1999 PLP 148 (SCMR)

ZIA MAHMOOD MIRZA, J.

The captioned appeals filed by the Federation of Pakistan and Military Accountant-General arise from a common judgment of the Federal Service Tribunal and are, therefore, being disposed of together by this order.

2. Abdul Samad, respondent in C.A.656 of 1993 and Javed Ahmed, respondent in C.A.657 of 1993 were selected as Probationer Accountants (B-16) in Pakistan Military Accounts Department through Federal Public Service Commission and they joined the service on 1-10-1988 and 1-3-1988 respectively. It appears that according to the service conditions prescribed under sub-rule (2) of rule 3 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the Probationer Accountants,, were to remain on probation until they passed Part I and Part II of the Accountants Promotion Examination and in case of their failure to clear the examination in three chances, their services were to be terminated. The respondents in these two appeals admittedly failed to qualify the said examination in three chances. Service of Abdul Samad respondent was, therefore, terminated with effect from 24-5-1992 vide letter dated 21-5-1992 (available at page 32 of the paper book). Similarly, service of Javed Ahmad respondent in C.A. 657 of 1993 was also terminated with effect from 19-5-1992 vide office order dated 20-5-1992. Both the respondents were, however, offered the posts of Senior Auditor (BPS- 11) as an initial recruit which they are stated to have accepted.

3. Aggrieved of their termination, the respondents after approaching the higher authorities through departmental appeals and receiving no response from them filed service appeals before the Federal Service Tribunal assailing the vires of the Rules for appointment of Probationer Accountants whereunder the impugned action was taken against them. It was averred by the respondents that the impugned rules laying down the method, qualification and other conditions for appointment of Probationer Accountants in Military Accountants Department were not made by competent Authority. Military Accountant-General, it was averred, was not competent to make such rules. It was further averred by the respondents that the provision in these rules fixing probation period at two years extendable up to three years was repugnant to rule 21 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 which provided maximum probationary period of two years. It was pointed out that Appointment, Promotion and Transfer Rules of 1973 were framed by the President of Pakistan in exercise of power conferred under section 25 of Civil Servants Act, 1973 while the impugned rules were made under sub-rule (2) of rule 3 of the said Statutory Rules of 1973. It was accordingly contended by the respondents that their probationary period stood terminated on the expiry of two years and their services could not be terminated thereafter muchless after the expiry of even three years' probationary period prescribed by the impugned rules. It was also pleaded by the respondents that the condition of passing the Accountants Promotion Examination was meant for the departmental candidates and was not applicable to the directly recruited Accountants like the respondents and in any case, their services could not be terminated after the expiry of probationary period even if they had failed to pass the aforesaid examination. It appears that during the hearing of the appeals, the respondents in the first instance sought to agitate the vires of the rules made by Military Accountant-General but later offered not to press their appeals on merits and stated that they were prepared to withdraw the same provided they were imparted requisite training and given one more chance to clear the examination in question. The departmental representatives namely M/s. M. Akrarn Malik, DMAG, M. Aslam, Accountant and M. Nasim Ahmad, Assistant Director agreed to the proposal/offer made by the appellants and stated that the appellants i.e. the respondents herein would be given one more chance to pass the examination and in case they could not avail the chance or pass the examination, they "will no longer agitate the matter". This was accepted by the respondents and they opted to withdraw their appeals which were accordingly disposed of by the Service Tribunal as withdrawn with the direction to the department "to impart necessary training to the appellant during the next session and put the appellant to the examination and in the case he qualifies the examination he will be restored to his original post of Accountant (B-16) on his own seniority position. In case of failure to clear the examination, the appellant will have no case to agitate the issue in future

4. Leave to appeal in these cases was granted to the appellants to consider whether the direction given by the Service Tribunal after concession made by the Departmental Representative was within the scope of the authority of the Tribunal.

5. We have heard the learned Deputy Attorney-General as also the respondents who have appeared in person. Arguments were mainly addressed from both the sides regarding the vires of the rules/service conditions framed/prescribed by the department under sub-rule (2) of rule 3 of Appointment, Promotion and Transfer Rules, 1973, but we do not feel called upon to examine this issue as it was neither pressed by the respondents before the Service Tribunal where the matter was disposed of on the basis of a compromise nor does it form the subject-matter of the leave grant order. As regards the question to consider which, the leave was granted in these cases, namely whether the direction given by the Service Tribunal was within the scope of its authority, it may pertinently be observed that the grievance of the appellants in fact appears to be directed mainly against the Tribunal's direction to restore the respondents to their original post of Accountant on their own seniority position. Submission of the learned Deputy Attorney-General was that there was no such agreement reached between the parties and, therefore, the impugned direction was not warranted. We are not impressed by this submission. In our view, it was implicit in the agreement to allow one more chance to the respondents for clearing the promotional examination that on their passing the said examination in this additional chance, they would stand restored to their original position. If that were not so, the respondents would not have agreed to withdraw their appeals which they had filed with specific prayer that they be re-instated in service with all the consequential benefits. Needless to add that if the respondents had cleared the promotional examination in three chances as provided in the impugned departmental rules, they would have been confirmed/regularized with effect from the date of their initial appointment. Why should the same result not follow on their passing the said examination in the additional chance allowed to them as a result of mutual agreement?

6. Viewed in the aforesaid light, we are satisfied that the impugned direction of the Service Tribunal of which the appellants have felt aggrieved was quite consistent with the spirit of the agreement/compromise arrived at between the parties and it was also just, equitable and fair in the facts and circumstances of the case. Both the appeals are, accordingly, dismissed but with no order as to costs. We were informed by the respondents that they have since cleared the promotional examination. That being so, they would be entitled to be re-instated as Accountants (B- 16) on their own seniority position as per the impugned direction of the Service Tribunal. A.A./F-31/S Appeal dismissed