1989 PLP (C (PLC(CS))

Rs Rs Rs 13-14-1982 1000.00 1210.00 210.00 1-12-1982 1050.00 1270.00 220.00 1-7-1983 1960.00 2440.00 480.00 1-12-1983 2080.00 2560.00 480.00 1-12-1984 2200.00 2680.00 480.00 1-7-1985 2200.00] 2680.00] 220.00] 268.00] 528.00 =2420.00] =2948.00]

6. The appellant's case was referred to the Establishment Division who while admitting the fact that he (the appellant) was reverted wrongly, did not accede to his request of adjustment of his pay as prayed for in his representation. The extracts of the Office Memorandum dated 29‑8‑1983 of the Establishment Division are reproduced below in extenso: "No.l/17(1)/83‑R.VI. Rawalpindi, the 29th August, 1983. Subject:‑REPRESENTATION OF SPED WILLAYAT SHAH AGAINST HIS REVERSION FROM SEAP TO FINANCE DIVISION. The undersigned is directed to refer to the Finance Division (Investment and Capital Issues Wing) O.M. No. F.1 (41)‑INV.IV/82, dated the 13th August, 1983 on the subject cited above and to say that there is no doubt that appointment of Mr. Willayat Shah as Assistant in the SEAP was an appointment by transfer and he was genuinely promoted as Superintendent and Administrative Officer. He was not a deputationist in the SEAP. It is also true that the action of SEAP in reverting him to the post of Assistant in the Finance Division was incorrect and had no basis. However, the Finance Division did not take any action by enquiring as to how and why the official was reverted to it. It simply accepted him. The official himself did not represent at all against his reversion. He has, therefore, sought redress now after a lapse of six years. It would be difficult to force the CLA, the successor of SEAP, to keep Mr. Shah on its roll from 1976 to 1982 while he continued to work in the Finance Division as Assistant. (2) In view of the above it does not seem to be a fit case for just dispensation now. (3) If the Finance Division still feels that the advice of the Law Division is needed then it may refer the case to that Division alongwith our views. (4) This issues with the approval of Joint Secretary (Regulation): It was submitted that the appellant received the information regarding the rejection of his representation as stated above, vide the Ministry of Culture, Sports and Youth Affairs Division's memo dated the 27th of December, 1983, which is appended below: ‑ Subject:‑ Representation of Mr. S. Wilayat Shah against his reversion from SEAP to Finance Division. With reference to his representation dated 16th August, 1982 on the subject mentioned above Syed Wilayat Shah; Section Officer in this Division is informed that his request was examined in the Finance Division in consultation with the Establishment Division and Ministry of Law, but it is regretted it could not be acceded to." On receipt of the above memorandum the appellant submitted a departmental appeal addressed to the Minister of Finance, dated 23‑1‑198.1. His appeal was rejected vide memo dated the 24th of July, 1985, conveyed to him by memo. dated the 15th of August, 1985.

7. It was strongly contended by the learned counsel for the appellant that it is abundantly clear from the above correspondence that the appellant had been subjected to very unfair treatment. He was prevented from performing the job as an Administrative Officer without assigning any reason and reverted to a lower post, which resulted both in financial disadvantage and personal disrepute to the appellant. It was such a severe shock that the appellant got almost paralysed and was not able to pursue his case as envisaged in the Rules. However, the moment he came out of the shock he pursued his case most diligently and it has been clearly established and admitted by the Establishment Division vide their O.M., dated 29‑8‑1983 that the appellant was indeed maltreated and he deserves a better deal. His departmental appeal was rejected only on the ground that it was an old case and it was a bit difficult for the Establishment Division to make the SEAP or the Corporate Law Authority, the successor of SEAP, to agree to his request of creating a supernumerary post at such a belated stage. It was, therefore, submitted that the impugned order may be set aside and in view of the extenuating circumstances as explained above, the appellant be allowed the fixation of his pay as requested in his appeal to avoid a continuous loss of pay and allowances which he can ill‑afford.

8. The learned counsel for the State contended that the appeal of the appellant was hopelessly time‑barred because the appellant after his reversion to his parent Ministry, did not file the appeal within the specified period of 30 days from the date of his reversion i.e. with effect from 14‑10‑1976. The first representation that the appellant ever made was dated 22‑6‑1977 after a period of almost eight months. It was also contended that while reverting the appellant to his parent department, there was no need of assigning any reason for his reversion as he was holding his lien in that Division against a permanent post of Lower Division Clerk. It was further submitted that the appellant was not on deputation to SEAP because that was an attached department of the Ministry of Finance in 1970 when the appellant was transferred. Therefore, he could not be considered on deputation. But till then his reversion to his parent Division could not be refused because during his period of service with the SEAP he was not absorbed against any permanent post. The appellant was rightly reverted and accepted by the Ministry of Finance against the lien that he retained there. The creation of supernumerary post of the Administrative Officer to accommodate the appellant was not considered feasible at this belated stage by the Establishment Division as advised by the Law Division (now Justice Division), because he had not worked against any such post during the period of almost six years that he had been reverted since 14‑10‑1976. The request of the appellant regarding the fixation of his pay in B‑16 was also rejected by the Auditor General of Pakistan and the Regulation Wing of the Finance Division because it was not covered under the Rules. It was, therefore, vehemently contended that the appeal may be dismissed as incompetent.

9. We agree that there has been apparently an inordinate delay in filing the appeal initially but the psychological impact of his reversion, to our mind, explains the delay in this case on his part. However, his departmental appeal dated 23‑1‑1984 which was rejected and conveyed to him vide memo, dated 15‑8‑1985 does not mention limitation as the reason of rejection. This, therefore, is the final impugned order. Counting from 15‑8‑1985, his present appeal, in our opinion, is well within the prescribed time. There is, however, an application for condonation of delay and in view of the circumstances explained in the above paras we condone any delay and consider the case on merit.

10. We have gone through the record produced before us and have given our anxious thoughts to the circumstances which led to the background under which the appellant was reverted to his parent Department. In our considered opinion the appellant was wrongly prevented from performing his job for no fault of his own and without assigning any reason. In, 1973 S C M R 3tW Province of Punjab v. Syed Muhammad Ashraf and two others the Honnurable Supreme Court had dismissed the petition holding that "a civil servant who, for no fault of his own, is wrongly prevented from rendering service to the State in the higher post to which he is admittedly entitled, he should be given salary for the higher post". In our view, the law of estoppel is not applicable because the appellant never agreed by his deed or in writing to his wrongful reversion voluntarily. The assumption of charge of lower post by the appellant cannot merely be quoted as his wilful acceptance of reversion. He had, in fact, no other choice but to assume the charge of a lower post.

11. We also agree with the views of the Establishment Division to the extent that at this belated stage it may not be administratively convenient to ask the Corporate Law Authority (successor of SEAP) to create a supernumerary post to accommodate the appellant. However, we are of the considered view that the appellant while he is not being reinstated as Administrative Officer, should not be made to suffer financially when there is nothing in the way of administration to accede to his request of fixation of his pay. We, therefore, modify the impugned order under section 5(1) of the Service Tribunals Act, 1973, and direct that the pay of the appellant be fixed on the basis of the presumptive pay that he would have drawn had he continued to hold the post of Administrative Officer in SEAP. He will, however, not be entitled to any back benefits. Ordered accordingly.

12. No order as to costs. M.Y.H./421/Sr. F Appeal partly allowed.