1990 PLP (C (PLC(CS))

SALAHUODIN CHAUDHRI (MEMBER).‑‑By way of this appeal Gul Faraz Khan on re‑appointment to the Department of Registration challenges the orders of the Director‑General refusing benefits of service rendered by the appellant prior to his resignation. The facts are that the appellant was serving the Respondent‑Department as Statistical Assistant since 1974. While posted at Mardan he applied through proper channel in 1980 for a job in the Directorate of Labour Welfare, Government of N.‑W.F.P., Peshawar. The Director‑General, Registration, Peshawar, however, did not forward his application. On the basis of an advance copy that the appellant had sent to the said provincial Department he received an offer of appointment and asked his Department to relieve him. Noting that the appellant's application had not earlier been forwarded by the Department, the Director‑General, Registration, refused to relieve him. He was, however, offered that in case he was keen to join the said Department he might resign his present post. The appellant accepted this conditional offer and submitted his resignation which reads as under:‑ "I have the honour to refer to the HO Office Islamabad OM NO.ID.,)/129/74‑Regn. (Admn‑2) dated 1‑1‑1981 and to submit my resignation to join the post offered:" On 12‑1‑1981, on acceptance of his resignation, the appellant was relieved of his duties and told that he had severed all connections with the Directorate of Registration. The relevant letter is as follows:‑ "Consequent upon his selection as Manpower Survey Officer, in the Directorate of Labour and Welfare, N: W.F.P., the resignation dated 3‑1‑1981 tendered by Mr. Gulfaraz Khan, Statistical Assistant, Regional Registration Office, Peshawar, is hereby accepted with immediate effect. (2) He has severed all connections with this Directorate. (3) This has the approval of competent authority." The appellant then joined the Directorate of Labour and Welfare, N.W.F.P., but a year later he decided to give up his job in the Provincial Government and applied to his old Department i.e. Directorate of Registration for the post of Statistical Assistant on which he had served previously. His application alongwith that of other candidates was considered by the Departmental Selection Committee and on its recommendations the appellant was offered the post of Statistical Assistant vide orders dated 11‑3‑1982. Accepting the offer, the appellant joined the Department. Later, he represented to the Director General, Registration, for counting of his previous service in the Department and fixation of the same seniority to which he was entitled before leaving the Department in January, 1981. This representation was turned down vide orders dated 10‑7‑1986. Hence this appeal.

2. The learned counsel for the appellant contended that the rejection of the appellant's representation by the respondents was unjustified being violative of the relevant rules and discriminatory as well because others had been treated differently and more favourably. Our attention was first drawn to Regulation 418?(b) of the CSR and it was contended that the resignation submitted by the appellant in 1981 was not a resignation from public service and since the appellant had continuously been in Government service either in the Provincial Government or in the Directorate of Registration he was entitled to count his previous service in the Registration Department for all purposes including the seniority. The learned counsel next referred to rule 6 of the Government Servants (Applications for Services and Posts) Rules, 1966, which provides that the applications of temporary Government servants for appointment to a post in another department shall not be withheld. He argued that had the Department followed this rule, the occasion for imposition of a condition for relieving the appellant from the Department of Directorate would not have arisen and the appellant would then have retained his lien in the parent Department. Finally, the learned counsel pointed out the cases of Altaf Hussain and Zahoor Ahmed Sheikh who went to other departments and when they returned to the Directorate they were allowed the benefit of their past service for the purpose of seniority. Similar benefit, submitted the learned counsel, having been denied to the appellant he was entitled to relief prayed for in the appeal.

3. The Departmental Representative has contested the appeal and has taken the stand that on acceptance of the resignation the appellant had ceased to have any link with the Department and when he rejoined the Department subsequently it was a fresh appointment and thus he was not entitled to count his previous service for seniority purposes. He placed reliance on the case reported as PLD 1979 Ouetta

168. As regards the cases of Altaf Hqssain and Zahoor Ahmed Sheikh it was submitted that those cases were quite distinguishable and in support of this contention they placed reliance on the relevant documents, copies of which are on record.

4. We have carefully considered the matter and are of the view that the appellant's grievance is entirely misconceived. No doubt rule 6 of the Rules, referred to above, provides for the forwarding of applications but the fact is that the appellant did not agitate at the relevant time against withholding of his application. The next opportunity arose when he was told that he had to resign if he was keen to join the post in the Provincial Government. Even then he did not contest. In fact, accepting the condition he submitted his resignation which was duly accepted and acted upon. The appellant was duly relieved and in the relieving order it was specifically laid down that he had severed all connections with the Department. As regards his rejoining the Department it was a fresh appointment made in the prescribed manner and through regular selection by the Departmental Selection Committee. The terms and conditions offered were the same as normally offered to the fresh appointee and it was also stipulated that the appellant would be on probation for one year. This appointment with the said condition was accepted by the appellant and he joined the Directorate of Registration. On these facts and circumstances the appellant cannot rightfully claim the same place in the seniority which he had before resigning his post in January, 1981. So far as Regulation 418(b) is concerned it does not advance the appellant's case. It reads:

‑ "418. (a) Resignation of the public service, (or dismissal) or removal from it for misconduct, insolvency, inefficiency not due to age, or failure to pass a prescribed examination entails forfeiture of past service. (b) Resignation of an appointment to take up another appointment, service in which counts, is not a resignation of the public service." In our view, Regulation 418(b) does not provide for the counting of past service for the purposes of seniority in the circumstances of the appellant's case. The regulation is relevant for determining the total length of service for the purposes of pensionary benefits. What it provides is that if a Government servant resigns for an appointment to take up another appointment in which there is provision for counting of past service, then the previous service can be taken into account. In the instant case no evidence has been placed before us to show that the rules of the Provincial Government permitted counting of previous service in the Federal Government. Even if it be presumed that such rules did exist, the benefit could be enjoyed by the appellant if he had stayed on in the Provincial Government. But even there the past service could have been counted only for the purposes of pensionary benefits etc. The appellant could by no means, get the benefit of past service for the purposes of seniority in his new Department. But, as already mentioned, the appellant did not stay even there. He gave up that job and applied again to his old Federal Government Department and was appointed afresh. Thus clearly Regulation 418(b) is not applicable and is entirely irrelevant to the facts of this case.

5. Coming to the two precedents cited by the appellant's counsel, we find their facts quite distinguishable. The application of Altaf Hussain for a post in Islamic University, Islamabad, was forwarded by the Department and when relieved to join that post he was allowed right of reversion for a period of one year. He returned to his parent Department within this period. Similarly, the Respondent Department forwarded Zahoor Ahmed Sheikh's application to Rice Milling Corporation of Pakistan and on being selected was relieved. Later, he returned to his parent Department. The facts of these cases being clearly distinguishable, the appellant is not right in alleging that the Respondent-Department was guilty of any discrimination in his case.

6. Before closing we would like to add that the appeal suffers from a serious legal infirmity as well. If the appellant's claim of seniority since 1974 when he had originally joined the Directorate of Registration is allowed, the seniority of all those who were in the appellant's grade at the time of his resignation in 1981 would have been adversely affected. None of these officials has been impleaded in the appeal as respondents as required under rule 7 of the Service, Tribunals (Procedure) Rules, 1974.

7. For the foregoing reasons we find no merit in the appellant's case and the appeal is hereby dismissed.

8. No order as to costs.

9. Parties to be informed accordingly. M.Y.H./522/Sr.F???????? Appeal dismissed.