TANVIR AHMAD Versus GOVERNMENT OF PAKISTAN

1. CH. HASAN NAWAZ (MEMBER) : ‑‑ The appellant who was raised to the rank of a Major after having been commissioned in March, 1967, was appointed on deputation as Assistant Director, Intelligence Bureau for a period of two years in the first instance. The President's sanction to his deputation was conveyed by letter dated 26‑3‑1981 which is to the following effect:

2. "No. F.2/20/D‑24(C‑IV)/78

3. Government of Pakistan,

4. Ministry of Defence,

5. Rawalpindi, the 26th March, 1981

6. The Vice‑Chief of the Army Staff,

7. General Headquarters,

8. Rawalpindi.

9. Subject:‑ Deputation of Army Officers to Civil

10. Sir,

11. I am directed to convey sanction of the President to the deputation of PSS 9294 Major Tanvir Ahmad, Signals to Intelligence Bureau, Government of Pakistan for appointment as Assistant Director Intelligence for a period of two years.

(2) While on deputation the officer will be governed provisionally by the terms and conditions as laid down in PAO 666 of 60, subject to replacement by revised terms and conditions to be issued by the Government, read in conjunction with this Ministry's letters No.115/3/67/Budget‑5/3533/D‑8/75, dated the 2nd July,. 1975 and No. 64/75/D‑15(C‑I), dated the 1st June, 1980.

12. Your obedient servant,

13. (Sd.)

14. (Nasir Ali Siddiqui)

15. Section Officer, Government of Pakistan"

2. It appears that the terms of his secondment were extended from time to time uptil 26‑7‑1990. On 13‑3‑1989, the Prime Minister's directive dated 12‑3‑1989 was received in the Establishment Division through Prime Minister's Secretariat U.O. No. 3‑3/S.O./I.B/89. It was as follows:

16. " PRIME MINISTER'S SECRETARIAT

17. The services of the following individuals may be made permanent in the Intelligence Bureau‑‑

(a) PSS 5914 Maj. (Retd.) Muhammad Shabbir Ahmad, Assistant Director

18. On contract since 10 April, 1983. His date of retirement was w.e.f. 20 December, 1982. His seniority may reckon from his date of induction into Intelligence Bureau i.e. 10th April, 1983.

(b) PA 6790 Maj, Muhammad Matlub Khan

19. Already absorbed in Intelligence Bureau. His seniority should reckon from 1st July, 1978 (date of joining Intelligence Bureau) and not from 16 February, 1983 i.e. his date of induction into Intelligence Bureau following contract service.

(c) Maj, Tanveer Ahmed

20. To be inducted permanently. Presently on deputation from Army. Particulars later (not available)

(2) This may be done on urgent basis and has the concurrence of the Prime Minister.

21. (Sd.)

22. (NASIRULLAH KHAN BABAR)

SPECIAL ASSISTANT

23. TO THE PRIME MINISTER 12‑3‑1989"

3. The Prime Minister's directive resulted in the issuance, of following Notification dated 16‑5‑1989:

"INTELLIGENCE BUREAU

GOVERNMENT OF PAKISTAN

24. Islamabad, May 16,1989

NOTIFICATION

25. No. 4/27/A‑I. In pursuance of the order contained in the Prime Minister's Secretariat U.O. No‑ 3‑3/SO‑I.B., dated March 13, 1989 conveyed by the Establishment Division vide Office Memorandum No. 4(6)/89 ‑CP. 6, dated May. 11, 1989, PSS‑9294 Major Tanvir Ahmed (Signals) presently working as Assistant Director (B‑18) in the Intelligence Bureau at Lahore on secondment basis, is absorbed as Assistant Director (B‑18) in the Intelligence Bureau with effect from July 27, 1981 (date of joining Intelligence Bureau on secondment) against direct quota, and until further orders.

26. (Sd.)

27. (Muhammad Zulfiqar Kayani)

28. Assistant Director (Admin)"

4. However, a few days later this Notification was superseded by Notification dated 21‑5‑1989 which is as follows:

"INTELLIGENCE BUREAU

GOVERNMENT OF PAKISTAN

29. Islamabad, May 21, 1989.

NOTIFICATION

30. No. 4/27/A‑I. In pursuance of the orders contained in the Prime Minister's Secretariat U.O. No. 3‑3‑/SO‑I.B, dated March 13, 1989 conveyed by the Establishment Division vide Office Memorandum No.4 (6)/89‑CP. 6, dated May 11, 1989 PSS‑9294 Major Tanvir Ahmad (Signals) presently serving as Assistant Director (B‑18) in the Intelligence Bureau at Lahore on secondment basis, is absorbed as Assistant Director (B‑18) in the Intelligence Bureau with effect from May 11, 1989 against direct quota and until further order.

2. This superseded Intelligence Bureau's Notification of even number dated May 16, 1989.

31. (Sd.)

32. (Mohammad Zulfiqar Khan)

33. Assistant Director (Admin)"

34. 5.In his representation dated 14‑6‑1989 addressed to the Secretary Establishment, the appellant took exception to Notification dated 21‑5‑1989 and asked for its cancellation. It was prayed that Notification dated 16‑5‑1989 may be restored and he may "be absorbed as Assistant Director (B‑18) in the Intelligence Bureau Government of Pakistan with effect from 27‑7‑1981, the date of joining the Intelligence Bureau on secondment."

6. The rejection of this representation was conveyed through O.M. dated 7‑1‑1990 which makes the following reading:

35. "Government of Pakistan

36. Pakistan Secretariat

37. Establishment Division

38. No. 4(5)/89‑CP.6 Islamabad, the 7th January, 1990

OFFICE MEMORANDUM

39. Subject: REPRESENTATION‑‑MAJOR TANVIR AHMAD, ASSISTANT DIRECTOR

40. The undersigned is directed to refer to the Intelligence Bureau's O.M. No. 4/27/A‑I, dated 23rd October, 1989 on the above subject and to state that the representation of Major (Recd.) Tanvir Ahmad forwarded therewith has been duly considered by the competent authority. It is, however, regretted that it has not been found possible to accede to the request made therein.

41. (Sd.)

42. (ABDUL SAMI KHAN)

43. Section Officer

44. Ph:816081/290"

7. After his representation failed to produce any result, he came to the Tribunal with the present appeal under section 4 of the Service Tribunals Act, 1973 praying that "impugned order 21‑5‑1989 may kindly be set aside and the order dated 16‑5‑1989 may kindly be restored directing the seniority of the appellant to be counted with effect from 27‑7‑1981 with back benefits."

8. It will be in point to mention that on 27‑2‑1992 the appellant's counsel Ch. Mushtaq Ahmad Khan made a statement to the effect "that the prayer in so far it relates to fixation of appellant's seniority with effect from 27‑7‑1981 is withdrawn." He made it clear that the appellant's only prayer is "that the Establishment Division's Order /Notification dated 21‑5‑1989 may be set aside as being illegal".

9. These were the facts in the background of this appeal. But certain other facts are also material and we might as well take notice of them for the just disposal of the matter.

10. Although the appellant's representation was rejected by the "competent Authority", it appears that the matter remained still pending for final decision. On 12‑6‑1990, the Establishment Secretary submitted the following summary to the Prime Minister for his orders:

"ESTABLISHMENT DIVISION

SUMMARY FOR THE PRIME MINISTER

45. Subject: Permanent Induction of the Armed Forces officers in the Rank of Majors/Equivalent in the Intelligence Bureau‑‑Case of Maj. Tanveer Ahmad, Assistant Director Intelligence Bureau

46. The Prime Minister's Secretariat directed vide U.O. No.3‑3‑/SO‑I B/89, dated the 13th March, 1989 that the following officers of the Armed Forces may be made permanent in the Intelligence Bureau and assigned seniority as indicated against their names (Annexure‑I):‑

47. S. No.

48. Name of Officer

49. Date of seniority

50. 1.

51. PSS‑5914 Major (Retd.) Muhammad

52. Shabbir Ahmed, Assistant Director.

53. 10‑4‑1983

54. (the dated of induction in the Bureau)

55. 2.

56. PA‑6790 Major (Retd.) Muhammad

57. Matloob Khan, Assistant Director.

58. 1‑7‑1978

59. (the date of joining the

60. Bureau).

61. 3.

62. Major Tanveer Ahmad, Assistant Director.

63. Particulars later ‑ (not available)

(2) Intelligence Bureau was advised to take necessary action in the light of directive of the Prime Minister cited above. Consequently Major (Recd.) Muhammad Shabbir Ahmad and Major (Recd.) Muhammad Matloob Khan have been inducted in. the Intelligence Bureau and assigned seniority from the dates indicated by the Prime Minister's Secretariat.

(3) Major Tanveer Ahmad has also been inducted permanently in Intelligence Bureau in the light of Prime Minister's directive. As he has been inducted in the Intelligence Bureau from the date of his retirement from the Army (11‑5‑1989), he has been assigned seniority with effect from the same date (11‑5‑1989)

(4) Major Tanveer Ahmed has represented that he may be assigned seniority in the Intelligence Bureau with retrospective effect i.e. the date he was posted in the Bureau on secondment from the Army, (27‑7‑1981) as has been done in the case of his other two colleagues.

(5) Major (Retd.) Muhammad Shabbir Ahmad and Major (Retd.) Muhammad Madoob Khan had been assigned seniority retrospectively as they had sought retirement from the Army with retrospective effect. Officers of the Armed Forces are inducted in the Civil from the date of their retirement from the Army and are assigned seniority from the same date. In view of this rule position Major Tanveer Ahmed has been assigned seniority from the date of retirement from the Army (11‑5‑1989)

(6) Major Tanveer Ahmed in his petition has taken the plea that since his bio‑data was not available with the Prime Minister's Secretariat, specific date of his induction in the Intelligence Bureau and seniority could not be indicated by the P.I's Sectt. as was done in the case of his other two colleagues. He has requested that he may also be inducted in the Intelligence Bureau with effect from 27th July, 1981 i.e. the date he started serving in the Bureau on secondment from the Army and may also be assigned seniority with effect from the same date.

64. From the facts discussed in the preceding paras it appears that Major Tanveer Ahmed has been discriminated, vis‑a‑vis his other two colleagues namely Major Muhammad Shabbir Ahmad and Major Matloob Khan, in assigning date of induction and seniority in the Intelligence Bureau. It would be fair and equitable if the request of Major Tanveer Ahmad for induction in the Intelligence Bureau w.e.f. 27th July, 1981, and to allow him seniority with effect from the same date, is accepted.

(8) The Prime Minister may kindly accept the request of Major Tanveer Ahmad for induction in the Intelligence Bureau with effect from 27th July, 1981 (instead of 11th May, 1989), and to assign him seniority from the same date.

65. (Sd.)

66. (M.I.K. Khalil)

67. Establishment Secretary"

11. It appear that the Prime Minister's Secretariat invited the Intelligence Bureau's comments through Memorandum dated 25‑6‑1990 on the proposal contained in this summary. In their comments conveyed through U.O: No.1519 dated 17‑7‑1990 the Bureau opposed the proposal for the appellant's induction with effect from 27‑7‑1981. They stated that under the relevant rules induction is possible after an individual has completed three years service in the Bureau and that too after adopting the procedure laid down under those rules. It was contended that seniority is reckoned from the date of induction and there was nothing in the rules to provide for accord of seniority with retrospective effect. It was further stated that even the general rule regarding induction of the Army Forces Officers, allows the inductees to count seniority only from the date of their induction into civil service.

12. On receipt of the Intelligence Bureau's comments, the Prime Minister's Secretariat sent the case to the Establishment Division by their U.O. dated 26‑7‑1990 which is as follows:

68. "PRIME MINISTER'S SECRETARIAT, ISLAMABAD

69. Subject: Permanent Induction of the Armed Forces Officers in the Rank of Majors/Equivalent in the Intelligence Bureau‑‑Case of Maj. Tanveer Ahmad, Assistant Director. Intelligence Bureau

70. Kindly refer to Establishment Division Summary No.4(5)/89‑CP.9, dated 12th June, 1990 on the subject mentioned above and find enclosed herewith a copy of the views of the DIB on the matter.

2. The Establishment Division may like to reconsider the proposal in the light of the views of the DIB.

71. (Sd.)

72. (Malik Yesrab)

73. Joint Secretary"

13. There is nothing either in the respondents' pleadings or elsewhere in the documents placed by them on record to indicate that the matter was reconsidered. and any fresh reference was made to the Prime Minister's Secretariat for the Prime Minister's orders in the matter. The appellant's reliance, inter alia, is on the fact that retrospective induction had been allowed to Maj. Shabbir Ahmad and Maj. Muhammad Maltoob and that in their case the relevant orders passed by the Establishment Division or the Bureau according such induction had not been withdrawn. It is pleaded that it was only in his case that orders dated 16‑5‑1989 in respect of his absorption in the Bureau with effect from 27‑7‑1981 were subsequently withdrawn by Notification dated 21‑5‑1989. It is contended that discrimination has been made in the appellant's case although his induction too had been ordered by the Prime Minister's Secretariat in the same directive which covered the cases of the aforementioned Maj. Muhammad Shabbir Ahmed and Maj. Muhammad Matloob Khan.

14. The respondents addressed themselves to the appellant's case on this aspect of the matter, with the following pleadings:

74. "At the time of issuance of notification, dated 16‑5‑1989, the appellant was still a serving officer of the Army. He was to be inducted on regular basis on release from there and he was so released w.e.f 11‑5-1989, the date of his regular induction. As already explained in para 3, absorption of M/s. Major (Retd.) Muhammad Shabbir Ahmad, Major (Retd.) Muhammad Matloob Khan and Major (Recd.) Tanvir Ahmad were made under the directive of Prime Minister's Secretariat conveyed by the Establishment Division. Major (Retd.) Muhammad Shabbir Ahmad and Major (Retd.) Muhammad Matloob Khan were absorbed with effect from 10‑4‑1983 and 1‑7‑1978 respectively as directed by the Prime Minister's Secretariat whereas no date was given in the case of Major (Retd.) Tanvir Ahmad, so the impugned Notification was rightly issued."

15. The explanation rendered by the Establishment Division for a different treatment to the other two officers, in their summary dated 13‑6‑1990 is also material and we may again reproduce it. It is as follows:

75. "Major (Retd.) Muhammad Shabbir Ahmad and Major (Retd.) Muhammad Matloob Khan had been assigned seniority retrospectively as they had sough retirement from the Army with retrospective effect. Officers of the Armed Forces are inducted in the civil from the date of their retirement from the Army and are assigned seniority from the same date. In view of this rule position Major Tanveer Ahmad has been assigned seniority from the date of retirement from the Army (11‑5‑1989)."

16. We may avoid a critical analysis of the cases set up by the parties in view of the judgment we propose to deliver and it will be enough to point out the following pertinent facts:

(a) In accordance with the respondents' pleadings, Major Muhammad Shabbir Ahmad and Major Muhammad Matloob Khan were absorbed with effect from 10‑4‑1983 and 1‑7‑1978 respectively in accordance with the directive of the Prime Minister's Secretariat, whereas no date had been mentioned in that directive in the case of the appellant. Therefore, the impugned notification allowing induction with effect from 11‑5‑1989 was rightly issued.

(b) The Establishment Division's position adopted in Paragraph 5 of the summary of 13‑6‑1990 is that Major (Retd.) Muhammad Shabbir Ahmed Khan and Major Muhammad Matloob Khan had been assigned seniority retrospectively as they had sought retirement from Army with retrospective effect. Another reason mentioned was with reference to the rule position according to which the Officers of Armed forces are inducted in the civil from the date of their retirement from Army and are assigned seniority from the same date.

(c) It may also be mentioned as a relevant fact that there is nothing on record to show that the other two officers had sought their retirement from the Army with retrospective effect. Apart from this aspect, the appellant's contention is that retirement from the Army does not precede but automatically follows the orders of regular absorption or induction in the civil department. It was further contended that orders of his retirement from Army with effect from 11‑5‑1989 were passed in consequence of the Prime Minister's Secretariat U.O. dated 13‑3‑1989 conveyed to the Bureau through Establishment Division's Memorandum dated 11‑5‑1989.

(d) In the appellant's case the Prime Minister's Secretariat directive said that he be inducted permanently. It appears that the date of induction in his case was not mentioned as was done in the case of other two officers for want of his service particulars. No other reason appears from the directive to have weighed with the Secretariat in their having failed to mention a specified date of induction.

(e) No order appears to have yet been obtained from the Prime Minister on the appellant's representation. As already pointed out before after the Intelligence Bureau's comments had been received by the Prime Minister's Secretariat, the matter was again sent to the Establishment Division with the observation that they may like to reconsider the proposal in the light of the Bureau's views. They might or might not have considered the matter but it is quite certain that it does not appear to have again been submitted to the Prime Minister for his orders.

17. What we understand from these facts is that there may be definite rules governing the induction of Army Officers into civil department but, there is apparently no uniform application of those rules in this case. Even if reliance is on the Prime Minister's directive as it appears to be we are of the view that his specific orders should have been obtained in the matter; more so when the appellant too has been dealt with in the same directive. His permanent absorption was ordered but about the particulars it was said that they will be mentioned later. The directive in relation to the appellant is suggestive of the fact that something was to follow regarding the matter of his induction. We are of the view that this made all the more incumbent on the respondents to make a reference to the Prime Minister with necessary particulars for his orders in the appellant's matter. We are of the opinion that the matter should be submitted to the competent Authority with all the material facts in a full backed summary for his orders, whichever they may be. If reliance is upon the rules, it is the respondents' duty to ensure their uniform application.

18. Under the circumstances we regard it as appropriate and expedient to remand the matter to the respondents for a fresh decision in the light of these observations, supported by reasons. It will be worthwhile to have recourse to the Supreme Court's ruling in the case of Aslam Warraich and others v. Secretary, Planning and Development Division and 2 others (1991 SCMR 2330) in support of the course we are going to adopt. The following observations are in point:

76. "However, as a guidance, in this case, it would have been better if for the reasons to be recorded the Tribunal had remanded it so as leave it to the judgment of the departmental authority in the first instance. And if error committed the party concerned would approach the Tribunal for its correction. Such rule of procedure will have good effect for the development of a statutory practice in the departmental proceedings‑‑original, review, representational or appellate, for recording reasons in support of their orders.

77. In this case it cannot be said that no reason is mentioned in the rejection of respondent's representations in the orders dated 6/9‑10‑1988. But in many other cases we have been seeing that the rejection is a simple ritualistic rejection. Even if it is not a mandate by any law that the officer concerned should be informed about the reasons which prevailed with the authority concerned, it would not be illegal either to give reasons, at least, from now onward. It being the judgment of this Court on this legal question, the same would be observed as declared law."

19. For the reasons mentioned above, we accept this appeal, set aside orders dated 16‑5‑1989 and 21‑5‑1989 and remand the case to the respondents for a fresh decision in the light of the observations made in this judgment. The Civil Services appellant shall be at liberty to make a fresh representation to the competent Authority for the redress of his grievance. No order as to costs.

78. A.A./753/Sr.P Case remanded.