Estacode

ESTACODE is a compendium of laws, rules and administrative instructions pertaining to terms and conditions of service of civil servants

ESTACODE serves as a standard reference work in officialdom.

Application of civil servant for withdrawal of his request of premature retirement was allowed by Service Tribunal and the same was maintained by Supreme Court in judgment under review

Validity

No sooner application for premature retirement was accepted, the competent authority did not have any authority to withdraw the same on the basis of subsequent application made for withdrawal of previous application for premature retirement

Supreme Court in exercise of jurisdiction under Art.188 of the Constitution, reviewed its earlier judgment and after converting petition into appeal set aside the judgment passed by Service Tribunal

Appeal was allowed.

Leave to appeal was granted by Supreme Court to consider the question which involved seniority of three categories of employees, the first category was of those employees who were promoted to grade 18 prior to appointment of direct recruites; the second category was of direct recruites; and third category was of the promotees who were promoted on acting charge basis as they were not qualified for appointment like first category on account of their incomplete length of service, which question assumed more importance in view of the contention of respondents that even earlier promotees were not eligible for promotion as their length of service required for grade 18 was not complete in grade 17 but their length of service in grade 16 was included, which under the law could not be.

Record in the present case, showed that prima facie, while re-employing the retired civil servants/persons in the police department the provisions of law i.e. S.14 of the Civil Servants Act, 1973 as well as Instructions contained in Estacode, Vol. I, Edn, 2007 under the heading "Re-Employment" and the judgments of the superior courts on the subject were not considered/adhered to

Effect

Held, for establishing rule of law and Constitutionalism, it was necessary that the relevant provisions should be followed strictly in letter and spirit otherwise it would not be possible to provide an effective machinery in law particularly in Police Department to ensure law and order, so the peace in the country, at the same time to avoid violation of the relevant provisions of law which was tantamount to blocking the promotion of the Officers who had also served in the Forces and Were waiting for their promotion but they were not getting chance because of the re­employment/contract awarded to the retired Officers

Such was not only in the Police Department but for the purpose of achieving good governance; the same principle should be followed and strictly applied in other Departments as well

Supreme Court observed that Attorney General shall take up the matter with the Government/Competent Authority so that it may take necessary steps to rectify if any omission had been committed

Attorney General shall convey present order to the Secretary, Establishment Division and the Chief Secretaries of the Provinces to ensure that if any civil servant or other person who had been re-employed, his case be also examined in terms of the provisions of law and both Federal and Provincial Governments should take necessary steps to ensure that re-employment or employment on contract basis were not made in violation of the relevant law.

Plea raised by authorities was that back-benefits could not be awarded otherwise than the procedure laid in Serial No.155 of Vol.II of ESTACODE, 2007 Edition

Validity

Service Tribunal instead of granting relief with regard to financial back-benefits should have referred the case to department for establishing Committee for the purpose, as mentioned in Serial No.155 of Vol.II of ESTACODE, 2007 Edition

Supreme Court directed the authorities to refer the case of civil servant to the Committee constituted in view of Serial No.155 of Vol.II of ESTACODE, 2007 Edition, for determining whether civil servant was entitled for the claimed financial benefits or not

Appeal was allowed.

Leave to appeal was granted to consider, whether re-employment would constitute a bar for grant of pension, move-over and ancillary benefits in view of relevant provisions as contained in Islamia University of Bahawalpur Act, 1975 and Islamia University of Bahawalpur Employees (Pension) Statutes, 1979, whether provisions as contained in Islamia University of Bahawalpur Act, 1975, and Islamia University of Bahawalpur Employees (Pension) Statutes, 1979 could be superseded by instruction No. 26 published in ESTACODE at p.309 providing that a person re-employed could take all benefits of service and pension, whether High Court had ignored relevant provisions of Islamia University of Bahawalpur Officers (Appointment) Statutes, 1977 and resultantly exact nature of service of respondents could not be determined having a substantial bearing to set the controversy at naught.

Leave to appeal was granted to consider, whether re-employment would constitute a bar for grant of pension, move-over and ancillary benefits in view of relevant provisions as contained in Islamia ;University of Bahawalpur Act, 1975 and Islamia University of Bahawalpur Employees (Pension) Act, 1979, whether provisions as contained in Islamia University of Bahawalpur Act, 1975, and Islamia Bahawalpur Employees (Pension) Statute, 1979 could be Instruction, No. 26 published in ESTACODE at p.309 providing that a person re-employed could take all benefits of service and pension, whether High Court had ignored relevant provisions of Islamia University of Bahawalpur Officers (Appointment) Statute, 1977 and resultantly exact nature of service of respondents could not be determined having a substantial bearing to set the controversy at naught.

Civil servant had sought premature retirement upon completion of 25 years of qualifying service for health reasons which request was eventually accepted by notification dated 30-3-2000

Civil servant, subsequently acclaimed to have withdrawn the option through letter dated 29-3-2000 addressed to the Competent Authority, alleged to have been received the same day i.e. a day prior to the acceptance notification, seeking recalling of the notification of his premature retirement, which request was turned down

Validity

Civil servant though had a right to withdraw the option before its acceptance but not thereafter since the same had attained finality being a past and closed transaction, pursuant whereto he admittedly had received all the pensionary benefits.

Leave to appeal was granted to consider whether or not the service of the civil servant was terminated before expiry of extended period of probation in accordance with the provisions of relevant law/rules.

Civil servant appointed as Lower Division Clerk, B-5 was promoted as Upper Division Clerk but later on he was involved in some disciplinary proceedings which culminated into his compulsion, retirement from service

Departmental Authority on acceptance of appeal of civil servant, converted-penalty of his compulsory retirement from service into his reversion to post of Lower Division Clerk, but specific period during which reversion of civil servant was to remain effective, was not specified as required under F.R. 29 of Fundamental Rules

Civil servant was considered by Departmental Promotion Committee for promotion, but due to non-completion of 3 years of service was not approved-

Civil servants grievance to the effect that his seniority should be reckoned from the date of his promotion to Grade-20 and not from the date of his appointment to Secretariat Group was not responded by Departmental Authority

Service Tribunal, however, directed that seniority of civil servant should be determined from 24-7-1979

Validity

Decision of Service Tribunal that civil servants seniority should be reckoned with effect from 24-7-1979 when he was promoted to Grade-20, was not open to any exception

After amendment in S. 8(4), Civil Servants Act, 1973 by Civil Servants (Amendment) Ordinance, 1984, word "grade" was substituted by word "post" but civil servant having already been promoted to Grade-20 before such amendment came into force, such amendment would not affect his rights

Para. 9 of ESTACODE, 1989 (at p. 1098) provides that "the seniority of Joint Secretary which is a post in Grade-20 would be determined from the date of his continuous regular officiation in Grade-20 "

Seniority of civil servant, therefore, must be reckoned on his regular entry in Grade-20 and not from the date of his posting

Appeal against judgment of Service Tribunal was dismissed in circumstances.

Civil servant alleged that he alone had been discriminated in his Department while others had been allowed seniority with retrospective effect

As per practice of Department concerned coupled with instructions contained in ESTACODE, civil servant's case required re-examination by Department so that no discrimination should take place

Department concerned was directed by Supreme Court to re-examine civil servant's case and if other employees in Department whose cases were similar to that of civil servant had been given seniority with retrospective effect, civil servant would also be entitled to the same and his case should not be judged by different yardstick.

Civil servant who was consciously superseded after considering his service record by the Departmental Promotion Committee, cannot regain his original seniority on subsequent promotion so long the order of Promotion Committee superseding him stands

Supersession of the civil servant in such a case is neither inadvertent nor same falls in the category of deferment, so as to entitle the civil servant, on subsequent promotion, to regain his original seniority.

Civil servant alleged that he alone had been discriminated in his Department while others had been allowed seniority with retrospective effect

As per practice of Department concerned coupled with instructions contained in ESTACODE, civil servant's case required reexamination by Department so that no discrimination should take place

Department concerned was directed by Supreme Court to re-examine civil servant's case and if other employees in Department whose cases were similar to that of civil servant had been given seniority with retrospective effect, civil servant would also be entitled to the same and his case should not be judged b3 different yardstick.

Army personnel who was on deputation in civil service and was subsequently inducted in civil service had retired from the military service after his induction in civil service was approved by the Competent Authority

Such army personnel having continued as a member of Armed Forces until his retirement from Army, his case was squarely covered by the instructions appearing at pp. 20 to 23 of the ESTACODE (1989 Edn.)

Contention that service of such person may be considered from the date when he joined the civil service as deputationist was misconceived as he continued as member of Armed Forces until his retirement from army.

Civil servant (Railway) was granted leave with full pay for 144 days and without pay for 1681 days for taking admission in M.B.B.S. classes in Medical College

Civil servant's further request for treating whole period of his leave as on duty and for study allowance, was initially acceded to but subsequently refused

Civil servant's appeal was dismissed by Service Tribunal

Validity

Provision of para.2003, ESTACODE provided that Railway servant could be treated as on duty during study period only if he was entitled to be appointed to a post with Government on passing through course of training at a University, College or School in Pakistan

Civil servant while serving as Guard proceeded on leave for obtaining higher education but it could not be said with certainty that on obtaining degree in M.B.,B.S. he was entitled to be appointed in service of Railway or that his qualification in M.B.,B.S. was beneficial for the service he was rendering in Railway

As for treating civil servant's entire leave period as study period, his such contention did not find favour with Service Tribunal

Civil servant could not point out any rule or authority to show that order of Service Tribunal was not based on correct appreciation of law or facts

Order passed by Service Tribunal was, thus, not open to exception

Leave to appeal was refused in circumstances.

Appointment by way of acting charge or on current charge basis being not of permanent nature but only stop-gap arrangement, same would not confer any vested right for regular promotion to that post and such appointment would-not amount to a regular appointment against the post or cadre, or confer any right. to claim seniority or move-over

One of the essential conditions for grant of move-over is that the persons concerned must be a regular member of the service, cadre or post concerned.

Convention from the year 1954 had been to accept the advice of Selection Board quickly except in exceptional cases where such advice was returned to the Board for further consideration by the Prime Minister or Minister concerned

Secretary Establishment who had returned such advice, had no power to return the same for re-consideration

Civil servant, however, kept quiet allowing junior officers to supersede him for more than five years without any objection or challenge to such supersession

Delay in making objections or representations against supersession for long period was fatal to the case as such delayed challenge, if accepted, would disturb structure of the service which had remained for many years without any objection of any claimant or aggrieved person

Civil servant, therefore, could not be given seniority from back date when he was recommended for the first time for promotion despite the fact that Establishment Secretary who had returned recommendations of Selection Board was not competent to do so

As for discrimination no particulars and data of those cases were specifically provided to adjudicate upon such assertion

Civil servant's delayed appeal was rightly dismissed by Service Tribunal

Decision of Service Tribunal warranted no interference in circumstances.

Expression "to officiate" as used in para. 121 of the ESTACODE means to act or discharge an office for or on behalf of some other person.

ESTACODE para.121(1)(b).

ESTACODE (1983 Edition) Serial No.107 page 352, heading `Payment and amenities admissible to Government servant under suspension' O.M. No.9/80/79-C, II (A) dated 28-12-1978

Leave to appeal granted to consider the questions of general public importance whether, adherence to and fulfilment of conditions laid in O.M. No.9/80/79-C, II (A), dated the 28th December, 1978 would involve concept of punishment. in so far as period under suspension was involved, if not, what was the nature of subsistence grant and/or allowances or other facilities/amenities allowed to official concerned during the period he remained under suspension.