' N AZAR MUHAMMAD SHAIKH (MEMBER).--Appellants Sohail Khan and Mrs. Shahida Taj have filed these appeals under section 4 read with section 2 of the Service Tribunals Act, 1973 to assail the Establishment Division's O.M. No, F.10/17/2000-C.P.-I dated 8-5-2001 and No,1/3/200-1- CP-H dated 1-9-2001 whereby the Government of Pakistan has introduced Entrance Examination for undergoing NIPA training which is a requisite for becoming eligible of promotion to BPS-20. The said OMs are reproduced as under: "GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION F. No,10/7/2000-CP.1 Islamabad the 8th May 2001 OFFICE MEMORANDUM Subject: CAREER MANAGEMENT AND GROOMING OF OFFICERS, NIPA ENTRANCE EXAM.
' The undersigned is directed to refer to the subject noted above and to say that the Chief Executive has been pleased to approve the following:
1. "The promotion pre-requisite course at the National Institute of Public Administration for promotion of officers to BS-20 shall be preceded by the successful undertaking of an entrance examination by all BS-19 officers to be conducted by the FPSC." The syllabus is annexed.
2. Detailed guidelines for the NIPA entrance examination are as under:
(i) All officers holding a BS-19 post on a regular basis under the Federal Government shall be eligible to take the examination.
(ii) Each candidate shall be allowed a maximum of three chances to pass the entrance exam.
(iii) Failure to qualify the examination in the prescribed number of attempts would render the officer(s) ineligible for nomination to Advanced Course at NIPAs and hence ineligible for promotion to BS-20, with likely consequential pre-mature retirement.
(iv) Candidates shall be required to attain 50% marks to successfully qualify the NIPA Entrance Examination.
(v) Performance in the NIPA Entrance Examination shall be assigned 50% weightage with the balance 50% weightage earmarked to the service record of the officer to qualify for nomination for the training course at NIPAs.
(vi) Final nomination of officers for undergoing the promotion prerequisite training at the NIPA shall be undertaken by a High Powered Selection Board to be constituted by the Establishment Secittary.
(The proposed constitution lies within the competence of Secretary Establishment).
(vii) First selection, based on qualifying pre-entrande exam. For NIPA Training will be made for courses starting in January, 2002.
(viii)FPSC would schedule the Exam. And circulate accordingly.
(ix) A roster of those who pass the exam. Would be maintained in the Training Wing of Establishment Division and they would select officers for NIPA course in batches on seniority and merit after clearance of High Powered Board.
3. FPSC is requested to take further necessary action accordingly and make available the list of officers who pass the NIPA entry test by the end of November 2001 for selection of nominees for the NIPA Course starting in January, 2002.
4. It is further requested that the decision should be given due publicity with circulation of syllabus to all concerned.
(Sd.)
Abdul Wadood Khattak Deputy Secretary ' Chairman, ' Federal Public Service Commission, Islamabad".
"GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION ' F.No,10/7/2000-CP.II Islamabad the 1st September 2001 ' OFFICE MEMORANDUM ' Subject: CAREER MANAGEMENT AND GROOMING OF OFFICERS, NIPA ENTRANCE EXAM ' The undersigned is directed to refer to Establishment Division's OM of even number dated 8th May, 2001 on the subject cited above and to state that the following timeframe is prescribed for passing NIPA Entrance Exam.--
(i) Officers holding BS-19 posts on regular basis are required to pass the NIPA Entrance Exam. Within five years of the date of their regular appointment to a post in BS-19. Provided that officers who may have completed two years or more service in BS-19, before issuing of these Instructions are required to pass the NIPA Entrance Exam. Within three years of the date of first examination.
(ii) In case of persons appointed outside Pakistan in Embassies or with international agencies or with foreign Governments or pursuing higher stadies/training outside Pakistan, with the approval of the Government, the period of their foreign positing/training will be added to the period prescribed at (i) above.
(iii) Failure to appear in the prescribed NIPA Entrance Exam. Within the prescribed time shall be construed as failure to pass the examination; 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.) Atiq-ur-Rehman Section Officer (CP-II)
' Chairman, ' Federal Public Service Commission, ' Islamabad."
2. Appellant's Departmental Appeals dated 18-11-2002 and 25-11-2002 were rejected by the Respondents' letter dated 4-12-2002. Hence these appeals. Since these appeals contain common facts and identical question of law these are being disposed of by this single order.
3. Brief facts of the case are that the Appellant Sohail Khan is an officer of the Police Service of Pakistan and is presently posted as Senior Superintendent of Police, Railways at Lahore. Appellant, Mrs. Shahida Taj, is an officer of Income Tax Group and is presently working as Director, Federal Tax Ombudsman, Regional Office, Karachi. Both these Appellants were appointed through competitive Central Superior Services Examination. Appellant Sohail Khan was selected for Police Service of Pakistan in 1981 and Appeellant Mrs. Shahida Taj in 1981.
4. The learned Counsel for the Appellant, Shah Abdur Rashid, assisted by Miss Asma Siddique strenuously arguing the appeals recapitulated the history of NIPA training and stated that it was made a compulsory prerequisite for promotion to BPS-20 in 1980s. He stated that the officers of both Federal and Provincial Governments who were in promotion zone were deputed for undergoing NIPA training satisfactorily before they could be considered for promotion to BPS-20. He stated that this practice has continued now for almost twenty years. He further pointed out that at the time of entry of Appellants there was no condition of Entrance Examination for attending NIPA training and the impugned O.M.s which now prescribe NIPA training Entrance Examination has adversely altered the terms and conditions of the Appellant's service in disregard of section 3(ii) of the Civil Servants Act, 1973. The learned Counsel for the Appellants specifically referred to sub- paras. (ii), (iii) and (vi) of para. 2 of the Establishment Division's impugned O.M. Dated 8-5-2001, reproduced earlier. He argued that the said impugned O.M. Envisages three chances for the BPS-19 officers to pass the Entrance Examination whereas according to para. 1(i) of the Establishment Division's O.M. Dated 1-9-2001 the officers holding posts in BPS-19 on regular basis are required to pass the Entrance Examination within five years and those who have completed two years' service or more in BPS-19 shall be required to pass the said examination within three years. He argued that the larger period for new regular appointees in BPS-19 have been given advantageously longer period to pass the examination which is discriminatory in nature. He further argued that the impugned O.M. Were applicable only to the Federal Government employees whereas the Provincial Governments have not adopted the said OMs which are now almost two years old. This will, he said, put the Federal Government employees in a disadvantageous situation and would be discriminatory in nature attracting Article 27 of the 1973 Constitution. In support of his contention he cited Supreme Court's ruling reported in 2003 SCMR 291,
5. Learned Counsel for the Appellant further argued that the impugned OMs stipulated that failure to take or pass the said Entrance Examination will be construed that the civil servant has ceased to be efficient and shall be retired under section 13(1)(i) of the Civil Servants Act, 1973 or action will be taken under the provisions of Removal from Service (Special Powers) Ordinance 2000. He argued that "inefficiency" has not been specifically defined in the said Ordinance of 2000 and subordinate rules or O.M. Cannot override the provision of law. He maintained that inefficiency ordinarily means that an employee has prematurely failed to measure upto the standards which render him unfit to shoulder responsibilities of the assignment. He further argued that premature retirement in public interest as visualized in Section 13(1)(i) of the Civil Servants Act, 1973 has a well-settled meaning and referred to its definition given in the "Law Lexicon" by Venkataramaiya which is reproduced below: "The expression in the contest of premature retirement has a well-settled meaning. It refers to cases where the interests of public administration require the retirement of a Government servant who with the passage of years has prematurely ceased to possess the standard of efficiency, competency and utility called for by the Government service for which he belongs. Where no stigma or implication of misbehaviour is intended and punishment is not the objective. It appears to be beyond dispute that the decision to recommend the premature retirement in the light of his record of service must be regarded as falling within the scope of the expression" public interest."
' He stated that failure to pass Entrance Examination cannot, therefore, attract section 13(1)(i) of the Civil Servants Act, 1973.
6. Learned Counsel for the Appellants further argued that the impugned OMs which prescribe the Entrance Examination were unreasonable which was also evident from the syllabus of the said examination which covered a large range of subjects/topics like Pakistan's relations with big powers, India and other countries in Middle East, Far East and Africa, Regional issues, Privatization, poverty and alleviation, informal economy environmental and ecological issues, foreign trade, agricultural policies etc. He stated that these subjects had no nexus with the Appellants' nature of duties. He also referred to the Establishment Division's letter No,10/7-2002-CP-II dated 20-1-2003 wherein FPSC was advised about the intention of the NIPA Entrance Examination as detailed in paras. 3 and 4 of this letter reproduced below.
"3. The Establishment Division feels that the purpose of NIPA entry examination should not be so much to test the knowledge of rules and regulations as to gauge the potential of the officers with respect to their future role at the policy-making level. It is proposed that paper No,1 (compulsory paper) may test the officers in areas like relevant rules and regulations, communication skills and computer skills while paper No,2 may relate to the core socio-cultural, economic and development issues of the country and the officers ability to carry out an in-depth analysis, and recommend option in the shape of a policy paper.
4. FPSC may, therefore, like to set the question papers of the next examination accordingly. The Establishment Division is already initiating an exercise to redesign the syllabus for future examinations, with the approval of the competent authority."
' He stated that till now the Establishment Division was still formulating adequate syllabus for the Entrance Examination and that it would be unreasonable to hold such an examination of which syllabus is still not finally determined and is being revised.
7. Appellants' Counsel further pointed out that the concept of the NIPA Entrance Examination has been designed on the pattern of armed forces institution. He pointed out that armed forces prescribed such examination for their training in Staff Colleges meant for officers to be promoted as Major or equivalent and stated that for War Course which was a prerequisite for promotion to Lt. Col. (equivalent to BPS-19) and above no Entrance Examination was prescribed which put the civilian officers to a discriminatory treatment. Furthermore, he added that the content of the Entrance Examination for Staff College Courses was purely of defence related subjects and not so exhaustive as prescribed for civilian officers for NIPA Entrance Examination. He further pointed out that the Appellants and many other Federal Government employees who shall be adversely affected by the application of the impugned OMs are highly educated and some of them hive foreign education and to put such officers to an Entrance Examination is very unjust and unreasonable. He also pointed out that since the standard of education was higher in the Punjab the officers of, the other Provinces who were recruited on quota basis are likely to be at a disadvantage and the said Entrance Examination is-likely to disturb the provincial equilibrium in service with serious repercussion on the Federation. He also referred to FST's Full Bench judgment dated 14-10-2002 in the case of Mr. Tariq Sher Khan v. Secretary Establishment (Appeal No,246(R)CS/2002) where the Government's intention to hold the promotional examination was struck down. He extensively quoted from the said judgment and with particular reference to para. 8 of the judgment which reads as under: "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 there under. With the issuance of the impugned O.M. The Appellant's 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 exemption. Such right cannot be snatched by an O.M. As it would hit Articles 25, 27 and 38 of 1973 Constitution...".
8. Learned Counsel for the Appellants also stated that 'the Chief Ministers of Baluchistan and the Punjab have requested the Prime Minister to review the Federal Government's decision to hold Entrance Examination for NIPA training though no decision has been taken yet.
9. Summing up the learned Counsel for the Appellants staled that the said Entrance Examination was unreasonable, discriminatory in nature and in violation of the terms and conditions of service it should, therefore, not be held and Appellants be not subjected to the said examination.
10. Another learned Counsel for the Appellants, Mr. Khalid Abbas Khan, adopted the arguments of Shah Abdur Rashid and also submitted written arguments. Mr. Khan alleged that the said examination was discriminatory in nature and was violative of Article 27 of the 1973 Constitution. He reiterated that the said examination is likely to adversely affect the candidates from the backward provinces for the reason stated earlier. He also maintained that the civil servants had a vested right to serve till the age of superannuation which cannot be terminated because he could not take or fail to pass the examination. Such an action to remove any civil servant would be hit by Articles 25,27 and 38 of the 1973 Constitution. He further pointed out that the Sindh High Court had in principle accepted the merit of the Petition No,787 filed by the appellants and had, therefore, initially stayed holding of the examination but later dismissed the petition for want of jurisdiction in the light of FST's judgment in Mr. Tariq Sher Khan's case (Appeal No,246(R)(CS) of 2002 and six others) decided on 14-10-2002. He stated that even the High Court had observed that FST's decision in the above appeals tend to support the petitioners' case. He stated that the High Court acknowledged that the matter related to terms and conditions of service and, as such, its jurisdiction was barred under Article 212 of the 1973 Constitution.
11. Learned Counsel for the Respondents opposed the appeals and stated that the reference to FST's judgment in Tariq Sher Khan and others case was misplaced and conceived by the Appellants as in that case the question involved was of holding promotional examination for BPS- 19 whereas the Entrance Examination visualized in the impugned OMs was for NIPA ,training. He further argued that the holding of the said examination was not relevant to terms and conditions of service of a civil servant and that promotion was not a vested right of a civil servant. He further stated that holding of the Entrance Examination for NIPA training was within the ambit of the Promotion Policies and Government's right acknowledged in the Supreme Court's judgment reported in 1995 PLD SC 701. He also pointed out that promotion to BPS-20 and above being selection posts, no civil servant has a right to agitate. He went on to say that the said Entrance Examination will not be discriminatory in nature and that it will, in fact, provide a level playing field for all the civil servants. Learned Counsel for the Respondents stated that the said OMs were issued in the light of section 9 of the Civil Servants Act, 1973 and rule 8-A of the Appointment, Promotion and Transfer Rules, 1973. He also pointed out that the said examination was challenged by only handful of civil servants whereas large majority had accepted this step and taken two examinations held on 30-8-2001 and 13-4-2002. He also referred to FST's judgment in Appeal No,233(R)CS/2002 wherein the same question was dealt with and the appeal was dismissed by FST.
Regarding Mr. Iqbal, the learned Counsel pointed out that in pursuance of Peshawar High Court's order in W.P. No, 183/2002 he had been allowed to attend the NIPA training without entry test. It was also pointed out that there was no provincial quota for promotion and, as such, Appellants' contention was without any validity. He also argued that the instant appeals were badly hit by limitation and were liable to be dismissed on this ground alone.
12. Departmental Representative Mr. Mehboob Alam, Section Officer, pointed out that two Entrance Examinations had been held, one on 30-8-2001 in which 72 candidates appeared and 61 passed and the second examination on 13-4-2002 in which 241 candidates appeared and 1.07 passed. He also stated that three etitions against the Entrance Examination were pending in the High Court at Lahore and Sindh.
13. Rebutting the arguments of the Respondents, learned Counsel for the Appellants argued that the Appellants' appointment letter did not stipulate any Entrance Examination for NIPA. As regards the issue of limitation raised, he pointed out that the appeal was within time in terms of section 4 of the Service Tribunals Act, 1973 as the Appellants had filed appeal before the Tribunal against the appellate order which had not raised the issue of limitation. In this regard he relied on Supreme Court's decision reported in 1995 SCMR 950. He also stated that denial of promotion was a continuous wrong against which limitation does not operate.
14. We have carefully heard the submissions of the learned Counsel from both sides and perused the record and citations.
15. These appeals contain three main moot points as detailed below: (i). Whether the appeals are hit by limitation?
(ii) Whether the impugned OMs dated 8-5-2001 and 1-9-2001 adversely impact terms and conditions of service of the Appellants?
(iii) Whether the said impugned OMs are discriminatory in nature?
16. We will address these issues in seriatim as under: (i) Whether the appeals are hit by limitation?
(1) The learned Standing Counsel raised the legal objection that the impugned OMs were issued on 8-5-2001 and 1-9-2001 respectively whereas the appeals have been filed belatedly on 24-12-2002 and, as such, these are hopelessly time-barred. Learned Counsel for the Appellants contested this objection of the Respondents and argued that after the High Court dismissed on 20-11-2002 their Constitutional Petition No, 787 of 2002 for want of jurisdiction they filed Departmental Appeal on 25- 11-2002 i,e,, within 30 days which was rejected on 4-12-2002 and then they approached the FST through these appeals on 24-12-2002 i,e, within 30 days of rejection of their Departmental Appeal.
He also argued that these appeals were filed against the appellate order which satisfied the requirements of section 4 of the Service Tribunal Act, 1973. The contention of the Appellants is plausible and weighty. In the said letter, respondents did not raise the question of limitation and, as such, the limitation would start from the date of issuance of the said rejection letter dated 4-12- 2002. In taking this view, we place reliance on the apex Court's ruling in the case reported in 1995 SCMR 950 wherein their Lordships ruled as under: "4. Since the representation dated 15-5-1984 was incompetent and so also the order passed thereon by the Divisional Superintendent, it was open to the General Manager to have dismissed the Appellant's above representation dated 8-1-1991 on the ground of limitation but since no objection was raised in respect of the limitation and same was decided on merits, the General Manager in fact impliedly condoned the delay. In this view of the matter, the Tribunal should have decided the appellant's service appeal on merits. We would, therefore, allow the above appeal with no order as to costs and would remand the case to the Tribunal to decide the above service appeal on merits after notice to the parties."
' Thus, the objection of the Respondents that the instant appeals are time-barred is not palatable and is, therefore, rejected.
(ii) Whether the impugned OMs adversely impact the terms and conditions of service of the Appellants?
(1) The learned Standing Counsel for the Respondents while dilating on the rationale of the impugned OMs stated that the Entrance Examination for attending NIPA training was to ensure that very competent and highly educated civil servants graduate up the ladder of the Government in order to improve the quality of governance. He further pointed out that the impugned OMs will facilitate the Government in securing the services of the "best of the best" civil servant at the senior level of the Government. He argued that promotion was not one of the terms and conditions of service of a civil servant and that the terms and conditions of service were not affected by the prescription of the Entrance Examination for NIPA training. In order to weight the argument of the Respondents' arguments let us examine the various aspects of service of Pakistan, Article 260 of the 1973 Constitution defines service of Pakistan as under: "260. Definition (1) In the Constitution, unless the context otherwise requires, the following expressions have the meaning hereby respectively assigned to them, that is to say.-- "service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majils-e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney General, Advocate General, Parliamentary Secretary or Chairman or Member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister, or member of a House or a Provincial Assembly;"
' Any person holding a post in connection with the affairs of the Federation or of Pakistan shall deem to be in the service of Pakistan and is known or categorized as a "civil servant". Section 2(b) of the Civil Servants Act, 1973 defines "civil servant" as under: "(b) "civil servant" means a person who is a member of an All-Pakistan Service or of a civil servant of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include
(i) a person who is on deputation to the Federation from any Province or other authority;
(ii) a person who is employed on contract, or on work-charged basis or who is paid from contingencies; and
(iii) a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workman's Compensation Act, 1923 (VIII of 1923); This definition of a civil servant is to a large extent as also defined in Osborn's Law Concise Dictionary which reads as under: "A servant of the State other than the holder of a political or judicial, who is employed in a civil capacity and whose remuneration is paid wholly and directly out of moneys voted by Parliament, is an officer employed in a department of the State with the approval of the Treasury. A Civil Servant is a person holding his appointment directly from the State or one who had been admitted into the "Civil Services."
(2) Thus, any person who is employed by the Federation or a Province is a civil servant and has to be given defined parameters in which he is to work in connection- with the Government business.
Normally, such a person would like that his remuneration is defined, his career prospects are spelled out, recruitment procedure, probation period, right of confirmation are defined, efficiency and conduct rules are in place and whether the employment pensionable or not and so on. All these matters constitute terms and conditions of service of a civil servant and Article 240 of the 1973 Constitution stipulates that terms and conditions of service are to be prescribed. Government, therefore, promulgated Civil Servants Act, 1973 and framed detailed rules thereunder which defined various conditions of service like recruitment, probation, confirmation, seniority, promotion, transfer etc., in terms of section 3(1) of the said Act: Any civil servant working in the Federation or a Province has a legitimate expectancy of rising up in the Government hierarchy by means of promotion.
Establishment Division's (O&M) Manual defines promotion as under: "In precise official terminology Promotion is definition as the advancement of an official from a lower to a higher post or grade against a vacancy specifically reserved for such advancement under the relevant recruitment rules."
' The word "Promotion" has also been defined by the Lahore High Court in the case of Mehboob Ali Malik v. Lahore Corporation (PLD 1958 Lahore 370).
"Promotion means taking of a further step on ladder. It is, only where an employee after having gained experience in a particular post or having, Otherwise, better qualified than himself is appointed to a post which is regarded as a higher post in that particular line that it is called promotion, although there may be a vast difference between salaries which the two posts carry."
' Section 9 of the Civil Servants Act, 1973 deals with promotion and it 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 a selection post, on the basis of selection on merit; and
(b) in the case of non-selection post, on the basis of seniority-cumfitness.
' The reading of this section clearly specifies the eligibility of a person for promotion, if he possesses minimum qualification prescribed for a higher post and that if the post is to be filled in by selection then merit alone shall be the criteria and if a non-selection post then promotion shall be on the seniority-cum-fitness. Thus, the eligibility conditions for promotion are possession of minimum prescribed qualification, seniority and fitness, which can be and is determined by Annual Performance Reports. The impugned OMs, however, add a new dimension to the section 9 of the Civil Servants Act, 1973 and the. Appointment, Promotion and Transfer Rules, 1973 which are in conflict with the import of the Civil Servants Act, 1973 and rules framed thereunder and more so an O.M. Cannot subordinate a legislative Act or formal rules framed thereunder. Thus, rationale was also made applicable in FST's judgment in Appeal No,246(R)CS of 2002 and has rightly been referred to by the learned counsel for the appellants.
(3) It may further be added that the Government framed Appointment, Promotion and Transfer Rules, 1973 which defines the requirements of appointment, promotion and transfer of the civil servants. Rules, 7, 8 and 8-A of these rules deal with the eligibility of the civil servants for promotion.
The learned counsel for the respondents relied heavily on rule 8-A of the Appointment, Promotion and Transfer Rules, 1973 to argue that the Government was empowered to issue the impugned O.Ms. In order to groom only capable and competent civil servants to undergo NIPA training to man the senior positions. Respondent's reliance on rule 8-A of the Appointment, Promotion and Transfer Rules, 1973 is misplaced and misconceived. In order to appreciate the true significance of the said rule, we reproduce it:-- "8-A. No promotion on regular basis shall be made to posts in basic pay scale 18 to 22 and equivalent unless the officer concerned has completed such minimum length of service, attended such training and passed such departmental examination, as may be prescribed from time to time."
' The plain reading of the rule 8-A clearly indicates the following three ingredients for eligibility of promotion.
(i) Possession of minimum prescribed qualification
(ii) Training as may be prescribed
(iii) Passed prescribed departmental examination ' In fact, this rule makes it mandatory that every civil servant has to undergo training prescribed to fulfil one of the requirements to become eligible for promotion and NIPA training has been prescribed as a prerequisite for promotion to BPS-20. It does not in any way empower the Government to introduce a filtration mechanism for undergoing training Entrance Examination for NIPA training as assailed in the instant appeals. This rule in fact binds the Government to send all the civil servants for training so that they become eligible for being considered for promotion to a higher post in their respective groups, the constitution of which has been defined in the.
Establishment Division's relevant O.Ms. For each Service/Group . We feel that any restriction placed on the civil servants to undergo NIPA training is to curtail their. Career advancement prospects which is their inherent vested right as guaranteed by the 1973 Constitution and such curb like Entrance Examination is in gross violation of rule 8-A of the Appointment, Promotion and Transfer Rule, 1973 and section 9 of the Civil Servants Act, 1973.
(4) The learned Standing Counsel for the Respondents strenuously argued that the right to promotion is not a vested right. There is no cavil to this contention of the Respondents. Appellants in their appeal are not demanding or praying for right of promotion, they are agitating that the prescription of Entrance Examination curtails their vested right of eligibility for promotion which is available to them under section 9(1) of the Civil Servants Act, 1973 and Appointment, Promotion and Transfer Rules 1973. Respondents' Counsel has failed to appreciate the fine distinction between the right to promotion and right to be considered for promotion. The former is not a vested right whereas the latter is a vested right. In this regard it would be relevant to recall the ruling of the Hon'ble Supreme Court in the case of Muhammad Anis and others v. Abdul Haseeb and others reported in PLD 1994 SC 539 wherein their Lordships ruled as under: "We may point out that the question of eligibility and fitness have been treated differently by the Law-Makers in the Civil Servants Act, 1973 and in the Act. In section 9 of the former Act, as pointed out hereinabove, a right has been conferred on a civil servant to be considered for promotion if he is eligible on account of the fact that he possesses prescribed minimum qualification but he has no vested right to be promoted. In contrast to above section 9 of the above Act, the Law-Makers in proviso (b) to subsection (1) of section 4 of the Act have not used the word "eligible" but have employed the word "fitness or otherwise to be appointed or to hold a particular post or to be promoted to a higher post or cadre." In other words, the question of eligibility, which is a term of service by virtue of above subsection (1) of section 9 of the Civil Servants Act, 1973...."
(5) Para. 2 (vi) of the impugned O.M. Further provides that a High Powered Committee shall be constituted to select those civil servants for NIPA training who have qualified the Entrance Examination, This is yet another screening channel which will hamper the advancement prospects of civil servants. It is now a universally accepted fact that selection of any kind by any Committee other than FPSC is usually subjective. This element in the impugned O.M. Is also in conflict with section 9 of the Civil Servants Act, 1973 and Appointment, Promotion and Transfer Rules 1973.
(6) Impugned O.M. Dated 8-5-2001 further-stipulates that failure to take or pass the said examination will be considered as inefficiency and attract retirement in public interest under section 13 (1) of the Civil Servants Act, 1973 or under /removal from Service (Special Powers)
Ordinance 2000. Learned Counsel for the Appellants referred to "Law Lexicon" wherein premature retirement in public interest is defined as reproduced earlier. For premature retirement of those who do not take the Entrance Examination or fail to pass the said examination under section 13(1) of the Civil Servants Act, 1973 will be in conflict with the true meaning of this section and will also in conflict with the guidelines issues by the Establishment Division to retire civil servants under section 13(1) of the Civil Servants Act which prescribe as under: "6. The Review Committee should examine the cases referred to them, and the Committee may recommend retirement in the following cases:
(a) Where two or more penalties under the Government Servant (Efficiency and Discipline) Rules, 1973 have been imposed on a civil servant.
(b) Where overall grading of the ACR is average, and/or where adverse remarks in regard to acceptance of responsibility, integrity, reliability, output of work and behavior with the public were recorded in the ACRs (duly conveyed to the concerned civil servant and his representation against it finalized, as per rules).
(c) Where a civil servant is twice recommended for supersession by the Selection Board/DPC and the recommendation of the Selection Board/DPC is approved by the competent authority.
(d) Where other "specific and cogent grounds, including the following, may warrant retirement of a civil servant:-
(i) Persistent reputation of being corrupt;
(ii) Possessing pecuniary resources and/or property etc., disproportionate to his know sources of income; and
(iii) Frequent unauthorized absence from duty."
' The failure of the civil servant to take or pass the examination would not conform to the said guidelines and would, therefore, be in conflict with H section 13(1} of the Civil Servants Act, 1973.
Such eventuality can also not be actionable under Removal from Service (Special Powers)
Ordinance, 2000 wherein "inefficiency" has not been defined as failure to take or pass the NIPA training Entrance Examination. Appellants' Counsel rightly argued that O.M. Which is a subordinate to the Acts cannot amend it or add a new dimension to the legislation. The impugned O.M. Cannot implant new meaning of the inefficiency in the said Ordinance of 2000.
(7) Learned Counsel for the Respondents placed reliance on the Supreme Court's ruling reported in PLD 1995 SC 701 which recognizes the right of the Government "to decide whether a particular academic qualification of a civil servant/employee is sufficient for promotion from one Grade to another higher Grade". The principle enunciated in this rulling was reiterated in Supreme Court's ruling reported in PLD 2003 SC 143 but it is distinguishable as these rulings related to the empowerment of the Government to prescribe higher qualifications for the post whereas the question involved in the instant appeals is that of prescribing Entrance Examination for undergoing NIPA training and, as such, it is not relevant in the instant case.
(8) Learned Counsel for the Respondents cited FSTs judgment in Appeal No,233(R)CS/2002 wherein the Appellants contested the impugned O.Ms. Which are also the subject of the appeals in hand.
That case is slightly distinguishable from the present appeal insofar as the learned Counsel for the Appellants who are officers of the Police Service of Pakistan recruited in 10th Common Course in Appeal No,233(R)CS/2002 conceded Government's right to hold the Entrance Examination for NIPA training and they relied their arguments on the question of discrimination vis-a-vis the officers of DMG of the same 10th Common Course. Appellants in that Appeal (No,233(R)CS/2002) argued as under: "7. The learned Counsel for the appellants has in very unambiguous and categorical terms stated that he has no cavil, at the policy. As such his principle argument is that they have been treated with discrimination as against their DMG colleagues of the 10th Common Group. He has referred to 1999 SCMR 467 in this behalf. We are not persuaded by his arguments about discrimination. The relevant para. Of the ruling of the Honourable Supreme Court which the learned Counsel for the appellants pressed into this support on , the issue of discrimination is reproduced below:-- "5. From the arguments advanced at the bar by both The sides 'it is clear that as no tender had been issued in respect 'of the sole shop in terminal No,2, therefore, the appellants had no basis or grievance in these proceedings to seek any redress regarding the said shop. It is also to be noted that the appellants had not specified any shop in terminals Nos.1 and 3 against which they have preferential claim. Moreover it could not be shown that any shop was lying vacant so that the claim of the appellants could be considered about it. It appears that all those who had been successful in obtaining shops in the disputed terminals have neither been impleaded nor it has been pleaded that the appellants had better claim against them. Keeping in view all these material defects and hurdles in the way of the appellants in enforcing their right it was not possible for the High Court nor for this Court to give any relief to the appellants, therefore, would all the submissions made at the bar remain only of academic interest. However, it can hardly be disputed by anyone that for a society which claims to be organized, civilized and law abiding it is imperative to standby its commitments, undertakings and to be honest and fair in its dealings. It is more so for a Government respecting rule of law not to discriminate between its citizens and its functionaries cannot be allowed to exercise discretion at their whims, sweet-will or as they please; rather they are bound to act fairly, evenly and justly. The perusal of all the precedent cases cited at the bar by the learned counsel for the appellants enjoins and enunciates with emphasis the above principle, therefore, there is no need to refer to each of them."
' FST in its judgment did not go into great detail the merit of the impugned O.Ms. And restricted its order on the discrimination after the Appellants did not object to the Government's competency to hold the Entrance Examination. The operative part of the judgment is reproduced here: "9. We are inclined to accept the argument of the learned Counsel for the respondents that discrimination would have taken place against the appellants if some of the members of the PSP in the 10th Common Group had been nominated for NIPA Course upto July and August, 2001 when entrance test was not held. But this has not happened. This argument, therefore, fails."
' In the two appeals in hand, Appellants have assailed the two impugned O.Ms. And have also raised the question of discrimination of different reasons. With this distinction the appeals in hand are distinguishable from the Appeal No,233(R)CS/2002 and the Respondents' reliance on the FST's judgment in the said appeal is not tenable.
(9) Furthermore, we tend to agree with the learned Counsel for the Appellants that the syllabus of the said Entrance Examination is very unreasonable as it is totally strange to the Appellants who have no orientation or exposure to some of the topics referred to earlier included in the Entrance Examination. Not only that, he rightly argued that in future also the Appellants are, unlikely to have any exposure to the examination topics during the course of their service. For instance Appellant Sohail Khan, an officer of the Police Service and Mrs. Shahida Taj, an officer of the Income Tax Group shall perhaps never deal with subjects like foreign relations or poverty alleviation or Kashmir dispute and so on. The learned Counsel for the Appellants further invited our attention to the Establishment Division's letter to the FPSC dated 20-1-2003 herein it has been acknowledged in para. 2 that the existing scheme/pattern of examination does not -provide a level playing field to different Occupational Services/Groups and informed that an exercise was being initiated to redesign the syllabus for future examinations. Paras. 2 to 4 of the said letter are being reproduced as under: "2. It is, therefore, advised that FPSC may make necessary arrangements for holding the subject examination at an early date. It may, however, be pertinent to point out that the existing scheme/pattern of examination does not provide a legal playing field to officers belonging to different Occupational Groups/Services. It appears that certain category of officers especially those assigned to the field are at a clear disadvantage with respect to their Colleagues working in the Secretariat. For this reasons a wider choice needs to be given in the papers so that the officers appearing in the examination and possessing diverse experiential backgrounds are able to attempt the papers without feeling at a disadvantage.
3. The Establishment Division feels that the purpose of NIPA Entry Examination should not be so much to test the knowledge of rules and regulation as to gauge the potential of the officers with respect to their future role at the policy-making level. It is proposed that paper No,1 (Compulsory paper) may test the officers in areas like relevant rules and regulations, communication skills and computer skills while paper No,2 may relate to the core socio-cultural, economic and development issues of the country and the officers ability to carry out an in-depth analysis, and recommend option in the shape of a policy paper.
4. FPSC may, therefore, like to set the question papers of the next examination accordingly. The Establishment Division is already initiating an exercise to redesign the syllabus for future examinations, with the approval of the competent authority."
' It is clearly evident that the Respondents themselves recognize the inadequacy of the said Entrance Examination which does not provide equal or level playing field to the civil servants and the syllabus was being redesigned. In such a situation to conduct such an examination which is inequitable would be grossly unjust and illegal and would be violation of Constitutional provisions.
(iii) Whether the said O.Ms. Are discriminatory in nature?
(1) The learned Counsel for the Appellants vehemently argued that the said Entrance Examination was discriminatory in nature and in violation of Article 27 of the 1973 Constitution. He cited Supreme Court ruling reported in 2003 SCMR 291 in support of his contention. The learned Standing Counsel for the Respondents denied any such discrimination.
(2) We have heard tile two conflicting views on the question of discriminatory nature of the impugned O.Ms. And find the contentions of the learned Counsel for the Appellants more weighty which are identified as under:
(i) Newly promotees to BPS-19 are required to pass the Entrance Examination within a period of five years as against three years for those civil servants who have been already in BPS-19 for two years or more service.
(ii) Impugned Office Memorandum is applicable to only Federal Government employees whereas Provincial Government employees will continue to undergo training without Entrance Examination as is evident from para. 2 of Establishment Division's O.M. No,5/2/2003-T.II dated 17-2-2003 reads as under: "2. As the scheme of the NIPA Entrance Examination has not yet been adopted by the Provincial Governments and Autonomous Bodies for their own employees. It has been decided to offer some slots to the officers belonging to the cadres services controlled by the Provincial Government, autonomous bodies and officers of Armed Forces (other than the officers of the Federal Government who are on deputation there)."
(iii) Thelearned Counsel for the Appellant pointed out that the concept of Entrance Examination has been borrowed from the Armed Forces. It was rightly elaborated by the Counsel that the Armed Forces restricted the Entrance Examination to the Staff College for officers to be promoted to the rank of Major or equivalent and that for promotion to the rank of Lt. Col./equivalent and above have to qualify the War Course for which there is no Entrance Examination. Thus, we feel that this Entrance Examination prescribed for the civilian officers would be discriminatory in nature.
Furthermore the syllabus of Armed Forces Staff College and even for the War Course is related to the subjects/topics to their nature of duty and that the syllabus is not as wide and comprehensive as prescribed for the civilian officers. The civilian officers are, as such, put to a disadvantage and discriminatory position.
(iv) It has been stated by the Establishment Division in their letter to FPSC dated 20-1-2003 that syllabus for the said Entrance Examination is being revised. It may be recalled that two Entrance Examination have already been held and third one is scheduled for 6-4-2003 and if subsequently the syllabus is revised, officers who have already taken the two examinations and have applied to take the third examination would be totally at disadvantage as compared to the other colleagues who will be subsequently taking the examination under revised syllabus. This would also be discrimination not tenable under law.
(v) It may be recalled that the civilian officers who are inducted in various Occupational Groups have taken their Central Superior Service Examination on the basis of all Pakistan Competitive where the cream of educated young persons take the examination and compete for very limited positions available every year in different Occupational Groups. The candidates who have taken the CSS examination and are successful more often than not hold at least Master's degree and some even have acquired foreign education and to put them to Entrance Examination to attend NIPA training would be very unjust and inequitable.
17. The learned Counsel for the Respondents argued that the appeals were filed by only handful of the civil servants and the large majority had accepted the concept of the Entrance Examination.
This argument is negated by the DR's statement that there were three more petitions against the said Examination in High Court at Lahore and Karachi. Appellants in their Memo. Of appeal have also stated that there was large number of representations to the Prime Minister against this examination but no response has been received. The fact that the Chief Ministers Punjab and Baluchistan have also requested the Prime Minister to review the policy of Entrance Eamination indicates that the Chief Ministers were approached by the Federal civil servants serving in these Provinces. Thus, it indicates that the civil servants in large number do not consider the said examination as just and reasonable.
18. The above facts clearly establish that the impugned O.Ms. Besides being in conflict with section 9 of the Civil Servants Act, 1973 and Rules 7,8 and 8-A of the Appointment, Promotion and Transfer Rules, 1973 also violate the Articles 25 and 27 of the 1973 Constitution. We, therefore, hold that the impugned O.Ms. Are void ab initio and not legal as they adversely affect the vested right of the civil servants by curtailing Appellants eligibility for promotion. We, therefore, restrain the Government from holding the said examination as visualized in the O.Ms.
19. We also direct the Respondents to consider maintaining the present system for deputing officers for NIPA training on the basis of their seniority and fitness judged from the ACRs, Since the civil servants are evaluated and reported upon during the NIPA training, we feel that it meets the objective of the Government to promote only competent and "best of the best" officers for manning posts in the higher echelons of the Government.
20. We leave the parties to bear their own costs. They be informed accordingly with copies to them.