2005 PLP (C (PLC(CS))

(Sd.) Iftikhar Muhammad Ch. J (Sd.) Rana Bhagwandas, J (Sd.) Syed Deedar Hussain Shah, J."

7. Responding to the act of repatriation of the Appellant by the respondent No.1 to the Government of Sindh the Government of Sindh, through the department of Services and General Administration and Coordination reacted and replied on 16-11-2001 to the respondent No. 1 on the subject in the following words:-- "No. SO(SGA&CD)-8/14/98 GOVERNEMTN OF SINDH SERVICES, GENERAL ADMINISTRATION AND COORDINATION DEPARTMENT Karachi, dated the 16 Nov.; 2001. To, The Section Officer (Estate-I), Election Commission of Pakistan, Secretariat Constitution Avenue C-5/2, Islamabad. SUBJECT: REPATRIATION OF MISS NASREEN PERVAIZ. Sir, I am directed to refer to your letter No.4(15)/93-Estt-I dated 15-9-2001 on the subject noted above and to state that there is no dispute, with reference to policy governing the lien right. According to said policy, Mst. Nasreen holds lien against the post of Information Officer (BS-17) till the time she is confirmed against the post of Director, Public Relations, Election Commission of Pakistan. But as far as her repatriation is concerned, the views of the Election Commission are not correct. Mst. Nasreen was appointed afresh in the Commission and, therefore, she shall remain its employee until either her services are terminated according to law or the officer herself requests for repatriation to her original post. Election Commission cannot therefore directly place her services at the disposal of Information Department, Government of Sindh, without solid grounds. (Sd.) (Ghulam Abbas Detho). Section Officer-I" This letter has been produced by the Appellants as well as by the respondents before this Tribunal and is part of the record of appeal file.

8. Keeping in view the above facts and circumstances of the case, we have heard the Appellant in person and Mr. Niaz Ahmed Khan, learned counsel for the respondents. We have also perused the appeal file including the memo. of appeal and the enclosures along with the comments filed by the respondents No and the documents enclosed therewith.

9. At the very outset, the objection in respect of the appeal being time barred was raised and agitated and it needs to be settled at the initial stage. In their arguments as well as filing comments to .the application under section 5, of the Limitation Act for condonation of delay the respondents have taken the plea of this appeal being time barred It is contended by the respondents, in the first instance that, the Appellant is an employee of Government of Sindh and secondly the fact that the departmental appeal of the appellant dated 15-8-2001 was rejected by the competent authority vide letter dated 22-8-2001. As per contention of tri; respondents, the Appellant had to approach this Tribunal within 30 days of the receipt of the letter dated 22-8-2001, but according to the respondents, this appeal has been filed by the Appellant on 16-1-2002 and thus according to the respondents, it is time barred. On the other hand, the Appellant has contended that the initial appeal dated 15-8-200. was mistakenly addressed to respondent No. 1, who rejected the same without applying his mind as is evident from the order of rejection available on the record as annexure VI-A, which is reproduced hereunder: -- "BY U.M.S. No. F.4(15)/93-Estt.I. Secretariat Constitution Avenue, G-5/2, Islamabad, 22nd August, 2001 Subject: APPEAL AGAINST THE ORDER OF THE CHIEF ELECTION With reference to her appeal, dated the 15th August, 2001, Miss Nasreen Pervaiz is informed that her appeal has been considered and rejected by the competent authority. (Sd.) (R.B. Jan Wahidi)) Deputy Secretary (Admn.) Miss Nasreen Peraiz, 59/1, 24th Lane, Phase-VII Defence Housing Authority Karachi. " The above order is not speaking order inasmuch as no reasons, whatsoever, lave been mentioned in this order. Thus no legal sanctity can he extended to such perfunctory and ambiguous order. It has been further contended by the Appellant that her appeal, instead of being forwarded to the proper authority viz; President of Pakistan, the same was rejected outrightly by the respondent and the appeal to the President of Islamic Republic of Pakistan on 19-9-2001, which has not been responded till this day. According to the appellant, this appeal before this Tribunal has been filed within 120 days of the filing of departmental appeal dated 19-9-2001. The respondent have taken the plea that the Appellant is subjected to the rules, framed by the Election Commission; hence, the decision dated 22-8-2001 in respect of her departmental appeal dated 15-8-2001 is correct and that the limitation would run keeping in view this date of rejection of the appeal by the respondent No.1 on 22-8-2001. On the other hand, the appellant has not only taken the plea that it was incumbent upon the respondent No.1 to forward her appeal to the Appellate Authority i.e. President of Pakistan, but at the same time, it has been contended by her that she rightly addressed her departmental appeal to the President of Pakistan on 19-9-2001 meaning thereby that the competent authority to hear the departmental appeal is the President of Pakistan and not the Election Commissioner, who is respondent No.1. The other arguments in support of this contention are that it was the respondent No. 1, who had ordered the repatriation of the Appellant to the Government of Sindh and had also stopped payment of salary against which this appeal has been filed and that the respondent No.1 thus was nest the competent authority to hear the appeal against his own orders. This contention of the appellant finds further support from an earlier order of her reinstatement in service by the President of Pakistan in response to her departmental appeal when was dismissed from service and then subsequently reinstated vide order dated 17-7-1996 available as annexure 'VI' with the comments filed by the respondents and which has also been reproduced hereinabove. This order of reinstatement of the appellant by that President of Pakistan in response to her departmental appeal shows the the appeal of the appellant to the President of Pakistan is proper and legal. Had it not been so, then the appeal of the appellant for her reinstatement on an earlier occasion would not have been attended to by the President but the same would have been sent to the respondent No. 1 as claimed to be Appellate Authority. The respondents have reaffirmed the contention of the appellant in this respect by producing the letter of reinstatement of the appellant by the President. Thus, we are of the view that the appeal of the appellant, having been forwarded to the President of Pakistan, is proper and legal. The natural corollary culminating out of this situation is that the initial appeal of the appellant dated 15-8-2001 having been forwarded to the respondent No.1 should have been forwarded to the appropriate authority for decision, which has not been done. Under these circumstances and for the reasons given above, we don't subscribe to the view that the appeal of the appellant is time barred. Even then, we allow the application of the appellant for condoning the delay under section 5 of the Limitation Act, filed as precautionary measure, keeping in view the grounds given in the affidavit appended to the application, instead of dismissing this appeal on technical grounds.

10. Coming to the merits of this appeal, the crucial issues emerging out from the respective contentions and the arguments of the parties are whether the appellant was and is an officer/employee of the respondent No.1 or the appellant is on deputation from Government of Sindh to the Election Commission of Pakistan, as her lien is admittedly intact with the Government of Sindh. We have examined this issue in light of the fact that no doubt the appellant initially was an officer of BPS-17 in the Information Department of Government of Sindh and thereafter through an open competition on merit, she applied for a post of Director (Public Relations) in the office of respondent No.1 and the appellant was selected in this post in BPS-19 and worked against this post in various capacities at Islamabad as well as at `Karachi. We need not go into the details of such postings. There is no cavil to the fact that initially the appellant, who was Information Officer BPS-17, serving with the Government of Sindh, had applied for the post of Director Public, D Relations BPS-19, available in the office of respondent No, 1 as Election Commissioner of Pakistan. It is further admitted that the post was filled through open competition and the appellant was one of the candidates for this post and she was selected for this post as a result of her success in the open competition. We have failed to find out any document wherein it may have been shown that the appellant had succeeded to this post of Director Public Relations BPS-19 on account of her deputation from Government of Sindh to the respondent No.

1. The appellant has all along been asserting that she had been appointed by selection to this post in BPS-19 on account of open competition and not because of her deputation from Government of Sindh. This fact has been confirmed by the Government of Sindh through their letter dated 16-11-2001, which has been reproduced hereinabove. This letter further affirms that the appellant has been confirmed against the post of Director Public Relations, Election Commission of Pakistan having been appointed afresh in the Commission. The keeping of lien of the appellant by the Government of Sindh in BPS-17 was for a period of three years for the reasons that when she had applied for the post of Director Public Relations BPS-19, she happened to be serving as Information Officer BPS-17 with Government of Sindh. This does not mean that the Government of Sindh had sent the appellant on deputation to the respondent No.1. The perusal of the material made available by the parties, prove that having been absorbed permanently as Director Public Relations by the respondent No.1, the appellant was sent on deputation at her request by the respondent No.1 to the Government of Sindh from where she was subsequently repatriated and sent back to the respondent No. 1, being her parent department. This would prove that it was the respondent No. 1, who had deputed the appellant to the Government of Sindh on deputation, being an employee/officer of the Election Commission of Pakistan and not the other way round; as claimed by the respondent No.

1. Had the appellant been on deputation from Government of Sindh to the respondent No. 1, then there was no necessity for the respondent No.1, to send her on deputation back to the Provincial Government of Sindh where the appellant had worked as Additional Secretary, Population Welfare, Social Welfare and Women Development department as is evident from notification dated 4th January 2000, which is also been reproduced above. After her repatriation from the Government of Sindh as such, she was again taken back by the respondent No. 1 and whereafter, the issues of her absorption and subsequently stoppage of pay arose', which ultimately have given rise to appeal.

11. The claims and the assertions of the appellant, made by her in her memo. of appeal, have either been admitted by the respondents or no comments offered therefor. In this respect, we would like to narrate thereunder the claim of the appellant in her memo. of appeal and the written replies/comments of the respondents, putting the same in juxta position:-- WRITTEN REPLIES/COMMENTS FACTS

1. That I was appointed as Director Public Relations in BPS-19 in the Election Commission of Pakistan on merit through open competition vide Memorandum No.F.3(9)/ 91-Estt-I, dated 12-10-1993 (Exhibit-I) and was placed on probation for one year.

1. Admitted

2. However, due to my hard and excellent work which was considered to be good and sufficient reason by the Competent Authority my probationary period was reduced from one year to 6 months and the same was terminated vide Notification No. F.3(9)/91-Estt-I, dated 14-4-1994 (Exhibit-II).

2. The appellant vide her application dated 12-1-1994 (Annexure-VIII) requested for curtailment of her probationary period from one year to three months. The competent authority considered her request and terminated her probationary period after six months. However, it was not curtailed on the basis of her hard and excellent work as claimed by her in the appeal.

3. That I was on deputation from the Election Commission to the Sindh Government from 13th March 1998 till January, 2000.

3. Admitted

4. That the Government of Sindh as result of general policy decision to repatriate all deputationists to their parent departments, in January 2000, repatriated myself also. Accordingly, I joined Election Commission of Pakistan (Exhibit- III).

4. Admitted So far the status of the appellant as deputationist or otherwise is concerned, the Government of Sindh has stuck to the constant view that the appellant was not on deputation from Government of Sindh, but the respondent No.1., i.e. Election Commission of Pakistan is her parent department. This fact is not only evident from the letter dated 16-11-2001, reproduced hereinabove, but prior to this, the Government of Sindh had clearly given their views in respect of the status of the appellant vide letter dated 27-8-2001 being annexure A-VI, which is reproduced hereunder:-- "No. SOI(SGA&CD)-8/14/98 GOVERNMENT OF SINDH SERVICES, GENERAL ADMINSITRATION AND COORDINATION DEPARTMENT Karachi, dated 27th August 2001. To, The Secretary, Election Commission of Pakistan Islamabad. Sir, I am directed to refer to Election Commission's Notification No.F.4(15)/93-Estt-I, dated 15-8-2001, on the subject noted above and to state that Miss Nasreen Pervez was appointed as Director Public Relations (BS-19) in Election Commission of Pakistan vide Memorandum No.F.3(9)/91-Estt-I, dated the 8th October, 1993. Accordingly she was relieved from Information Department, Government of Sindh, under Notification NO.SO(INF)3-29/82, dated the 9th October, 1993 and her lien was retained for a period of three years only w.e.f. 9-10-1993.

2. Repatriation of Miss Nasreen Pervez at this juncture to Sindh Government, when she no more is an employee of this Government is beyond comprehension.

3. I am therefore, directed to request the Election Commission of Pakistan to kindly consider the legal position and withdraw/cancel its notification. Yours obedient servant (Sd.) SECTION OFFICER-I"

12. The contentions, raised on behalf of the respondents that the appellant was on deputation with them and that she was being merely sent back to her parent department, as is evident from the impugned notification dated 15-8-2001 will amount to double jeopardy and creating more anomalous situation. The respondents appear to have lost sight of the fact that if their contention in respect of the appellant being a deputationist is accepted then the result would be that the appellant, who is working at present in BPS-19, would revert back to BPS-17 the grade which she was availing at the time of her induction/selection as Director Public Relations with the respondent No.1, in case the appellant is repatriated to Government of Sindh. This act on the part of respondent No.1 is against established principles of justice, as far no fault of the appellant, she would be made to suffer to be relegated to Grade-17 from the elevated position of Grade-19. This would amount to her reversion without any reason or rhyme. On this very issue, the Hon'ble Supreme Court has held elaborately in case in case of Anisa Rehman (1994 SCMR 2232) whereby no one can be reduced to a lower position or reverted without any prior show-cause notice. On our part, we would term this act by the respondents to be un-called for punishment to the appellant for if the plea of the respondents is accepted, then it would mean that the appellant is made to lose her post of Grade-19 with respondent No.1 and being relegated to a post of Grade-17 without her fault or any reason. We are not inclined to subscribe to this type of un called for relegation and reversion of the appellant from Grade-19 to Grade-17. We have already discussed that with no stretch of imagination the appellant can be treated as a deputationist from Government of Sindh to respondent No.1.

13. In view of the above facts and circumstances of this appeal and for the reasons given above, we allow this appeal as per prayer of the appellant and we further re-affirm that the impugned notification dated 15-8-2001 issued by the respondent No.1 is infructuous, ab initio and the appellant was and is declared to be an officer of respondent No.1, which is her parent office. The other prayer of the appellant in respect of her pay has already been accepted by this Tribunal and re-affirmed by the Hon'ble Supreme Court by the judgment of their Lordships dated 24-4-2003 and keeping in view this authority of the Hon'ble Supreme Court, we further order that the appellant, having been declared as officer of the respondent No.1 in BPS-19, is entitled to all the benefits of salary and other emoluments, as attached to that post.

14. Coming to the next prayer of the appellant with regard to her promotion in BPS-20, it is observed that the appellant shall have to move her case afresh, keeping in view her seniority position vis-a-vis other officers of the cadre. Thus the prayer of the appellant in respect of her promotion at this stage, need not to be touched by this Tribunal and we leave it open for the parties to deal with this issue in accordance with the established Rules and Regulations on the subject.

15. With these observations and modifications, the appeal of the appellant is allowed and the parties are left to bear their own costs. The copy, of this judgment be forwarded to all the concerned parties forthwith. H.B.T./51/FST Appeal, allowed accordingly.