We have no doubts in our minds that Stella was an employee of MOF and that it was Exh P 1 which moved her to TRA. The question is what was the nature of this movement? Was she seconded to TRA or \vas she now an employee of TRA and that she had severed all relations with MOF? Admittedly, the word "seconded" was not used in Exh. P 1 or Exh. P 5.
However, Mr. Rugaiya referred us to Exh. D. 2, "Waraka wa Utumishi Na. 7 wa Mwaka 1995", that is, "Establishment Circular No. 7 of 1995", issued on 01 December, 1995. That Circular prescribes three categories of services under which a Government employee could work for a parastatal or a Government Agency: There is secondment under paragraph 3. Then there is attachment under paragraph 8, and thirdly, there is what we will refer to as "departmental transfer" or as is termed in the Circular "uhamisho wa moja kwa moja". The second mode, attachment, that is, assigning an employee to a parastatal for a specified period of time after which the officer goes back to the parent ministry, does not concern us here. The other two types are
relevant here and we shall reproduce the applicable portions in
Kiswahili.
Secondment is provided in paragraph 3 as follows:
\
3. Utaratibu wa Kuazimwa (Secondment):
N Pale inapokusudiwa na inapoamliwa kumpeleka mtumishi wa Serikali kwenye Shirika la Umma kwa minajili ya kumhamishia huko moja kwa moja, mtumishi huyo baada ya kufuata utaratibu wa Waraka huu atahamishiwa kwenye Shirika moja kwa moja. Hata hivyo mtumishi huyo atapaswa kuwa katika muda wa majaribio (trial period) kwa kipindi cha miezi kumi na miwili (12). Kipindi hicho kitakapokwisha, Shirika litapaswa kuamua kama litamchukua mhusika kama mtumishi wake wa kudumu au la. Ikiwa atachukuliwa, basi atafuata masharti yaliyomo katika Waraka huu. Iwapo Shirika litaamua kutomchukuwa, mhusika atarejeshwa alikotoka bila ya kuchelewa. Endapo kipindi hicho kitakuwa kimepita na Shirika halikuchukua hatua zozote za kumchukua au kumrejesha, na kama mhusika hatakuwa ameomba kurudi alikotoka, itachukuliwa kwamba ameingia katika utumishi wa kudumu wa Shirika.
Two things are obvious to us here: One, the initiative of moving an
employee from a ministry to a parastatal is of the parastatal itself,
which under paragraph 4 is required to make an application to the
Central Establishment. There was no such application here and we
think it was because all employees connected with taxation and
custom duties were seconded to TRA from MOF. Nevertheless, the