' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The issues involved in both the above petitions are common therefore, they were heard together and allowed by a short order dated 23-8-2005 as follows:-- "Heard Sher Muhammad Khan, petitioner in C.P. No,D-1369 of 2004, in person and Mahmood Hassan Advocate for petitioners Muhammad Ashraf, Noorul Haq and Fateh Muhammad Soomro, in C.P.
No,D-1530 of 2004 and Mr. Sajjad Ali Shah, learned D.A.G. Assisted by Syed Asghar Ali Shah, Section Officer, Establishment Division.
' The prayer in C.P. No, D-1369 of 2004 is as follows:-- ' It is earnestly prayed by the Petitioner above named that this Honourable High Court may kindly be pleased to:--
(a) Declare that the impugned order dated 13-10-2004 is null and void because of being violative of Articles-25 and 27 of the Constitution of Pakistan, 1973 and;
(b) Issue a Writ of Mandamus to the effect that the Respondents should jointly and severally allow the Petitioner to appear in the Section Officers Promotional Exam-2004 at par with the employees of the office of Wafaqi Mohtasib, Federal Service Tribunal and Intelligence Bureau."
2. The prayer in C.P. No,D-1530 of 2004 is as under:-- "This Hon'ble Court may be pleased to pass the following orders:--
(a) Declaring that the impugned order dated 13-10-2004 issued by the Respondents Nos.1 and 3 in null and void and to have been issued with discriminatory approach.
(b) Directing the Respondents to issue result of the Petitioners and if they or anyone of them succeeded in written test, then allow the Petitioners to appear in interview of the Section Officers Promotional Exam-2004 at par with the employees of the office of Wafaqi Mohtasib, Federal Service Tribunal and Intelligence Bureau."
' For the reasons to be recorded later on, both the petitions are allowed as prayed. The Respondent No,2, Secretary Federal Service Commission Islamabad, is directed to declare the results of all the petitioners immediately."
3. The relevant facts in C.P. No, D-1369 of 2004, are that petitioner Sher Muhammad Khan is working as Assistant, Naval Store Officer, Naval Store Depot, PM Dockyard Karachi. He is a civilian officer working with Pakistan Navy. The Respondent No,2, Secretary Public Service Commission, Islamabad invited applications from the civil servant for admission to the Section Officers Promotional Exam.
2004, through advertisement in the newspapers. The eligibility criteria prescribed was to be minimum 8 years service on the closing day in BPS-11 to 16 in the Federal Secretariat and attached departments. The employees of the office of Wafaqi Mohtasib, Federal Service Tribunal and Intelligence Bureau were also allowed specifically to appear in the said competitive exam., notwithstanding the facts that above offices/departments were not declared as attached departments of the Federal Government under the Rules of Business, 1973. According to petitioner the Armed Forces Headquarter and their lower formations were also working, practically as attached department to the Federal Government but their employees were neither included in the list of eligible or ineligibles for admission to the Section Officer Promotional Exam., Because of this ambiguity the petitioner requested the Respondent No,1, the Secretary Establishment Division, vide application dated 16-6-2004 for grant of special permission of appear in the said promotional exam. At par with the employees of Wafaqi Mohtasib, Federal Service Tribunal and Intelligence Bureau. The petitioner further requested the Respondent No,2, Secretary Federal Public Service Commission to grant provisional admission to the said promotional exam. The Respondent No,2, allowed the petitioner to appear in the written part of the said promotional exam. The petitioner appeared in the exam. And was informed vide letter dated 27-10-2004 that the Respondent No,1., Establishment Division and Respondent No,3, Defence Division of the Government of Pakistan, have jointly rejected the request of petitioner, vide order dated 13-10-2004.
4. The petitioner has contended that the treatment meted out to him is discriminatory as he is entitled to be treated at par with the employees of Wafaqi Mohtasib, Federal Service Tribunal and Intelligence Bureau. The employees of the above-mentioned offices/departments have been made eligible to the Section Officer Exam 2004, although those departments have not been declared as attached departments, while the petitioner has been deprived of this opportunity which is violative of the provisions contained in Article 25 of the Constitution of Islamic Republic of Pakistan. It is further alleged that the civil gazetted officers of the armed forces have no chance to promotion beyond BS-18, even they continue to serve until the age of superannuation. It is further alleged that the act of permitting the employees of Federal Secretariat and some attached departments as well as employees of some offices which have not been declared as attached departments is an act of nepotism and therefore, he has sought declaration that the order dated 13-10-2004 denying the petitioner an opportunity to compete in the exam be declared null and void and writ of mandamus be issued to the respondents giving direction to accord permission to appear in the Section Officer exam. And treat him at par with the employees of Wafaqi Mohtasib, Federal Service Tribunal and Intelligence Bureau.
5. The facts alleged in C.P. No,D-1530 of 2004 are that the petitioners Nos.1,2 & 3 are Master in Arts (Economics), Master in Science (Physics) and Master in Business Administration. They are working as the Statistician, Assistant Armament Supply Officer and Pharmacist in BPS-16 in Pakistan Navy.
All the three petitioners were appointed after selection by the Federal Public Service Commission.
Rest of the facts alleged are common to the facts narrated while dealing with C.P. No,1369 of 2004.
6. In the parawise comments filed on behalf of Establishment Division, it has been admitted that the employees of the office of Wafaqi Mohtasib, Federal Service Tribunal and Intelligence Bureau have been allowed to specifically appear in the competitive examination of Section Officers, while employees working in the Armed Forces Headquarter and their lower formations have been excluded along with large number of civilian departments. It is averred that the competent Authority had disallowed the servants of the Ministry of Defence to be included in the eligible candidates, keeping in view specific nature of the job and that the treatment meted out to the petitioner is not discriminatory. It is contended that the exclusion of petitioner from the eligibility for Section Officers Promotional Examination is in accordance with the law/rules.
7. On 20-7-2005, the following order was made:-- "The petitioner claims to be a civil servant having been appointed on selection by the Federal Public Service Commission in BPS-16 as Assistant Naval Store Officer. He has submitted that his Letter of Appointment shows that he is subject to the provisions contained in Civil Servants Act, 1973. He further contends that the Public Service Commission announced holding of Section Officers Promotional Examination for appointment to 80 posts of Section Officers in BPS-17, w,e,f, 6- 9-2004. The petitioner applied for permission to appear in the Examination. Objection was raised that the petitioner was not eligible. However, the petitioner was allowed to participate in the Examination on the undertaking that if, ultimately, he is not found eligible, his result may be withheld. The petitioner thereafter appeared in the examination and his result has been withheld.
The petitioner has submitted that the employees of the Wafaqi Mohtasib Secretariat, Federal Public Service Commission, Federal Service Tribunal and Intelligence Bureau have been made eligible to appear in the examination, although these departments have not been declared as attached departments of any Ministry or Division under the Rules of Business, 1973, and are not subordinate offices as well. His contention is that the Organization where he is serving is at par with the above offices and should be declared as such.
' Syed Tariq Ali, learned Federal Counsel, seeks time to take instructions on the above points from the Establishment Division. He says that after taking proper instructions, he would be able to give definite statement about the status of four Departments whose employees have been made eligible for appearing in the Section Officers Promotional Examination and would further be able to inform the Court, for what reasons the petitioner and other employees working in the Naval Store Department of Pakistan Navy have not been made eligible for appearing in the Section Officers '
Examination.
' We would further like that the learned Federal Counsel should furnish details of the Departments whose, employees are civil servants governed under the Civil Servants Act, 1973, but they are not covered under the advertisement dated 6th June, 2004. The learned Federal Counsel should further furnish complete information on the point whether there is any policy for holding separate promotional examination in the Department of the petitioner and, if not, what are the prospects of promotion of the employees working in the Department where the petitioner is serving.
' If there is any separate policy in respect of Civil employees working with the Armed Forces, the said policy should also be produced so that we may ascertain that the opportunities are equally available to such employees for promotion, bringing them at par with the promotion policy in respect of other civil servants.
' Syed Tariq Ali, learned Federal Counsel requests for four weeks' time to obtain entire information/instructions enabling him to properly assist the Court on the above issues."
8. We have heard Mr. Mahmood Hassan, Advocate for petitioner in C.P. No, 1530 of 2004, Sher Muhammad Khan, petitioner in C.P. No,1369 of 2004, in person and Mr. Sajjad Ali Shah, learned DAG, assisted by Syed Asghar Ali, Section Officer, Establishment Division.
9. It has been contended on behalf of petitioners that according to original charter of OMG issued on 27-1-1975. 2/3rd of the vacancies of Section Officers in BPS-17 were to be filled by direct recruitment through Federal Public Service Commission. The remaining 1/3rd of the vacancies were to be filled by promotion of the departmental eligible candidates through a promotional examination to be conducted by Federal Public Service Commission. The condition of eligibility was eight years service in the Federal Secretariat in BPS-11 to 16 or eight years service as Superintendent, Private Secretary, Assistant, Stenographer etc., in the attached department. The employees of the National Assembly Secretariat and Wafaqi Mohtasib Secretariat were not eligible for taking Section Officers' Promotional Examination. Complaint was made to Wafaqi Mohtasib, seeking appropriate instructions to the Establishment Division not to debar the employees of National Assembly Secretariat/Senate Secretariat and Wafaqi Mohtasib's Secretariat for taking Section Officers' Promotional Examination.
10. It was contended before Wafaqi Mohtasib that for the purpose of Section Officers Promotional Examination, the Federal Secretariat employees were eligible. However, Establishment Division allowed, with the advice of Management Service Division, the employees of President's Secretariat, Prime Minister's Secretariat, Prime Minister's Inspection Commission, Intelligence Bureau and Federal Public Service Commission to appear in this examination. The status of these organizations was equated with that of a Division or an attached department. The National Assembly is a Constitutional body and its status was not determined vis-a-vis the Federal Secretariat. It was further contended that the Federal Public Service Commission is a Constitutional body like the National Assembly Secretariat/Senate Secretariat therefore, it is not fair that while Federal Public Service Commission employees are eligible to appear in the examination while employees of the National Assembly Secretariat were debarred.
11. The Establishment Division, was advised by the Federal Ombudsman to seek the opinion of Law and Justice Division. The Establishment Division informed that as per the advice of the Law and Justice Division, the existing rules/orders and policy do not allow the employees of the National Assembly Secretariat/Senate Secretariat and Wafaqi Mohtasib Secretariat to appear in the Section Officers Promotional Examiantion.
12. The learned Wafaqi Mohtasib in its finding dated 30th May, 2000, held that the Establishment Division has not been able to explain as to why the employees of Federal Service Tribunal, Intelligence Bureau, Prime Minister's Secretariat, Prime Minister's Inspection Commission etc., are allowed to appear in the said examination, though they are not essentially Federal Secretariat employees and why Establishment Division cannot extend the same concession to the employees of the National Assembly Secretariat, Senate Secretariat and the Wafaqi Mohtasib Secretariat to allow them to appear in this examination.
13. It was ultimately held that the bar on the employees of the National Assembly Secietariat/Senate Secretariat for appear in the Section Officers Promotional Examination is discriminatoy. The Establishment Division was advised to amend its orders/rules accordingly and allow the complainant and other eligible employees of National Assembly Secretariat/Senate Secretariat and the Wafaqi Mohtasib Secretariat to appear in the Section Officers Promotional Examination.
14. The Establishment Division made no representation to the President and accepted the advice of the Wafaqi Mohtasib. The earlier Rule 7(b)(1) was amended to read as follows:-- "GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION No,13-2-1998.0MG.1 Islamabad, the 2 August, 2000 OFFICE MEMORANDUM Sub: Administrative Reforms Office Management Group ' The undersigned is directed to refer to Establishment Division's order No,1/2/951/RO, dated 27-1- 1975 as amended from time to time and to state that the competent Authority has approved the substitution of the existing para. 7(b)(i) by the following:-- ' The remaining 1/3rd of thea vacancies shall be filled by promotion of the departmental eligible candidates through a promotional examination. The promotional examination will be conducted by the FPSC. The condition of eligibility will be eight years service in BS-11 to 15-16 in President's Secretariat, Chief Executive's Secretariat, Chief Executive's Implementation and Inspection Commission, Senate Secretariat, National Assembly Secretariat, Federal Secretariat, Attached Departments, Wafaqi Mohtasib' Secretariat, Federal Service Tribunal, Federal Public Service Commission and Intelligence Bureau.
(Sd)
Brig (Retd)
(Muhammad Ziafal) Joint Secretary (Admn)"
15. No detailed information was furnished in response to the direction given by this Court on 20-7- 2005, The sole information furnished is a letter from Director Civilian Personnel, Naval Headquarter, Islambad, to the effect that the promotions to BPS-16 and above in Pakistan Navy are made on seniority cum-fitness basis. No separate departmental promotion examinations are conducted for the employees. There is no separate policy in respect of civilian employees in Pakistan Navy and promotions are made according to seniority/fitness after fulfilling the criteria.
16. It has been urged on behalf of the petitioners that the Civilian Gazetted Officers of Armed Forces have no chance of promotion beyond PBS-18 and their exclusion from appearing in the Section Officers Promotional Examination is discriminatory on the face of it. It is contended that the reasons prevailing with Hon'ble Federal Ombudsman to make the employees of National Assembly Secretariat/Senate Secretariat and Wafaqi Mohtasib Secretariat are applicable to them with much more force, because employees of these organizations have much better prospects of promotions in the higher grades.
17. The learned DAG, has though supported the exclusion of the petitioners from the eligibility for taking Section Officers Promotional Examination but, he is not able to give any reason as to why the petitioners should not be treated at par with the employees of other departments who are neither part of Federal Secretariat or attached departments.
18. After a very careful consideration, we are of the opinion that the treatment meted out to the petitioners is discriminatory on the face of it. I In a democratic dispensation and a society believing in rule of law there should be no arbitrary policy, decisions/administrative orders which are discriminatory in nature. All persons placed similarly are entitled to be treated in similar manner.
We therefore, declare that the order dated 13-10-2004 passed by the Ministry of Defence in consultation with the Establishment Division, holding the employees working in the Armed Forces Headquarter (AFHQ) and its lower formations as not eligible to appear, in the Section Officers Promotional Examination is discriminatory being violative of Articles 25 and 27 of the Constitution of Islamic Republic of Pakistan. We therefore, direct the respondents jointly and severally to treat the petitioners in both the petitions eligible to appear in the Section Officers Promotional Examination by treating them at par with the employees of the office of Wafaqi Mohtasib Secretariat, Federal Service Tribunal, Federal Public Service Commission and Intelligence Bureau. The Respondent No,2, is directed to declare the results of all the petitioners immediately and if they qualify the Exam to treat them at par with the others successful candidates.
19. These are the detailed reasons in support of short order dated 23-8-2005.