1996 PLP (C (PLC(CS))

Nemo for Respondents Nos. 1 to 3 Hafiz S.A. Rehman, Advocate Supreme Court with M.A Zaidi, Advocate‑on‑Record for Respondent No.4. Date of hearing: 12th December, 1995 MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑The petitioner seeks leave to appeal against the order dated 13‑9‑1995 passed by the Federal Service Tribunal whereby, besides his repatriation to the Health. Division was held to be ultra vires the rules, the assignment of his seniority position before his transfer to the Civil Defence Directorate and his promotion as Superintendent and giant of Selection Grade (B‑17) in the Health Division were annulled.

2. The brief facts of 'the case are that the petitioner after qualifying F.P.S.C. Examination was appointed as L,D.C. in the Health Division on 15‑12‑1966. He was promoted as U.D.C.' on ‑7‑9‑1967 and as Assistant with effect from 1‑11‑1967. In due course, he was confirmed as L. D. C. on 15‑‑12‑1967 and as Assistant on 21‑12‑1973. It is the case of the petitioner that he was selected for the post of Junior Instructor (BPS‑14) in the Directorate General Civil Defence and, in consequence, he was relieved by the Health Division on 23‑2‑1982 "retaining his lien as permanent Assistant therein". It is claimed that the petitioner was declared surplus by the Directorate of Civil Defence and, therefore, he was repatriated to the Health Division where he was absorbed as Assistant with effect from 17‑34990. In the meantime, the petitioner was promoted as Superintendent (BPS‑16) vide Notification dated 15‑94990 against a leave vacancy and with effect from 12‑12‑1990 against a regular vacancy. He was then granted Selection Grade in BPS‑17 with effect from 12‑12‑1990. The petitioner was granted seniority in the cadre of Assistants with effect from 31‑12‑1973 and in the cadre of Superintendents with Affect from 30‑5‑1978 "when his juniors were promoted to senior scale (B‑17) with effect from 1‑7‑1987, without any arrears".

3. S. Anwar Hussain, respondent No.4, filed Appeal No.342 of 1991 against: (i) the repatriation of the petitioner to the Health Division; (ii) the grant of seniority to him over the said respondent, and (iii) the petitioner's promotion to the post of Superintendent (B‑16) and later grant of Selection Grade in B‑17.

4. The Service Tribunal remanded the case vide judgment dated, 14‑11‑1992 to the Establishment Division for further examination of the matter. It is alleged that the Establishment Division re‑examined the case and expressed the view "contrary to the earlier one against the petitioner, nonetheless, the Law and Justice Division supported the plea of the petitioner". After the failure of the. Departmental Appeal, respondent No.4 filed Appeal No.47‑R of 1995 before the Service Tribunal which was accepted on 13‑9‑1995 granting the relief as aforesaid.

5. Mr. Fazal Elahi Siddiqui, learned counsel for the petitioner, contended that the petitioner had been rightly adjusted in the parent Division, confirmed and promoted, in that, he had retained lien on the post of Assistant. Reference was made to F.R. 9(13), F.R. 13(B) and F.R. 14(a)(2) to contend that the petitioner had a clear title to hold substantively the post of Assistant in his parent 11 Department. He has placed reliance on Mazhar Ali v. Federation of Pakistan and 2 others (1992 SCMR 435) wherein it has been observed that "lien of permanent civil servant could\not be terminated even with his consent; same could, however, be terminated only when he was confirmed against some other permanent post".

6. Leave to appeal is granted to examine this proposition of public importance. A.A./1‑247/S Leave granted.