' NAZAR MOHAMMAD SHAIKH (MEMBER).---These appeals have been filed under section 4 read with section 2-A of the Service Tribunals ,Act, 1973 to assail the Establishment Division's O.M.No,F:10(7)/2000-OPI/11. Dated 25-8-2001 whereby the terms and conditions of the Appellants have been "vitally affected." Since these appeals contain common question of facts and law, these are being disposed off by this consolidated judgment.
2. Briefly, the facts of the case are that the Appellants were appointed as Section Officers in BPS-17 through Section Officers' Promotional Examination conducted by Federal Public Service Commission in 1984. They were promoted to BPS-18 after meeting the prescribed procedure detailed in the Establishment Division's O.M. Dated 15-5-1991. The Appellants have rendered more than sixteen years' service in BPS-17 and above and are ripe for promotion. The Establishment Division issued the impugned O.M. Dated 25-8-2001 whereby the Appellants are now required to appear and qualify promotional examination within three years from the date of first examination and that the failure to appear in the prescribed examination shall be construed as failure to pass the examination and will be treated as evidence of inefficiency liable for action under section 13(I)
(i) of the Civil Servants Act, 1973 and the Removal from Service (Special Powers) Ordinance, 2000.
For facility of reference the impugned O.M. Is reproduced as under:-- "GOVERNMENT OF PAKISTAN CABINET SECRETARIAT (ESTABLISHMENT DIVISION)
' No,F.10(7)/2000-CP.I/IIIslamabad the 25th August, 2001 OFFICE MEMORANDUM Subject: CAREER MANAGEMENT AND GROOMING OF OFFICERS PROMOTION EXAM. FOR POSTS IN BS-17 AND 19.
The undersigned is directed to refer to Establishment Division's O.M. Of even number dated 8th May, 2001 and 9th July, 2001 on the subject cited above and to state that it has been decided that:
(i) Period for passing promotion examination for posts in BIS-19.
' Officers holding posts in BS-18 on regular basis are required to appear in the promotion examination within seven years of the date of their regular appointment to a post in BS-18: ' Provided that officers who may have completed four years or more service in BS-18 before issuance of these instructions may be required to pass the promotion examination within three years of the date of the first examination.
(ii) Period for passing promotion examination for posts in BS-17.
' Persons holding the feeding posts on regular basis are .Required to pass the promotion examination within three years of their becoming eligible for consideration for promotion: ' Provided that persons who may have already completed three years service after becoming eligible for consideration for promotion may be required to appear in the promotion examination within three years of the date of the first examination.
2. In case of persons posted outside Pakistan in Embassies or within international agencies or with foreign Governments or pursuing higher studies outside Pakistan with the approval of the Government, the period of their foreign posting/training may be added to the period prescribed (i) and (ii) above.
3. Failure to appear in the prescribed promotion examination within the prescribed time shall be construed as failure to pass the examination and this failure shall be treated as evidence of inefficiency for the purpose of section 13(1)(i) of the Civil Servants Act, 1973 and the Removal from Service (Special Powers) Ordinance, 2000.
(Sd.)
(ABDUL WADOOD KHATTAK) Deputy Secretary (CP.1)
' Chairman, ' Federal Public Service Commission, Islamabad."
3. Shah Abdur Rashid, the learned Counsel for the Appellants, ably assisted by Miss Asma Siddiqui, Junior Counsel, articulating the appeals stated that the impugned O.M. Seeks, by implication, to adversely change the terms and conditions of the services of the Appellants which was in conflict with section 3(2) of the Civil Servants Act, 1973. He further stated that as per para. 10 of the Establishment Division's O.M. No,3/2/74-ARC dated 8-4-1974 constituting Office Management Group to which these Appellants belong clearly lays down the procedure for promotion to Grade- 19 and 20. He also argued that the impugned O.M. Has not been issued with the concurrence of the President as required under section 25 of the Civil Servants Act, 1973 and, as such, it has no legal value. He also stated that in terms of Establishment Division's O.M. No,11/2/78 dated 19-2-1979 consultation with Federal Public Service Commission was also mandatory. He further argued that para. 3 of the impugned O.M. _tends to give a new meaning to the word "inefficiency" which has already been defined in the Removal from Service (Special Powers) Ordinance, 2000 and "inefficiency", cannot be given a new meaning by any instrument subordinate to a legislation. He argued that by no stretch of imagination a failure to take any examination can be construed as inefficiency and consequently results In removal from service. This would be "unreasonable definition" in the eyes of Maxwell the eminent jurist on the Law of Interpretation. He further stated that the Appellants have been discriminated' against vis-a-vis direcrt recruits and, therefore, the impugned O.M. Is mala fide and void. He also referred to Sindh High Court's order. Dated 5-7-2002 whereby the operation of the impugned O.M. Has been suspended which, he said, was passed without jurisdiction. Concluding his arguments the learned Counsel for the Appellants stated that the Government was within its right to prescribe any examination for promotion but failure to take or pass the examination cannot empower the Government to remove anyone from his present position which has been attained after promotion through due process as prescribed and after rendering long years of service.
4. Mr. Abdul Rahim Bhatti, the learned Counsel for the appellant, Irshad Ahmed Khan, endorsed the arguments of Shah Abdur Rashid, the learned Counsel for the other Appellants. He further added that the impugned O.M. Was in conflict with section 9 of the Civil Servants Act, 1973 which inter alia reads as under:- "9. Promotion.-(1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs.
(2) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotions shall be made as may be prescribed.
(a) In the case of selection post, on the basis of selection on merit;
(b) in the case of a non-selection post, on the basis of seniority-cumfitness."
' He stated that all the posts upto BPS-19 are non-selection posts to which promotion is required to bemade on the principle of "seniority-cumfitness. "He also referred to section 3 (2) of the Civil Servants Att, 1973 whereby the terms and conditions of the service cannot be altered to the disadvantage of the Government employees. The learned Counsel for the Appellant also reiterated that the impugned O.M. Has not been issued with the prior approval of the President. He also argued that the Establishment Division's O.M. Even if considered as a policy it cannot escape the judicial review in view of the law laid down in the ruling reported in 1997 PLC (C.S.) 237. He further argued that the appellants had vested right in service which cannot be denied in the manner detailed in the impugned O.M. And cited Supreme Court's rulings reported in 1992 SCMR 1652, 1998 PLC (C.S.) 70, 1998 SCMR 2280, 1990 SCMR 1321, 1997 PLC (C.S.) 929 and 1981 SCMR 1144.
5. The learned Counsel for the Respondents vehemently opposed the appeals and stated that these were misconceived and not based on law. He argued that the Government was legally.Empowered and morally justified to prescribe or improve conditions for promotion or retention of only those employees who conform to prescribe standards of efficiency. He stated that the impugned O.M. Was issued to create conditions. Which will result in manning positions in the Government by competent and efficient employees. The learned Counsel for the Respondents conceded that the impugned O.M. Was issued without the mandatory approval of the President with prior consultation with the Federal Public Service Commission.
6. We have heard the arguments of the Counsel from both the sides and perused the record.
7. The basic issue in these appeals is para. 3 of the impugned, O.M. Dated 25-8-2001, reproduced earlier, whereby the failure of the Appellants to take or pass the promotion examination to BPS-19 shall be construed to be inefficiency and liable to removal from service under section 13(1)(i) of the Civil Servants Act, 1973 or Removal from Service (Special Powers) Ordinance, 2000. The Appellants contended that the impugned notification not only bars the promotions i,e, to BPS-Y9 without promotional examination and if they fail to take or pass in the said examination but also threatens to deprive them from their present service which is unlawful and arbitrary. The Respondents, on the other hand, argued that the Government has issued the impugned O.M. With an objective to improve the quality of their employees for better governance.
8. The impugned notification suffers from many infirmities which cannot make it sustainable. First, it tends to adversely affect the vested rights of the Appellants who are otherwise entitled to promotion on the basis of "seniority-cum-fitness" as prescribed under Civil Servants Act; 1973 and the rules made thereunder. With the issuance of the impugned O.M, the Appellants' promotion prospects are adversely affected and now they are in grave danger of losing their present service positions which have been attained after rendering long years of meritorious services. They are entitled to remain in service even if for some unavoidable reason like advanced age etc. Are either unable to take or fail to clear the said examination. Such right cannot be snatched by an O.M. As it would hit Articles 25, 27 and 38 of 1973 Constitution. It would also negate the law laid down by the Supreme Court in its ruling in the case reported in 1992 SCMR 1652 where their Lordships ruled as under: "Reference may also be made to the case of Pakistan through Ministry of Finance (supra) relied upon by the High Court, in which this Court, whilt considering section 21 of the General Clause Act, 1897, has held that the authority competent to make order has power to undo it but, the order cannot be withdrawn or rescinded once it has taken legal effect and certain rights are created in favor of any individual and that the principle of locus poenitentiae (the power of rescinding till a decisive step is taken) would be available."
' Secondly, the impugned O.M. Is nullity in the eye of law as it has been admittedly issued without the approval of the Competent Authority i,e, the President of the country as stipulated in section 25 of the Civil Servants Act, 1973 and even consultation with the Federal Public Service Commission which is also mandatory, has not been done by the Respondents and lastly it defies the principle of natural justice that the existing right cannot be impaired and, at the most, the Government could deny promotion to the Appellants if they refuse to take or fail in the promotion examination but it cannot create a justiciable right in the Respondents to deprive any such employees of their present service which the Appellants have attained after due process and have reported earned good reports as adverse remarks have not been communicated to them.
9. In view of the above facts, we find that the impugned O.M. Is void as it adversely affects the vested rights of the Appellants to avail further promotions. There can be no amendments in their terms and conditions of service to their disadvantage in violation of section 3(2) of the Civil Servants Act, 1973. The Government's rights to improve the quality of its personnel is not disputed but would be in fitness of things if the initial entry into Government service at various levels is made more and more stringent and suitable qualifications are prescribed which suit/meet the requirements of particular agency. Once suitably qualified and eligible people with requisite expertise are recruited then the promotion upto certain prescribed level should strictly be on the basis of "seniority-cum-fitness" keeping in mind the time honoured maxim "there is no substitute for experience". We hope the Government will take necessary corrective steps to make qualitative improvement at the entry points at various levels by making suitable changes in the Recruitment Rules. As such, all the appeals are accepted and the impugned O.M. Is set aside.
10. Before parting with the case we would like to observe that some Departmental Appeals of the Appellants were rejected by the Respondents on merits and they approached this Tribunal within time while the other appeals were not responded. In the cases reported as 1986 SCMR 1213 and 1995 SCMR 950 it has been laid down by the Supreme Court that if a Departmental Appeal is dismissed on merit and not on limitation the appeal before the Tribunal would be competent. The Departmental Appeals and some service appeals were/are time-barred. The Appellants have filed applications seeking condonation for delay. Since the impugned orders are void and nullity in the eye of law, therefore, in the interest of justice and relying on the various judgments of the superior Courts wherein it has been laid down that no limitation runs against the void order, we condone the delay.
11. The Miscellaneous petitions bearing Nos.209/2002 to 215/2002 automatically stand disposed of.
12. No order as to costs.
13. Parties be informed accordingly. accordingly.