1988 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN).‑‑This Appeal and the Appeal No.121 (P)/86 are of identical nature. This judgment would cover both of them. Facts in the background of both the appeals are as under.

2. Both the appellants Mr: Sher Zaman (Appeal No.120(p)/86) and Mr. Nasrullah Khan (Appeal No.121(p)/86) are Audit and Accounts Assistants in the sub office of the Accountant General Pakistan Revenues, at Peshawar. Both of them were initially appointed in the office of the Accountant General, N.‑W.F.P., Peshawar, when the accounts of the Provincial Governments and also of the Federal Government were maintained in one office. In July, 1979, separate sub offices of the Accountant General, Pakistan Revenues, were established at the Provincial headquarters for maintaining the accounts of the Federal Government. Consequently certain orders were issued in respect of composition of the staff of each sub office and the assignment thereto of the existing staff. By order dated 4th January, 1981, certain posts under the Accountants General of Punjab, Sind and N.‑W.F.P. and the Comptroller, Baluchistan were transferred to the respective sub offices in the Provinces and the staff members already working in the sub offices were required to continue working in those posts till further orders. The appellants were, at that time, working in the sub office of the Accountant General, Pakistan Revenues at Peshawar. On 3‑9‑1981, following order in respect of absorption of the already serving staff in the sub offices was issued:‑ No:303‑BC/12‑79Dated 3‑9‑1981. (1) The Accountant General, Pakistan Revenues, Islamabad. (2) The Accountant General, Punjab, Lahore. (3) The Accountant General, Sind, Karachi. (4) The Accountant General, N.W.F.P., Peshawar. (5) The Comptroller, Baluchistan, Quetta. Subject:‑ TRANSFER OF ADMINISTRATIVE CONTROL OF SUB OFFICES OF THE ACCOUNTANT GENERAL PAKISTAN REVENUES. In continuation, of this office Memo. No.676‑BC/12‑79, dated 4‑1‑1981, it has been decided, after taking into consideration the recommendations of the Provincial Accountants General and the representations made by the staff that: (i) The cadre of the employees in grade No.l‑15 shall be localised in each sub office of the Accountant General, Pakistan Revenues and local competition of recruitment would not be disturbed. (ii) The employees in grades 1‑15 who are willing for permanent transfer shall be transferred alongwith posts which would give them benefit of past service in the localised cadres, The orders for the absorption of these employees will be issued by the Accountant General Pakistan Revenues. The remaining employees who do not opt for permanent transfer will, when the circumstances so permit, be repatriated to the parent offices gradually or earlier in cases of promotion, if any. (iii) The employees in grades 16 and 17 would remain in one Central cadre. (Sd.) Deputy Auditor General (PR)". Both the appellants, who were serving in grade 11, exercised their option for serving in the sub office at Peshawar under the Accountant General, Pakistan Revenues (hereinafter referred to as the AGPR). Names of the optees were notified in orders dated 13‑11‑1982 and 28‑11‑1982. Subsequently, the Accountant General, N.W.F.P. Peshawar, passed fresh order dated 17‑9‑1985 of permanent transfer of the staff in B‑1 to 16 to the sub office of the AGPR at Peshawar. The names of the appellants were amongst the incumbents permanently transferred to the sub office. By this notification, the appellants were relegated to lower positions in the seniority list. They made representation dated 5‑10‑1985 against fresh order. Their representations did not receive consideration. They, therefore, filed these appeals in April, 1986, calling in question the. orders dated 17‑9‑1985 and 25‑3‑1986.

3. The respondents have resisted the appeals. Their contention is that on establishment of sub offices of the AGPR at the Provincial headquarters, some posts from the offices of the Provincial Accountants General were transferred to the sub offices alongwith their incumbents in the year 1979 and those incumbents were later given option of continuing in the new set up or going back to their parent department and the appellants had opted to serve at the sub office of the AGPR at Peshawar. According to them the appellants were assigned seniority in the sub office cadre from the date of their option. It 'is stated that the number of optees was short of the posts transferred to the sub office, Peshawar, and, therefore, fresh orders dated 17‑9‑1985 and 25‑3‑1986 were passed to conscript staff from the office of the Accountant General, N.W.F.P. to the sub office of the AGPR at Peshawar and their inter se seniority was determined in accordance with the existing Rules. It has been denied that the appellants had suffered any prejudice in the terms and conditions of their service consequent to the orders impugned in the appeals.

4. The learned counsel for the appellants has urged that by virtue of the order dated 3‑9‑1981, reproduced above, only the employees in grades 1 to 15 were to be absorbed in the sub offices of the AGPR, to constitute a separate cadre of service and the r employees in grades 16 and 17 were to remain borne on the central cadre and it was in that 'context that the appellants had exercised option for their absorption in the sub office of the AGPR. but their future .prospects stood marred by the subsequent orders dated 17‑9‑1985 and 25‑3‑1986 impugned in the appeals, whereby employees in grades 16 also were inducted in. the sub office cadre. According to him, a vested right had accrued in favour of the appellants when they exercised option for their absorption in the sub office of the AGPR and their option was accepted vide notification dated 28‑11‑1982. He has contended that the impugned orders dated 17‑9‑85 and 25‑3‑86 were issued by the Accountant General, N. W. F. P. who was not competent to have passed them and they are without lawful authority. He has further contended that by virtue of these orders, the appellants have been relegated to a lower position in the seniority list. He has placed reliance on the cases reported in PLD 1988 S C 13 and P L D 1988 S C 163 and PLD 1986 AJK

241. He has also made reference to a case reported in P L D 1987 S C at page

166. On the other hand, the learned counsel for the respondents has reiterated the objections put in writing. He has urged that the impugned orders dated 17‑9‑1985 and 25‑3‑1986 were passed by the Accountant General, N.W.F.P., under the directions of the Auditor General who had approved them by letter dated 2‑4‑1986. He has submitted that no prejudice was caused to the appellants by issuance of the impugned orders. According to him, the appellants could not maintain the appeals on the ground of prospects of promotion. He has made reference to the cases reported in P L D 1960 S C at pages 45 and 105; and 1986 S C M R at pages 64 and 200.

5. Pakistan Audit Department is headed by the Auditor General of Pakistan appointed under Article 168 of the Constitution His financial and administrative powers are defined in the Rules made by the Federal Government from time to time. He is assisted in the discharge of his functions by the Accountant General, Pakistan Revenues at Islamabad and Accountants General at the Provincial headquarters and the subordinate staff working under them. upto 30th June, 1979, the audit and accounting of the Federal Government transactions, except those arising in the Provinces, was controlled by the Accountant General, Pakistan Revenues (AGPR), Islamabad, and those arising in the Provinces were controlled by the Provincial Accountants General. From 1‑7‑1979, sub offices of the AGPR were established at all the four Provincial headquarters together with the work of the audit and accounting of the Federal Government in the respective Provinces and their administrative control vested in the AGPR, Islamabad. Some staff working in the offices of the Provincial Accountants General was assigned, on 1‑1‑1981, exclusive functions of the respective sub offices of the AGPR and they were temporarily transferred to the sub offices alongwith the posts and their work. The appellants were amongst the officials who were so transferred to the AGPR sub office, at Peshawar, by order dated 14‑1‑81 issued by the Auditor General of Pakistan, Lahore. However, it was provided that the officers and the staff in grades 1 to 17 then working in the sub offices against the posts transferred to the control of AGPR could give option for permanent transfer to the AGPR, and such officers and staff were to count their seniority under the existing orders from the date of transfer. This order was passed in pursuance of the decision taken by the Finance Division. The order of the Auditor General dated 3‑9‑81, reproduced above, was issued in continuation of the order dated 4‑1‑81, whereby a localised cadre of the employees in grades 1 to 15 was established in each sub office of the AGPR and options were invited from the officials in grade 1 to 15 temporarily transferred to the sub offices from the offices of the Provincial Accountants General. The appellants exercised their option of continuing in the sub office of the AGPR, Peshawar and they were assigned seniority as Audit and Accounts Assistant in the sub office from the date of option. It is stated that the number of the optees fell short of the posts transferred to the sub office Peshawar and, therefore, it was decided to conscript staff from the office of the Accountant General, N.W.F.P., Peshawar equal to the number of posts transferred to the sub office of AGPR, Peshawar and fresh orders dated 17‑9‑1985 and 25‑3‑1986 were passed in supersession of the previous orders. The names of the appellants were mentioned in the order dated 25‑3‑1986 and the officials so transferred were assigned seniority on the basis of their regular continuous service in the grades they held in the office of the Accountant General, N.W.F.P., Peshawar.

6. The appellants' contention is that by order dated 3‑9‑81, the new cadre of the employees in the sub office of the AGPR, Peshawar, was to consist of the employees in grades 1 to 15 whereas the cadre stands transformed into the grades 1 to 16 by virtue of the impugned orders dated 17‑9‑1985 and 25‑3‑1986 and, therefore, the prospects of the appellants in the cadre of service they had opted for were adversely affected. It has been contended on their behalf that both the impugned orders were issued by the Accountant General, N.W.F.P, Peshawar, but he was not competent to have passed such orders affecting terms and conditions of service of the appellants and other employees affected thereby. The case of the respondents is that the impugned orders were passed by the Accountant General, N.W.F.P., Peshawar under the authority of the Auditor General of Pakistan. In fact, the main order is the one dated 17‑9‑85 and the second order dated 25‑3‑86 is in modification thereof. The main question for consideration, therefore, is whether the impugned orders dated 17‑9‑85 and 25‑3‑86 were competently passed by the Accountant General, N.W.F.P., Peshawar. In this context, reference may be made to certain inter‑departmental correspondence on the subject. There is on the record a photostat copy of the letter dated 5‑12‑85 from the Accountant General, sub office, Peshawar to the Auditor General of Pakistan, Lahore, that the order dated 17‑9‑85 issued by the Accountant General, NWFP, had adversely affected the officials who had opted to serve in the sub office and recommended that either the order may be withdrawn or revised orders may be passed for the transfer of the staff from the office of the Accountant General, NWFP, to the sub office, Peshawar. Attention of the Accountant General, N.W.F.P., Peshawar was, therefore, drawn by the Auditor General under letter dated 23‑12‑1985 to the directions conveyed to him under O.M. dated 5‑8‑1985 and his reply thereto under O.M. dated 10‑10‑1985 that the matter of transfer of the personnel to the sub office had been finalised in consultation with the AGPR, Islamabad. A copy of the letter was forwarded to the AGPR, Islamabad. Subsequently, the AGPR, Islamabad informed the Auditor General of Pakistan by letter dated 6‑3‑1986 that the matter of transfer of the personnel to the sub office of AGPR at Peshawar was thrashed out at a meeting held on 6‑2‑1986, also attended by the representationists from the sub office, Peshawar, and that necessary orders would be issued by the Accountant General N.W.F.P. on receipt of communication from the Auditor General's office. The second order dated 25‑3‑1986 impugned in these appeals was issued by the Accountant General, N.W.F.P, Peshawar thereafter in accordance with the decision taken at the meeting held on 6‑2‑1986. This decision was approved by the Auditor General and such intimation was given to all concerned by letter dated 2‑4‑

86. It follows that the impugned orders were passed by the Accountant General, N.W.F.P. under the directions of the Auditor General, the competent authority, and they are deemed to have been issued under proper authority:

7. The second question for consideration is whether the impugned orders adversely affected the terms and conditions of the service of the appellants. This question stands amply explained in the letter dated 16‑2‑1986. It may be reproduced hereinbelow as to have the chronological picture of the entire case depicted therein: "OFFICE OF THE ACCOUNTANT‑GENERAL N.‑W.F.P., PESHAWAR No. Admn:I‑35(AGPR)/Volume‑IV/dated 16‑2‑1986. The Auditor‑General of Pakistan, Central Govt. Offices Building, Gulberg III, Lahore. Subject: REPRESENTATION OF MR. INAYATULLAH, CLERK INCHARGE AND FOURTEEN OTHERS AGAINST THE ORDERS OF AG, NWFP REGARDING TRANSFER OF STAFF WITH RETROSPECTIVE EFFECT. Kindly refer to your office Memo. N0.1235.NGE.1/62‑80‑KW.II, dated 24‑11‑1985, No.1646‑NGE‑1/82‑8‑KW.II, dated 23‑12‑1985 and No.26‑NGE.I/82‑80 KW.II dated 21‑1‑1986.

2. In a meeting with the A.G.P.R., Islamabad held on 6‑2‑1986 in this office, the entire case has been examined in detail. Brief history of the case is narrated below.

3. In your office letter No.460‑M&M(C‑4)/70,Volume V of 18‑6‑1979, it was conveyed that "the Finance Division, Government of Pakistan have decided that the officers and staff already working in the offices of Provincial Accountants General on Accounts and Audit of Federal Government may be transferred to newly formed offices of the Accountant‑General, Pakistan Revenues". In pursuance of this order, the officers and staff of this office were transferred to A.G.P.R sub office, Peshawar vide this office Order NO.AC(5)/901 dated 14‑7‑1979 (copy enclosed). Subsequently two hundred and eighty two posts of various categories were transferred to A.G.P.R. Sub‑Office vide your office letter No. 276‑B‑C / 12‑79 dated 14‑1‑1981 and the control of Sub‑Office was transferred to A.G.P.R. with effect from 1‑1‑1981. In para 4 of this letter dated 4‑1‑1981 it was mentioned that the officers and staff in grade‑1 to 17 now working in Sub‑Office against the posts transferred shall have the right to opt for permanent transfer to the Strength of A.G.P.R., but their seniority will count under the existing order from the date of transfer. The staff of this office did not opt for permanent absorption and the case was moved by the staff association for localization of cadre of employees from Grades‑1 to

17. It was, however, decided in your office Memo. No.303‑B‑C/12‑79 dated 7‑9‑1981 that the cadre of employees in Grades‑1 to 15 shall be localized in each Sub‑Office of A.G.P.R. and the employees in Grades 16 and 17 would remain in one central cadre. The staff association of this office again represented and submitted a general body resolutions dated 8‑10‑1981 and again dated 19‑6‑1982. In the meantime about 52 staff members belonging to the cadres of Audit and Accounts, Assistants, Auditors and Junior Auditors opted for permanent absorption in the A.G.P.R., Sub Office and their options were accepted by the A . G . P . R . , Islamabad. However, in view .of the representation of the staff association the position of transfer of staff from Grade‑1 to 17 against the posts surrendered by this office could not be finalized and the matter remained under correspondence with your office. It was however, decided in July, 1984 vide your office letter No.610‑NGE.I/82‑80KW dated 16‑7‑1984 that the cadre of employees in BPS‑16 in each sub office of A.G.P.R. may also be localized and that options for permanent transfer to sub office may be called for afresh. In this connection a series of meetings were held in your office at Lahore and finally it was decided in the meeting held on 12‑5‑1985 that fresh options would not be opened except in the offices of Accountant General, N.W.F.P. and the A.G.P.R. Sub‑Office, Peshawar. This decision was communicated vide your office letter No.565‑NGE. 1/89‑84, dated 28‑5‑1985 and No.575‑NGE.I/89‑84 dated 28‑5‑1985. While considering the case for re‑opening of options, the instructions regulating cases of transfers from one office to another contained in para 6 of Establishment Division O.M.No.6/15/48‑ME, dated 31‑3‑1951 read with O.M.No.6/39/ 57‑ME dated 5‑2‑1958 reproduced at page 218 of Esta‑code (Revised Edition) had been considered. Under these orders, in case of options the seniority in the new office counts from the date of transfer in the new office. Under these circumstances no one was willing for opting for permanent transfer to AGPR, sub‑office in pursuance of decision of 12‑5‑1985 because of fear of losing seniority. These facts were considered in a meeting with AGPR Islamabad held on 18‑7‑1985 and "it was agreed that men in Grade‑1 to 16 actually transferred to Sub‑Office, Peshawar on its formation alongwith the surrendered posts and work may be compulsorily transferred to A.G.P.R. Sub Office. This was the only possible solution to settle the matter regarding transfer of staff to A. G. P. R., Sub Office once for all. Action was taken accordingly. Incidentally the decisions taken in the meeting on 18‑7‑1985 were not communicated to A.G.P.R., Islamabad.

4. The above position would show that although some employees of this office had opted for permanent absorption in the AGPR Sub Office, Peshawar in 1981 and their options were also accepted by the A.G.P.R., Islamabad, yet the entire matter regarding transfer of staff against the total number of posts surrendered by this office remained unsettled till the decision of localization of cadre of B‑16 taken in May, 1985. The conditions under which options of Mr. Inayatullah and others were obtained and accepted had changed due to localization of cadre of BPS‑

16. A list showing the names of Audit and Accounts Assistants/Auditors/Junior Auditors who have been transferred and the position of optees in it, is enclosed for perusal. In the combined seniority list of Audit and Accounts Assistants of this office, Mr. Inayatullah, Mr. Shamsur Rehman and Mr. Khursheedul Haque were at S.No.10, 15 and 22 respectively whereas in the list of employees transferred to AGPR Sub Office, their number is at S.No.4.5, and

9. They have, therefore, not been placed in a disadvantageous position in any way whatsoever.

5. It will be appreciated that the history of this case has been given in sufficient detail in the foregoing paragraphs. This entire history was discussed threadbare in a meeting with the Accountant‑General Pakistan Revenues on 6‑2‑1986. In this meeting, besides others, the President and General Secretary of the Frontier Civil Accounts Association and the .representative of the allegedly aggrieved persons also participated. It was a thorough meeting in all respects and in the consensus evolved at the end of the meeting even the representatives appeared to agree to the extent that there was no better alternative available than the one already arrived at and implemented. It was agreed by the A.G.P.R and the undersigned that to eliminate .the possibility of any tangible hardship to the aggrieved persons minor adjustments, not to the detriment of others, may immediately be made in the orders of transfer. During the meeting, A.G.P.R. and the undersigned repeatedly impressed upon the representationists, that substantial revision or cancellation of the decision already taken was not possible as it will create too many problems at the least taking us back five or six years to the position from which we started. Moreover, the decision had been taken after due deliberations with all concerned, viz AGPR/DAGPR and was implemented only after overall agreement and willingness of the Association was ascertained.

6. While extraordinary pains have been taken to explain the position to the representationists, it is hoped that after the minor adjustments promised have been made in due course, the representationists will be satisfied. (Sd.) (M. YUSSUF KHATTAK) Accountant‑General N.‑W.F.P., Peshawar. Vetted and agreed, list of staff to be transferred to Sub‑Office of A. G. P. R, Peshawar by A. G., N. W. F. P, Peshawar as a result of above discussions is enclosed. (Sd.) (MUHAMMAD SALEEM SIDDIQI) Accountant‑General Pakistan Revenues, Islamabad The aforesaid letter reveals that the interest of the employees, particularly those of the appellants and others who had made representations were taken care of and no prejudice seems to have been caused to them.

8. For the reasons recorded above, the impugned orders are not liable to be set aside and the appeals are dismissed with no order as to costs. S.Q./403/Sr.F Appeals dismissed.