1999 PLP (C (PLC(CS))

8. Being aggrieved by the said impugned order i.e. dated 8‑3‑1997 and communicated to the appellant on 15‑4‑1997, the appellant preferred a departmental appeal on 3‑5‑1997, which has not been responded to, so far, even after the expiry of mandatory period of 50 days. Hence he has filed present appeal before the Tribunal.

9. We have heard the learned counsel, appearing for the appellant, who pleaded that impugned order passed by the respondent was mala fide to deprive the appellant of promotion, which became due. The two benefits allowed to the appellant under section 9‑A, were permissible under the law, and were availed of by the appellant. And that this had created vested right of the individual, and could not be withdrawn, under the principle of. Locus poenitentiae. In this regard he relied on PLD 1969 SC 407.

10. The learned counsel for respondent, admitted that the concession for counting the compulsory service of not less than two years, in the armed forces towards seniority and pay has been allowed to such medical practitioners who after release from armed forces, have entered in the employment of the Federal or Provincial Government. However, in the instant case, he observed that the appellant, after release from the army has entered the employment of Cantonment Board which is neither a Federal nor Provincial Government Service as such he is not entitled to counting of his service towards seniority and pay. Accordingly the benefit fixation of pay allowed to the appellant have been withdrawn vide letter dated 6‑6‑1995.

11. The learned counsel for the appellant rebutted the above view of the learned counsel for the respondents. He counter argued that the appellant is a civil servant. In this respect, he relied on section 2(b) of the Civil Servants Act, 1973 which reads as: ?Civil servant' means a person who is member of All Pakistan Service or of Civil Service of Federation or who holds a civil post in connection with affairs of the Federation, including such post connected with defence."

12. The learned counsel stressed, that the post held by the appellant is connected with defence as the Cantonment Board looks after, the affairs of areas, which are raised by defence forces. To strengthen his point, he referred to the Cantonment Service Rules, 1954. The rules governing the pay, allowance, transfer and fringe benefits admissible to Federal employees, are also applicable in the case of appellant. And it has been provided in clause (2) of the Annexure‑I that there cannot be departure from this policy in any case,. And this has further been strengthened by the clarification of Establishment Division vide its letter dated 4‑8‑1988 to the effect that section 9‑A of the Compulsory Service in the Armed Forces Ordinance, 1971 is a special law, whereas section 8 of the Civil Servants Act, 1973, contains a general provision. The former, therefore, shall prevail over the latter. Since appellant is a civil servant, and connected with defence, hence, this law will apply to his case.

13. We have perused the relevant references, and are satisfied that appellant is a civil servant, and is connected with the defence service. We also drew strength, from the appointment letter of the appellant, which has been issued by the Additional Director, Military Lands and Cantonments. It is obvious from the Organization issuing such an appointment letter. At the top of its right side it reads: No.92/477/G/AD(P&A)/ML&C/87 Government of Pakistan Ministry of Defence Military Lands and Cantonment Deptt. Rawalpindi, the 8th October, 1987.

14. It is obvious from the above that Military Lands and Cantonment is one of the organization of the Ministry of Defence. As such, the objection of the learned counsel for the respondents is repelled.

15. The learned counsel for the respondents raised another objection that the appeal is time‑barred. According to him, the order of withdrawal of the benefits allowed to the appellant was passed on 8‑3‑1997. However, the appellant to the departmental appeal on 3‑5‑1997, as such it was time‑barred as it should have been preferred within the period of one month.

16. The appellant's counsel, on the other hand, brought out that it was communicated to the appellant on 15‑4‑1997. We asked the counsel for respondents, to submit some document to prove that it was delivered to the appellant in time i.e. on 8‑3‑1997. However, he could not submit anything to support his objection. On the contrary he observed that the onus was on the, appellant. But we are of the view that proving the delivery of the impugned order in time lies with the respondent. Taking the date of receipt of the letter as 15‑4‑1997 the departmental appeal made on 3‑5‑1997 would be within time.

17. According to the learned counsel for the respondents the appellant should have submitted his departmental appeal to the Secretary of Defence, but instead he made it to the D.G. Cantonment Boards.

18. It is a settled law, and has been held by the superior Courts that if the appeal is sent in wrong channel, those people should send it to proper authority. Yet another point that emerges from this objection is that the learned counsel himself admits, though indirectly, that the appellant was the Federal Government employee that is why, he raised objection that he should have filed his‑departmental appeal to the Secretary of Defence, and hence amenable to the rules of Federal Government.

19. The upshot of the discussion in preceding paragraphs is, that, we accept the appeal and set the relevant impugned order aside and direct the respondents to restore the benefits, already allowed to him, if recovery made, be refunded to the appellant.

20. No orders as to cost. Parties be informed. H.B.T./316/FS(Trib).?????????????????????????????????????????????????????????????? ??????????? Appeal accepted.