1989 PLP (C (PLC(CS))

SALAHUDDIN CHAUDHRI (MEMBER).‑‑The appellant, Maqbool Ahmad Khakwani, is a civil servant working in the Ministry of Education Government of Pakistan, Islamabad. In 1981 when he was holding the post of Assistant Educational Adviser, he was selected for an eighteen‑month training course at Paris under a Cultural Exchange Programme. A sanction letter date 28th November, 1981 was issued stipulating that for the period of training the appellant would be treated as on deputation and that he would be entitled to pay and allowances in accordance with the Ministry of Finance O.M, No. F.8 (2) R-II (II)/58, dated 31‑10‑1958. However, since the processing of the case had take longer than expected, the host country could not accommodate the appellant i the 1981 session and deferred the training facility to the subsequent year. The sanction letter of 28th November, 1981 referred to above was accordingly cancelled. When the matter was revived and the host country conveyed acceptance of the appellant for 1982 session, the appellant requested the concerned authority for the issuance of fresh formal sanction. But this time instead of allowing terms similar to those of 1981, the appellant was sanctioned leave ex‑Pakistan vide notification dated August 11, 1982. Although he left for Paris, yet he did not give up his claim for being treated as on deputation abroad. Requests were repeatedly sent from Paris for reconsideration but these were not allowed. This is what the appellant is aggrieved with and consequently seeks redress through this appeal.

2. The main ground of appeal pressed by the learned counsel for the appellant was that when in 1981 the appellant was treated as on deputation abroad, there was absolutely no justification for not treating him on duty in 1982 everything remaining the same i.e. the course, the training 'institution and the financial assistance offered by the host country. Explaining the circumstances in which leave ex‑Pakistan was sanctioned and availed of, the learned counsel submitted that when the competent authority was taking time for a decision and messages from the host country were being received requiring the appellant to report at Paris immediately, the appellant was left with only two options, either to accept the suggestion of taking leave ex‑Pakistan and then continue pressing for deputationist status or to forego the training opportunity. He chose the first. Also, the learned counsel cited the case of Mr. Habibur Rahman who had originally been selected for the same course as the appellant and when he could not go to Paris in 1981 was sent in 1982 to another course but was duly treated as on duty and given terms and conditions in accordance with the Ministry of Finance O.M. of 1958. So, he maintained, the decision not to allow the same terms and conditions to the appellant was unfair as well as discriminatory.

3. The respondents who oppose this appeal have taken the stand that the competent authority had made it clear to the appellant before his departure for Paris that the Government had no objection to his going to Paris but it will not accept any financial liability. The appellant, submitted the learned counsel, then applied for leave ex‑Pakistan and it was duly sanctioned. On these facts, he maintained, the appellant's grievance was unjustified. It was also submitted that there had been no discrimination in treatment. The case of Mr. Habibur Rahman was quite distinguishable inasmuch as the appellant went under the Cultural Exchange Programme while the latter was sent under the Technical Assistance Programme. According to him, in the cases of training under Cultural Exchange Programme, the officers going abroad are not treated as on deputation whereas in the case of Technical Assistance Programme they are treated as such. Objection has also been raised that the appeal is barred by limitation.

4. We propose first to deal with the objection pertaining to limitation. According to the learned counsel for the respondents, the original order was dated 21st July, 1982 under which while issuing the No‑Objection Certificate it was made clear to the appellant that the Government would not accept any financial liability for the period of training abroad. Therefore, the limitation started running from that date. The appellant did not file a departmental representation against that order and instead applied for leave, which was duly sanctioned. Therefore, the appeal to the Tribunal 'filed on 31‑12‑1984 was hopelessly barred by time. We, however, find that the same day the No‑Objection Certificate was issued, the appellant submitted a note to the M/o Education requesting for sanction for the grant of deputation. He followed it up with another reminder dated 10.8‑1982 before leaving abroad. Reminders were also addressed from Paris as well but there was no reply from the respondents. On return to Pakistan on 8‑10‑1983 he addressed an appeal to the Secretary, M/o Education citing the case of one Mr. A.R. Sial. The representation was finally rejected vide M/o Education memorandum dated 3‑12‑1984 and the appeal was submitted on 31‑12‑1984 which is within 30 days of the passing of the final order on his representation. The memorandum of 3‑12‑1984 clearly shows that the representation of the appellant had till then remained under consideration of the M/o Education which had been recommending the appellant's request to the Ministry of Finance. The relevant para. reads as under: ‑ "He is informed that Ministry of Finance were requested to reconsider his case and allow the terms of deputation as admissible under the rules for trainees under Technical Assistance Programme. The Ministry of Finance has regretted that there are no grounds for the matter to be reconsidered any further." The appeal is, therefore, in time.

5. The main objection on which considerable emphasis was laid by the learned counsel for the respondents arises out of the issuance of No‑Objection Certificate and sanction of leave ex‑Pakistan. It has been argued that having accepted to proceed abroad on those conditions, it is not now open to the appellant to claim that he should be treated as on deputation. We, however, are not impressed with this line of reasoning. The inference being drawn by the respondents from the fact of appellant's proceeding on leave ex‑Pakistan to join the course is not correct. The matter must be seen m its true perspective and not divorced from the circumstances which led to it. The fact of the matter is that in 1982 when the case was revived, the appellant requested for formal sanction containing terms and conditions similar to 1981. The response was not encouraging. In fact, it was being indicated that this time he would not be treated on deputation. This was in spite of the fact that since the first sanction of 1981, there had admittedly been no change in the rules or policy on the subject. As the time for reporting at Paris drew nearer, he saw no alternative but to avail of leave ex‑Pakistan. He did it out of fear lest he should miss the opportunity again as was missed in 1981. On these facts, it would be simply wrong to infer that the appellant had of his own volition chosen to ask for leave instead of deputation abroad.

6. As regards the distinction being drawn by the respondents between the terms and conditions for Cultural Exchange Programme and Technical Assistance Programme, the learned counsel for the appellant brought to our notice that even in the case of Cultural Exchange Programme, officers are or have been treated as on deputation. The case of Mr. Noor Muhammad, Lecturer in the Federal Government College for Men, Islamabad who went to Moscow State University under the Cultural Exchange Programme was cited as an instance. The letter dated 25th January, 1979 conveying sanction for creating an O.S.D. post for Mr. Noor Muhammad shows that he was treated on deputation abroad. The learned counsel for the respondent could not controvert this fact. It follows, therefore that the competent authority can treat an officer on deputation even in the case of 'training facility course under the Cultural 'Exchange Programme. If it had the discretion, the appellant's case was the fittest for the exercise of such discretion.

7. On these facts we have no hesitation in coming to the conclusion that the appellant's grievance is well‑founded. 1n 1981 the appellant was treated as on deputation. His joining the course was deferred to 1982 session for no fault of his. There was, therefore, no justification for not allowing the same terms and conditions in 1982, everything having remained unchanged. We allow this appeal and order that the period during which the appellant was under training abroad should be treated as on deputation in accordance with the terms and condition as laid down in the Ministry of Finance O.M. of 1958. The appellant will not, however, be allowed any part of pay or allowances admissible to him in foreign exchange. 8.???????? There will be no order as to costs. M.Y.H./414/Sr. F??????? Appeal allowed.