1989SCMR424 (PLP)

ABDUL KADIR SHAIKH, J.‑‑This is a petition for leave to appeal from the judgment of Federal Service Tribunal dated 10‑9‑1987 allowing an appeal filed by respondent with the direction that his seniority in service as Lecturer in Grade B‑17 shall count from 1‑7‑1971 and the period from 28‑1‑1967 to 31‑5‑1980 shall count for the purpose of his pension under the Federal Government. Facts of the case briefly stated are that respondent who was in the service of the Education Department of former East Pakistan with effect from 28 1‑1967 got himself repatriated to Pakistan on 23‑3‑1974. In response to an advertisement by the Federal Public Service Commission for the posts in the Federal Government College (Men) Islamabad, he made an application and in result he was selected and appointed as a Lecturer in Pay‑Scale B‑17 on 31‑5 1980.. He thereafter made an application requesting for the following benefits: "(a) He may kindly be allowed seniority in the post of Lecturer (BPS 17) under the Federal Government w.e.f. the 28th January, 1967, the date of his appointment as Lecturer under the former Government of East Pakistan; and (b) The period from 28‑1‑1967 (the date of his appointment under the former Government of East Pakistan to 31‑5‑1980 (the date of his appointment under the Federal Government) may kindly be allowed to be counted for purpose of pension under the Federal Government." On the refusal of his request he filed an appeal to the President of Pakistan to which reply dated 4‑9‑1984 was given to him that his case has been examined and that his period of service in former East Pakistan Province with effect from 28‑1‑1967 to 16‑12‑1971 is less than five years and as such does not qualify for pension under Article 371‑A (i) of C.S.R. The past service from 28‑1 1967 to 16‑12‑1971 cannot be counted for pension in his case, even if the break in service from 17‑12‑1971 to 23‑8‑1974 is condoned as a special case. Being aggrieved by the refusal of his request he filed an appeal before the Service Tribunal which was allowed as stated earlier. The decision of the Tribunal was based on the provisions of "Ex- Employees of the Former Government of East Pakistan (Appointment to Federal Posts) Ordinance, 1983, published in the Gazette of Pakistan, Extraordinary, dated 25‑5‑1983 which was given retrospective effect from 16‑12‑1971. Under the provisions of this Ordinance an employee may, with the approval of the competent authority, be appointed to an existing or supernumerary post in the Grade, as from the date he holds such post, and the following provisions of seniority and pension were made in Sections 4 and 5 for such an employee: "

4. Seniority.‑‑The service rendered under the former Government of East Pakistan by an employee shall count towards seniority in the Grade of the post to which he may be appointed under Section 3.

5. Pension.‑‑The service rendered under the former Government of. East Pakistan, which qualified for pension under that Government, by an employee who is appointed to a post under section 3 shall count for the purposes of pension under the Federal Government." An employee under the Ordinance has been defined to mean an employee of the former Government of East Pakistan who was repatriated or who migrated from East Pakistan to Pakistan during the period commencing on the 16th December, 1971, and ending on the 31st December, 1974, in consequence of occupation of the territory by enemy troops or establishment of Bangladesh. Mr.Sajjad Ahmed Sipra, learned Deputy Attorney‑General appearing in support of the petition for leave to appeal from the judgment of the Federal Service Tribunal submits that the Federal Service Tribunal has failed to appreciate that the respondent is not entitled to the benefits under the Ordinance, for, he was not appointed by the competent authority directly but entered service in the normal course, as a direct recruit, through Public Service. Commission. Learned counsel further submits that the period of service rendered by respondent from 28‑1‑1967 to 16‑12‑1971 under the former East Pakistan Government was less than five years, and as such he does not qualify for pension under Article 371‑A(i) of Civil Service Rules. Respondent who is present in person himself admitted that his services' in the former Government of East Pakistan terminated on 16‑12‑1971 and he left Bangladesh in June 1972 and reached Pakistan during about that time. On this admitted position, it is for consideration whether the respondent r is entitled to seniority in service as from 1‑7‑1971 and also further that the period, 4 from 28‑1‑1967 to 31‑5‑1980 can be counted for the purpose of his pension under the aforesaid Ordinance. We, therefore, grant leave to appeal and allow the petition. M.I./F‑74/S Leave granted.