Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: FARHAT MAHMOOD LODHI VS Respondent: GOVERNMENT OF ISLAMIC REPUBLIC OF PAKISTAN
1990 P L C (C
1990 P L C (C.S.) 241
[Federal Service Tribunal]
Before Rasheed‑ud‑Din Arshad and
Misbah Ullah Khan, Members
FARHAT MAHMOOD LODHI
versus
GOVERNMENT OF ISLAMIC REPUBLIC OF PAKISTAN
through the Secretary, Ministry of Commerce,
Islamabad and 3 others
Appeal No. 408(R) of 1987, decided on 8th June, 1989.
Civil Servants (Appointment, Promotion and Transfer) Rules, 1973‑‑
‑‑‑R.8‑A‑‑‑Service Tribunals Act (LXX of 1973), S. 4‑‑‑Promotion from Grade‑17 to Grade‑18‑‑‑Essentials‑‑‑Recruitment Rules laid down a positive requirement of five years service in Grade‑17 for promotion to Grade‑18‑‑‑Power of relaxation in individual cases had however, been given where firstly, the concerned Ministry considered it fit to be so relaxed and secondly such relaxation was approved by the Establishment Division‑‑‑In the case of Grade‑16 employees or below, where first appointment of a person (other than person covered by proviso II of Establishment Division's Memo. No. 1/9/80‑R‑(II)(A), dated 12th January, 1981), was made to Government service in Grade‑16 or below, one‑half of service in Grade‑16 and one‑fourth of service in Grade‑15 or below might be counted as service in Grade‑17 for computing length of service for purposes of promotion only‑‑‑In the case of Ministry of Commerce under which civil servant was serving, procedure for relaxation had been laid down in the Recruitment Rules, and such Ministry only, could initiate the case for relaxation if it so deemed fit according to the procedure mentioned in the Rules‑‑‑Service Tribunal could not direct the Ministry to grant the civil servant benefit of relaxation of Rules in accordance with memorandum of Establishment Division dated 2‑6‑1983.
S.M.K. Lodhi for Appellant.
Respondents Nos. 3 and 4 in person
Date of hearing: 22nd February, 1989.
JUDGMENT
RASHEED‑UD‑DIN ARSHAD (MEMBER).‑‑ The appellant by this appeal has requested for a declaration to the effect that respondents Nos.1 and 2 should grant the appellant the benefit of Establishment Division's O.M. No.l/9/80-R‑2 dated 2‑6‑1983 and the service rendered by him in Grade‑16 may be counted in accordance with the said memorandum and he may be allowed all consequential benefits.
2. The appellant submitted a representation to the Secretary Commerce on 26‑7‑1987 and on not receiving any reply repeated it to the Secretary Establishment Division on 3‑9‑1987. In the two representations it was stated that in .1981 out of the five posts of Assistant Chiefs, two were covered under ‑the Economist and Planners Group while three were to be filled in by the Research Staff of Ministry of Commerce as per recruitment rules notified vide S.R.O. No.247(1)/75, dated 14‑2‑1975. Further that according to these rules, 50% of posts of Assistant Chiefs were to be filled in by promotion of Research Officers/Statistical Officers and if a vacancy could not be filled in by promotion, it was to be filled in by direct appointment and in case this source also failed it was to be filled in by transfer. Further that contrary to rules the first post was filled through transfer of Mr. Nasir Ahmad Khan from Tourism Division and the second was given to Mr. Manzoor Hussain a nominee of F.P.S.C. and the third post was converted into that of a Section Officer. It was also stated that on appeal of Mr. Abdul Rashid Khan, Statistical Officer, Service Tribunal recommended to the Establishment Division to take remedial steps in view of the fact that appointment of Mr. Nasir Ahmad Khan was made without obtaining the approval of the competent authority. In the representations it was further stated that in 1986 a post of Assistant Chief was created in the Export Action Group which should have been allocated to the promotion quota. Further that Abdul Rashid Khan was promoted as Assistant Chief but it was not clear against which post he had been promoted. Also that it had come to the notice of the appellant that Mr. Nasir Ahmad Khan was going to be accommodated against the post of Export Action Group. The appellant requested that he may be considered for promotion against post of Export Action Group. In reply dated 21‑9‑1987 the appellant was told that his request could not be acceded to as he did not fulfill the required length of service when Mr. Nasir A. Khan was appointed as Assistant Chief on transfer from Tourism Division. Also that the posts of Research Wing had been taken on the strength of Economic Group in the Planning and Development Division. The appellant has submitted appeal against this reply and sought a declaration from the Service Tribunal as mentioned earlier.
3. The representatives of the departments have objected to the request made in the appeal on the ground that the Recruitment Rules of Ministry of Commerce lay down an eligibility requirement of 5 years of service as Research Officer/Statistical Officer in Grade‑17 for promotion as Assistant Chief (Grade‑18).
4. After the hearing of appeal on 22‑2‑1989, the appellant has submitted additional written arguments on 11‑3‑1989. The written arguments have also been considered by us. The appellant has in these arguments stated that according to Establishment Division's O.M. No.l/9/80‑R‑2, dated 2‑6‑1983, one‑half of the service rendered in Grade 16 was to be counted as service in Grade‑17 for computing the length of service in Grade‑17. It has been urged at length that the Recruitment Rules of Ministry of Commerce were issued on 14‑2‑1975 in pursuance of Rule 3(e) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and Establishment Division's O.M. No. 1/9/80‑R‑2, dated 2‑6‑1983 was issued in pursuance of Rule 8‑A of Civil Servants (Appointment, Promotion and Transfer) Rules. It has been stated that O.M. dated 2‑6‑1983 was later in date and was to be made applicable in preference to notification dated 14‑2‑1975. It has been stated that in P L D 1982 Lah. 710 (Muhammad Ghaus v. Markef Committee) it was clearly mentioned that an enactment/notification of a later date would be applicable and no other law of the earlier date could override it. Further that in P L D 1986 Kar. 309 (Barkatullah Khan v. Mirza Muhammad Asad) while interpreting statutes it was held that in an enactment containing general provisions and special provisions in respect of the same matter, special provisions were to be considered as exceptions and the general provisions would remain in the field.
5. We have considered the arguments advanced by both sides. The Recruitment Rules have been issued by Ministry of Commerce by SRO 247(1)/ 75, dated 14‑2‑1975 framed in pursuance of Rule 3(2) of Civil Servants (Appointment, Promotion and Transfer) Rules 1973 which lays down that method of appointment and qualifications and other conditions applicable to a post should be laid down by Ministry or Division concerned in consultation with Establishment Division. The relevant portion of Recruitment Rules reads as under: ---‑
MINISTRY OF COMMERCE
Islamabad, the 14th February,1975
S.R.O. 247(1)/75.‑‑In pursuance of sub‑rule(2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the following method, qualifications and other conditions are laid down for appointment to the posts of Economic Consultant (Grade‑20), Assistant Chief (Grade‑18), Statistician (Grade‑18), Research Officer (Grade‑17), Statistical Officer (Grade‑17), Economic Investigator (Grade‑16), and Statistical Assistant (Grade‑11) under the Ministry of Commerce.
??????????????????????????????????????????????? xx???????? xxx?????? xx
"Conditions for promotion: ‑
3.Promotion to posts in column 1 below shall be made by selection from amongst the persons who hold the posts specified in column 2 and possess the qualifications and experience prescribed in column 3.
Name of the Post
Persons Eligible
Condition of Eligibility
(1) Assistant Chief (Grade‑18)
Research Officer Statistical Officer (Grade‑17).
5 years service as Research Officer/Statistical Officer in Grade‑17 subject to relaxation in an individual case where the Ministry of Commerce considers it fit to be so relaxed with the approval of the Establishment Division."
Establishment Division's O.M. dated 2‑6‑1983 has been issued under Rule 8‑A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1983 which lays down that no promotion on regular basis shall be made in Grades 18 to 21 unless the officer concerned has completed such minimum length of service as may be speed from time to time. It reads as under:‑
"In pursuance of rule 8‑A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and in super-session of the instructions laid down in the Establishment Division Office Memorandum No.l/9/80-?R.II(A), dated the 12th January, 1981, the President is pleased to decide that the minimum length of service for promotion to various grades shall be as follows:‑
For Grade‑18 ????????????????????????? 5 years in Grade‑17
For Grade‑19?????????????????????????? 12 years in Grade‑17 and above
For Grade‑20 ????????????????????????? 17 years in Grade‑17 and above
For Grade‑21 ????????????????????????? 22 years in. Grade‑17 and above
Provided that:‑
(i)???????? Where initial appointment of a person not being a person in Government service takes place in a post in Grade 18, 19 or 20, the length of service specified in this office memorandum shall be reduced by the following periods:
First appointment in????? Reduced by Grade‑18???????????????????? 5 years Grade‑19???????????????????? 12 years Grade‑20???????????????????? 17 years
(ii)??????? Where initial appointment of a person already in Government service takes place, on recommendations of the Federal Public Service Commission, in a post in Grade 18, 19 or 20, the length of service specified in this office memorandum shall be reduced by the periods specified in proviso(i);
(iii)?????? Where first appointment of a person other than a person covered by proviso (ii) was made to Government service in Grade‑16 or below, one?-half of the service in Grade‑16 and one‑fourth in Grade‑15 and below may be counted as service in Grade‑17 for computing length of service for the purpose of promotion only."
The Recruitment Rules dated 14‑2‑1975 lay down a positive requirement of 5 years service as Research Officer/Statistical Officer in Grade‑17 for promotion as Assistant Chief (Grade‑18), but power of relaxation in individual cases has been given where firstly the Ministry of Commerce considers it fit to be so relaxed and secondly it is approved by the Establishment Division. We do not find any contradiction between the Recruitment Rules and Establishment Division's O.M. dated 2‑6‑1983 where the word "shall" has been used while laying down the minimum length of service for promotion to various grades but tile word "may" has been used for allowing the weightage for Grade‑16 or below and it has been laid that where first appointment of a person other than person covered by proviso (ii) was made to Government service in Grade‑16 or below one‑half of service in Grade‑16 and one‑fourth of service in Gradd‑15 or below may be counted as service in Grade‑17 for computing length of service for purposes of promotion only. There is as such no obligation for counting the service in Grade?16 and below for all posts, but the authorities concerned may lay down in the relevant rules that service rendered in Grade‑16 or below may be counted as service rendered in Grade‑17 to the extent mentioned in the proviso. In the case of Ministry of Commerce, the procedure for relaxation has been laid down in the Recruitment Rules and it is for the Ministry of Commerce to initiate the case for relaxation if it so deems fit according to the procedure mentioned in the rules.
5. We are, therefore, unable to accept the appeal and it is rejected. There will be no order as to costs. Parties should be informed accordingly.
A.A./506/Sr. F ???????????
Appeal dismissed.