1998 PLP (CS (PLC(CS))

SAIYED SAEED ASHHAD, J.

This petition has been filed by the above-named petitioner against the Federal Government and M/s. Pakistan Industrial Development Corporation. The brief facts of the case as disclosed by the petitioner in his above petition are that he was employed in the Pakistan Industrial Development Corporation as a Stock Verifier on 7-11-1961 and was posted in the regional office at Dacca in former East Pakistan. He further submitted that after promulgation of the 1962 Constitution, P.I.D.C. was dissolved and two Provincial Corporations were established with effect from 1-7-1962 by Central Ordinance Nos. 37/1962 and 38/1962. He further submitted that the officers and employees of Pakistan Industrial Development Corporation were to be transferred, absorbed and appointed in the Provincial Corporation and in consequence thereof he was appointed on 27-3-1964 as Assistant Auditor/Assistant Manager (Audit) in East Pakistan Industrial Development Corporation and continued to perform duties as such till the fall of Dacca on 16-12-1971 when the Government employees belonging to the then West Pakistan were ousted and stopped from performing their duties. It is the case of the petitioner that he arrived in Pakistan on 23-3-1974 through ICRC, was registered with the Government of Pakistan, Cabinet Division (R&R) Wing, Karachi and was allowed subsistence allowance for 12 months as per policy of the Government. On 27-3-1974 he submitted his joining report to General Manager (A&P) of respondent-PIDC (former W.P.I.D.C., which after the fall of Dacca was reconstituted and named as P.I.D.C.), who expressed his inability to absorb him in respondent-PIDC directing him to approach the Cabinet Division. The petitioner further submitted that according to the instructions issued and the policy adopted by the Federal Government, hundreds and thousands of Pakistanis, who were in the employment of the Federal Government or Autonomous Bodies/Semi-Government Corporations/in the then East Pakistan were being appointed/absorbed in the relevant Divisions/Departments/Offices of the Federal Government or Autonomous Bodies/Government Corporations but he was refused to be appointed/absorbed by respondent-PIDC in clear disregard of the Government instructions and policies which led him to take up his case with various Ministries and Divisions of the Federal Government as well as with respondent-PIDC, without any success and after a long wait and delay of 12 years, respondent-PIDC vide their letter dated 13-3-1986 offered him appointment as Assistant Manager (Audit). According to the terms of the above appointment letter the appointment was to be a fresh appointment effective from the date of his joining and further that he would not be entitled to claim continuity in service as well as the pay, perquisites or any other claim between the period from 16-12-1971 to the date of joining. The petitioner objected to aforesaid conditions and sent a telegram to the Deputy Secretary, Ministry of Production, bringing to his, knowledge the aforesaid adverse conditions, but the Deputy Secretary, Ministry of Production advised him to join the post and take up the above questions thereafter. The petitioner joined P.I.D.C. as Assistant Manager (Audit) on 26-3-1986 and thereafter submitted his appeals/petitions to the Ministry of Production for treating the period from 16-12-1971 till 26-3-1986 as on duty and allowing him all the financial benefits for the aforesaid period, but before the aforesaid appeals/petitions could be decided he was retired from service on 4-1-1987 on attaining the age of superannuation and under the instructions of Ministry of Production respondent-PIDC made an ex gratia payment of Rs.50,

000. The petitioner continued to pursue his appeals/petitions before the various functionaries and authorities of the Federal Government and finally succeeded in obtaining a favourable decision from the Ministry of Finance, who vide their Letter No. 14/3/83-IV, dated 13-7-1993 informed the Chairman of respondent-PIDC that the Finance Division had decided that the petitioner was entitled to be treated as on duty from 16-12-1971 up to .26-3-1986 and that all his dues to which he was entitled were to be paid to him. The petitioner further submitted that the Secretary (Administration), Ministry of Industries vide his D.O. No. PER: 14/3/83-4, asked the Chairman, P.I.D.C. to look into the matter, personally for ensuring the payment of all outstanding dues to the petitioner but to no avail and, subsequently, the petitioner was informed by respondent-PIDC that on his case being reconsidered by the Ministry of Industries and Production (Production Wing), the same was rejected on merits. The petitioner submitted that the above acts of the respondents were in flagrant violation of the instructions issued and the policy adopted by the Federal Government in respect of appointment/absorption of the employees of Federal Government or Federal Government's Autonomous Bodies/Corporations working in East Pakistan as well as of the decision/ruling given by the Ministry of Finance in its letter dated 13-7-1993, which was conveyed to the Ministry of Production by the Finance Division vide its letter dated 5-4-1994 and he was left with no option but to file the above petition praying for the following reliefs: -- "(1) To declare the decision of Ministry of Production rejecting the claim of the petitioner for being treated in service and for payment of all the financial benefits for the period from 16-12-1971 to 26-3-1987; (2) A direction to the concerned Division/Ministry/Government Agency to settle his outstanding dues admissible to him as per decision/ruling of the Finance Division. (3) To direct the concerned Division/Ministry/Department to give him service and benefits pro forma promotion and payment of arrears of pay and allowances together with provident fund contribution to be made by the corporation and the benefits thereon; (4) To allow him mark-up on the amount found due and payable to him which has been wrongly withheld from 1971 onwards; and lastly any other relief as deem fit." The petitioner appeared in person and submitted his arguments. Mr. Mubarak Hussain Siddiqui, learned Dy. A.-G. appeared on behalf of Government of Pakistan while Mr. Khalil-ur-Rehman appeared on behalf of Pakistan Industrial Development Corporation in pursuance of the pre-admission notices issued to them and it was made clear to them that the petition could be admitted and disposed of at the same time. We have also perused tae material on record as well as the relevant provisions of the law and the case-law referred to us by the petitioner. The Government of Pakistan had issued office memorandum dated 9-10-1972 whereby it had issued instructions for absorption of officers and staff of the Central Government working in East Pakistan prior to the fall of Dacca. This office memorandum was followed by office memorandum dated 6-12-1973 whereby the employees of the Federal Government's Autonomous/Semi-Autonomous, Bodies/Corporation working in East Pakistan at the time of occupation by the enemy, who had come to West Pakistan were also allowed the benefits of absorption/appointment in the respective organisation in Pakistan, as made available to Federal Government Employees. Another office memorandum dated 5-4-1974 was issued by the Government of Pakistan (Cabinet Division) and in para. 1, clause (a) thereof the description of the repatriates was given which included employees of Autonomous Bodies under the administrative control of Central Government. It is an admitted position that East Pakistan Industrial Development Corporation had come into existence in 1962 by a Federal Ordinance and was working under the control, management and supervision of the Federal Government. It is also established from the record that the petitioner was originally employed in P.I.D.C. and was posted at Dacca in the Regional Zonal Office and after bifurcation of the P.I.D.C. into two Provincial Corporations he was assigned and posted in E.P.I.D.C. In the circumstances, the claim of the petitioner that he was covered by the category of employees mentioned in the aforesaid office memorandum/instructions issued by the Federal Government for the purpose of absorption/appointment in Pakistan is established. Office memorandum No. F.30(8)-R.I./72 issued by the Government of Pakistan, Finance Division (Regulation Wing), dated 4-1-1973 conveyed the decision of the President that the Federal Government Employees working in East Pakistan at the time of fall of Dacca and who had left East Pakistan on or after 16-12-1971 reaching West Pakistan, the period of their absence from 16-12-1971 up to the date of resumption of duty in Pakistan was to be treated as period on duty. The above instructions/order of the President was also made applicable to the employees working in Government/Semi-Government/Autonomous Bodies or Corporations vide the Finance Division's Office Memorandum dated 6-12-1973. This was further clarified by Office Memorandum No. F.3(10)-E1/72-R/12/75, dated 27-1-1975 according to which the orders/instructions of the President were applicable to the employees of the Federal Autonomous/Semi -Autonomous Bodies and Corporations, who were serving in the then East Pakistan at the time of enemy occupation and had come over to Pakistan on or after 16-12-1971. From the above office memorandum it is established that Federal Government employees working in the then East Pakistan who, later on, arrived in Pakistan were not only to be absorbed by the relevant/concerned Division, Ministry, Department/Section or the Autonomous Body/Corporation, as the case might be, but were also entitled to all the salary and financial benefits which would have accrued to them, had they continued in service in the then East Pakistan during the period after 16-12-1971 till such time as they joined/resumed service in accordance with the above instructions/directions of the Government of Pakistan. Mr. Mubarak Hussain Siddiqui, learned Dy. A.-G. and Mr. Khalil ur-Rehman learned counsel for P.I.D.C. did not challenge the issuance of the above instructions/directions by the Government of Pakistan with regard to the absorption/appointment of the employees who were working in Pakistan at the time of fall of Dacca and had arrived in Pakistan. They submitted that the petitioner did not fall in any one of the categories of employees, who were to be absorbed or appointed as a matter of policy and belonged to the category who were not to be absorbed as a matter of policy as no reservation of Government posts was made from them but they could compete for fresh appointment to the posts available under the Federal Government, Provincial Government or Federal Government's Autonomous Bodies or Corporations. The arguments advanced by the learned Dy. A.-G. as well as the learned counsel for respondent-PIDC do not have any force. Admittedly, the petitioner at the time of fall of Dacca was employed in a Statutory Body/Corporation created by the Federal Government and working under the control, supervision and guidance of the Federal Government and was fully covered by the description of the employees given in the Finance Division Office Memorandum No. F.I(3)-E1/73, dated 6-12-1973. It is not known as to how the learned Dy. A.-G. and the learned counsel for respondent-PIDC submitted that the petitioner was working in Government/Autonomous Body or Corporation under the control of the Government of East Pakistan as the same is absolutely contrary to the material on record and admitted facts according to which the East Pakistan Industrial Development Corporation was created by Central Statute No.37 of 1962 and was operated, run and controlled by the Federal Government and not by the Government of East Pakistan. The petitioner has succeeded in establishing that he belongs to the category of employees who were entitled to be absorbed/appointed in the relevant Division/Ministry/Section or the relevant Government or Semi- Government/or Autonomous Body/Corporation in Pakistan. From the various office, memorandums it has also been established that the Government of Pakistan, had issued instructions/directions that the period of absence of such employees with effect from 16-12-1971 till such time as they joined or were absorbed/appointed to a job of similar nature in any Division/Ministry/ Department or Government/Semi Government/Autonomous. Bodies or Corporation was to be treated as period of duty entitling them to claim all the financial benefits in the nature of salary, allowances and all other monetary or fringe benefits attached to the post. Thus petitioner in view of the material on record was also entitled to claim continuity in service and to receive the salary and all monetary benefits for the period from 16-12-1971 till 26-3-1986. However, in spite of clear instruction in this regard as well as favourable rulings/decisions of the Finance Division vide their letters dated 29-3-1993 and 5-4-1994, whereby respondent-PIDC and Ministry of Production were asked to make payment of all the dues to the petitioner for the period from 16-12-1971 to 26-3-1986 to which he was entitled, the concerned respondent did not comply with the above directions of the Finance Division. Thereafter, respondent PIDC succeeded in obtaining an order from the Ministry of Production, dated 2-4-1995 declaring that on reconsideration the case of the petitioner was rejected on merits. Another ground on which both the learned D.A.-G. and the learned counsel for respondent-PIDC opposed the above petition is that the petitioner by accepting the terms and conditions of the appointment letter, waived his rights, if any, with regard to the claims of continuity in service and the monetary as well as other benefits to which he would have been entitled if he had continued to serve in the ordinary course of his service. They further submitted that the petitioner is estopped from agitating the above issues on the grounds; firstly, that he accepted the offer of appointment dated 13-3 1986, without raising any protest and/or objection thereby voluntarily and of his free will consented to the conditions on which the service was offered to him; and Secondly, that after having consented and accepted the offer of service without any protest and reservation he would be deemed to have surrendered and/or waived his rights, if any, of claiming continuity in service, monetary/financial benefits and all other benefits to which he would have been entitled. The arguments advanced by the learned D.A.-G. and the learned counsel for the respondent-PIDC are without any substance. The petitioner after receipt of the appointment letter had objected to above adverse conditions and had lodged his protest with Ayub Khan, Deputy Secretary (P&C), Ministry of Production, Islamabad vide his telegram dated 15-3-1986, seeking his advice for the future course of action. The said telegram was acknowledged and replied to by M. Shaban Uppal, Section Officer, Ministry of Production, advising the petitioner to join respondent PIDC and to submit application through proper channel explaining his case for consideration. The petitioner by his aforesaid action not only objected to and challenged the adverse conditions imposed on him by the aforesaid appointment letter but also reserved for himself the right to challenge their applicability and legality after joining the service. With regard to the submission that the petitioner surrendered or waived his rights to claim the continuity in service, monetary and financial benefits as well as all other benefits by accepting the job offered to him, it is suffice to say that the petitioner had not accepted the service without objecting to and protesting against the adverse conditions, which were absolutely contrary and in breach of the instructions issued and the policies framed by the Federal Government for absorption/appointment of its officer falling in the class/category of the petitioner. Even, if it be assumed that the petitioner had not protested and objected to the said adverse conditions and had joined the service of respondent-PIDC unconditionally and without any reservations, it could not be said or claimed that the petitioner had surrendered or waived his rights and entitlements conferred upon him by the Office Memorandums and the policies issued/formulated by the Federal Government for the absorption/appointment of the employees belonging to the class/category of the petitioner. This is because of the fact that though the Office Memorandums and the Policies issued/formulated by the Federal Government did not have the status of Statutory Rules yet they were entitled to highest regard and were to be observed and followed with the same binding force as that applicable to the Statutory Rules. In the circumstances, the question of waiver by the petitioner of his aforesaid rights and entitlements and of his having been estopped from raising or agitating the issues relating to his aforesaid rights and entitlements is absolutely devoid of force as the instructions contained in the Office Memorandums and the policies framed by the Federal Government though not having the status of Statutory Rules were/are analogous and stand on the same footing as Statutory Rules and there cast be no waiver or estoppel against law or a statutory provision or rules and regulations having statutory force and sanctions. It will be appropriate to refer to the cases of; (i) Pakistan v. Sheikh Abdul Hamid PLD 1961 SC 105 and (ii) Province of West Pakistan and another v. Ch. Din Muhammad PLD 1964 SC 21 in support of the proposition that Departmental /Administrative instructions issued by the competent Authority are capable of creating legal rights and of possessing binding effect they have been expressed in precise terms and are capable of being applied with exactness and can be as effective and binding as Statutory Mules. The learned D.A.-G. and the counsel for the respondent-PIDC attacked the petition on the ground that the competent Authority had examined in detail the case of the petitioner regarding his claim to the aforesaid rights and entitlements and the same was rejected vide order dated 2-4-1995 as it was sound to be without any merit, thereby bringing the issues and the disputes relating to aforesaid claims of the petitioner to an end. Before proceeding to consider the repercussions of the above contention, it will be proper to mention here that the petitioner was not required to approach and obtain a favourable decision from any authority and functionary for claiming the monetary and other rights and entitlements attached to the post on which he was appointed as the same were provided and/or guaranteed to him by the administrative instruction having the force of statutory rules. The petitioner was forced by the circumstances to make/submit representations to various authorities as the concerned authorities/ functionaries did not allow his claim to the rights and entitlements which were legally available to him. In the process he obtained a favourable decision from the Finance Division vide letter dated 29-3-1993 which confirmed his entitlement to his aforesaid rights and benefits and directing Ministry of Production to make payment of all the financial dues to the petitioner. The Finance Division augmented its above decision by another letter dated 5-4-1994 also addressed to the Ministry of Production. It appears that respondent-PIDC did not accept the said decision of the Finance Division and kept agitating the same which resulted in Ministry of Production issuing the letter dated 2-4-1995 purporting to reject the claim of the petitioner to the aforesaid rights and benefits. In this background, the legality as well as bona fides of the said letter dated 2-4-1995 is highly doubtful and questionable. Prior to this letter, Joint Secretary, Ministry of Production vide D.O. No. PER: 14/3/83-IV, dated 6-2-1995 addressed to the then Chairman of respondent-PIDC requested him to comply with the ruling of Finance Division as per their letter dated 29-3-1993 directing payment of outstanding dues to the petitioner. The said D.O. also made it clear that the ruling of Finance Division becomes a liability of the referring Ministry and is to be complied, thereby suggesting without any doubt that the decision/ruling of the Finance Division contained in its letter dated 29-3-1993 was given on a reference made by the Ministry of Production to the Finance Division. In such situation, the Ministry of Production could, not re-open the case of the petitioner and reject the same on merits. The above facts and circumstances are sufficient to conclude that the decision contained in the letter dated 2-4-1995 of the Ministry of Production was not a valid and proper order and is to be ignored as the same offended the principle of approbation and reprobation. The Ministry of Production as well as respondent-PIDC could not raise and plead that the aforesaid ruling/decision of the Finance Division was not valid or proper and to ignore 'the same. On the contrary the decision contained in the letter dated 2-4-1995 of the Ministry of Production was an illegal and void order and could not be acted upon. In support of the above proposition, reliance is placed on the, categorical pronouncements made by their Lordships of the Supreme Court in the cases of; (i) Haji Muhammad Asghar v. Malik Shah Muhammad Awans and others reported in PLD 1986 SC 542; (ii) A.R. Khan v. P.N. Boga, reported in PLD 1987 SC107 and (iii) Sheikh Gulzar Ali & Co. v. Special Judge, Banking Court, reported in 1991 LCMR

590. The above contentions of the learned Dy. A.-G. and the learned counsel for respondent-PIDC therefore, are without any substance. The petitioner has submitted a photostat copy of the judgment dated 12-9-1994 of a learned Division Bench of this Court in C.P. No.D-136 of 1991, Ghulam Raza v. The Secretary, Establishment Division and others. In the said petition the grievance of petitioner, Ghulam Raza, who belonged to same category of employees as the above-named petitioner, was that he was not allowed his due seniority in accordance with the instructions issued by the Federal Government relating to the staff of the erstwhile East Pakistan absorbed in Pakistan, thereby depriving him of his further promotion and loss of pay. The learned Division Bench allowed the petition of the said Ghulam Raza with the directions that his seniority be fixed as per policy of the Central Government and also granted him all the back benefits which would become due on account of pro forma promotion to which he might have been found entitled. Upon the above discussion, we are satisfied that great injustice has been caused to the petitioner in not allowing him continuity in service as well as the monetary and other benefits for the period from 16-12-1971 to 26-3-1996. We had put the Dy. A.-G. and the learned counsel for respondent-PIDC on notice that the petition could be admitted and disposed of on merits. Accordingly, we admit this petition and allow the same. The petitioner is entitled to claim continuity in service as prayed by him and respondent-PIDC is directed to allow him continuity in service and pay all the monetary benefits by way of salary and allowances for the period from 16-12-1971 to 26-3-1986. The respondent-PIDC is also directed to allow the petitioner pro forma promotion(s) and make payment of difference of pay dud- to such promotion(s), which during his tenure of service with respondent-PIDC which is to be taken from 16-12-1971 till his retirement, he was likely or would have been entitled to get. A.A./M-248/K Petition accepted.