Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: KHURSHID AHMED GOREJA VS Respondent: APPELLATE AUTHORITYHonorable Justice Syed Ally Madad ShahFazal Elahi Siddiqui,Hafiz S.A. Rehman
1993 P L C (C
1993 P L C (C.S.) 836
[Federal Service Tribunal]
Present: Syed Ally Madad Shah, Chairman and Rana Rifat Saeed, Member
KHURSHID AHMED GOREJA
versus
THE APPELLATE AUTHORITY through Secretary Establishment Division, Islamabad and 2 others
Appeal No. 66(R) of 1991. decided on 29th August, 1992.
Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑Appeal‑‑‑Maintainability‑‑‑Order challenged by appellant in appeal before Tribunal was not made by Authority against him as a civil servant, but it was made against him after he had ceased to be a civil servant‑‑‑Charges against appellant were also pertaining to period after he had ceased to be a civil servant‑‑‑Appeal before Service Tribunal, in circumstances, was without jurisdiction and was liable to be dismissed on that ground.
Fazal Elahi Siddiqi for Appellant.
Hafiz S.A. Rehman for Respondents.
Dates of hearing: 13th and 14th May, 1992.
JUDGMENT
SYED ALLY MADAD SHAH (CHAIRMAN): ‑‑Appellant Mr. Khurshid Ahmed Goreja was initially appointed in the Telephone and Telegraph Department. He was serving as an Office Assistant (B‑11) (as stated by him) in the office of the Senior Accounts Officer, Revenue, Rawalpindi, when he applied for the post of Superintendent (B‑16) advertised by the Appropriate Technology Development Organisation (ATDO), Islamabad in May/June, 1976. He was selected and he joined the ATDO as a Superintendent with effect from 31‑12‑1976. The ATDO at that time was functioning as a Cell under the Planning and Development Division. Subsequently, it was registered as a Society under the Societies Registration Act, 1860 sometime in March/April, 1977. It was later placed under the administrative control of the Ministry of Science and Technology in 1978. The appellant was promoted in the ATDO as an Assistant Secretary (B‑17) with effect from 2‑5‑1978; as a Deputy Secretary (B‑18) with effect from 23‑11‑1982, and as a Secretary (B‑19) from 7‑8‑1985. The ATDO was converted into Pakistan Council of Appropriate Technology (PLAT) through a Resolution dated 6‑4‑1987. The appellant continued serving there. In the year 1989, he was proceeded against for misconduct and/or corruption on various charges and order of his removal from service was made on 22‑8‑1990 under the provisions of Rule 4(1)(b)(iii) of the Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the Government Servants (E&D) Rules). He preferred departmental appeal to the Prime Minister on 18‑9‑1990. The order of his removal from service was reviewed vide Notification dated 21‑1‑1991, reproduced below:
"PAKISTAN COUNCIL OF APPROPRIATE TECHNOLOGY (1‑B, Street‑‑47, F‑7/1) ISLAMABAD
No. CH/5.7/91/9761, Dated 21‑1‑1991
NOTIFICATION
It is hereby notified that the competent authority has been pleased to review the case of Mr. Khushid Ahmed Goreja, Ex‑Secretary, PLAT on compassionate grounds and decide as under:‑‑
(i) The major penalty of termination of service will stand converted into comparatively lesser major penalty i.e. demotion from B‑19 to B‑18.
(ii) He will be reinstated in B‑18 in PLAT.
(iii) Since the competent authority has, on review imposed on him major penalty of demotion and he has not actually been working during the period in between the date of his removal from service and the date of his reinstatement, the period between termination and reinstatement may please be‑treated as leave on half pay.
(iv) The Minister in his capacity as President, Board of Governors has kindly approved adjustment/appointment of Mr. KA. Goreja in National Centre of Technology Transfer in B‑18. He will join there first and on receipt of his joining report there from necessary action to notify amendment to change of major penalty imposed, reinstatement thereafter and to relieve him may K taken. He will sever all his connections with PLAT.
(2) In pursuance of the above decision, Mr. Khurshid Ahmed Goreja is hereby reinstated in PCAT in B‑18 and his services are placed at the disposal of National Centre for Technology Transfer (NC'1"T) for appointment/adjustment with immediate effect.
(Sd.) AA. JUNJEO. Chairman, PCAT."
The appellant reported for duty in the National Centre for Technology Transfer (NCTT) against the post of OSD in B‑18. However, he challenged the aforesaid Notification dated 21‑1‑1991 in this appeal riled on 20‑2‑1991 for setting aside the order dated 21‑1‑1991 and consequential reliefs.
2. The appellant has assailed the impugned order dated 21‑1‑1991 on several grounds. He has agitated that the order was made by the Minister who was not the competent authority. He has alleged that the inquiry proceedings were initiated against him with malicious motives as the Chairman was hostile to him. He has contended that the inquiry was conducted in haste inasmuch as that it was completed within an hour and his defence witnesses were not examined and he was awarded punishment in such slip‑shod manner. He has denied all the charges levelled against him.
3. The appeal is directed against (1) the appellate authority through the Secretary, Establishment Division; the Secretary, Ministry of Science and Technology; and the Chairman, Pakistan Council of Appropriate Technology. They have filed joint written objections in opposition to the appeal. They have taken preliminary objections that the appeal is not maintainable as it has been filed without availing of remedy of departmental appeal. They have also taken the plea that the appellant is not a `civil servant' and, therefore, this Tribunal does not have jurisdiction to have entertained the appeal. They have asserted that the appellant was found guilty of the charges and he was rightly awarded punishment.
4. The learned counsel for the parties have made submissions on factual merits as well as on the legal questions and reiterated the respective grounds urged in the memo. of appeal and the written objections.
5. The first and foremost question needing for determination is that of the jurisdiction of the Tribunal. The jurisdictional objection has been raised on the plea that the appellant was not a civil servant at the relevant time. It would appear from the service career of the appellant, narrated above, that he was initially employed with the T&T Department when he was appointed in the ATDO as a Superintendent while retaining his lien with the T&T Department. The ATDO was functioning as a Cell under the Planning and Development Division, at the time of his appointment. The ATDO was registered as a Society under the Societies Registration Act, 1860 somewhere in March/April, 1977. It was placed under the administrative control of the Ministry of Science and Technology in 1978. The appellant earned promotion as Assistant Secretary (B‑17) on 2‑5‑1977. He obtained retirement from the T&T Department after completion of 25 years' service, with effect from 1‑9‑1982. However, he continued serving in the ATDO. He earned further promotion there as Deputy Secretary on 23‑11‑1982 and as Secretary on 7‑8‑1985. In April, 1987, the ATDO was converted into Pakistan Council of Appropriate Technology (PCAT) through a Resolution dated 6‑4‑1987. Proceedings under the E&D Rules were initiated against him in the year 1989 and order of his removal from service was made on 22‑8‑1990. His departmental appeal dated 18‑9‑1990 was disposed of, as aforesaid, as per Notification dated 21‑1‑1991. There could be no dispute that the appellant remained as a civil servant until he sought retirement from the T&T Department with effect from 1‑9‑1982. What became his status thereafter became a startling question. A Member of the National Assembly, Mr. Wasi Mazhar Nadvi raised this question in the National Assembly in the following form and the Minister Incharge of the Science and Technology (Dr. Mahbubul‑Haq, Minister for Commerce, Planning and Development) made the following answer as per photostat copy of the extract produced by the appellant, as Annexure V at page 20 of the memo of appeal:
"487. Mr. Wasi Mazhar Nadvi: Will the' Minister Incharge of the Science and Technology be pleased to refer to his reply to Starred Question No. 97, dated June 27, 1987 and state‑‑
(a) the ground on which the existing Secretary of ATDO had got his retirement from telephone department in 1983:
(b) whether the said incumbent had sought his retirement voluntarily after completing 25 years' service and permission from competent authority was obtained while re‑employing him in Ministry of Science and Technology and. whether the prescribed contract form of Establishment Division duly filled in, was obtained from him and placed on record; and
(c) whether a person on contract can be promoted under the rules; if not, the reason for granting promotion to the said person despite his obtaining retirement in 1983?
Minister Incharge of the Science and Technology (Dr. Mahboob‑ul- Haq, Minister for Commerce and Planning and Development): (a) The present Secretary joined ATDO as Superintendent BPS‑16 on 31‑12‑1976, and maintained lien in his parent department up to 1‑9‑1982. After termination of his lien in his parent department he was permanently absorbed in the ATDO. Due to his permanent absorption, he got his retirement from the Telephone Department (parent department) with effect from 1‑9‑1982 (and not in 1983).
(b) It was a voluntary retirement after completion of 25 years' service. He was not re‑employed, but he was permanently absorbed in the Organisation (ATDO) and not in the Ministry of Science and Technology as he had been continuously working in the Organisation since 31‑12‑1976.
The contract form of Establishment Division was not relevant as consequent on his retirement from T&T Department on 1‑9‑1981 he had been permanently absorbed and not appointed on contract basis in ATDO where he was working continuously since 31‑12‑1976.
(c) He was not a contract employee but a regular employee of ATDO."
It would appear from the Question and Answer made in the National Assembly in respect of the appellant's continuance in service after his retirement from the T&T Department that the stand taken by the Government was that lien of the appellant in the T&T Department was terminated with effect from 1‑9‑1982 and he was permanently absorbed in the ATDO and due to his permanent absorption, he got his retirement from the T& ‑1 Department (parent department) with effect from 1‑9‑1982. It was further stated that the appellant had sought voluntary retirement after completion of 25 years' service. Further, stand of the Government was that the continuance in service of the appellant in the ATDO was not his re‑employment nor was his employment on contract basis, but it was his permanent absorption in the organisation and not in the Ministry of Science and Technology as he had been continuously working in the Organisation since 31‑12‑1976 and he had become a regular employee of ATDO. Following facts emerge from the aforesaid statement of facts made before the National Assembly:‑‑
(1) The appellant remained a civil servant up to 1‑9‑1982 when he sough; retirement from service on completion of 25 years' service and counted in combination of his service rendered with the T&T Department.
(2) By virtue of his retirement, as such, he ceased to he a civil servant in view of the provisions of section .13 of the Civil Servants Act, 1973, providing, inter alia, that a civil servant, not holding the post of an Additional Secretary to the Federal Government, or an equivalent or higher post, shall retire from service after he has completed 25 years' service qualifying for pension and other retirement benefits and the competent authority may, in the public interest, direct; or, where no such direction is given, on the completion of the sixtieth year of his age.
(3) On his retirement as such, the appellant could not be re‑employed under the Federal Government without the prior approval of the authority next above the appointing authority as laid down in section 14 of the Civil Servants Act, 1973.
(4) Permanent absorption of the appellant in the ATDO is said to have taken place after termination of his lien in the T&T Department that were so, it offended the provisions of FR‑14‑A that lien of a Government servant holding a permanent post shall not be terminated, even with his consent, if the result would be to leave him without a lien or a suspended lien upon a permanent post.
(5) After permanent absorption of the appellant in the ATDO whether as a civil servant he could not seek retirement from the T&T Department even on the basis of completion of 25 years' service qualifying for pension and other pensionary benefits etc.
(6) The fact that the appellant was, permanently absorbed in the ATDO and not in the Ministry of Science and Technology, he was supposed to have been absorbed in the ATDO in a manner otherwise than provided under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and his absorption there was not as a civil servant.
5. The other aspect of the case is the proceedings taken against the appellant which culminated into the order of his removal from service made, on 22‑8‑1990, subsequently modified by the appellate authority to his demotion from BPS‑19 to BPS‑18 and consequential order of his posting somewhere else. The charges against him pertained to his alleged misconduct in respect of certain tenders invited in the year 1987 when ATDO was given autonomous status by reconstituting it in the name of `Pakistan Council of Appropriate Technology (PCAT)' on 6‑4‑1987, where under all officers, advisers and other employees in the service of the ATDO were transferred for service under the Council on the terms and conditions to which they were entitled to immediately before the commencement of the Resolution. As discussed above, the appellant had ceased to be a civil servant with effect from 1‑9‑1982 and his continuance in service with the ATDO was not supposed to be civil service under the Civil Servants Act, 1973 and by the Resolution dated 6‑4‑1987, he had become servant of the PCAT, an autonomous body, and the orders of his punishments were made not as a civil servant but in a different capacity whatever it was.
6. The facts outlined above lead to the conclusion that the order impugned by the appellant was not‑made against him as a civil servant but it was made against him after he had ceased to be a civil servant on the charges pertaining to the period after he had ceased to be a civil servant and, therefore, the appeal before this Tribunal is without jurisdiction and is liable to be dismissed on that ground. In the circumstances, the merits of the appeal are not gone into and the appeal is accordingly dismissed as being without jurisdiction. No order is made for costs.
H.B.T./764/Sr.F Appeal dismissed.