GOVERNMENT OF PAKISTAN through Establishment Division, Islamabad and others vs HAMID AKHTAR NIAZI and others

ORDER

1. ' SAIDUZZAMAN SIDDIQUI, C.J.---The above mentioned 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 haq been laid down in cases of the Province of the Punjab through the Secretary, Services and General Administration, Lahore v. Syed Muhammad Ashraf (1973 SCM R 304), Syed Sultan Shah v. Government of Baluchistan and another (1985 SCM R 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 SCM R 850) and Iftikharullah Malhi v. Chief Secretary and another (1998 SCM R 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 above mentioned direction for re-fixation of pay, pension etc. Of the appellant and his entitlement to pecuniary benefits."

2. ' 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.

3. ' 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.O.1238(1)173, dated 21-8-1973, was that the persons having 8 years' service as Assistant Commissioner or S.D.O.

4. 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.

5. ' 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 is fixed for hearing after summer vacations of 2000.