1990 PLP 1685 (SCMR)

NASIM HASAN SHAH, J.‑‑This is a review petition directed against this Court's judgment dated 14‑2‑1989 passed in Civil Appeal No. 588 of 1988. In this case notice was issued to the learned Deputy Attorney‑General and when he appeared before this Court he was directed to obtain instructions from the Government to look into the aspect of hardship caused to the petitioner, which aspect had not been adequately considered in our judgment passed on 14‑2‑1982 and see whether the injustice he had suffered could not be redressed. However, the learned Deputy Attorney‑General, Mr. MA. Siddiqi, has submitted before us that the Ministry of Education has informed him that the petitioner "has already been allowed service benefits as per rules" and he cannot be allowed any additional benefits. We have, therefore, heard the learned counsel for the parties on the merits of the matter again. The facts of the case have been given in some detail in our earlier judgment. In sum and substance the petitioner has been denied, under the Federal Government promotion and the pay of the higher post by the Tribunal mainly on the ground that he having once exercised irrevocable option to serve under the Federal Government, he severed all connections with the Provincial Government and that neither he had any lien there nor he could claim promotion or higher pay with reference to his pay and promotion in the Province. The stand of the petitioner, on the other hand, is that since he was not confirmed under the Federal Government he was entitled to all the benefits of a deputationist till his confirmation there and that his lien in no circumstances could be terminated nor it had ever been terminated by the Provincial Government and be also not give his consent to the termination of his lien in spite of the fact that in the letter of option he had accepted that the option was irrevocable. His stand is that in spite of the said option he continued to be on deputation with the Federal Government till his confirmation and was entitled to all the benefits with reference to his service under the Punjab Government. Additionally his stand is that even if the option was irrevocable in terms of the contract between him and the Federal Government that option was illegal and ultra vires as no contract can be entered into between an employee and the employer which is inconsistent with the rules applicable to the service. Accordingly, he was entitled to the pay of the post of Professor with increments from the date he was promoted to that post by the Government of Punjab. Denial of the pay even on promotion, in consequence, was illegal. In fact, on account of his promotion with effect from 1‑9‑1976 in Grade‑19 by the Punjab Government, his pay of scale should have been fixed by the Federal Government accordingly, with effect from 1‑9‑1976 in Grade‑19 and not from the 29th July, 1984 ‑‑ the date from which he was confirmed by the Federal Government. This submission was not accepted in our impugned judgment on the ground that the provision of the "Terms & Conditions of Service of the Staff to be taken over by the Central Government" relied upon by the petitioner was simply a guaraetee given to permanent Government servants who opt for service in the Central Government, that they will be confirmed against central posts as and when permanent posts are available but pending their confirmation they will continue to enjoy all the privileges and benefits which would have accrued to them if they were in fact confirmed hands i.e. had been confirmed against a Central Government post. It was further observed that "what happens, in the meanwhile, to their erstwhile colleagues in the Provinces appears to be totally irrelevant. All the privileges and benefits being enjoyed by the confirmed hands in Government were being guaranteed pending their confirmation to the Central Government posts by this paragraph and it was not conferring the corresponding benefits and privileges granted to confirmed hands of the provincial posts during this period". It is submitted that it escaped the notice of this Court that a Government servant on deputation from the Provincial Government retains a lien on the permanent post in his parent office till he is confirmed in the borrowing Government. Accordingly pending his confirmation in the Federal Government he was entitled to the pay which he would have received had he remained in his parent office in the Punjab as per relevant Fundamental Rules and the rules applicable to the deputationists. On having reconsidered the matter we feel that two interpretations are indeed possible in the premises. Normally, where the Court has decided to accept one of the two possible interpretations, the fact that the other interpretation was also possible does not furnish a ground for review. But in this case the other principle namely that in a contest between two possible interpretations, one favouring the rights and interests of the servant and the other favourable to the State, the interpretation favourable to and more beneficial to the servant should be adopted. Hence this is a fit case for review. The result is that this petition for review lost is accepted. The judgment of this Court passed on 14‑2‑1989 is recalled and Civil Appeal No. 588 of 1988 is allowed and it is directed that the petitioner be granted the same emoluments which he would have drawn under the Punjab Government with effect from 1‑9‑1976 in Grade

19. No costs. A.A./M‑1420/S Review petition accepted