1988 PLP S (PLC(CS))

CH. A. RAHMAN KHAN (MEMBER).‑‑The appellant, Syed Mohsin Ali Hasani, Ex‑Professor, Federal Government College for Men, H‑8, Islamabad, has come in appeal against the impugned Order No.F.5‑35/ 75‑CA(FDE), dated 8th December, 1985, by which his departmental appeal was not accepted by the competent authority.

2. It was contended by the learned counsel for the appellant that the appellant initially belonged to Educational Service of the Province of the Punjab, having joined as Lecturer in English Literature in 1950. He was promoted as Assistant Professor of English (Grade‑18) with effect from 1‑7‑1959. At the relevant time the appellant was serving as Assistant Professor Government College H.9/Islamabad, when these Institutions were taken over by the Federal Government on 1‑6‑1974. All the employees of the College were to exercise their discretion either to opt for Federal Government service or to revert to the Government of the Punjab. The appellant opted for service with the Federal Government and his option was accepted. According to the terms and conditions offered by the Federal Government, the appellant was posted as Assistant Professor in the same college and being the senior most the appellant took over as Incharge Principal in his own pay and grade i.e. Grade‑

18. The appellant worked there in that capacity for two years and 10 days with effect from 14‑9‑1974 to 24‑9‑1976. In August, 1975, the Ministry of Education, submitted the appellant's case to the Establishment Division with their recommendation to promote him as Principal of the College but with no result. He was instead transferred to the Ministry of Education as Assistant Educational Adviser (Grade‑18) with effect from 25‑9‑1976.

3. It was further submitted that in 1977, the Government of the Punjab decided to upgrade a certain percentage of the posts of Assistant Professors to Professors vide Notification No. SO (Coll) 6‑7/74, dated 15‑3‑1977. Since the appellant had not been confirmed by the Federal Government and was still holding lien under the Punjab Government his name was also included in the Gazette Notification dated 18‑9‑1977 to be promoted to Grade‑19 with effect from 1‑9‑1976. The appellant was, however, allowed to continue on deputation vide Notification No.SO(CEI)1‑26/76(iv) dated 24‑10‑1977. At this stage, the Ministry of Education neither allowed his reversion to the Government of the Punjab on his promotion nor they promoted the appellant to Grade‑19 in the vacancy of Principal which existed since 14‑9‑1974. It was contended by the learned counsel for the appellant that under F.R. 113 and F.R.114 the appellant should have been allowed remunerations which he would have received in the higher posts in Government service to which he is promoted. The higher remunerations would, of course, be payable by the foreign employers. This was not allowed. On 1‑4‑1977, the Ministry of Education was bifurcated and the appellant was transferred as Assistant Educational Adviser to the Culture, Archaeology and Sports Division. He applied to amend the terms and conditions of his option so that he would draw the pay as admissible to him in his permanent cadre. This too was not agreed to.

4. However, the Director, Federal Government Educational Institutions informed the appellant on 28‑10‑1979 that the case for his promotion to the post of Principal (Grade‑19) was under process and the appellant being the senior most in the cadre was advised to let the directorate know whether or not he wished to come back in case he was promoted to the post of Principal in Grade‑

19. At this stage, on his request the appellant was reverted back to the Ministry of Education but was not allowed to join duty. Instead, to his utter disappointment his case was processed for reversion to the Government of the Punjab. The Establishment Division, however, ruled out the order of his repatriation to the Punjab Government in view of his option to join the Federal Government. For some time the appellant was posted against odd jobs with effect from 7‑1‑1980 but was finally posted back as incharge Principal in the Federal Government College for Men, H‑9, Islamabad with effect from 11‑8‑1980. On 11‑2‑1981, the appellant was once again repatriated to the Punjab Government vide Notification dated 24‑1‑1981 but the Punjab Government did not accept him. In July 1982, his case for repatriation to the Punjab Government was again taken up by the Ministry of Education which was rejected by the Establishment Division. Meanwhile, two Assistant Professors junior to him were allowed to be promoted to Grade‑19 vide Notification dated 14‑3‑1983 and 16‑5‑1983. The case of promotion of the appellant was not considered on the plea that his case for repatriation to the Punjab Government had been under process. He was later promoted in Grade‑19 with effect from 29‑7‑1984.

5. It was strongly contended by the learned counsel for the appellant that according to the terms and conditions offered by the Central Government, the optees were to be appointed against temporary posts which were to be created by the Central Government in the existing provincial scale of pay with effect from the date of the transfer of the Schools/ Colleges. It was submitted that since the appointment of the appellant was on transfer and ordered against a temporary post, his lien with the Government of the Punjab could not be severed till he was confirmed in the Central Government. Therefore, the promotion of the appellant to Grade‑19 as ordered by the Punjab Government for all intents and purposes is to be considered as a regular promotion. Also, because the appellant was working against the post of Principal (Grade‑19) of the College with effect from the date he opted to serve with the Central Government, the appellant should be given the benefit of his promotion with his parent Provincial Government. Under the existing rules the lien cannot be severed as long as the incumbent is on deputation and is working against a temporary post as in the case of the appellant. Alternatively, the appellant should have been allowed to revert to his parent Provincial Government to avail of his promotion to Grade‑19 if the Federal Government did not allow his promotion in his own charge. As a matter of fact, if he was allowed promotion as per the orders of the Punjab Government he would have been entitled to move‑over to Grade‑20 just as his other colleagues in the Punjab Government were allowed vide Notification dated 5th March, 1985. The appellant has suffered a great financial loss and come‑down in status due to great injustice done to him as submitted earlier. It was, therefore, strongly contended that the impugned order of the promotion of the appellant may be set aside and he may be deemed to have been promoted to Grade‑19 with effect from 14‑9‑1974 when he served against a Grade‑19 post from 14‑9‑1974 to 24‑9‑1974 with full back benefits.

6. It was contended by the learned counsel for the respondents alongwith the representative of the respondent‑department that the appellant while serving in the said college as Assistant Professor opted to serve with Federal Government vide his option certificate dated 25‑5‑1974. According to the terms and conditions offered by the Federal Government. It was clearly and unambiguously made known to the appellant vide letter dated 15‑5‑1974 that this option to join the Federal Government service once exercised shall be final. it was, however, submitted that in this case there was no question of the optee serving on deputation with the Federal Government.

7. The fact that all those who opted to serve the Federal Government were to be posted against a temporary post, did not entitle them to have any lien on their posts with the Provincial Governments. This was the case of take‑over of all Institutions from the Provincial Government. Therefore, the options given by the individuals then serving with the Provincial Governments were treated to be final. The question of any of the parties i.e. Federal Government or the Provincial Government having a right to repatriate any individual did not exist. It was submitted by the learned counsel for the respondent that action of the Ministry of Education to process the case of the appellant for repatriation to Provincial Government cannot be considered legal. It was, indeed, based on mis‑understanding and therefore, not allowed by both the Governments. In this situation, therefore, it is amply clear that the lien of the appellant could not be allowed to exist with the Government of the Punjab for any length of time after his option to serve with the Federal Government had been exercised. The promotion order by the Punjab Government in the case of the appellant, therefore, be considered as incompetent. The option of the appellant once exercised being final may not have offered better chances of promotion but this cannot be disputed being a stroke of luck which is entirely providential. The appellant has been given promotion once he was cleared by the Central Selection Board and he has also been given the necessary financial benefits for the period that he was working against the higher post. The appeal is, therefore, liable to be dismissed as incompetent.

8. In view of the above discussion, we are of the opinion that the option of the appellant to join the Federal Government was final and irreversible and he cannot be given the benefit of his promotion ordered by the Punjab Government. The appellant can neither be considered on deputation with the Federal Government nor he could have a lien with the parent Government. In our view his promotion to the post of Principal in Grade‑19 has been ordered after due consideration by the Central Selection Board and, therefore, is in order. He is, however, entitled to higher pay by virtue of having worked against higher post of Principal with effect from 14‑9‑1974 to 24‑9‑1976 for which he should be given full financial benefits under the existing rules, if not already done. The appeal is dismissed except as indicated above. Ordered accordingly.

9. Parties to be informed. S.Q./398/Sr.F Ordered accordingly.