1998 PLP (C (PLC(CS))

SH. RIAZ AHMAD, J.

This appeal through leave of the Court is directed against the judgment and order dated 28-2-1996 delivered by the Federal Service Tribunal, Islamabad, whereby the appeal preferred by the appellant agitating his placement in the seniority list was rejected.

2. The facts in brief giving rise to the institution of this appeal are that on 21-11-1970 the appellant joined Military Engineering Service Department as Steno-typist. In May, 1980, the appellant was selected for secondment (deputation) to Saudi Arabia as Steno-typist. In routine before proceeding abroad on secondment such deputationist is obliged to give an undertaking that he would forego his promotion if he proceeds abroad on deputation. According to the appellant although giving of such undertaking is mandatory but it was only a formality because on return to the country every such deputationist is promoted and is restored to his original seniority by way of pro forma promotion. The appellant proceeded to Saudi Arabia on 24-12-1980 and returned to Pakistan in September, 1984. According to him his promotion had fallen due on 20-1-1983. On return to Pakistan the appellant was promoted on 14-5-1985. The appellant made a representation that he be given retrospective promotion as in other cases with effect from 20-1-1983 the date on which Himmat Khan, Stenotypist, next below the appellant had been promoted. The Engineer-in-charge agreed and granted retrospective seniority to the appellant with effect from 20-1-1983 vide letter dated i2-1-1988. In this letter the retrospective seniority to many other deputationists was also allowed. After five years of the grant of retrospective seniority to the appellant a seniority list of Stenographers was issued on 28-4-1993 in which the appellant was placed at Serial No. 7 while respondent was shown at Serial No.

8. On 27-3-1994 respondent No. 4, who had not taken any step since publication of the first seniority list in 1988, after six years made representation to the Engineer-in-Charge to grant him seniority above the appellant. The Engineer-in-Charge being the head of the Department rejected the representation. Aggrieved by the said rejection respondent No. 4 took an appeal against said order before the Secretary Defence, Government of Pakistan, which was accepted and the seniority of the appellant was reversed and as a result of the said order the appellant became junior to four other Stenographers. The appellant then made a departmental appeal to the Secretary Defence but the same was rejected and, thus, the appellant invoked the jurisdiction of the Federal Service Tribunal by way of an appeal which was also dismissed vide order dated 28-2-1996. The said order was then assailed through a petition for leave to appeal and leave was granted vide order dated 15-7-1996.

3. We have heard the learned counsel at length. It was vehemently contended that the undertaking given by the appellant and other deputationists was just a formality and all officials after completion .of deputation period on return to Pakistan have consistently been granted seniority with retrospective effect. It was also contended that in the Military Engineering Service Department all officials who had gone abroad on deputation were given seniority with retrospective effect but it was the solitary case of the appellant who was refused such seniority. Our attention was drawn to the policy concerning promotion of civil servants on deputation abroad. The relevant instructions contained in para. 3 at Serial No.75, page 375 of the ESTACODE read as under:-- "

3. It has, therefore, been decided with the approval of the President that:-- (i) Promotion of a civil servant on deputation to an international agency, Foreign Government or private organisation abroad will only be considered after he resumes duty on return to Pakistan. (ii) Such officers may be given timely intimation to return so that they can earn at least one annual confidential report before their cases come up for consideration in accordance with their seniority position. (iii) If an officer returns, his case will be considered for promotion in the normal course. If he does not return in response to such intimation, his case will be deferred till he returns to Pakistan on completion of 5 years and earns a confidential report on his work for one full year after resuming duty. If approved for promotion, he will regain his original seniority."

4. It was contended before us that in the light of the above instructions it was only the appellant in the department who had been discriminated while others have been allowed seniority with retrospective effect. In view of the practice of the department coupled with the instructions reproduced above, we are of the view that the case of the appellant requires re-examination by the department so that no discrimination takes place. In this view of the matter we would dispose of the appeal with the observation that the case of the appellant should be re-examined and in case other deputationists in the department have been given seniority with retrospective effect, the appellant shall also be entitled to the same and his case shall not be judged by a different yardstick. However, there will be no order as to costs.