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Petitioner: KHALID ZAMAN VS Respondent: GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, IslamabadHonorable Justice MUHAMMAD JAVED ASHRAF HUSSAINDr. G.S. Khan,Muhammad Shoaib Shaheen
2008 P L C (C
2008 P L C (C.S.) 358
[Federal Service Tribunal]
Before Ch. Muhammad Ilyas and Muhammad Javed Ashraf Hussain, Members
Capt. (Retd.) KHALID ZAMAN
Versus
GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Islamabad and 64 others
Appeal No.168(R)(C.S.) of 2004, decided on 29th June, 2007.
(a) Service Tribunals Act (LXX of 1973)---
----S. 4(1)(a)---Civil Servants Act (LXXI of 1973), S.22---Service Tribunals (Procedure) Rules, 1974, R.6---Appeal to Service Tribunal---Maintainability ---Authorities and respondents objected to maintainability of appeal on the grounds; firstly that it was filed before preferring representation before the appropriate Departmental Authority and secondly; that it was not a memorandum of appeal in accordance with Rule 6 of Service Tribunals (Procedure) Rules, 1974 in that the memorandum of appeal had-not been signed or thumb impressed by the appellant---Departmental Secretary vide his impugned order had set aside order passed by the Chairman Board under S.22 of Civil Servants Act, 1973, which Act was silent with regard to redressal afforded to a person like the appellant who was aggrieved on account of decision under S.22 of the Act---Next higher Authority, who passed impugned order was the Prime Minister who figured under S.9 of Removal from Service (Special Powers) Ordinance, 2000 and impugned order having not been passed under said Ordinance, appellant had no forum for the redressal of his grievance, except the Service Tribunal as no legal remedy was available before next higher Departmental Authority---Appeal before Service Tribunal, in circumstances was in order---Regarding second objection that memorandum of appeal had not been signed or thumb impressed by the appellant, it was noted from the record that affidavit accompanying the memorandum of appeal had been duly signed by the appellant as also the rejoinder submitted by him against the objection to the appeal filed by respondents---Lacuna, if any was adequately covered by signing of the affidavit, which was a part of the memorandum of appeal---Taking lenient view by the Service Tribunal, it was held that appeal was not vitiated.
(b) Pakistan Postal Services Management Board Ordinance (CXXVI of 2002)---
----Scheds. I & II---Civil Servants Act (LXXI of 1973), S.8---Compulsory Service (in the Armed Forces), Ordinance, (XXXI of 1971), S.9-A---Service Tribunals Act (LXX of 1973), S.4---Seniority---Entitlement---Appeal to Service Tribunal---Appellant, while holding rank of Captain in Pakistan Army, with the permission of G.H.Q. appeared in Central Superior Services Examination and on qualifying the examination he was allocated to the Postal Group of Civil Service which group he joined after being relieved from Pakistan Army---Appellant submitted representation to Chairman, Pakistan Postal Services Management Board, requesting that on the lines of the benefit of seniority of army service given by the Supreme Court vide its judgment dated 18-12-2002 to a retired captain, he could also be granted similar benefit by assigning seniority in the Postal Group of Civil Service from the date of his joining Pakistan Army with all consequential benefits---Chairman of the Board accepting request of appellant granted him seniority in Postal Group by counting service recorded by him in the Pakistan Army---Secretary of the department, set aside order passed by Chairman against which appellant had filed appeal---Validity---Appellant was 'neither inducted into the Pakistan Army nor retained therein under the Compulsory Service in the Armed Forces Ordinance, 1971---In view of rules governing the seniority of officers of Pakistan Army inducted into civil post, it could be held that relief provided to other retired Captains by the Supreme Court, could not be invoked by appellant in the case---Administrative and financial powers of Chairman, Pakistan Postal Services Management Board, as laid down under Schedules I and II of Pakistan Postal Services Management Board Ordinance, 2002, had made it clear that nowhere said Ordinance or Schedules thereunder, had extended any authority to the Chairman to determine or alter seniority of officers inducted into the Postal Group, consequent to their appointment on the recommendation of Federal. Public Service Commission---Departmental Secretary being principal accounting officer in the Ministry, was the appropriate Authority---Secretary of the department, in circumstances, was competent to set aside the unlawful orders issued by Chairman, Pakistan Postal Services Management Board---Secretary had acted quite correctly under provisions of S.22 of Civil Servants Act, 1973 while setting aside order of Chairman of the Board, whereby he had extended the benefit of seniority to appellant in violation of the powers conferred on him by the Pakistan Postal Services Management Board Ordinance, 2002---Appeal, was dismissed, in circumstances.
Dr. G.S. Khan for Appellant.
Muhammad Shoaib Shaheen for Respondents Nos.4 to 65.
Departmental Representatives Bedar Muhammad Khan, Assistant Superintendent (Law), Pakistan Post, Muhammad Saparas, Section Officer, Ministry of Communications and Shaukat Mahmood, Assistant, Establishment Division.
Date of hearing; 20th March, 2007.
JUDGMENT
MUHAMMAD JAVED ASHRAF HUSSAIN (MEMBER).---This is an appeal against the order, dated 8-1-2004 passed by the Secretary. Communication, Government of Pakistan (respondent No.2) whereby the order, dated 24-6-2003 passed by the respondent No.3 was set aside, whereafter, this appeal, dated 13-2-2004 has been filed by the appellant requesting that the order, dated 8-1-2004 passed by the respondent No.2 may be set aside and that the order, dated 24-6-2003 passed by the respondent No.3 may be restored.
2. Briefly, the facts of the case are that the appellant, after completing his training at the Pakistan Military Academy, Kakul, was commissioned as an Officer in Pakistan Army on 10-6-1983. He was promoted to the rank of Captain in the year 1986. The appellant was serving in the Corps of Ordnance, Pakistan Army from 10-6-1983 to 16-11-1992 when in the year 1991 while holding the rank of captain, he obtained permission from the G.H.Q. to appear in the Central Superior Service examination. He appeared in the CSS examination conducted by the Federal Public Service Commission in the year 1991-92 and on qualifying the examination he was allocated to the Postal Group of Civil Service, which Group he joined on 17-11-1992 after being relieved from the Pakistan Army on 16-11-1992.
3. The appellant submitted a representation in February, 2003 to the Chairman, Pakistan Postal Services Management Board (PPSMB), Islamabad requesting that on the lines of the benefit of seniority of Army service given by the Honourable Supreme Court of Pakistan vide its judgment, dated 18-12-2002 to Capt. (Rtd.) Abdul Qayyum, in Civil Appeal No.1895 of 2000, he may also be granted similar benefit by assigning seniority in the Postal Group of Civil Service w.e.f. 15-7-1982 i.e. the date of his joining Pakistan Army with all consequential benefits. As a result of his representation, the Chairman, PPSMB vide his order, dated 24-6-2003 accepted the appellant's request and granted him seniority in the Postal Group by counting the service rendered by the appellant in the Pakistan Army.
4. The appellant also submitted representation to the Secretary, Establishment Division, Government of Pakistan through proper channel, requesting that he may be allocated DMG, PSP of Foreign Service Group as in the case of other serving Military Officers, who were inducted into civil service without appearing in the competitive examination on horizontal basis. This representation has not been responded to till the filing of the present appeal.
5. Against the order, dated 24-6-2003 passed by the respondent No.3, allowing the appellant seniority in the Postal Group from the date he joined the Pakistan Army, the officers of Postal Group serving in the department who were adversely affected by this order, filed a representation before the Secretary, Ministry of Communication, Government of Pakistan (respondent No.2), who in response to this representation, vide his impugned order, dated 8-1-2004, set aside the order, dated 24-6-2003 passed by the respondent No.3.
6. The learned counsel for the appellant on the basis of record argued that the impugned order, dated 8-1-2004 passed by the Secretary Communication, Government of Pakistan, is liable to be set aside being illegal, unlawful and ultra vires of the law and the Constitution. The learned counsel argued that according to Pakistan Postal Services Management Board Ordinance, 2002, the Chairman, Pakistan Postal Services Management Board is the Competent Authority to decide service matters of officers in Grades 17 to 19 in the department and that the Prime Minister of Pakistan is the Appellate Authority for officers in these grades. He, therefore, argued that the Secretary Communication (respondent No.2) is not the Competent Authority to set aside the order of the Chairman, Pakistan Postal Services Management Board.
7. The learned counsel for the appellant further argued that the order, dated 24-6-2003 passed by respondent No.3 was based on the judgment of the Honourable Supreme Court in Civil Appeal No.1895 of 2000, dated 18-12-2002. The learned counsel stated that the relief provided by the Honourable Supreme Court to the appellant Captain (R.) Abdul Qayyum in Appeal No.1895 of 2000 is applicable in the case of the appellant in the present case as according to him the grounds in both the cases are similar. He further argued that according to Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973, a decision of the Honourable Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, shall be binding on all other Courts in Pakistan.
8. The learned counsel further argued that it is well-settled law that if the Honourable Supreme Court or Service Tribunal decides a point of law relating to the terms of service of a civil servant, such decision covers not only the case of the civil servant, who litigated, but also covers all civil servants, who may have not participated in such legal proceedings. He stated that the dictates and rules of good governance demand that the benefits of such judgment be extended to all civil servants, who may not be parties to such litigation instead of compelling them to approach the legal forum separately.
9. The learned counsel for the appellant further argued that the Removal from Service (Special Powers) Ordinance, 2000 is a general law, whereas, the Pakistan Postal Services Management Board Ordinance, 2002 is a special law and that it is settled principle of law that the provisions of special law override the provisions of general law.
10. The learned counsel also argued that the Chairman; Pakistan Postal Services Management Board being an officer of Grade 21/22, appeals/representations against his orders cannot be lodged before the Secretary Communication, who himself is an officer in Grade-21/22. He averred that even a lawful authority becomes an unlawful authority, if it over steps 'the parameters fixed by the law. He, maintained that in the present case, the Secretary Communication had no appellate power against the decision of Chairman, Pakistan Postal Services Management Board and, therefore, the impugned order being unlawful is liable to be set aside.
11. The learned counsel for the appellant summed up his arguments with the prayer as follows:---
(i) that the impugned order, dated 8-1-2004 passed by the Secretary communication (respondent No.2) may be set aside since, as stated by him, it is not tenable in the eyes of law;
(ii) that the order, dated 24-6-2003 passed by Chairman, Pakistan. Postal Services Management Board may be restored in its original position and substituted for the impugned order;
(iii) any other relief in the circumstances of the case may also be granted to the appellant to meet the ends of justice.
12. The departmental representative for respondent No.2 argued that the appeal is not maintainable and liable to be rejected under section 4(1)(a) of the Service Tribunals Act, 1973 in that the appellant has preferred the appeal before this. Tribunal without first preferring representation or appeal before the appropriate departmental authority. The learned counsel argued that under section 22 of the Civil Servants Act, 1973, the legal course available to the appellant was representation to the Prime Minister against the order passed by the Secretary Communication and, therefore, by .not preferring any appeal/ representation to the departmental authority i.e. the Prime Minister of Pakistan, the appellant has failed to comply with the mandatory requirement of adopting the legal course. He, therefore, argued that the appeal is liable to be rejected on this ground alone.
13. It was also argued on behalf of respondent No.2 also argued that the appeal is not a memorandum of appeal in accordance with Rule 6 of Service Tribunals (Procedures) Rules, 1974 under which it is a mandatory requirement that every memo. of appeal shall be signed or thumb-impressed by the appellant. He argued that the appeal having not been signed by the appellant or thumb-impressed by him does not fall in the definition of memo. of appeal and is liable to be dismissed in limine.
14. It was further argued that order, dated 24-6-2003 by respondent No.3 being without jurisdiction was rightly set aside by the Secretary Communication being the Competent Authority in the case. It was stated that the contention of the appellant that Chairman, Pakistan Postal Services Management Board is Competent Authority to decide service matters of officers in Grade-17 to 19 in the department has no substance as powers have been assigned to Chairman, Pakistan Postal Services Management Board in respect of only departmental employees/officers and not in respect of officers inducted into the Postal Group through the FPSC. He further averred that Civil Servants Act, 1973 exclusively regulates terms and conditions of service of persons in the service of Pakistan which includes officers belonging to the Postal Group. He, therefore, maintained that the application of Pakistan Postal Services Management Board Ordinance, 2002 to the terms and conditions of service of officers of Postal Group has no legal basis and relevance.
15. The departmental representative on behalf of respondent No.2 further argued that the contention of the appellant that Secretary Communication is not the Authority to set aside the orders of the Chairman, Pakistan Postal Services Management Board is baseless as Pakistan Post Office is an Attached Department of the Ministry of Communication as per Rule 4(4) of Schedule-III, Serial No.8 of the Rules of Business, 1973 and therefore, the Administrative Secretary of the Division/Ministry is legally empowered to take notice of any irregularity/illegality committed in the Attached Department of the ministry. It was averred that the action on the part of Chairman, Pakistan Postal Services Management Board in allowing seniority to the appellant being extra-judicial, the decision of the Secretary Communication to set aside the same was very much within the ambit of the law.
16. It was stated on behalf of respondent No.2 stated that the contention of the appellant that the order, dated 24-6-2003 by the Chairman, Pakistan Postal Services Management Board was based on the decision of the Honourable Supreme Court of Pakistan in Civil Appeal No.1895 of 2000 is totally misconstrued since the apex Court's decision was in a different context. He further contended that the Chairman, Pakistan Postal Services Management Board due to jurisdictional constraints was not empowered to interpret the decision of the Honourable Supreme Court and apply the same to the appellant by inference. It was further maintained that the above-quoted judgment of the apex Court is based on section 9-A of Compulsory Service in the Armed Forces Ordinance, 1971 (Ordinance No.XXXI of 1971) and as the appellant did not get Commission in the Pakistan Army under the said Ordinance, his claim to seniority on the basis of this Ordinance is illegal and uncalled for. His case, therefore, the learned counsel asserted, has no bearing or relevance to the case of Capt. (R.) Abdul Qayyum and, therefore, the question of application of the judgment of the Honourable Supreme Court to the category that the appellant's case belongs by other Courts including this Tribunal does not arise.
17. It was also argued on behalf of respondent No.2 that the contention of the appellant that Secretary Communication was not the Appellate Authority and only the Prime Minister could have exercised the powers to set aside the order of the Chairman, Pakistan Postal Services Management Board is not based on facts since the Prime Minister is the appellate authority in disciplinary cases under the Removal from Service (Special Powers) Ordinance, 2000, whereas, in the instant case the aggrieved officers submitted their representation under section 22 of the Civil Servants Act, 1973 to the Secretary Communication against the decision of the Chairman, Pakistan Postal Services Management Board. He argued that the Secretary Communication in such matters is the Competent Authority as the Pakistan Post Office is an Attached Department of the Ministry of Communication. It was further argued that the order of the Chairman, Pakistan Postal Services Management Board, dated 24-6-2003 changed the seniority of almost 61 officers of the Postal Group. He stated that the subject of seniority fails in the definition of terms and conditions of civil servants in accordance with section 8 of the Civil Servants Act 1973 and cannot be varied to the disadvantage of officers as per section 3(2) of the Civil Servants Act, 1973 without recourse to the relevant rules not covered by the Pakistan Postal Services Management Board Ordinance. The departmental representative argued that the Chairman, Pakistan Postal Services Management Board by giving seniority to the appellant had over stepped his authority and, therefore, his order, dated 24-6-2003 has no legal basis.
18. The departmental representative on behalf of respondent No.2 further argued that the aggrieved Civil Servants of Postal Group had not filed their representation under Removal from Service (Special Powers) Ordinance, 2000. Therefore, the question of special law viz. Pakistan Postal Services Management Board Ordinance prevailing over the general law viz. Removal from Service (Special Powers) Ordinance, 2000, as contended by the appellant, does not arise as no recourse was made to the latter by the aggrieved officers.
19. The departmental representative also argued that the contention of the appellant that the Chairman, Pakistan Postal Services Management Board being an officer of Grade-21/22, no appeal/representation against his order would lie before the Secretary Communication, who is also an officer in Grade-21/22, is baseless since decisions by the Director-General, Pakistan Post Office/Chairman of the Pakistan Postal Services Management Board, would be subject to scrutiny by the Ministry as Pakistan Post Office which as mentioned earlier, is an Attached Department of the Ministry of Communication according to Rule 4(4) of Schedule-III, Serial No.8 of the Rules of Business. Therefore, the grades of Secretary Communication and the Director-General Pakistan Post Office/Chairman, Pakistan Postal Services Management Board, even if equivalent do not vitiate the orders passed under section 22 of the Civil Servants Act, 1973 by the former being the relevant authority against the orders passed by the Director General/Chairman, Pakistan Postal Services Management Board.
20. While concluding it was argued by the departmental representative that the appellant had joined the Postal Group on his own free will and that there was no compulsion on him to join the Pakistan Army or the Civil Service (Postal Group) and, therefore, he cannot claim relief under the Compulsory Service in the Armed Forces Ordinance, 1971. He further stated that the appellant's representation to the Secretary, Establishment Division for induction into DMG, PSP or Foreign Service Group has no relevance to the present case. It was alleged that the appellant succeeded in getting an undue favour from the Chairman, Pakistan Postal Services Management Board through the back door and, therefore, the order, dated 24-6-2003 was rightly set aside by the Secretary Communication. He further reiterated that the appellant's reliance on the case of Capt (R.) Abdul Qayyum decided by the apex Court in Civil Appeal No.1895 of 2000 has no relevance to his case as he was neither granted Commission in Pakistan Army under Compulsory Service Ordinance, 1971 nor was he retained even for a single day in Pakistan Army under the said Ordinance.
21. The respondent No.1 (Establishment Division) submitted before this Tribunal that they have been impleaded in pro forma capacity in the said appeal and that the main respondents are Ministry of Communication and the Chairman, Pakistan Postal Services Management Board. The respondent No.1 (Establishment Division) further submitted that they support and adopt the parawise comments as submitted by respondent No.2 i.e. Ministry of Communication and requested that the parawise comments submitted by respondent No.2 may be treated as parawise comments on their behalf also.
22. Respondent No.3 in written comments has prayed that the Chairman, Pakistan Postal Services Management Board's order, dated 24-6-2003 giving the advantage of seniority of his Army Service to the appellant may be upheld and the order of the Secretary Communication, dated 8-1-2004 may be annulled/set aside on the following grounds:--
(i) that the order, dated 24-6-2003 of the Chairman, Pakistan Postal Services Management Board has the support of the decision of the Honourable Supreme Court in Civil Appeal No.1895 of 2000 in the case of Capt. (R.) Abdul Qayyum v. Government of Punjab and others;
(ii) that the decisive step having been taken by allowing benefit of service in Pakistan Army with consequential benefits in favour of the appellant i.e. Capt. (R.) Khalid Zaman by the Chairman, Pakistan Postal Services Management Board such step cannot be rescinded, withdrawn or amended in view of section 21 of the General Clauses Act, 1897. Reliance has been placed on PLD 1980 Pesh. 128, 1984 PLC (C.S.) 576 and PLD 1965 Pesh. 31;
(iii) that the order, dated 8-1-2004 by the Secretary Communication represents an administrative decision rather than a decision based on judicial considerations and is, therefore, rendered illegal in the eyes of law;
(iv) that on establishment of Pakistan Postal Services Management Board w.e.f. 15-11-2002, changes of significant importance were effected as under:-
(a) that the Management of the Pakistan Post Office (PPO) department has been entrusted to Pakistan Postal Services Management Board vide para.3(1) of the Pakistan Postal Services Management Board Ordinance, dated 15-11-2002;
(b) that the Chairman, Pakistan Postal Services Management Board has been made Appointing Authority in respect of B-17 and B-18 officers and the Competent Authority in respect of B-17 to B-19 officers;
(c) that the PPO Department is no more an Attached Department of the Ministry of Communication w.e.f. 15-11-2002.
(v) that the powers under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 are no more available to the Secretary, Communication Division after promulgation of the Pakistan Postal Services Management Board Ordinance, dated 15-11-2002. Pakistan Postal Services Management Board Ordinance, dated 15-11-2002 being a special statutory provision in relation to the employees of Postal Group takes precedence over a general enactment in the nature of Civil' Servants Act, 1973 and the rules made thereunder;
(vi) that the Chairman, Pakistan Postal Services Management Board, being an officer in B-21/22, has exclusive powers as appointing authority in respect of officers in B-17 to B-18 and as Competent Authority in respect of officers in B-17 to B-19 and as such, he stands at par with the Secretary Communication, who cannot revise, amend, alter or set aside any order, passed by the Chairman, Pakistan Postal Services Management Board and, he is also legally barred to alter, cancel, set aside or amend any order passed by him in accordance with the provisions of a valid and legal statutory provision under Pakistan Postal Services Management Board Ordinance, dated 15-11-2002.
23. The learned counsel for private respondents Nos.4 to 65, by the large, maintained the line of argument adopted by…
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