Maj. (Retd.) TIPU SULTAN KHAN and others Versus SHAHZAD HUSSAIN and others

SYED DEEDAR HUSSAIN SHAH, J .‑‑‑By this common judgment we propose to dispose of these connected appeals, which are directed against a consolidated judgment, dated 24‑2‑1999, passed by Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, in which the facts and law are same and common.

2. Brief facts are that respondent No.1 Shahzad Hussain, Deputy Director, Survey of Pakistan, being aggrieved and dissatisfied, challenged the order of the Competent Authority by filing appeal before the Tribunal, whereby appellants Major (Retd.) Tipu Sultan Khan in Civil Appeal No.1464 of 1999 and Major (Retd.) Mehar Ali, in Civil, Appeal No. 1466 of 1999 were inducted directly in excess of the quo#, reserved for Army Officers in the service of Chief Administrator of Surveyor General of Pakistan. The Tribunal after examining/analyzaig the available material and hearing the learned counsel for the parties, allowed the appeal of the respondent.

3. fafiz S.A. Rehman, learned counsel for the appellants in Civil Appeal No. 1464 of 1999, inter alia, contended that the Tribunal did not consider the case in its proper perspective and completely misinterpreted and overlooked the rules and Office Memorandum of the Establishment Division and the impugned judgment is not sustainable.

4. Mr. Nasir Saeed Shaikh, learned Standing Counsel in Civil Appeal, No. 1465 of 1999 also reiterated the same grounds. He further referred to Schedule V, showing terms and conditions of service of Army Engineering Officers, transferred to the Survey of Pakistan and also referred to para. II of the Gazette of Pakistan, dated 1‑4‑1985, showing rules applicable after confirmation and also a letter No.3/6198‑D‑34, dated 5‑4‑1999, Government of Pakistan, Ministry of Defence, Rawalpindi.

5. Appellant present in person in Civil Appeal No. 1466 of 1999, placed submissions by adopting the arguments of Hafiz S.A. Rehman, learned Senior Advocate Supreme Court as well as Mr. Nasir Saeed Shaikh, learned Standing Counsel and further submitted that the impugned judgment is the result of misreading and non‑reading of the material, which has resulted into miscarriage of justice.

6. Mr. Ali Hassan Gillani, learned counsel for respondent‑Shahzad Hussain supported the impugned judgment and vehemently controverted the arguments of the learned counsel for the appellants as well as the appellant in person and further submitted that the impugned judgment is entirely in consonance with the proper appreciation of interpretation of the rule.

7. We have heard the learned counsel for the parties and carefully examined the available. material. It would be pertinent to refer here statutory Notification S.R.O. issued by Ministry of Defence, dated 31‑3‑1985, which reads as under:‑‑

" S.R.O. 305(I)/85 .‑‑‑ In pursuance of sub‑rule (2) of rule 3 of the Civil Servants‑ (Appointment, Promotion and Transfer) Rules, 1973, the following methods, qualifications and other conditions are laid down for appointment to the under mentioned posts in BPS‑16 to 19 in the Department of Survey of Pakistan under the Ministry of Defence (Defence Division):‑‑

(1) Director (BPS‑19).

(1) Name and Pay Scale Director (BPS‑19)

Method of appointment

(i) 80% of the total posts by promotion from the Civilian Officers. Failing promotion by initial appointment; and failing that by transfer in case of all civil posts.

(ii) 20% reserved for Army Officers of the Corps of Engineers."

The question is very simple that 20% quota of the posts in Pay Scale‑19 was reserved for Army Officers of the Corps of Engineers. According to the rule referred to hereinabove and that the reference of learned Standing Counsel for terms and conditions of Army. Officers transferred. to the Survey of Pakistan will be applicable after induction of the Officers in the Survey of Pakistan and furthermore the rule applicable after confirmation as pointed out by the learned Standing Counsel will also be taken into consideration after proper induction in the service of Survey of Pakistan, whereas letter was issued on 5‑4‑1999 by the Ministry of Defence, after the announcement of the judgment by the Tribunal i.e. 24‑2‑1999. Therefore, this letter at all has no bearing to the present appeals. The Tribunal rightly interpreted the rule mentioned hereinabove and the Office Memorandum. It would be pertinent to refer here the relevant paragraph of the impugned judgment, which reads as under:‑‑

"5. It is obvious from the present composition of officers in Grade‑19 that 20% quota has not been observed by the Survey of Pakistan in defiance of the directive of the parent Ministry i.e. Ministry of Defence. The Surveyor General is, therefore, directed to reduce the number of Army Officers holding the post to one only and appoint Civilian Officers in the vacancies according to their selection procedure and the recruitment Rules for civilians. A compliance report be sent to this Tribunal within a month. The case is, therefore, remanded to the respondent‑Department with no order as to costs.

8. In our considered view, the impugned judgment is well‑reasoned, which has taken into consideration the entire available material and has properly interpreted the rule and the O.M. of the Establishment Division and the judgment is not open to exception. Moreover, question of general public importance as contemplated under Article 212(3) of the Constitution is not made out.

9. For the facts, circumstances and reasons stated hereinabove these appeals are dismissed with no order as to costs.

M.H./T-3/S Petition dismissed.