2004 PLP 527 (SCMR)

MUNIR A. SHEIKH, J.‑‑‑This appeal with the leave of the Court is directed against judgment dated 12‑11‑1997 of the Federal Service Tribunal (hereinafter referred to as the Tribunal) whereby appeal filed by the respondent has been accepted.

2. Respondent was working as Assistant Record in the appellant -Company, against which post he was appointed on temporary basis w.e.f. 3‑7‑1995. According to learned counsel for the appellant, appointment of the respondent was up to 26‑9‑1997. Some vacancies of the Assistant Stores in Grade‑5 became available against which respondent, after due selection, was appointed as Assistant Stores through letter dated 23‑9‑1996. According to terms of this appointment letter, respondent was required to report for duty or take over the charge of the post up to 27‑10‑1996. It is manifest from this order that the same was issued during the period when respondent was in service of the appellant against a temporary post.

3. Case of the respondent was that this order was not 'communicated to him but was handed over to him on 6‑1‑1997 and he reported for duty on 8‑1‑1997. Appellant‑Company did not allow him to take charge of the post, therefore, he filed a Constitutional petition before the High Court. An objection was raised that the same was not maintainable, therefore, respondent withdrew the same to seek proper remedy. Since the objection was raised in the Constitutional petition on behalf of the appellant that by virtue of the duties of the post against which respondent was appointed, he was a workman, therefore, the respondent filed a grievance petition under section 25‑A of the I.R.O. 1969 before the Punjab Labour Court. In the written statement filed by the appellant to the said petition, it was admitted that the respondent was in the service of the appellant on temporary basis when order for appointment to the post of Assistant Stores was issued. The said petition was returned with the direction to seek remedy before the proper forum in view insertion of section 2‑A in the Federal Service Tribunals Act, 1973.

4. Respondent, after availing remedy of departmental appeal, which was not responded, filed appeal before the Tribunal, which has been accepted through the impugned judgment dated 12‑11‑1997, against which this appeal by leave of the Court is directed.

5. The only point on which leave was granted was whether the Tribunal was vested with the jurisdiction to entertain the appeal. Learned counsel for the appellant argued on the strength of rule laid down in N.‑W.F.P. Public Service Commission v. Samiullah Khan 1999 SCMR 2786 that in case of direct appointment through selection of a person against a post, he would not become civil servant unless he was actually inducted in the service and was holding a post at the relevant time. According to the learned counsel for the appellant, since the respondent had not taken over the charge of the post, he was not holding any post in civil service as envisaged by the definition of the term "civil servant" given in the Service Tribunals Act, 1973.

6. Facts of the case of the judgment relied upon by the learned counsel for the appellant were that the person was not in service of the employer in any capacity. He was selected through direct recruitment and had not taken over the charge when he filed appeal before the Tribunal. Rule laid down in the said judgment is no doubt correct so far as the facts of that case are concerned but the same would not be attracted for the respondent was in service of the respondent on temporary basis when he was selected for regular appointment. Handing over/taking over the charge by the respondent was merely a paper formality, which should have been completed by the appellant itself by giving a note, therefore, he shall be deemed to be holding a post in the service of the appellant on permanent basis when this letter was issued. Previous position held by the respondent shall be deemed to have been converted into permanent as such, he was holding the post in the service of the appellant since 23‑9‑1996.

7. Learned counsel for the appellant argued that the appeal before the departmental authority filed by the respondent was barred by time, as such, appeal before the Tribunal was also barred. He maintained that the Tribunal may be vested with the power to condone the delay in filing before the Tribunal but it could not condone the delay in filing appeal before the departments authorities.

8. When questioned, learned counsel for the appellant frankly admitted that the departmental appeal filed by the respondent was not disposed of by any order in writing holding the same as barred by time. He says that it was not responded, therefore, in our view, the question or condonation or otherwise in filing departmental appeal would not arise. Even otherwise, it was a fit case for condonation of delay for the respondent had been pursuing his remedy vigilantly from pillar to post but was not given the relief, therefore, the Tribunal did not commit any illegality in holding that it was a fit case for condonation of delay.

9. Before parting with this judgment we may observe that the conduct of the appellant is not above board. It is well‑known that Government functionaries are the noblest litigants but in, this case appellant did not give fair treatment to the respondent.

10. For the foregoing reasons, this appeal has no force, which is hereby dismissed with no orders as to costs. M.H./S‑1/S Appeal dismissed.