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Petitioner: MAZHAR ALI VS Respondent: FEDERATION OF PAKISTAN/PRESIDENT OF PAKISTAN
1992 P L C (C
1992 P L C (C.S.) 411
[Supreme Court of Pakistan)
Present: Shafiur Rahman, Rustam S. Sidhwa and Muhammad Afzal Lone, JJ
MAZHAR ALI
Versus
FEDERATION OF PAKISTAN/PRESIDENT OF PAKISTAN through the Secretary, Establishment Division, Cabinet Secretariat and 2 others
Civil Appeal No.574 of 1989, decided on 16th December, 1991.
(On appeal from the judgment of Punjab Service Tribunal, dated 11-1-1988 passed in Appeal No.426/915 of 1986).
(a) Constitution of Pakistan (1973)--
----Art. 212(3)---Leave to appeal was granted to examine whether a civil servant of a Province could be so treated or dealt with as to be left with no lien on any post while being posted with the Federal Government.
(b) Civil Servants Act (LXXI of 1973)--
----S.2(1)(h)---Civil Services Rules (Punjab), Vol. I, Rr.3.13 to 3.17--- Fundamental Rules 13, 14 & 14-A---Lien of permanent civil servant-- Termination---Essentials---Lien of a permanent civil servant could not be terminated even with his consent; same could, however, be terminated only when he was confirmed against some other permanent post---Civil servant transferred from the Provincial Government to the Federal Government-- Nothing on record to indicate that he was confirmed under the Federal Government on any post---In absence of such material evidence, his lien would be retained with the Provincial Government and notwithstanding the non-specification of terms and conditions of his deputation, he would be deemed to be on deputation with the Federal Government and would thus, be excluded from the definition of civil servant under the Civil Servants Act, 1973-- President of Pakistan thus would not be the competent Authority for want of jurisdiction to direct either compulsory retirement of such civil servant or termination of his service.
(c) Civil service-
----Lien---Termination---Lien of permanent civil servant could not be terminated even with his consent; same could, however, be terminated only where he was confirmed against some other permanent post---Civil servant having been transferred from Provincial Government to Federal Government, nothing on record indicated that he was confirmed on any post by the Federal Government---Civil servant's lien in absence of such material or evidence. Would be retained with the Provincial Government and notwithstanding non- specification of terms and conditions of his deputation, he would be deemed to be on deputation with the Federal Government.
(d) Civil Servants Act (LXXI of 1973)-
----S.2(1)(h)---Civil servant on transfer from Provincial Government to Federal Government was not confirmed by the latter Government on any post under the Federal service---Such civil servant's lien would be retained with the Provincial Government notwithstanding non-specification of terms and conditions of his deputation with the Federal Government---Civil servant would thus, be excluded from the definition of civil servant under Civil Servants Act, 1973---Compulsory retirement of such civil servant on the order of President of Pakistan would be without jurisdiction and was set aside.
(e) Civil service--
--- Compulsory retirement---Validity---Limitation---Where civil servant of Provincial Government was transferred to Federal Government on deputation and was subsequently retired compulsorily, question of limitation for redress of his grievance, would not come in between, because the Provincial Government all through treated him as its own employee and had dealt with him even during the pendency of appeal in a beneficial and befitting manner.
(f) Punjab Service Tribunals Act (IX or 1974)---
---S.4---Compulsory retirement of civil servant---Appeal---Limitation---Civil servant, on deputation from Provincial Government to Federal Government was dismissed by the latter Government---Question of limitation would not come in between because Provincial Government all through treated such civil servant as its own employee and had dealt with him even during the pendency of appeal in a beneficial and befitting manner.
Sh. Manzur Ahmad, Advocate instructed by M. Aslam Chaudhry, Advocate-on-Record for Appellant.
Aftab Iqbal Chaudhry, Deputy Attorney-General, instructed by Rao Muhammad Yusuf Khan, Advocate-on-Record for Respondents.
Date of hearing: 16th December, 1991.