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Civil Petition No. 1210 of 1984, decided on 29th October, 1985.
(Against the judgment, dated 18th October, 1984 of the Punjab Service Tribunal in Appeal No. 493/838 of 1983).
‑‑Art. 212(3)‑‑Provisional Constitution Order (1 of 1981), Art. 13‑‑Civil Servants Act (LXXI of 1973), Ss.2 & 13(ii)‑‑Retirement from service‑ Provincial Government employee‑‑Secured lateral entry in Foreign Affairs Group‑‑Retired from service on completing 25 years' service under President's orders‑‑Order impugned‑‑Delay in filing appeal condoned‑ Order of retirement declared void ab initio‑‑Leave to appeal granted to consider contentions (which involved substantial and legal questions requiring further examination and authoritative pronouncement)‑ That order passed by President under S.13(ii) of Act (LXXI of 1973) could not have been set aside by Punjab Service Tribunal in view of bar under Article 13 of Provisional Constitution Order, 1981; that appeal being hopelessly barred delay could not in circumstances, be condoned; and respondent having secured lateral entry in Foreign Affairs Group was to be governed by terms and conditions applicable to Federal Government Servants.
Tanvir Ahmad Khan, Additional Advocate‑General, Punjab with M. Nawaz Abbasi, Assistant Advocate‑General and Rao M. Yousaf Khan, Advocate‑on‑Record for Petitioner.
"Mujibur Rahman, Advocate Supreme Court with Mahmood A. Qureshi Advocate‑on‑Record for Respondent No.l.
Munir A. Sheikh, Deputy Advocate‑General (absent) with Gulzar Hassan. Advocate‑on‑Record for Respondent No.2.
Date of hearing: 29th October. 1985.
The Province of Punjab seeks leave to appeal under Article 212(3) of the Constitution against the judgment of the Punjab Service Tribunal, dated 18th of October, 1984 whereby the order of the President of Pakistan, dated 15th of November, 1980 passed under section 13(ii) of the Civil Servants Act has been declared to be void ab initio being without jurisdiction.
The respondent had joined service under the Punjab Government in the Education Department as a Lecturer in 1951. After rendering about 22 years of service he was holding the post of Head of the Department of Physics, Government College. Lahore when on 12‑10‑1973 as a result of a competitive entry examination he was selected for appointment in the Foreign Affairs Group of the Federal Government. He joined that post. A High‑powered Review Board set up under section 12‑A of the Civil Servants Act reviewed his appointment to the Foreign Affairs Group and on 10‑6‑1978 approved it. By an order of the President under section 13(ii) of the Civil Servants Act, the respondent was retired from service as from 16‑11‑1980 on completion of 25 years of service qualifying for pension. The respondent filed a review petition on 11‑12‑1980 which remained unreasoned. On the 9th of March, 1981, he filed a service appeal before the Federal Service Tribunal. It was dismissed on 17‑8‑1983 as being incompetent. The respondent was taken therein to be an employee of the Punjab Government where he held a lien in the Education Department. After obtaining the copy of the judgment, the respondent filed a service appeal in the Punjab Service Tribunal on 13‑10‑1983 which was allowed by the Tribunal on 18‑10‑1984 holding that as the respondent was an employee of the Punjab Government, he was not a civil servant within the definition of section 2 of the Civil Servants Act, 1973 being a deputations and as such the order of the President was void ab initio. The delay in filing the appeal was condoned as the order appealed against was taken to be void ab initio and the respondent had been pursuing his remedy diligently in the forums which were not technically possessed of the jurisdiction to deal with the matter.
The learned Additional Advocate‑General contended that an order passed by the President under section 13(ii) could not have been set aside by the Punjab Service Tribunal in view of the bar of Article 13 of the Provisional Constitution Order, 1981 and further that the appeal was hopelessly time‑barred and the delay could not in the circumstances be condoned. It was also contended that the respondent had no connection left with the Punjab Government as he had secured lateral entry in the Foreign Affairs Group and on review his appointment had been approved and he was as would appear from the terms and conditions offered to him at the time of his appointment under the Federal Government, to be governed by the terms and conditions applicable to Federal Civil Servants.
There is also an objection taken by the respondent that the present petition is time‑barred and there is no application for condonation of delay. The learned Additional Advocate‑General has tried to show that the petition was filed within time from the date of receipt of the judgment of the Tribunal.
The questions raised in the petition are substantial and legal which require further examination and an authoritative pronouncement. In the circumstances, leave to appeal is granted.
Interim order earlier passed on 1‑10‑1985 shall continue.
The appeal shall be made ready for hearing within three months on the present record with liberty to the parties to file such additional documents as they consider necessary.
M.I. Leave granted.
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