Khalil-ur-Rehman Ramday, J.--The petitioner was working as a Superintendent in BS-16 in the Ministry of Women Development when the Federal Government decided to re-organize its secretariat. As a result of the exercise which followed, the posts of Superintendents in the said Ministry were reduced by one. The axe fell on the petitioner as she was the junior-most Superintendent in the said Ministry and consequently landed in the Surplus Pool. This happened in the year 1997.
2. Through a notification dated 13.10.1998 of the Establishment Division, the services of the petitioner, alongwith four others, were placed at the disposal of the Ministry of Commerce for absorption against some vacant posts. It appears from an O.M. of the Ministry of Women Development dated 4.11.1998 which was addressed to the Establishment Division that the Ministry of Commerce had declined to accept her "charge assumption" and a request had consequently been made to the Establishment Division to ask the Ministry of Commerce to absorb the petitioner. Silence appears to have been the only response from the said Division.
3. What is then on record is an application by the petitioner to the Secretary of the Ministry of Women Development sent in the month of September of the year 2002 wherein the petitioner had submitted that a Superintendent of the said Ministry by the name of Latif had since retired; that the said post had thus become vacant and available and that the petitioner who belonged to the same Ministry may be absorbed against the cost.
4. Once again, the answer was-silence.
5. The next relevant fact is a notification issued by the Establishment Division on 4.10.2002 whereby the services of the petitioner, alongwith 55 others from the Surplus Pool, were:-- ".......placed at the disposal of M/o Communications and Railways against the vacant posts of Senior Auditors (BS-11) in RailwayAccount Department ...."
(6) It appears from the impugned judgment that the co-appointees of the present petitioner through this notification or at least some of them defied the said command; refused to report to the Railways and got subsequently blessed with posts equivalent to the ones held by them prior to being declared surplus. The fault of the petitioner, however, appears to be that she obeyed the said superior command and had paid the price ever-since.
7. The petitioner then approached the Federal Service Tribunal complaining that despite the assurance given to her by sub-section (2) of Section 3 of the Civil Servants Act of 1973, the petitioner had been de-graded and had been put against a 'post in BS-11 as if she was a player playing a game of snakes and ladders where she could be bitten down to square one at the whims of some snake and was not a civil servant serving' the Federal Government of a civilized State. The learned Tribunal responded by saying that notwithstanding the provisions of the said Section 3(2), a surplus employee like her, could be appointed to a lower post as was permitted by the proviso to Section 11-A of the said Act of 1973 and further that she had nothing to complain as her pre-surplus days' pay stood protected. She now re-acts by submitting that how would a Federal Secretary in BS-22 like to be appointed a peon in BS-1 even if he was assured of the pay and privileges of a Federal Secretary" This re-action does offer some food for thought.
8. The petitioner had also submitted before the learned Tribunal that her's was a case of gross discrimination as some of the other grade 16 surplus employees who, alongwith her, had been appointed to BS-11 posts through the above-mentioned notification of 4.10.2002 and who had refused to obey, had thereafter been given posts equivalent to the ones held by them prior to being rendered surplus. The learned Tribunal replied that she could not identify herself with the said other employees as they had, by refusing to report to the Railways Department, incurred the risk of termination of their services while the petitioner could not muster the same courage to run any such risk and her case was, therefore, not at par with the case of the said others and the differential treatment was, therefore. justifiable.
9. The petitioner also pleaded before the learned Tribunal that during the time that she was in the Surplus Pool, an equivalent post had become available, inter-alia in her own Ministry of Women Development and that she could and should have been posted against the said vacancy. The learned Tribunal answered by saying that since she had decided not to defy the orders of the competent authority and had joined the BS-11 post in the Railways, therefore, her connection with her parent Ministry stood severed which dis-entitled her to any post available therein and further that having opted to accept the said lower post, she stood estopped from claiming any post equivalent to her pre-surplus days post.
10.The appeal filed by the petitioner before the Service Tribunal was resultantly dismissed through the impugned judgment dated 1.9.2006 which brought her to this Court through Civil Petition No. 1043 of 2006 filed under Article 212 of the Constitution.
11.We have heard the learned ASC for the petitioner who-has re-iterated the above-mentioned submissions made before the learned Tribunal. We have also had the benefit of the assistance rendered by the learned Deputy Attorney General pursuant to our notice to the respondent
12. Before we proceed any further with the matter, it may be stated that the facts above-noticed are not in dispute. And we may add that during the pendency of this petition, in order to find out about the factum of availability or otherwise of an equivalent post then and even now, we had asked the Establishment Secretary through our order dated 12.1.2007 to:- "...file an affidavit that no post in BS-16 was available at the relevant time in any Ministry, Division or Office of the Federal Government anywhere in Pakistan nor was any such post available even today."
'The said Secretary responded with.an affidavit in the following terms:-- "1. That no requisition for the post of Superintendent (BS-16) or equivalent was available in the Surplus Pool of Establishment Division against which petitioner namely Mrs. Farkhanda Talat could have been absorbed.
2.That no requisition for the post of Superintendent (BS-16) or equivalent is available in the Surplus Pool of Establishment Division at this time 3.That deponent can only absorb employees from surplus pool against requisitioned posts."
'This response to our query was, to say the least, evasive.
13. The admitted position thus is that the petitioner was holding a Grade-16 post in the year 1996 and had even earned a move over to Grade 17 w.e.f. 1.12.1997 and that in consequence of the alleged re-organization of the Federal Secretariat, she became surplus and was then appointed to a lower post in BS-11 in the month of October, 2002. The crucial question is as to whether a civil servant could have been so treated?
14.The provisions of law, reiovant for resolution of this controversy, are the ones contained in sub- section (2) of Section 3 of the Civil Servants Act of 1973 and the ones contained in Section 11-A thereof especially the provisions of the proviso to the said Section 11-A. The same are re-produced here-under for ready reference:-- "3 (1) .............
(2) The terms and conditions of service of any person to whom this Act applies shall not be varied to his disadvantage.
11-A. Absorption of civil servants rendered surplus.-- Notwithstanding anything contained in this Act, the rules, agreement, contract or the terms and conditions of service, a civil servant who is rendered surplus as a result of reorganization or abolition of Division, department, office or abolition of a post in pursuance of any Government decision may be appointed to a post, carrying basic pay scale equal to the post held by him before such appointment, if he possesses the qualifications and fulfils other conditions applicable to that post: 'Provided that where no equivalent post is available he may be offered a lower post in such manner, and subject to such conditions , as may be prescribed and where such civil servant is appointed to a lower post the pay being drawn by him in the higher post immediately preceding his appointment to a sower post shall remain protected."
(emphasis and under-lining is ours)
15.The fundamental principle which is thus clearly enunciable from the said provisions of Section 3(2) of the said Act of 1973, is that the same hold out a guarantee to all civil servants that no action could ever be taken which could adversely affect the terms and conditions of their service e.g. the tenure of their employment; the pay and the grade earned by them through years of labour and hard work; the right to promotion including the legitimate expectancy of future advancement in their respective careers; the retirement benefits such as pension, the gratuity and provident fund etc. and all other terms and conditions which were prescribed by Chapter II of the said Act of 1973 and by other laws, rules and regulations relating to the subject. The above-quoted provisions contained in the main body of Section 11-A of the said Act is a reiteration of the same principle assuring even the employees who stood declared surplus that they would also be entitled to appointment to posts; carrying the basic pay scale equal to the posts 'held by them prior to being rendered surplus.
16.But then all rules are liable to be subjected to exceptions and the above-noticed principle is no exception to the said rule, as, we know for instance, that a civil servant found guilty of acts of ommision and commission amounting to misconduct could be stripped of the said privileges or at least some of them by way of punishment. The above--quoted proviso to the above-mentioned Section 11-A of the Act of 1973 envisages another exception to the said principle whereby a civil servant could be denuded of the post earned by him. through years of sweat and toil and could be de-graded to a lower post and that also for no fault of his and only because someone in authority had thought of re-organizing the secretariat.
17.We all know by now that all provisions which create exceptions to general rules have to be construed rather strictly in their application to situations causing such deviations and moreso where the envisaged departure is not on account of any wrong-doing on the part of the one likely to be affected by it but because of some star stuck somewhere high up in the horizon. The proviso in question to the said Section 11-A is thus not only an exception to a guaranteed rule but a cruel exception at that. The 'deviating steps have, therefore, to be measured very minutely and monitored with the greatest of care and precision.
18.Reverting to the said proviso to the said Section 11-A, we find that the same does allow appointment of a surplus civil servant to 'a lower post' but then subjecting such an employee to such an extraordinarily harsh treatment is permissible only and only on the satisfaction of a condition precedent prescribed by the said proviso i.e. non-availability of an equivalent post.
19.What then emerges from the above-discussion is:--
(a) that the said proviso to the said Section 11-A of the Civil Servants Act of 197% does, envisage appointment of a surplus civil servant to a 'lower post';
(b) that the only, encroachment allowed by the said proviso upon the guarantees extended by the provisions of Section 3(2) of the said Act is the said appointment to a 'lower post' and none else;
(c) that the said action is permissible only if `no equivalent post is, available; and finally;
(d) that the said proviso is an exception to the above-noticed general rule and its application has, therefore, to be very strictly watched and guarded.
20.Testing the validity of the impugned action on this touchstone, we find that the petitioner had earned basic pay scale No. 18 in the year 1996 and a moye-over to BS-17 in, the year 1997 and was working nail a post of a Supekintendent in the Ministry of Women Development when she was struck by the re-organization of the Federal Secretariat; that a post of a Superintendent had become available in that very Ministry before she had been appointed to a BS-11 post in the Railways Department; that some equivalent posts had also become available in the Ministry- of Commerce before her impugned down-gradation; that no affidavit or even a certificate had been flea by any competent authority declaring non-availability of an equivalent post before taking the impugned action against the petitioner and further that despite the orders passed by this Court, the" Establishment, Secretary had only said that no requisition was available in his Division asking for a grade 16 officer and not that no such equivalent post was available with the employer i.e. the Federal Government, in any of is ministries, divisions, departments or offices or in any office or department under its control or authority, either between 1997 and 2002 or even thereafter.
21.Needless to add that as has been mentioned above, the condition precedent permitting the kind of action impugned before us was the non-availability of an equivalent post' and not: the non- availability of a requisition with the establishment division for an equivalent post'. Therefore, such an excuse offered by the Establishment Division was far from being a sufficient satisfaction of the said condition precedent. And we may also add that even the other justification offered by the Establishment Division for non-absorption of the petitioner in an equivalent post i.e. the Ministry of 'Commerce not honouring its notification regarding posting of the petitioner to one of the available equivalent posts in the said Ministry, was only a painful display of a callous disregard of the rights of a fellow civil servant as the Ministries etc. in the Federal Government were not sovereign powers but were a part and parcel of the same Government which were subject and subordinate to one superior command. We would dread even to visualize the situation canvassed on behalf of the respondents and unfortunately even accepted by the learned Tribunal that an action taken by the prescribed and the competent Division in the Federal Government had been thrown into the gutter by another Division or Ministry of the same Government with no one in the hierarchy to intervene and to set things right. Such a situation, in English, language, is called anarchy and despite the respondents' insistence of having reached the said stage, we refuse to believe the existence of such an anarchic situation in the Government and in fact pray to Allah that such a claim never becomes a reality. We may add that the Establishment Division being or not being at the mercy of other Ministries, Divisions or offices etc. in the matter of placement of the Federal Government employees, is an internal affair of the said Government and is of no relevance to the petitioner nor does the same concern the Courts and the enforcement of law.
22.Having thus examined all aspects of the matter, we find that the impugned action could not be sustained in law as nothing was available on record which could assist us to hold that no equivalent post had ever become available in the entire set up of the Federal Governmant during the period in question i.e. from the year 1997 to 2002 and, even till date. In the absence of such a material, the impugned action of appointing the petitioner to a lower post was an illegal and a callous exercise of authority and the same is accordingly declared as such.
23.Consequently, this petition is converted into an appeal which is allowed as a result whereof the impugned judgment of the Federal Service Tribunal dated 1.9.2006 passed in Appeal No. 265(MCS/2003 as also the impugned notification of the Establishment Division dated 4.10.2002 appointing the appellant to a lower post of Senior Auditor in BS-11 in the Railways Department, are set aside. Resultantly, the appellant is ordered to be appointed to a post equivalent to the one held by her before being rendered surplus with all back. benefits, if any be due. And this shall be so done by or before 28.2.2007 and her said appointment shall be made against a post in Islamabad.
24.Since the appellant had suffered agony for so long and for no fault of hers and since she had also been compelled to go into litigation which would have cost her money, therefore, she deserves compensation for the same which is fixed at Its. 25,000/- (twenty-five thousand Only) and which shall be paid to her before the above-mentioned 28th day of February, 2007. An amount of rupees one thousand out of the said amount of Its. 25,000/- shall be paid by the Establishment Secretary from his own pocket on account of his above-noticed conduct.
25.The Establishment Secretary shall then submit a report about the compliance of this order to the Registrar of this Court for the information of this Bench.