1993 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN).‑‑‑Appellant Mr. S.M. Humayun Akhtar, on recommendation by the Federal Public Service Commission, was appointed as a Deputy Director (Rice Milling) Grade‑18 in the Directorate General of Food, under the Ministry of Food and Agriculture, Government of Pakistan, with effect from 1‑12‑1967 vide notification dated 13th December, 1967. As a matter of policy, the functions relating to the inspection, handling, storage, processing and shipment of rice for export vesting in Food and Agriculture Division were transferred to the Commerce Division and, in consequence thereof, the officers of the Directorate General of Food, the appellant being one of them, were transferred to the Commerce Division, alongwith their work vide Notification dated 24‑9‑1974. The Ministry of Commerce further transferred the whole lot to the Rice Export Corporation of Pakistan, Karachi, with effect from 24‑9‑1974 vide Notification dated 26‑9‑1974. By letter dated 30‑4‑1975 addressed to the Chairman, Rice Export Corporation of Pakistan (hereinafter referred to as the Corporation), the Ministry of Commerce gave options to the employees of the former Directorate General of Food serving in the Corporation either to continue as Government servant or become fledged employees of the said Corporation on the terms and conditions stated therein. The appellant opted to remain in the Government service and continued serving in the Corporation. He was promoted to the post of Director (BPS‑19) vide. Ministry of Commerce Notification dated 26‑1‑1976. A Notification No. F.8(3)/75‑DGF‑E‑VI, dated 16‑4‑1978 was issued to the effect that the transfer of the officers of the Directorate General of Food vide Ministry of Food and Agriculture Notification dated 24‑9‑1974 was alongwith their posts and their respective work. The appellant was allowed move‑over to BPS‑20 by the Ministry of Commerce with effect from 1‑12‑1984 vide letter dated 29‑10‑1986. The appellant claimed that his transfer to the Corporation was on deputation and he submitted such representation dated 16‑12‑1987 to the Secretary, Ministry of Commerce and indicated his option. By office order dated 8‑8‑1988 issued from the Administration Bench of the Corporation, the appellant was informed that the competent authority was pleased to have approved his voluntary retirement as Government officer in BPS‑19 (moved‑over to BPS‑20) from Government service with effect from 11‑8‑1988, and his subsequent absorption/re‑employment as a fulfledged employee of the Corporation with effect from 12‑8‑1988. He then made representation dated 10‑8‑1988 to the Secretary, Establishment Division for the benefits admissible to him as a deputationist for the period from 24‑9‑1974 to 11‑8‑1988. He was informed under Memo, dated 2‑1‑1989 that his transfer to the Corporation was under section 10 of the Civil Servants Act, 1973 and he was not a deputationist there. He preferred departmental appeal to the Prime Minister on 30‑1‑1989. Awaiting decision on his departmental appeal for more than 90 days, he preferred this appeal on 28‑5‑1989 for deputation allowance for the period from 24‑9‑1974 to 11‑8‑1988 and also for his promotion in absentia from the dates his juniors were promoted by the Ministry of Commerce to BPS‑20/21.

2. The appellant has based his case on a decision of this Tribunal dated 3‑2‑1988 in Appeal No. 124(K)/84 filed by Mr. Maqbool Ilahi, a case of identical nature. It was held that the appellant therein, namely Mr. Maqbool Ilahi, having opted to remain in Government service until becoming qualified for premature retirement, continued to be a `civil servant' for all intents and purposes until a decision was taken otherwise and he was supposed to be in service with the Corporation as a deputationist and the terms and conditions of his deputation were to be determined by the concerned Ministry of Commerce.

3. The respondents have resisted the appeal. Their contention is that the officials of former Directorate General of Food were transferred to the Rice Export Corporation of Pakistan, lock, stock and barrel and not by way of deputation and those who had opted to remain in Government service were supposed to have been transferred to the Corporation under the provisions of section 10 of the Civil Servants Act, 1973 and they were not to be considered as deputationists and the appellant too was not a deputationist and he was not entitled to any deputation allowance etc.

4. There is no dispute that the functions relating to the inspection, handling, storage, processing and shipment of rice for export were transferred to the Rice Export Corporation of Pakistan alongwith their posts and their incumbants as per Notification No. 17(8)/74‑Admn.V, dated the 26th September, 1974 read with Notification No. F.8(3)/75‑DGF‑E‑VI, dated the 16th April, 1978. The fate of the incumbants of the posts as regards their service career was manifested in the Ministry of Commerce letter No.17(8)/75‑Admn.VI, dated the 30th April, 1975, addressed to the chairman, Rice Export Corporation of Pakistan Limited, reproduced below:‑ Subject:‑ Grant of option to be employees of the former Directorate General of Food serving under the Rice Export Corporation to continue as Government servants or become full-fledged employees of the Corporation. Sir, I am directed to refer to your D.O. letter to the Secretary, Commerce No. REC/FD‑421/75, dated the 1st February, 1975, on the above subject, and to state that it has been decided that the employees of the former Director General of Food who are at present serving in the Rice Export Corporation of Pakistan Ltd., may be given an offer either to continue as Government servants or become fulfledged employees of the said Corporation.

2. Those who choose to remain as Government servants will continue to enjoy the terms and. conditions of service as applicable to them as civil servants. For so long as the Federal Government requires them to serve in the Corporation, they will be entitled to such terms as may be fixed for them by the Federal Government from time to time. This is subject to the proviso in section 10 of the Civil Servants Act, 1973 to the effect that their terms and conditions of service as to their pay shall not be less favour able than those to which they would have been entitled if they had not been required to serve in the Corporation. They would ‑ also be subject to the disciplinary and other rules and regulations as applicable to the Government servants.

3. Those who decide to become fulfledged employees of the Rice Export Corporation of Pakistan Ltd. will have to formally resign from service under Government, or seek premature retirement, as follows:‑ (i) Those who have completed 25 years of service under Government qualifying for pension may apply for retirement under the normal rules. Their applications will be processed in the normal manner, and in the matter of retirement they will be entitled to the normal benefits as admissible under the rules. (ii) Others will have to formally resign from the Government service. Resgination involves forfeiture of all leave due and of service for pension purposes. No terminal benefit except payment of G.P. Fund accumulations is admissible in the event of resignation. (iii) Upon joining the Corporation they will be entitled to such terms, conditions and privileges, as are admissible to the other employees of the Corporation.

4. This letter may be circulated to all Government servants at present serving under the Rice Corporation except Government servants in Grade 17 and above. Specimens of two proformas are enclosed. The Government servants concerned may be asked to sign proforma I or II as the case may be in triplicate. This action should be completed by the 21st May, 1975 and while one copy of the completed pro forma may be retained by the Corporation, two copies may be forwarded to this Ministry for further action. Your obedient servant, (Sd.) RASHID AHMAD Joint Secretary to the Government of Pakistan." It would appear from paragraph 2 of the aforesaid letter that the employees of the former Directorate General of Food, who opted to remain as Government servants, were to enjoy the terms and conditions of service as were applicable to them as civil servants; and so long the Federal Government required them to serve in the Corporation they were entitled to such terms as were fixed for them by the Federal Government from time to time, provided that their terms and conditions of service as to their pay could not be less favourable than those to which they‑would have been entitled if they had not been required to ‑serve in the Corporation. It was also provided that they were subject to the disciplinary rules and regulations as were applicable to the Government servants. It follows that those employees who opted to remain in Government service continued to be civil servant for almost all purposes. The appellant opted unconditionally to remain in Government service. Terms and conditions of his serving with the Corporation were never settled. The respondents have advanced the plea that no terms and conditions of his serving with the Corporation were required to be settled as he was supposed to have been transferred to serve with the Corporation under the provisions of section 10 of the Civil Servants Act, 1973. Section 10 of the Civil Servants Act, 1973 reads as under:‑ "

10. Posting and transfer. Every civil servant shall be liable to serve anywhere within or outside Pakistan, in any post under the Federal Government, or any Provincial Government or local authority, or a corporation or body set up or established by any such Government: Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region: Provided further that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so require to serve.' Section 10 of the Civil Servants Act, 1973 envisages plenary power to the competent authority in the Federal Government to transfer a civil servant to serve anywhere within or outside Pakistan, as laid down therein, giving to the civil servant concerned only security of pay but that does not mean that other terms and conditions of service were not secured because the security of pay impliedly includes the prospects of service which the civil servant would be entitled to avail while serving with the Government itself. In other words, the terms and conditions of such civil servant remain secured in the parent department under the orders of the competent authority. However, the question arises whether the civil servant transferred to serve somewhere else under the provisions of section 10 of the Civil Servants Act is entitled to any additional benefits in the form of deputation allowance or in some other form.

5. The terms and conditions of service of persons in the service of Pakistan are regulated by the Civil Servants Act, 1973. The term `deputation' is not expressly defined in the Act. The concept of the term `deputation' has been outlined in section A of Chapter IX of Establishment Manual Volume I, published in 1968, as under:‑ "

1. Hitherto fore, the term "deputation" has not been formally defined. However, according to the practice in vogue, a Government servant begins to be regarded as a "deputationist" when he is appointed or transferred, through the process of selection, to a post in a department or service altogether different from the one to which he permanently belongs. He continues to be placed in this category so long as he holds the new post in an officiating or a temporary capacity but ceases to be regarded as such either on confirmation in the new post or on' reversion to his substantive post. The term "deputationist" does not cover the cases of a Government servant who is appointed, within. his own department or cadre in accordance with the rules of transfer applicable to his particular department or cadre, to a post other ,than one on which he holds a lien." The same connotation of the term `deputation' has been adopted to be the definition of the term `deputation' in ESTACODE 1419, 1983 and 1989 Editions and instructions have been issued from time to time on various aspects of the cases of "deputationists". Examining the case of the appellant in the perspective of the concept of `deputation', it would appear that his transfer to the Corporation, although alongwith his post, was not his transfer in his own department or cadre in accordance with the rules of transfer applicable to his parent department or cadre, as the Corporation was and is an autonomous body in almost all respects including the, appointments of its servants. The appellant had made option in unequivocal terms of his continuing serving with the Federal Government. Of course, the competent authority could and did actually make order of his transfer .to serve with the Corporation, and that order was supposed/deemed to have been made in exercise of powers vested under section 10 of the Civil Servants Act, 1973 but that power was to be exercised in a manner that the terms and conditions of his service were maintained intact. It was in that context that it was provided under paragraph 2 of the Ministry of Commerce letter dated 30th April, 1975, reproduced above in paragraph 4, that the Government servants choosing to continue serving the federal Government would be entitled to such terms as were fixed for them by the Federal Government from time to time so long they were required to serve with the Corporation. However, the relevant authorities remained unmindful of this obligation and terms and conditions of service of the appellant on deputation with the Corporation were not settled and he was denied even the prospects of service in the parent department. The appellant was entitled to the deputation allowance in accordance with the Establishment Division Office Memorandum No. F.19(3)/R.I/72, dated 1st August, 1973, and subsequent orders issued under the authority of the President from time to time and published in ESTACODE of 1979, 1983 and 1989 Editions.

6. The appellant has also sought relief of his promotion in absentia from the dates his juniors were promoted by the Ministry of Commerce. This prayer is not maintainable in view of the bar contained in clause (b) to subsection (1) of section 4 of the Service Tribunals Act, 1973, and moreover those events took place much earlier and the matter has become time‑barred in respect of that claim.

7. For the reasons recorded above, the appeal is allowed to the extent that the appellant shall be paid deputation allowance for the period from 2.t‑9‑1974 to 11‑8‑1988 for the service rendered by him with the Corporation, at the rates provided from time to time, and it is dismissed in respect of other reliefs sought by the appellant. No order is made; for costs. A.A./771/Sr.F Appeal accepted.