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Appeal No. 107 (P) of 1976, decided on 14th April, 1984.

‑‑ Mala fide‑Proved in impugned departmental action‑ Sufficient for relief even if there was no other ground‑Service Tribunals Act (LXX of 1973), S. 4.

(b) Civil service‑

‑‑ Lien‑Deputation‑Permanent employee of Provincial Govern ment‑Appointed regularly through selection by Public Service Com mission under Federal Government‑Cannot be treated as a deputa tionist‑Mere existence of his lien in Provincial Government, held, could not be a basis for his reversion to Provincial Government on abolition of Department when employees of that Department junior to him retained in successor organisation under Federal Government.

Qazi Atiqur Rahman for Appellant.

Syed M. Shahudul Huque for the State.

Date of bearing : 22nd March, 1984.

.‑On the 19th of July, 1960 the appellant was appointed as Tourist Officer, under the Public Relations Department of the Government of West Pakistan. Some time later, he applied for the post of Tourist Officer in the Department of Tourism, under the Central Government. He was interviewed and selected for appoint ment by the Central Public Service Commission and, subsequently, appoint ed to the said post, with effect from 16th July, 1962. After about eight years, the Pakistan Tourism Development Corporation was formed in May, 1970. At that time, options were invited from the employees of the Department for joining the Corporation, as the Tourism Department was going to be wound up and its work was going to be taken over by the Corporation. The appellant did not opt for service under the Corporation, although he had been specifically selected for the purpose by a team of the Corporation. But, on 1st August, 1970 he was asked to join there as Deputy Manager, alongwith three other persons. While the other three joined as directed, the appellant did not but, instead, requested, as a pre condition to his joining, for the protection of his rights, including counting of his previous service in the Department, for the purpose of confirmation, seniority and promotion. The Department asked him to give an under taking to abide by the decision of the Establishment Division. He, how ever, declined to give such an undertaking and continued to work there, although it was in the process of being wound up. On, 15th November, 1970 he learnt that the Department was going to be wound up on 30th November, 1970 and on that very date he was officially directed to join the Pakistan Tourism Development Corporation as Deputy Manager at Lahore. Finding that, if he did not join the post offered to him, he would have no option but to go back to the province, where he was formerly employed, he went and joined the Pakistan Tourism Development Corporation on 30th November, 1970 (A.N.). Thereafter, as stated by him, be requested for absorption in the Tourism Cell, which had been set up under the Ministry of Defence, after the closing down of the Department of Tourism, because he had learnt that some of his colleagues in the erstwhile Department had been absorbed in the Cell. In reply to his request, as alleged by him, he was in formed that the Cell was only an ad hoc organization created to wind up the affairs of the Department and that nobody was going to be retained per manently in that organization. Thereafter, the Appellant continued to work in the Pakistan Tourism Development Corporation, till 7th December, 1975. On 8th December, 1975 the Pakistan Tourism Development Corporation reverted him to the Information Department of the N.‑W.F.P. Government, in view of his original post of Tourist Officer in the West Pakistan Public Relations Department, since 1960. He joined the N.‑W.F.P. Department of Information on 9th December, 1975, but, before he did so, he made a re presentation to the Federal Government, on 8th December, 1975 claim that be had been selected for appointment as a Tourist Officer on the recommen dation of the Central Public Service Commission, and being thus, a regular employee of the Central Government, he should have on the closing down of the Department in 1970, been absorbed in the Tourism Cell of the Ministry of Defence, which had been set up to look after the work of the erstwhile Department of Tourism. This, however, had not been done and he was forced to join the Pakistan Tourism Development Corporation, against his wishes. Later, when there was retrenchement, on account of financial stringency, he should have been reverted to the Tourism Cell, which was the successor to the Tourism Department, and should not have been sent back to the Provincial Government, since he was not on deputation from the Provincial Government but was, actually, a regularly appointed em ployee of the Central Government, who had been compelled to join the Pakistan Tourism Development Corporation against his wishes. The Pro vincial Government supported the view‑point of the appellant and wrote to the Federal Government, in this behalf, on various dates. The last time they did this was on 3rd May, 1976. The Federal Government, however, did not agree. either with the stand of the appellant or with the views of the Provincial Government, and, on 2nd June, 1976, the decision of the Federal Government was conveyed to the province that the appellant was a Provincial Government servant and the liability of that Government, after the termination of his appointment in the Pakistan Tourism Development Corporation. Against this decision of the Federal Government, the appel lant preferred an appeal before the Tribunal on 14th June, 1976 which was admitted for hearing on 8th June, 1977. After the filing of objections and cross‑objections, it was decided that the appeal was to be put up for hear ing after decision in another appeal, that of Mahmood Alam Kureshi v. Secretary, Tourism Division and others, bearing Appeal No. 14 (R)/1977. After the decision in that appeal, which was given on 28th February, 1979 final hearing in this was delayed, for one reason or the other, a number of times. The hearing actually took place on 22nd March, 1984, where after, the matter is being disposed of by this judgment.

2. The appellant's case is that there was an element of mala fide in the non‑implementation of the recommendation of the Committee for his retention in the Tourism Cell of the Aviation Division, after the closing down of the Tourism Department and that his subsequent reversion to the N.‑W.F.P. Government was not only unjust and unfair but also illegal and void. As against this, the case of respondent No. 1 is that the appellant joined the P.T.D.C. on his own, after the abolition of the Department of Tourism, and he continued to serve there till he was reverted to the person where he had alien. Their case, further, is that only those persons were retained in the Department who had no lien elsewhere, while the Appellant was sent back because he had a lien in the Provincial Government.

3. The appellant has denied that he joined the P.T.D.C. of his own freewill and that only those persons were retained in the Tourism Cell who had no lien elsewhere and has cited the cases of Messers Nasrullah Awan, Muneeruddin, Mahmood Alam Kureshi and Syed Akhtar Hussain, who had liens in various departments but were yet retained in the Tourism Cell. He has further pointed out that one Agha Shaukat Ali, also belonging to the Tourism Department, had willingly joined the P.T.D.C. and yet, when the P.T.D.C. decided to send back all the deputationists, the Punjab Govern ment took up his case and the Federal Government agreed to take him back. On the analogy of this case, the appellant contends that he should also have been taken back by the Federal Government and absorbed in the Tourism Cell of the Aviation Division.

4. Respondent No. 2, namely, the N.‑W.F.P. Government supported the Appellant's case and their stand is that he is the liability of the Federal Government and that they should take him back on such job to which he would have been entitled had he not been reverted to the Provincial Government.

5. We have beard the parties and perused the relevant documents. In our opinion, the crux of the case is whether the Appellant, who had been selected for appointment as Assistant Director in the Department of Tourism of the Government of Pakistan, on the basis of the selection made by the Central Public Service Commission, could be forced to join the P.T.D.C. against his wishes, without safeguarding his right of continuance in the set‑up to which the work and personnel of the Tourism Department were transferred. Further, the question is whether, after he was no longer required by the P.T.D.C. he could be forced to go back to the province, when he was not a deputationist from the Provincial Government but a direct recruit of the Central (later Federal) Government.

6. A perusal of file No. T‑I (40)/70 of the Ministry of Defence (Aviation Division) reveals that, after a decision was taken to abolish the Department of Tourism, it was decided that a Tourism Cell would be established within the Defence Ministry, to deal with such work as would not be taken over by the P.T.D.C. and that selection would be made, from the staff of the former Department, for absorption in the Cell, on the basis of seniority‑cum‑fitness.

7. In pursuance of the above decision, the Deputy Secretary, Tourism Section, Ministry of Defence noted that he and the J.S. on 21st November, 1970 after going through the Confidential Reports of the Assistant Directors of the Tourism Department, had selected 8 officers for retention as Assistant Chiefs in the Tourism Cell. In this list, the Appellant was not included. The reason given was that he had been recalled by the Government of the N.‑W.F.P. where he held alien. However, when the Financial Adviser, Defence was asked to give his opinion in the matter, he observed, in regard to the Appellant, that the J.S., Aviation Division, had informed him that the N.‑W.F.P. Government had since agreed to let the Appellant continue with the Tourism Department. He also noted that the service record of the Appellant qualified him for retention in the Department. He, therefore, recommended that, provided the Pakistan Tourism Development Corpora tion was willing to take, and the officer was willing to go over, there would be no objection to his joining the P.T.D.C. This recommendation was made by the Financial Adviser on 30th November, 1970. It was agreed to by the Secretary, Defence, on the same date. But, on 3rd December, 1970 the J.S. Aviation Division, approved the suggestion of the D.S. for offering appointment, as Assistant Chiefs in the Tourism Cell, to 6 out of 16 Assistant Directors, against 8 available posts. The Appellant was not one of these six. According to the Appellant, he remained in the dark about the recommendation of the Financial Adviser and the approval of the Secretary, Defence. He had, therefore, no option but to go and join the P.T.D.C. against his wishes. According to him, Mr. Mahmood Alam Kureshi, who was junior to him but had been working as Assistant Director (Administration) manipulated to get his own name included in the list of officers to be retained for the Cell and for the Appellant's name to be ex cluded. We do not know how far this statement is believable. But, the fact remains that, although the Appellant was 10th in the seniority list, offer of appointment was not given to him in terms of the approval given by the Secretary, Defence, but Mahmood Alam Kureshi, who was 14th in the list and had also been recommended by the Financial Adviser for retention, being the last Assistant Director to be so recommended, was issued a letter offering him the appointment. Whether this was a case of oversight or deliberate manipulation, it is palpable that it resulted in grave injustice to the Appellant. The non‑implementation of the clear and definite order of the Defence Secretary, for absorption of the Appellant in the Tourism Cell, was an act of gross misconduct at the secretariat level, for which we can find no justification whatsoever. The allegation, made by the Appellant, of mala fide in the departmental action, therefore, stands proved and the Appellant would deserve relief on this ground alone, even if there were no other grounds.

8. In this connection, we cannot help observing that, it is strange that, in spite of the fact that Appellant was appointed as Tourist Officer in the Tourism Department, through the F.P.S.C. and later promoted as Assistant Director, the D.S. Tourism Section of the Ministry of Defence, in his note, dated 21st November, 1970 gave the impression that he was on deputation from the N.‑W.F.P. Government, on the basis of which the question of his retention was not considered when the J.S. and D.S. examined the service record of the Assistant Directors for this purpose. Subsequently, it appears that the Appellant made representations in different quarters, including the Minister for Tourism, as a result of which, on 2nd April, 1975 the Establishment Division advised the Tourism Division to accept the Appellant and appoint him against one of the two existing vacancies of Assistant Chiefs In the communication made, in this behalf, by the Establishment Division, to the Tourism Division, to accept the Appellant and appoint him against one of the two existing vacancies of Assistant Chiefs, it was clearly stated that the Appellant had the right to retention in the Tourism Cell and that this right had been ignored, despite the fact that he had been selected by the competent authority for absorption in the Tourism Cell. It was also noted that the Tourism Division had realised that unfair treatment had been meted out to the Appellant, but, in spite of this realisation, they had not changed their decision regarding the Appellant's reversion to the Provincial Government direct from the P.T.D.C. In reply to this, the Secretary, Tourism Division, nevertheless, told the Secretary, Establishment Division, that his advice was not acceptable, because, in the opinion of the Tourism Division, the officer could revert only to his parent department in the Government of the N.‑W.F.P.

9. it is true that, on the date on which this reply was sent by the Secretary, Tourism Division, that is 29th April, 1975 the position was that the officer was not in the Tourism Cell and, the Department of Tourism having been abolished, his lien could not be retained there and, therefore, he could revert only to his parent department in the N.‑W.F.P. Never theless, the fact remains undisputed that the Appellant was unjustly and illegally, whether by an act of carelessness or deliberate mischief, we would not like to decide, prevented from being absorbed in the Tourism Cell, of the Aviation Division. Since he was not to blame, there could be no justification for the injustice done to him to be continued indefinitely. The wrong that he suffered has continued and, being a continuing wrong, it can be removed at any time. The Appellant cannot be denied this right on the ground of passage of time, because he has been agitating the matter from the very beginning. The Provincial Government of the N.‑W.F.P, took up the question, on his behalf, with the Establishment Division, who conveyed their final decision in the matter on 2nd June, 1976. The Appel lant came in appeal before the Tribunal on 24th June, 1976. The appeal was thus within time and not barred by limitation, as contended by the Respondents.

10. As regards the reversion of the' appellant to the Province, on the ground that he had a lien on a job in the Information Department of the Provincial Government, we are of the view that the existence of the lien could' not be the basis for reversion, because he was not a deputationist from a Provincial Government but a regularly appointed employee of the Federal Govern ment, who had a right to be considered for retention by this Government, on the abolition of the department to which he was recruited. On the basis of these considerations, a decision had been taken by the Ministry of Defence to retain the Appellant in a post equivalent to the one held by him at the time of the winding up of the Department of Tourism. That he was not so retained was not through any fault of his. Therefore, on the P.T.D.C. deciding to terminate his appointment, it was incumbent on the Tourism Division to absorb him in the Cell, instead of ordering him to sent to the Government of the N.‑W.F.P. The action of that Division, in refusing to accept the advice of the Establishment Division in this bealf, and the subsequent action of the Establishment Division also, in endorsing the view of the Tourism Division, that the Appellant was the responsibility of the N.‑W.F.P. Government, were uncalled for, unjustified and violative of a clear right of the Appellant.

11. Additionally, it may be pointed out that the action of the Tourism Division was clearly discriminatory, inasmuch as Messrs Nasrullah Awan, Muneeruddin, Mahmood Ahmed Qureshi and Syed Akhtar Hussain, who had liens in other departments, had been retained in the Cell and not revert ed to their original departments.

12. It is also seen from the record that, in the case of Agha Shaukat Ali, to which reference was made on behalf of the Appellant, we find that, in a communication addressed to the Tourism Division, on the subject of absorp tion of Agha Shaukat Ali in the Tourism Cell, the Establishment Division had, on 29th October, 1972 taken the stand that, although the Tourism Cell was not a successor to the Department of Tourism, since the Ministry of Defence had stated that the senior officers and staff of the Tourism Department would man the Tourism Cell, it was not understood why Agha Shaukat Ali, who was a nominee of the Public Service Commission, and the senior most Deputy Director of the Department of Tourism was ignored, while officers junior to him were considered for absorption, On the basis of this stand, of the Establishment Division, supported by‑the President's Representative on Administrative Inspection, as well as by the Government of the Punjab, the Establishment Secretary had, in April, 1974 decided that the officer should be kept with the Central Government, on the basis of which he was posted as O.S.D. in the External Publicity Wing of the Ministry of Infor mation and Broadcasting, with effect from 1st July, 1972. Although this appointment was not actually an appointment in continuation of the officer's previous appointment in the Department of Tourism, it is clear that the Establishment Division took the view that, because of his post in the Department of Tourism, Agha Shaukat Ali, who, according to the Punjab Government, was a very senior officer there and his reversion to the pro vince would necessitate large‑scale reversions there, to find a placement for him, he should have been retained in the Tourism Division, but, since this was not possible, he deserved a suitable post in the Federal Government and this was provided to him in the Ministry of Information and Broad casting (External Publicity Wing). On the basis of similar arguments, the Appellant also claims retention under the Federal Government. There is no doubt that the Appellant's case for a job under the Federal Government appears to be very strong, if it is viewed in the light of the decision taken in the case of Agha Shaukat Ali. Nevertheless, it is obvious that Agha Shaukat Ali was not retained in the Tourism Cell of the Aviation Division but, on the basis of the recommendation of the Government of the Punjab and reference made by the President's Representative on Administrative Inspection, the Establishment Division arranged to give special accommoda tion to him under the Federal Government. The case of Agha Shaukat Ali cannot, therefore, be cited to make out a case for the absorption of the Appellant in the Tourism Cell of the Aviation Division. It can, however, be cited as a case on whose analogy the Appellant could also be given a job under the Federal Government, equivalent to the one he was holding in the Department of Tourism at the time it was closed down. On this basis, the Appellant could also be retained in the Federal Government, as recommend ed by the Government of the N.‑W.F.P. Incidentally, this would also not very much conflict with the earlier decision taken by the Ministry of De fence, according to which those officers who could not be absorbed in the Cell or taken into the P.T.D.C. could be passed on to the Establishment Division, as well as other organisations under the Ministry of Defence, for absorption therein.

13. From the above discussion, it should be clear that there is no merit in the excuse or contention of respondent No. 1 that the Appellant joined the P.T.D.C. on his own and, therefore, he could not be absorbed ;: in the newly‑created Tourism Cell. It is also clear that reversion to the N.‑W.F.P. could not be justified on the ground that the Appellant had a lien in the Information Department of that Government. Besides, the manner in which another officer, Agha Shaukat Ali, was taken in the Federal Government on the recommendation of the Punjab Government, while the Appellant was not shown any consideration, indicated that his case was not given the consideration that it deserved. At the same time, there is no truth in the plea of respondent No. 1 that those with liens in other Departments were sent back to their original departments. Such action was not only taken in all cases, it would even have been contrary to the decision taken by the Secretary, Defence that, first of all, selection would be made for the Tourism Cell and, thereafter, the remaining officers would be offered to the P.T.D.C. and only the left over were to be listed in order of seniority and the list provided to the Establishment Division and various organizations of the Ministry of Defence, for considering absorption of these persons. The question of reversion of those holding liens was not discussed at all and it was clear that, if an officer could not be absorbed anywhere, he would go back to the department in which he held a lien.

14. To sum up, the facts as disclosed by the documents on record, show that the Appellant, who had a right to be considered for retention in the service of the Federal Government, after the winding up of the Depart ment of Tourism, was actually so considered and ordered to be retained, but he was wrongfully and unlawfully forced to join the P.T.D.C. against his wishes and, later, sent back to the N.‑W.F.P. again against his wishes. He was, thus, illegally denied his lawful right. In spite of the fact that both the Establishment and the Tourism Divisions realised that grave injustice bad been done to the Appellant, they wrongly insisted that he was the liability of the N.‑W.F.P. Government, when that Government's liability extended only to the protection of lien there. In addition, apart from the purely legal aspect of the matter, the Appellant's reversion to the Govern ment of the N.‑W.F.P. was discriminatory, inasmuch as some others were retained in the service of the Federal Government, even though they had liens elsewhere. Having been selected for appointment under the Govern ment of Pakistan, through the Central Public Service Commission, he had served the Department of Tourism for more than ten years and, having been selected by the P.T.D.C. on merit, for appointment as Deputy Manager, he was unceremoniously bundled out to the Province, where there was no post available for him in the lien of his experience and expertise. Such a rever sion amounted to making him jobless, when, both legally and administra tively, he could have been accommodated in a job under the Federal Government. Such accommodation would not have involved a fresh appointment, but only a continuation of his previous one in the Depart ment of Tourism as observed by the Tribunal in its judgment, dated 22nd February, 1979 in Appeal No. 14 (R)/1977 Muhammad Alam Kureshi v Ministry of Commerce and Tourism. Considering all the facts and circumstances of the case, we have no hesitation whatsoever in concluding that the Appellant has been most unjustly and unfairly treated and illegally denied his due. As such, he deserves relief which has been long over‑due.

15. In the result, we allow the appeal and order that the appellant be re‑instated in the service of the Federal Government, with effect from 30th November, 1970 the date on which he was relieved of his appointment in the Department of Tourism, and be posted as Assistant Chief in the Tourism Cell or its equivalent post in the Tourism Division.

16. As regards the monetary claims of the Appellant against the Tourism Division, we do not want to go into the matter to this judgment. He can prefer these claims before the concerned authority, after his re instatement and, on failure to get satisfaction, he can come before us again, after exhausting the departmental remedy.

17. With the above orders and directions, the appeal is allowed.

18. No orders as to costs.

A. E. Appeal allowed.

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