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Petitioner: SAJJAD HUSSAIN KAZMI VS Respondent: SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD,Ex parte.
1998 P L C (C
1998 P L C (C.S.) 1463
[Supreme Court of Pakistan]
Present: Ajmal Mian, C. J., Sh. Riaz Ahmad and Ch. Muhammad Arif, JJ
SAJJAD HUSSAIN KAZMI
versus
SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD and 2 others
Civil Appeal No. 556 of 1994, decided on 2nd June, 1998.
(On appeal from the judgment dated 24-11-1992 of the Federal Service Tribunal, Islamabad, passed in Service Appeal No.144-L of 1991/331-R of 1992).
(a) Civil Servants Act (LXXI of 1973)--
----S. 9---Constitution of Pakistan (1973), Art. 212(3)---Upgradation/promotion from BPS-13 to BPS-16 with effect from specified date through notification---Cancellation of such notification subsequently-- Validity----Civil servant on appointment to post in Grade-16, prima facie, became entitled to privilege formerly allowed to Class II Officers---Civil servant's grievance that he was being denied benefits which were, at one time, available to general body of Class II Officers did not appear to be without substance---Leave to appeal was granted to consider such contention of civil servant.
1989 ESTACODE, 1989 Edn., p. 995 ref.
(b) Civil Servants Act (LXXI of 1973)---
----S. 9---Cancellation of earlier notification of promotion to BPS-16-- Effect---Court on basis of stand taken by Authority that civil servant had not been denied status of Class II Officer; that effect of corrigendum was simply to cancel earlier Gazette Notification for the reason that the same did not qualify being published in official Gazette; and that pay, allowances and pensions etc. of civil servant as also his seniority position had not been adversely affected, dismissed appeal with rider that civil servant would continue enjoying status of Class II Officer, as heretofore.
1989 ESTACODE, 1989 Edn., p. 995 ref.
Appellant in person.
Shahid Saeed, Advocate Supreme Court instructed by S. Abul Aasim Jaffari, Advocate- on-Record for Respondent No. 1.
Respondents Nos. 2 and 3: Ex parte.
Date of hearing: 2nd June, 1998.
JUDGMENT
CH. MUHAMMAD ARIF, J.---A brief resume of facts of this Service Appeal, arising out of the judgment of the Federal Service Tribunal dated 24-11-1992 conveyed to the appellant on 9-12-1992, is that appellant was working as Electronic Assistant in B-13 in the Meteorological Department. According to the appellant, he was promoted/upgraded from BPS-13 to BPS-16 from 31-5-1979 by respondent/Secretary, Ministry of Defence vide DG-Met.S. No.E-2(37), dated 29-12-1985 pursuant to Finance Division (Regulation Wing) O.M. No. l(1)-NQ-Imp.lI/75-Dy. No.105/76, dated 19-12-1976. A Notification in that behalf was also published in the Gazette of Pakistan dated 19-8--1981. Respondent Director-General, Meteorological Services issued a Corrigendum bearing No.E-16(260), dated 28-3-1991 whereby the earlier Notification dated 19-8-1981 mentioned above, was cancelled. As the petitioner had been enjoying the status of a Gazetted Officer prior to the issuance of the aforesaid Corrigendum and as he lost that status thereafter, he filed a representation to respondent Director-General on 25-4-1991 but the same was withheld vide his order dated 30-6-1991. His appeal before the Federal Service Tribunal Camp Office, Lahore was dismissed on 24-11-1992. Hence this appeal, after leave to appeal was granted by this Court on 28-5-1994, para. 3 whereof reads thus:
"It appears that by a D.O. Letter No. 5/1/73-ARC.II, dated 30-10-1973, printed in ESTACODE at page 995, 1989 Edition, the Federal Government did away with the classification that existed between gazetted and non-gazetted Government servant; nevertheless, for the purpose of application of existing rules those in National Pay Scale No. 16 were equated with those formerly enjoying the status of Class II Officers. It prima facie seems that on appointment to a post in Grade-16 the petitioner too became entitled to the privilege formerly allowed to Class II Officers. In the circumstances, his grievance that he was being denied the benefits which were at one time available to the general body of Class-II officers does not appear to be without substance. Leave to appeal is accordingly granted."
2. It appears that in terms of the Finance Division letter dated 19-2-1976, 25 % of the posts had to be placed in B-16 and the appellant got B-16 in terms thereof with effect from 31-5-1979. A copy of Office Order No.E-2(37), dated 29th December, 1985 is available at page 23 of the Paper Book which reads thus:
"In partial modification of this Office Order No.E-2(36), dated 2-6-1981 the following Electronic Assistants (Grade-13) are upgraded to BS-16 from the date mentioned against their name in pursuance of Finance Division O.M. No.F-1(1)-NG-Imp.II/75-Dy. No.105/76, dated 19-2-1976.
S.No. Name with designation
Date of appointment.
Date of upgradation
M/s 1.MuhammadJavedButt Electronic Assistant.
13-12-1967
13-12-1977
2. Shakil Ahmed Khan Electronic Assistant.
30-5-1969
30-5-1979
3. Nasir Pervaiz, Electronic Assistant.
5-6-1969
5-6-1979
4. Sajjad Hussain Kazmi Electronic Assistant.
31-5-1969
31-5-1979
5.Tariq Pervaiz Electronic Assistant.
11-8-1970
11-8-1980"
The upgradation of the appellant was Gazetted on 19-8-1981 and Notification No. E(16) 260 in that regard, reads thus:
"In pursuance of Finance Division's O.M. No.E-1(1)-NG-Imp. 11/75, Dy. No.105/76, dated 19th February, 1976, Mr, Sajjad Hussain Kazmi, Electronic Assistant, Regional Meteorological Centre, Lahore, has been placed in Grade-16 with effect from 1st May, 1981."
The Government of Pakistan in the Pakistan Meteorological Department (Headquarters Office) Meteorological Complex, University Road, P.O. Box No.8454, Karachi-2 issued the following Corrigendum to be published in the weekly Gazette of Pakistan Part III:
"CORRIGENDUM
"No. E-16 (260): Consequently upon the clarification received from the Establishment Division, and conveyed through Ministry of Defence, Aviation Division, Rawalpindi vide No.M-4(11)/85, dated 18-9-1990, in which this Department was directed not to notify posting/transfer of Electronic Assistant (BS-16), as the post is originally in BS-13, the earlier notifications made in respect of the following Sub-Engineers (then Electronic Assistants) BPS-16 are hereby cancelled:
SI.No. Name M/S.
Notification No.
Date
1. Sajjad Hussain Kazmi
E-16 (260)
21-7-1981
2. Nasir Pervaiz.
E-16 (266)
21-7-1981
3. Tariq Petvez.
E-16 (270)
27-8-1981
4. Mirza M. Akram
E-16 (267)
27-7-1981
5. M. Javed Butt.
E-16 (269)
9-8-1981
6. Shakil Ahmed Khan.
E-16 (268)
12-8-1981"
3. Appellant has argued his case in person and we have heard him as also Mr. Shahid Saeed, Advocate Supreme Court on behalf of the respondents. The appellant has, in fact, reiterated the plea noticed in para. 3 of the Leave Grant Order dated 28-5-1994 and submitted that the Service Tribunal is in error in holding that there was no concept that his post had been upgraded and classified as Gazetted B-16 by the Department/ Government and that the respondent department/Government was fully empowered to issue a Corrigendum on 28-3-1991 to rectify the mistake and cancel their earlier Notification dated 18-9-1990. He also made a grouse about the findings of the learned Tribunal that no loss has been occasioned to him with regard to Pay, Allowances and Pension etc. and that his seniority has also not been affected.
4. Mr. Shahid Saeed, Advocate Supreme Court supported the impugned judgment and submitted that the appellant has not been denied the status of Class II Officer. However, the said assertion of the learned counsel appearing on behalf of the respondents, was again controverted by the appellant in reply to his arguments.
5. We have considered the arguments and have also gone through the available material. The then classification between gazetted and non-gazetted Government officers was done away with on 30-10-1973 and it was provided in D.O. Letter No. 5/1/73-ARC.II, dated 30-10-1973, printed in ESTACODE at page 995, 1989 Edition that, for the purpose of application of existing rules, those Government servants who were in national pay scale No.16 were equated with those who were formerly enjoying the status of Class-II Officers. The assertion made by Mr. Shahid Saeed, Advocate Supreme Court that the appellant has not been denied the status of Class-II Officer, has not been controverted by the appellant with any material in that regard.
6. Keeping in view the stand taken by the respondents through Mr. Shahid Saeed, Advocate Supreme Court that the appellant has hot been denied the status of Class-II Officer; the effect of Corrigendum, dated 28-3-1991 was simply to cancel the earlier Gazette Notification dated 18-3-1990 for the reason that it did not qualify for being published in the Official Gazette and that appellant's pay, allowances and pension etc. as also his seniority-position had not been adversely affected, we are inclined to dismiss this appeal with the observation that the appellant shall continue enjoying the status of Class-II Officer, as heretofore. Order accordingly. No cost.
A. A./S-81/S Appeal dismissed.