Mr. Justice Ijaz Ahmed Chaudhry in his judgment has decided the issue regarding seniority and pensionary benefits for previous service in government controlled company in Civil Petition No. 2515 of 2015.
1. Through this petition, the petitioner-Senate of Pakistan has sought leave to appeal against judgment dated 11.06.2015 whereby the Federal Service Tribunal, Lahore, while allowing the Appeal No.238(L)/CS of 2013, filed by the respondent Shahiq Ahmad Khan, set at naught the Notification and order of Appellate Authority dated 10.03.2011 and 26.07.2013, respectively and also directed the petitioner to grant pensionary benefits to the respondent, in accordance with the notification dated 20.10.2004.
2. The terse details of the facts obtaining between the parties, are that the respondent was working as Director in National Construction Limited (Public Limited Company and hereinafter to be referred as NCL) under the administrative control of Ministry of Housing and Works, Government of Pakistan, Islamabad. His services were requisitioned by the petitioner for appointment, on deputation, as Director General, Public Relations (BS-20) in the Senate Secretariat, Islamabad. The respondent accordingly joined the aforesaid position and subsequently vide notification dated 18.10.2003, he was permanently absorbed in BS-20 in the Senate Secretariat w.e.f. 29.09.2003. Thereafter, another notification was issued on 20.10.2004, whereby the competent authority directed that “services of the respondent in his parent department will count towards his seniority in the Senate”. On 18.11.2005, the respondent was appointed as Additional Secretary Senate (BS-21) and superannuated on 21.10.2010.
3. The respondent deposited Rs.2,80,897/- on account of over payment of salaries to him and then he was directed to deposit Rs.3,97,814/- in the office of AGPR on account of G.P. Fund and Rs.4,50,555/- in the State Bank on account of pension contribution. The respondent filed a writ petition before Learned Islamabad High Court, Islamabad, which was dismissed on 25.11.2008. In order to assail the said order, the respondent filed CPLA No.173/2009 before this court, which was disposed of, vide order dated 27.10.2009, diverting the respondent to approach Federal Services Tribunal for remedy. The respondent filed Appeal No.13(R)CS of 2010 in Federal Service Tribunal, Islamabad. It was decided on 24.11.2010 and the matter was remanded to petitioner/Chairman Senate for deciding the status of the respondent and his claim to seniority in presence of the notification of 20.10.2004. The petitioner issued another notification dated 10.03.2011 whereby the earlier notification of 20.10.2004 was withdrawn. The departmental appeal, filed by the respondent, was also rejected vide order dated 26.10.2013.
4. The respondent filed appeal before Federal Service Tribunal, Camp Office, Lahore, which was allowed vide judgment dated 11.06.2015 and the notification of 10.03.2011 and order of the Appellate Authority dated 26.07.2013 were set aside and the petitioner/Chairman Senate of Pakistan was directed to grant the pensionery benefits to the respondent in accordance with notification of 20.10.2004. The petitioner felt aggrieved therefrom and has brought this petition, seeking leave to appeal.
5. Mr. Sajid Ilyas Bhatti, learned DAG contends that the respondent was not a civil servant at the time, when his services were requisitioned from NCL. He could not have been inducted as such n the Senate Secretariat, Islamabad. He was not working on a pensionable post. After absorption, his previous service would not have been counted under the law and he was also not entitled to claim seniority on account of his previous service in NCL. It is further submitted that the respondent was working as Acting Secretary in the Senate Secretariat, when he got prepared a summary for his absorption in the Senate Secretariat, per paras Nos.32, 33 and 65, but the then Chairman Senate did not approve the summary and para No.67 shows that he posted a query “why this, pl. discuss”. Learned DAG maintained that despite the development, the respondent managed to get issued direction for issuance of revised notification as per para 68 of the summary, without any approval of the Chairman Senate/Competent Authority. It is submitted that the previous service of the appellant n NCL could not be reckoned for the purpose of seniority and pensionery benefits. The notification and order of the Appellate Authority issued on 10.03.2011 and 06.07.2013 were passed after observing lawful procedure. No illegality has been committed by the petitioner.
6. The learned DAG has raised serious objections on the judgment of the Federal Service Tribunal, passed on 11.06.2015 and stated that the observations, recorded by FST that proper opportunity of hearing was not afforded to the respondent before issuance of the notification and order of the Appellate Authority and that such stance is not supported from the record, as the respondent was heard in person by the Acting Chairman Senate on 22.07.2013, before passing the order on 26.07.2013. It was in compliance with the order dated 18.12.2012, passed by the learned Lahore High Court, in Writ Petition No. 31121/2012. It is submitted that Federal Services Tribunal, while setting aside the order and notification mentioned above, did not take into consideration the facts available on the record and erroneously recorded its finding to blame the petitioner for not providing the opportunity of hearing to the respondent and that even if it is presumed that the respondent was not heard prior to the disposal of his departmental appeal, Federal Service Tribunal was not justified in passing an order for grant of pensionery benefit to the respondent and to restore the notification dated 20.10.2014. At the worst, it could remand the matter to the petitioner for a fresh decision on merits. That, Federal Service Tribunal showed colourful exercise of power. That the notification dated 20.10.2004 was void and had been manipulated by the respondent, therefore, had to be withdrawn and the judgment of the Federal Service Tribunal is meriting to be set aside.
7. The learned counsel for the respondent contended that the petitioner has twisted the facts. In fact, no opportunity of hearing was provided to the respondent before passing the order dated 10.03.2011. Similarly, the notification of 20.10.2004 was defended, as the same had been issued to reflect the order of the Competent Authority. The petitioner did not initiate any measures during the past so many years and the respondent has been targeted in the backdrop of some personal grudges, but only after his superannuation. The learned counsel added that no proceedings could have been initiated against the respondent, in view of the bar, contained in section 54-A of the Fundamental Rules. Reliance has been placed on the judgment of this Court reported as 2000 SCMR 1864 whereby it was pronounced that the services rendered in statutory body can be taken into consideration for the grant of pensionery benefits. That the whole proceedings, prior to the notification and order dated 10.03.2011 and 26.07.2013, respectively had been solemnized in a lawful manner and the petitioner was divested of any legal justification to pass an order on 26.07.2013 for withdrawal of the notification dated 20.10.2004. It was prayed that the leave may not be granted as the judgment of the learned Federal Service Tribunal is impregnable on any legal ground.
8. We have heard the learned counsel for the parties and also had the opportunity of appraising the record. The respondent was inducted in the Senate Secretariat in BS-20, vide notification dated 18.10.2003. A few months later, a summary was got prepared and also put up, ordaining that “his services in his parent department will count towards his seniority in the Senate from the date of promotion to Director Grade equivalent to BS-20 of Government scales”.
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