariat is an autonomous institution and its employees are not civil servants but it is needless to record finding on that plea as the appellant was and is a civil servant, being the employee of the Federal Secretariat, as discussed above.

7. Adverting to the objection agitated by the respondents, the objection to the jurisdiction of the Tribunal has been dealt with above. The other objection was that the appeal is time‑barred and the representative of the Ombudsman contended that the impugned order was issued on 9‑4‑1991 and the appeal filed on 17‑8‑1991 is time‑barred. On the other hand, the learned counsel for the appellant urged that the appellant had preferred departmental appeal on 24‑4‑1991 and its rejection order was made on 18‑7‑1991 and the appeal filed on 17‑8‑1991 is within the period of limitation. The departmental representative took the plea that no appeal is provided under the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983. If that were so, the appeal should not have been entertained and the order of its rejection should not have been made. Of course, the appeal did not lie to the Ombudsman as the appellant was serving in the Ombudsman Secretariat on deputation and the order of his repatriation was made on the requisition made by the Finance Division, as discussed above, and the departmental appeal lay to the Finance Secretary or any other authority designated as the appellate authority. However, the delay in preferring the appeal is condonable in view of the fact that the appellant's departmental appeal addressed to the Ombudsman was entertained and disposed of.

8. The departmental representative of the Ombudsman yet urged another plea that the appeal was not maintainable as the order of repatriation of the appellant to the Finance Division was made at the requisition from the Finance Division but that Division has not been made respondent in the appeal. This contention does have substantial force and the appeal does suffer from non joinder of necessary party and is, therefore, not maintainable.

9. For the reasons recorded above the appeal has no merit and it also suffers from material defect of non‑joinder of the Finance Division and. it is, therefore, dismissed with no order as to costs.

A.A./770/Sr.F Appeal dismissed.