1993 PLC(CS) 415

ABDUL MAJID Versus SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD

Citation1993 PLC(CS) 415

CourtFederal Service Tribunal

Case No.Appeals Nos. 253 and 254(L) of 1989

Date1992-08-25

Judge(s)Ch. Hasan Nawaz and Muhammad Ismail, Members

ResultAppeals dismissed

CH. HASAN NAWAZ (MEMBER).‑ ‑‑These two appeals under section 4 of the Service Tribunals Act, 1973 have been taken together for disposal in this judgment, because of having given rise to identical questions of law and facts.

2. Facts in the background are that perior to 1‑1‑1981, the Auditor General of Pakistan was responsible for maintenance of accounts of the Department of Pakistan Post Office and Telegraph and Telephone. These functions were performed by the Establishment of erstwhile Accountant General, Post, Telegraph and Telephone Department, Lahore which was a subordinate office of the Auditor‑General of Pakistan (respondent No. 2). However, the accounts of Telegraph and Telephone Department and the Post Office Department were departmentalized with effect from 1‑1‑1981 and the Office of Accountant‑General Post, Telegraph and Telephone Department was abolished. The accounting work relating to these departments was transferred from the Office of the Accountant‑General Post, Telegraph and Telephone to the Director‑General, Telegraph and Telephone and Director‑General, Pakistan Post Offices. The audit work was entrusted to a newly created Office of Director‑General Audit T&T, Lahore.

3. On this reorganisation, the posts and incumbents in each cadre on the strength of defunct Accountant‑General, P. T&T, Lahore were distributed amongst the Offices of (a) Director, T&T Accounts, under the Director General, T&T Department, Islamabad; (b) Director of Accounts Pakistan Post Offices under the Director‑General, Pakistan Post Offices, Islamabad; and (c) Director‑General, Audit P. T&T, Lahore under the Auditor‑General of Pakistan, Lahore.

4. As against nine posts of Assistant Accounts Officer, subsequently designated as Accounts Officer (B‑17) allocated to Director‑General, T&T, fifteen Accounts Officers were transferred permanently to his office in order of seniority, as borne out by Notification No. ADMN.SUFIY/Allocation Staff/Vol.II/204, dated 4‑8‑1983 issued by the Office of Director‑General, Audit, P. T&T, Lahore. Mr. Muhammad Akmal (respondent No. 3) in these appeals has been mentioned at Serial No. 7 in the list attached with the notification dated 4‑8‑1983 as having been permanently allocated to the Office of Director‑General, Audit T&T, Lahore.

5. It may also be mentioned as a relevant fact that at the time of his allocation to the Office of Director‑General Audit T&T, Lahore, the respondent No. 3 was serving on deputation in the Office of Auditor‑General of Pakistan. He was still on deputation when he became due for induction into the Inter‑Departmental Cadre (B‑17) of the Accounts Group in the year 1987. His name was not mentioned in the seniority‑fist furnished to the Auditor General's Department which administers the Accounts Group. The matter was referred back to the T&T Department, for an inquiry as to why his name had been dropped from the seniority list of Accounts Officers of the T&TT Department. The plea taken by the T&T Department in response was that his name had not been shown in the list because he did not resume duty in that department after an allocation to that department. This plea was not accepted and a reference was made to the Establishment Division which confirmed that respondent No. 3 stands allocated to the Office of Director T&T, Lahore with effect from 1‑1‑1981 on departmentalisation of accounts. It was confirmed that he was on deputation to the Office of Auditor‑General of Pakistan with effect from 27‑7‑1976 and that he should have been shown in the seniority list on the strength of Director, T&T Accounts, Lahore (Annexure‑III).

6. Subsequently, the Auditor‑General's Office appears to have made another request for extension of the period of deputation. It is borne out by the Establishment Division's letter dated 4‑5‑1989 that they refused to grant further extension to the period of deputation. However, the period of his deputation from 1‑1‑1981 to 31‑5‑1991 was regularised by the Establishment Division and the Auditor‑General's Office was advised to repatriate the officer to his parent department immediately before 31‑5‑1989. He was accordingly so repatriated to the T&T Department as borne out by the Auditor‑General's No.60‑DIR (A)/1/89‑1, dated 25‑5‑1989. He, assumed duty in the Office of Director Accounts, T&T, Lahore on 28‑5‑1989.

7. For an introduction to the appellants, reference may be made to seniority list of Accounts Officers circulated by the Office of Director‑General, Pakistan Telegraph and Telephone through covering letter No. S.15‑2/85, dated 20‑4‑1985. Mr. Muhammad Akmal (respondent No. 3) finds place against Serial No. 14 whereas Mr. Abdul Majid and Khurshid Alam Chaudhri appellants have respectively been mentioned against Serial Nos. 35 and 36 of the list, which is not in dispute. Therefore, it is an admitted fact that the appellants are junior to respondent No. 3 as Accounts Officers in the Office of Director‑General, Pakistan Telegraph and Telephone Department. The date of their allocation to T&T Department is not material.

8. Dispute arose on issuance of Notification No. 55‑IDC‑II/3‑2/82(IV), dated 16‑5‑1989, whereby the competent authority approved the induction of certain Officers of departmental cadre (B‑17) of the Accounts Cadre of Pakistan Telegraph and Telephone Department into the Inter‑Departmental Cadre with effect from 22‑4‑1989. Mr. Muhammad Akmal (respondent No. 3) finds mention against Serial No. 54 of the list attached with the notification. He was at the top of nine other Accounts Officers of the T & T Department, inducted into the Inter‑Departmental Cadre.

9. The appellants addressed two separate representations dated 5‑8‑1989 to the Director‑General, T&T, Islamabad against respondent No. 3's induction into Inter‑Departmental Cadre. They were informed through Letter No.S.15 2/87, dated 25‑10‑1989 that the matter had been taken up with the Establishment Division for consideration and that there was no ground for accepting the representations, They were informed that the Establishment Division had upheld the earlier decision conveyed through U.O. No. 1/94/86 E.4, dated 4‑5‑1989.

10. On having failed in the department the appellants came to the Tribunal with the present appeal where the following prayers have been made, namely:

"(i) That the action of respondent No. 1 for treating the respondent No. 3 on strength of T&T Department and regularising the deputation period of over 13 years in contravention of rules on the subject is null and void being ultra vires of the powers conferred on him;

(ii) That the action of respondent No. 2 inducting respondent No. 3 in I.D.C. from strength of T&T Department is null and void; and

(iii) Order return back of respondent No. 3 to his parent office (not T&T Department as he had never joined) i.e. A.G., P. T&T (Now D.‑G. PT&T Audit), Lahore and in his place senior‑most Accounts Officer from T&T Department viz. the appellant be inducted in I.D.C. w.e.f. 22‑4‑1989."

11. The appellants' case is that since respondent No. 3 did not assume duty in the Office of Director, T&T Accounts, Lahore immediately on allocation and continued to remain on deputation in the Office of Auditor General of Pakistan, he could not be deemed to have been on the strength of the T&T Department. It is contended that he remained on deputation for a period of more than five years in violation of the relevant instructions on the subject and that his deputation could not legally be regularised in respect of the period beyond five years. It is contended that he permanently belonged to the Office of Auditor‑General of Pakistan and that he could not have been inducted in the Inter‑Departmental Cadre against the T&T Department quota of Accounts Officers.

12. From the prayers made in the appeals it is clear that the requisite relief can‑ be granted to the appellants only if it be held that regularisation of the respondent No. 3 by the Establishment Division was illegal and in contravention of the rules on the subject. The grant of other two prayers also depends upon the grant of first prayer.

13. The respondents' reliance is on Establishment Division's Office Memorandum No. 1/28/75‑D.II/R.3/R.1, dated 18‑2‑1987 on the subject of deputation of Government servants. Paragraph (iv) of this O.M. says that on completion of the maximum period of five years, both the borrowing and the lending organisations should ensure immediate repatriation of the deputationists. Paragraph (v) is to the effect that in case it is not possible to repatriate a person to his parent organisation for compelling reasons, the case should be referred to the Establishment Division before the expiry of the maximum period of five years, fully explaining the circumstances due to which immediate repatriation is not possible and measures taken to obtain or groom a replacement as early as possible.

14. Relying upon these instructions it was‑ contended by the respondents' learned counsel that the Establishment Division was fully competent to regularise the period of deputation beyond five years and that they did regularise that period in exercise of their powers. It was further contended that there was nothing legally wrong with regularisation of the period of respondent No. 3's deputation. We are inclined to agree. The provisions of para.(v) of O.M., dated 18‑2‑1987 do visualise a situation where a Government servant can be kept on deputation beyond the period of five years for compelling reasons. A reference in this case was made to the Establishment Division in terms of the instructions of this O.M., for further extension of the period of deputation. As we have already seen, this request was refused, on account of deputation having become excessively long. However, the period of deputation was regularised uptil 31‑5‑1984. We feel no hesitation in saying that the Establishment Division was fully competent under the Rules of Business to allow this regularisation and no illegality was involved in the matter, as could have justified a finding that respondent No. 3 was not on the strength of T&T (Accounts Department), merely because of the fact that he had not assumed duty after allocation of his name to that department. As a result of departmentalisation on 1‑1‑1981, he will be deemed to have remained on deputation with the concurrence and approval of the competent authority during this period and the fact of his failure to assume duty immediately on allocation, would not warrant a conclusion that he was not on the strength of T&T Department and could not consequently be inducted into Inter Departmental Cadre from its quota.

15. For these reasons, we hold that the appeals are without any 'force. They are accordingly dismissed. There will, however, be no order as to costs. Parties may be informed.

A.A./762/Sr.F Appeals dismissed.