1996 PLP (C (PLC(CS))

Postal Clerk (B‑7) in the office of the Senior Postmaster, Islamabad G.P.O., Islamabad. I am directed to say that Syed Sajjad Hussain Shah who joined Pakistan Post Office Department as Postal Clerk (B‑7) on 30‑8‑1979 was relieved from the Islamabad G.P.O., on 19‑7‑1986, as he was appointed as Assistant (B‑11) with effect from 20‑8‑1986 in the Ministry of Kashmir Affairs and Northern Affairs, Government of Pakistan, Islamabad. Thereafter, he was appointed as Court Associate (B‑15) w.e.f. 4‑5‑1988 in the Supreme Court of Pakistan on temporary basis. Syed Sajjad Hussain Shah was relieved of his duties in this Court w.e.f. 31‑5‑1989, as his probationary period was not extended. On a representation made by Syed Sajjad Hussain Shah, the Chief Justice of Pakistan was pleased to direct that it should be recommended to you that Syed Sajjad Hussain Shah may be re‑absorbed in the Post Office Department where he was holding a substantive post. Your obedient servant, (Sd. ) (Abdur Rahim) Deputy Registrar for Registrar, Copy to Syed Sajjad Hussain, Village and Post Office Fatehpur, Tehsil Kharian, District Gujrat. (Sd.) Deputy Registrar." The matter was referred to the Establishment Division by the Postal Department for advice. The Establishment Division vide its communication dated 14/15‑5‑1991 opined that the appellant had resigned from the Commission and as such, he could not be allowed to join his previous service. This communication was not sent to the appellant and as such, when he learnt about the decision, he filed appeal before Secretary, Establishment Division on 10th of July, 1991 for his re‑absorption in the Postal Department. The appeal was rejected. The appellant's appeal which he filed in the Federal Service Tribunal. had the following prayer:‑‑ "It is humbly prayed that Secretary, Establishment Division may kindly be directed to issue instructions to the Secretary, Kashmir‑ Affairs and Northern Affairs Division/Director‑General, Post Offices, regarding absorption of the appellant with effect from the date his services were terminated i.e. 31‑5‑1989 with all consequential benefits. It is also prayed that any other relief may also be granted to the appellant which .this august Tribunal deems fit." The appellant's plea was that he remained in service throughout on temporary basis and he never resigned from the Post Office. This being so, his lien with his department could not be held to have ended. On 1‑10‑1992, learned Federal Service Tribunal did not agree with the appellant and in consequence, his appeal was dismissed with no order as to costs. Leave to appeal was granted with he following operative part of the order:‑‑ . 'Learned counsel for the petitioner submitted that the petitioner was a confirmed employee of the Postal Department, therefore, he retained his lien in his parent department. The learned counsel has referred to F.R. 9(13), F.R. 13(b) and F.R. 14(a)(2) and submitted that a Government servant holding substantively a permanent post retains a lien on that post. He has placed reliance on Mazhar Ali v. Federation of Pakistan (1992 SCMR 435) wherein it has been observed that '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." Learned counsel submits that the appellant had retained his lien with the Postal Department despite the fact that he joined the service of the Commission temporarily on 19‑7‑1986 which he left and joined the KANA Division on 20‑8‑1986. He argues that the appellant was appointed as Court' Associate in the Supreme Court on probation but during the said period, his services 'were dispensed with. His case was recommended by Registrar to the KANA Division and Postal Department for his re‑absorption. He emphasises that in the above situation, when he did not resign from his permanent service, it could not be said ‑that he had lost his liaison/connection with the Postal Department. ' Learned counsel for respondents tried to support the decision under challenge. His argument was that the intention of the appellant was evident inasmuch as he went from place to place to get better chance in some other departments meaning thereby that he left his permanent service for all time to come. We have heard the learned counsel for the parties. Record of the case has minutely been gone through by us. The admitted position is that the appellant did not resign from his permanent job. He continued to maintain ‑his lien with his department. Learned Law Officer concedes that the appellant was a permanent employee of the Postal Department. In this situation, we have been persuaded to agree with the learned counsel for the appellant that he did not lose his lien with the Postal Department. It appears that, in fact he wanted to go for better prospects in service for more pay or privileges or quick promotion. It may be seen that he resigned from the service of the Commission when he was able to get a better job in another Government Department. The plea that he resigned from service given to hint in the Commission could not be held to be a valid ground to end his lawful links with his parent department as he held the post in the Commission on ad hoc basis. He was never confirmed on his new assignments in the Commission or. the KANA Division. It shall not, therefore, make any difference whether he resigned from this new post or his services were g terminated in order to determine his lien with his parent department. The position, which continued to exist, was that his lien with Post Office remained intact throughout although he got service in KANA Division and also in the Supreme Court. He was employed in the Supreme Court only for one year and that too on probation. It cannot be said that his performance in this Court as its employee was not up to the mark and as such, his services were terminated. The letter dated ‑8th of October, 1990 having been addressed by the. Registrar to the Postal Department would demonstrate that his case was recommended to the latter for his re‑absorption. It could surely be said that the administration in the Supreme Court was satisfied with the performance of the appellant as Court Associate. Even otherwise, intention of the appellant was clear that he never resigned from his permanent post. He joined the Commission and had also continuously been trying to have better employment somewhere else with the blessing of his department. The appellant did not violate the law on the controversy or the policy of the Government in case, he remained in service for some time in other departments. In order to disentitle the appellant to reclaim his confirmed service, it would be essential to show that the appellant was confirmed on any of his new jobs which he got later in time. This could not be shown by the respondents. Even the learned Tribunal did not advert to this aspect while discussing the case. The relevant observations are:‑‑. "Since he was confirmed in the parent department, his lien had to be retained for reasonable time. But he lost the benefit of retention of his lien on his resigning the post he was appointed to in the Atomic Energy Commission and joining service with the Kashmir Affairs and Northern Affairs Division. His movement did not stop there. He sought employment in the Supreme Court of Pakistan without the permission of the parent department where he had held lien. After his services were dispensed with by the Supreme Court, he could not revert back to the Post Office Department as a matter of right as he had left that department of his own volition and his lien stood terminated when he tendered resignation in the Atomic Energy Commission and chose to explore other options of seeking employment with the Kashmir Affairs and Northern Affairs Division and the Supreme Court, as mentioned above. He invited misfortune by not accepting offer by the Kashmir Affairs Division for seeking re‑employment there by making fresh application in pursuance of a letter addressed by the Registrar, Supreme Court of Pakistan to appoint him on compassionate grounds. Obviously, he has no case for the reliefs sought by him in the appeal. The appeal is, therefore; dismissed with no order as to costs." It is clear from the above that the appellant remained in temporary service throughout. In order to clinch the controversy, this Court in case of Mazhar Ali v. Federation of Pakistan (1992 SCIV4R 435) held in the following words:‑‑ "The law applicable to such an admitted position on facts finds mention in the Rules 3.13 to 3.17 of the Civil Services Rules (Punjab), Volume I, and Fundamental Rules 13, 14 and 14‑A. According to these, the lien of the permanent civil servants cannot be terminated, even with their consent. It can be terminated only when the civil servant is confirmed against some other permanent post. There is nothing on the record to suggest nor any indication or. plea that the Federal Government had confirmed him on any post under the Federal Government. In the absence of such a material or evidence, his lien will be retained with the Punjab Government and notwithstanding the non‑specification of the terms and conditions of his deputation, he will be deemed to be on deputation with the Federal Government. For that reason, he would be excluded from the definition of civil servant under the Civil Servants Act of the Federal Government on the strength of section 2(1)(b) of the Civil Servants Act. The President will not be competent Authority to direct either his compulsory retirement or the termination of his service. The Provincial Government had made the amends as far as it could by the notification just reproduced above in para.

5. It could not obviously set aside the order of the President. This appeal is allowed. The orders of Tribunal and of compulsory retirement of the appellant by the Federal Government are set aside as without jurisdiction." We are not satisfied with the reasons advanced by the learned Tribunal that the appellant could not be given the requisite relief because he had resigned from the Commission. The appellant's appeal was rejected wholly on flimsy grounds which could not be upheld in view of the rule laid down by this Court in Mazhar Ali's case referred to above. Needless to observe that the law declared by the Supreme Court would bind all the Courts, Tribunals and also the bureaucratic set‑up in Pakistan as mandated by Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan, 1973. The Articles are:‑‑ Article 189: xxxx Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan. Article 190: xxxx All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court." In the light of the above Constitutional provisions, the Tribunal was under duty to follow the rule laid down in the aforementioned case. Similarly, respondents Nos. 1 to 3 were required to act in aid of this Court by complying with the above rule propounded prior in time than their refusal to take back the appellant in service. In this factual and legal background, the Registrar of this Court sent the abovesaid letter to respondent No.

3. The Registrar rightly brought to the notice of the respondents that the appellant as holding a substantive post in the Post office and he had, therefore, to be dealt with according to law. A familiar saying is that ignorance of law is no excuse and as such, every person is supposed to know the law. In case of Board of Intermediate and Secondary Education v. Mst. Salma Afroze (PLD 1992 SC 263) it was held that the Judges must wear all the laws of the country on the sleeve of their robes. The observations are:‑‑ "x x x x x The learned Counsel who represented the respondents in the High Court by not bringing to the notice of the High Court the law laid down by this Court on the subject did not render good service to their clients. besides, it has been laid down by this Court in Muhammad Sarwar v. The State (PLD 1969 SC 278) that a Judge must know the adage that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter." In these circumstances, the‑ respondents, particularly, the learned Tribunal can hot say that they did not know the law having been declared by this Court. Result of the above discussion is that the impugned decision of the Tribunal, dated 1st of October, 1992 and the office memorandum,. dated 14/15th of May 1991 whereby the appellant was refused to be re‑absorbed in the F Post Office are set aside being without jurisdiction. The appellant is, undoubtedly, in, the service, of the Post Office but at the same time he cannot claim back benefits. This appeal succeeds and is allowed with no order as to costs. A.A./S‑1013/S Appeal accepted.