2000 SCMR 934

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J.,
Nasir Aslam Zahid and Sh. Riaz Ahmed, JJ
GOVERNMENT OF PAKISTAN through Establishment
Division, Islamabad and others---Petitioners
versus
HAMID AKHTAR NIAZI and others---Respondents
Civil Petitions Nos.276, 279, 316, 355, 498, 499, 958 and 959 of 1999, decided on 13th
December, 1999.
(On appeal from the judgment, dated 7-12-1998 passed by the Federal Service Tribunal,
Islamabad in Appeal No. 124Q of 1980).
Civil Service of Pakistan (Composition and Cadre) Rules, 1954---
----R.3---Service Tribunals Act (LXX of 1973), S.4---Promotion---Leave to appeal was granted
by Supreme Court to examine the pleas that Rules promulgated by the President of Pakistan
under S.3, Civil Service of Pakistan (Composition and Cadre) Rules, 1954 being statutory rules
could not be altered by an office memorandum- issued by the Establishment Division of Federal
Government and Service Tribunal had no jurisdiction to direct promotion of a civil servant in
various grades from the date respondent civil servant in the appeal filed before the Tribunal was
promoted as same was outside the jurisdiction of Service Tribunal.
Mansoor Ahmed, Deputy Attorney-General and Anwar H. Mir, Advocate-on-Record for
Petitioners (in C.P.~No.276 of 1999).
M. Bilal, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for
Respondent No. l (in C. Ps. Nos. 276 and 316 of 1999).
K.M.A. Samdani, Senior Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and
Mehr Khan Malik, Advocate-on-Record (in C.P. No.316 of 1999) for Petitioners (in C.Ps. Nos.
279, 116, 498., 499, 958 and 959 of 1999).
Saeed-ur-Rehman Farrukh, Senior Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-
on-Record (absent) for Petitioners (in C.P. No. 355 Of 1999).
Date of hearing: 13th December, 1999.
ORDER
SAIDUZZAMAN SIDDIQUI," C.J.---The abovementioned 8 petitions for leave to appeal
directed against the judgment of learned Federal Service Tribunal, dated 7-12-1998, whereby the
learned Tribunal accepted the -service appeal filed by Hameed Akhtar Niazi, who is respondent
in all the above petitions, as follows:-----
"29. After having considered all the material on record and the contentions of the learned counsel
for the parties we accept the appeal filed by Hameed Akhtar Niazi with costs. He was senior to
Walayat Ahmed, respondent No.2, who was promoted and given seniority in BPS.20, with effect
from 4-8-1979. The appellant was eligible, for promotion as he entered into Government service
in Grade-17 on 1-4-1963 and promoted as Deputy Secretary on 9-4-1973. His name was required
to be placed before the Central Selection Board which was not done. He was subsequently
promoted in BPS-20 on 17-8-1980. The appellant stated 'before us that he retired from service in
BPS-21. His promotion in BPS-20 and BPS-21 indicate that there was nothing adverse against
him which could prevent him from promotion to higher grades. It is directed that the appellant
shall be given ex post facto pro forma promotion in various grades from the dates Walayat
Ahmed, respondent No.2, and other junior respondents were promoted. Due to revision of
seniority, the pay and pension of the appellant shall be re-fixed and he would be entitled to
pecuniary benefits. Necessary notification shall be issued within a reasonable time. Law has been
laid down in cases of the Province of the Punjab through the Secretary, Services and General
Administration, Lahore v. Syed Muhammad Ashraf (19'73 SCMR'304), Syed Sultan Shah v.
Government of Baluchistan and another (1985 SCMR 1394), Mrs. Aqeela Asghar Ali and others
v. Miss Khalida Khatoon and others (PLD 1991 SC 1118), Abdul Jabbar Khan v. Government of
Sindh through Chief Secretary, Karachi and 5 others (1996 SCMR 850) and Iftikharullah Malhi
v. Chief Secretary and another (1998 SCMR 736) that a civil servant who is entitled to be
promoted from a particular date was, for no fault of his own, wrongly prevented from rendering
service to the Federation in the higher post, such civil servant shall be paid the arrears of the pay
and allowances of such higher post through pro forma promotion or upgradation arising from the
ante-dated fixation of his seniority. Following the aforesaid decisions of the Honourable
Supreme Court, we have given the abovementioned direction for re-fixation of pay, pension etc.
of the appellant and his entitlement to pecuniary benefits. "
Civil Petition No.276 of 1999 is filed by the Government of Pakistan, through Establishment
Division, while rest of the petitions have been filed by- other private individuals, feeling
aggrieved by the judgment passed in the appeal filed by the Hameed Akhtar Niazi.
The learned counsel for the private petitioners in the above cases in support of the petitions for
leave to appeal contended that the petitioners were C.S.P. Officers and when they were posted as
Deputy Secretary, they were already holding posts in BPS-18 and, therefore, their service in
BPS-18 is to be counted while fixing their seniority in the- cadre of Deputy Secretary. It is also
contended by the learned counsel for private petitioner that the post of Deputy Secretary was
declared as cadre post and for promotion to this cadre post, the requirement under the
Notification S.R.0.1238(I)/73, dated 21-8-1973, was that the persons having 8 years' service as
Assistant Commissioner or S-.D.O. in the defunct C.S.P. service, were eligible for appointment
as Deputy Secretary. This rule which, according to the learned counsel for private petitioners was
promulgated by the President of Pakistan under. Rule, 3 of Civil Service of Pakistan
(Composition and Cadre) Rules 1954, was altered through Office Memorandum, dated 20-5-
1974 issued by the Establishment Division. It is contended that the statutory rule referred to
above could not be changed through an Office Memorandum. It is further contended by the
learned counsel for the petitioners jointly that the learned Tribunal had no jurisdiction to direct
promotion of Hameed Akhtar Niazi in various grades from the date Walayat Ahmed, who was
respondent No.2 in the appeal filed before the learned Tribunal, was promoted as it was outside
the jurisdiction of the learned Service Tribunal.
The contentions raised by the learned counsel for the petitioners require examination and we,
accordingly, grant leave to appeal to consider the same. The operation of impugned judgment is
suspended till the hearing of appeals arising from these petitions for leave to appeal. Appeal be
fixed for hearing after summer vacations of 2000.
M.B.A./G-4/S Leave granted.