1993 PLP 837 (SCMR)

MUHAMMAD AFZAL LONE, J.‑‑‑The facts are that Muhammad Iqbal Solangi, the respondent herein, a deputationist from the Sindh Government, was serving as an Assistant Educational Adviser in the Ministry of Education. His deputation was for five years, expiring on 24‑10‑1979. However, in the year 1978 he was nominated for merit scholarship for Master Degree in Business Administration, under the Cultural Exchange Programme sponsored by the Government of Japan. The N.O.C. issued to him by the Ministry of Education on 8‑8‑1978 clearly indicated that it did not involve any financial liability on the part of the Ministry of Education and Coordination, Government of Pakistan. The respondent remained abroad for study during the period from 5‑10‑1978 to 26.7‑1983. After completion of his studies, on his return to Pakistan, he was treated on leave as under:‑‑ (i) Leave on full pay from 5‑10‑1978 to 1‑2‑1979 120 days (ii) Leave on half pay from 2‑2‑1979 to 20‑8‑1979 200 days (iii) Extraordinary leave from 21‑8‑1979 to 26‑7‑1983 1436 days

1756 days

2. It is discernible from the record that subsequently the Minsitry of Education under their U.O.No.F 11‑6/79‑Admn.I. dated 24‑9‑1985 asked the Finance Divison to treat the respondent's entire period of leave as deputation abroad as was done in the case of trainees sent abroad on Technical Assistance Programme, but this request was declined. The Ministry of Education then made another recommendation that the period of respondent's extraordinary leave be counted towards grant of increment, to which the Finance Division vide their U.O.No.F.3(12)‑8.10/85, dated 5‑2‑1986, did not agree. Thereafter, the Minister of Finance was moved for relaxation of rules to treat the period of studies abroad as deputation like the Technical Assistant Programme, but the respondent's this attempt also failed.

3. It is on the record that another Assistant Educational Adviser to the Ministry of Education, namely, Maqbool Ahmad Khakwani, remained on deputation on a training course at Paris, under the Cultural Exchange Programme. A sanction letter dated 28‑11‑1981 was issued in his favour, specifying that for the period of training he would be considered on deputation and entitled to pay and allowances in accordance with the Ministry of Finance O.M.No.F.8(2)‑R‑II (ii)/58 dated 31‑10‑1958. Subsequently this letter was cancelled as the incumbent could not proceed abroad to attend the session, for which it was issued. However, he attended the next session, for which instead of issuing a sanction letter on the terms aforesaid, he was granted Ex‑Pakistan leave. He went abroad on training and there from he pressed his claim continuously for being treated as on deputation, but his grievance was not redressed. Ultimately he filed an appeal before the Service Tribunal, which was allowed in June 1988. It appears that on the respondent's request, the Ministry of Education once again made reference to the Finance Division for grant of financial benefits to him on the basis of the Tribunal's decision in the cases of Maqbool Ahmad Khakwani and another Officer of the Education Ministry, namely Dr. R.A. Sial. This proposal was also rejected, as in the opinion of the Finance Division the respondent's case was neither covered by the relevant rules nor the precedents relied upon in this behalf. Thereafter, the respondent made another representation dated 15‑8‑1990 to the Federal Minister for Finance requesting him to accord sanction, as a special case, to treat his period of extraordinary leave from 5‑10‑1978 to 26‑7‑1983 as on duty abroad but as borne out from the Finance Division U.O.No.3(12)‑R.10/85 dated 1‑10‑1990 this request was also not acceded to. Having met continuous failures at the hands of the departmental authorities, he on 29‑10‑1990 preferred an appeal before the Service Tribunal for issuance of a direction that the period of studies abroad be considered as deputation and full pay including other emoluments for the said period be paid to him. The appeal was accepted vide order dated 9‑4‑1991, which has been assailed before us in this appeal through leave to appeal.

4. Before the Tribunal the respondent relied upon the Office Memorandum dated 31‑10‑1958 and urged that its terms were applicable to his case. This argument prevailed with the Tribunal. In accepting the appeal it took the view that:‑‑ "The connotation of the term `trainee' contained in the said Office Memorandum reproduced above, does extend to the persons going abroad for study or even for observation and the persons going for study under the Cultural Exchange Programme sponsored by a foreign country. Even if any doubt is entertained at any level, the appellant's case was covered by paragraphs 2 and 3 of the aforesaid Office Memorandum reproduced above. The appellant has filed a photostat copy of his note dated 10‑8‑1978 submitted by him that he may be extended necessary duty leave facilities with full pay to enable him to avail of the scholarship. His request was duly processed and his request was finally approved by the Secretary, Ministry of Education on 16‑8‑1978 and the appellant proceeded for study thereafter. "In all fairness, the Finance Division should have agreed to the proposal made by the Ministry of Education to allow the appellant the facilities of deputation. This Tribunal did examine the scope of the aforesaid O.M. dated 31‑10‑1958 in Appeal No.19 (R)/85 filed by Mr. Maqbool Ahmad Khakwani and held that the provisions thereof did extend to the persons proceeding for study under the Cultural Exchange Programme. It was stated at the, hearing that the judgment of the Tribunal was not appealed against and it was rather given effect to. The Tribunal has observed in more than one cases that its decisions in one case may be followed by the department in the cases of identical nature and the Supreme Court has upheld that view of the Tribunal and pertinent reference may be made to the decision of the Supreme Court reported in 1984 SCMR

286. Even if the Finance Division had rejected the case , of the appellant, his case could have been reconsidered in the light of the decision of the Tribunal in the aforesaid case of Maqbool Ahmad Khakwani which was accepted by the concerned department. Accordingly, the appellant is entitled to nave the benefit of the provisions‑of the Office Memorandum dated 31‑10‑1958 and get his emoluments for the period he devoted for his study under the Cultural Exchange Programme, i.e. from 5‑10‑1978 to 26‑7‑1983."

5. The operative part of the leave grant order embodying the point urged for consideration in this appeal is reproduced below:‑‑‑ "It is pointed out that the respondent's case was rejected by the Finance Division on 8‑10‑1985 and again on 25‑1‑1987 and there was no occasion for re‑opening of his case, either by him or by the Ministry of Education after three years. It is, therefore, submitted that the appeal filed by the respondent on 29‑10‑1990 was hopelessly time -barred. It is further submitted that the representation made after the expiry of the period of limitation for filing an appeal before the Service Tribunal does not extend the period of limitation or give it a fresh start. It is also submitted that civil servant proceeding on leave with or without pay cannot claim, at the end of leave period or at any stage, that he was on deputation for the purpose of exploitation of public funds."

6. Dealing with the question of limitation first, from the impugned order, we find that Memorandum of Appeal before the Tribunal was accompanied by an application for condonation of delay. The condonation in delay was sought on the ground that though the Finance Division rejected the appellants' case more than once but the Ministry of Education all along fully supported him and that he did not remain quiet and has been continuously agitating in the matter. These submissions weighed with the Tribunal; it maintained that the Ministry of Education took up the respondent's case with the Finance Division on the analogy of the case of Maqbool Ahmad Khakwani, but the Finance Division did not reverse its earlier decision. In these circumstances, according to the Tribunal, the respondent was constrained to prefer a departmental appeal before the Finance Minister, which was dismissed. These events in the opinion of the Tribunal justified condonation of delay. It may be observed that condonation of delay in filing the appeal was within the discretion of the Tribunal, which has been exercised in favour of the respondent and reasons advanced in support thereof. It has not been shown that the view taken by the Tribunal is arbitrary and capricious. This Court would be loath to intervene with such an order. The appellants' objection to the maintainability of the appeal on the ground of limitation thus fails.

7. The reasons spelt out from the Tribunal's order for applying its decision in Maqbool Ahmad Khakwani's case to the respondent's case are that the Governmental authorities did not file any appeal against the same, and rather it was implemented by them. The reasons for not filing the appeal by the Government are not known but fact remains that their this omission caused a financial loss to the public exchequer; not only in that case but also furnished a precedent for other cases wherein the public servants were permitted to go abroad on the express understanding that it would not cast any burden on the Government, yet on their return to the country they succeeded in gaining financial benefits; largely by finding certain loopholes in the policy regulating the grant of permission to the Government servants to go abroad for training etc. To safeguard the public money such loopholes need to be plugged. In all fairness, when a Government servant is permitted to go abroad in the public interest, for training or higher study, or acquisition of knowledge, beneficial to the performance of his public duties, the terms and conditions governing his stay abroad should be settled before grant of such permission. It is notewrothy that under para. 3 of the Office Memorandum referred to in the impugned order, the consultation with the Finance Division by the Employing Department, allowing the Government servant to go for training abroad; is essential. The tenor of the Office Memorandum demonstrates that such consultation should take place before grant of such permission. Seemingly this procedure was not followed.

8. As already noticed, the Tribunal's decision in Khakwani's case was placed before the Finance Division by the respondent, but they declined to follow it. The details of the reasons influencing their decision in this behalf are not available from the record before us. Presumably for this reason the Tribunal chose to make the observation that "the respondent's case should have been re‑considered in the light of the decision of the Tribunal in the aforesaid case of Maqbool Ahmad Khakwani, which was accepted by the concerned department". Thus, upon the Tribunal's own showing the respondent's case required re‑consideration by the Finance Division. The Tribunal, therefore, should have remanded the case to the Departmental authorities for recording a fresh decision on the respondent's representation. For the foregoing reasons, this appeal is partly accepted, and the case is remanded to the Finance Division for re‑examination of the respondent's case; the policy issued regarding grant of permission, as well as, the stray cases in which similar financial benefits were granted to the Government servants. The parties are left to bear their own costs. A.A./S‑729/S Case remanded.