' MUHAMMAD JAVED ASHRAF HUSSAIN (MEMBER).---This is an. Appeal against the order, dated 8-1- 2004 passed by the Secretary Communication, Government of Pakistan (respondent No,2) whereby the order, dated 24-6-2003 passed by the respondent No,3 was set aside, whereafter, this appeal, dated 13-2-2004 has been filed by the appellant requesting that the order, dated 8-1-2004 passed by the respondent No,2 may be set aside and that the order, dated 24-6-2003 passed by the respondent No,3 may be restored.
2. Briefly, the facts of the case are that the appellant, after completing his training at the Pakistan Military Academy, Kakul, was commissioned as an Officer in Pakistan Army on 10-6-1983. He was promoted to the rank of Captain in the year 1986. The appellant was serving in the Corps of Ordnance, Pakistan Army from 10-6-1983 to 16-11-1992 when in the year 1991 while holding the rank of captain, he obtained permission from the G.H.Q. To appear in the Central Superior Service examination. He appeared in the CSS examination conducted by the Federal Public Service Commission in the year 1991-92 and on qualifying the examination he was allocated to the Postal Group of Civil Service, which Group he joined on 17-11-1992 after being relieved from the Pakistan Army on 16-11-1992.
3. The appellant submitted a representation in February, 2003 to the Chairman, Pakistan Postal Services Management Board (PPSMB), Islamabad requesting that on the lines of the benefit of seniority of Army service given by the Honourable Supreme Court of Pakistan vide its judgment, dated 18-12-2002 to Capt. (Rtd.) Abdul Qayyum, in Civil Appeal No,1895 of 2000, he may also be granted similar benefit by assigning seniority in the Postal Group of Civil Service w,e,f, 15-7-1982 i,e, the date of his joining Pakistan Army with all consequential benefits. As a result of his representation, the Chairman, PPSMB vide his order, dated 24-6-2003 accepted the appellant's request and granted him seniority in the Postal Group by counting the service rendered by the appellant in the Pakistan Army.
4. The appellant also submitted representation to the Secretary, Establishment Division, Government of Pakistan through proper channel, requesting that he may be allocated DMG, PSP of Foreign Service Group as in the case of other serving Military Officers, who were inducted into civil service without appearing in the competitive examination on horizontal basis. This representation has not been responded to till the filing of the present appeal.
5. Against the order, dated 24-6-2003 passed by the respondent No,3, allowing the appellant seniority in the Postal Group from the date he joined the Pakistan Army, the officers of Postal Group serving in the department who were adversely affected by this order, filed a representation before the Secretary, Ministry of Communication, Government of Pakistan (respondent No,2), who in response to this representation, vide his impugned order, dated 8-1-2004, set aside the order, dated 24-6-2003 passed by the respondent No,3.
6. The learned counsel for the appellant on the basis of record argued that the impugned order, dated 8-1-2004 passed by the Secretary Communication, Government of Pakistan, is liable to be set aside being illegal, unlawful and ultra vires of the law and the Constitution. The learned counsel argued that according to Pakistan Postal Services Management Board Ordinance, 2002, the Chairman, Pakistan Postal Services Management Board is the Competent Authority to decide service matters of officers in Grades 17 to 19 in the department and that the Prime Minister of Pakistan is the Appellate Authority for officers in these grades. He, therefore, argued that the Secretary Communication (respondent No,2) is not the Competent Authority to set aside the order of the Chairman, Pakistan Postal Services Management Board.
7. The learned counsel for the appellant further argued that the order, dated 24-6-2003 passed by respondent No,3 was based on the judgment of the Honourable Supreme Court in Civil Appeal No,1895 of 2000, dated 18-12-2002. The learned counsel stated that the relief provided by the Honourable Supreme Court to the appellant Captain (R.) Abdul Qayyum in Appeal No,1895 of 2000 is applicable in the case of the appellant in the present case as according to him the grounds in both the cases are similar. He further argued that according to Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973, a decision of the Honourable Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, shall be binding on all other Courts in Pakistan.
8. The learned counsel further argued that it is well-settled law that if the Honourable Supreme Court or Service Tribunal decides a point of law relating to the terms of service of a civil servant, such decision covers not only the case of the civil servant, who litigated, but also covers all civil servants, who may have not participated in such legal proceedings. He stated that the dictates and rules of good governance demand that the benefits of such judgment be extended to all civil servants, who may not be parties to such litigation instead of compelling them to approach the legal forum separately.
9. The learned counsel for the appellant further argued that the Removal from Service (Special Powers) Ordinance, 2000 is a general law, whereas, the Pakistan Postal Services Management Board Ordinance, 2002 is a special law and that it is settled principle of law that the provisions of special law override the provisions of general law.
10. The learned counsel also argued that the Chairman, Pakistan Postal Services Management Board being an officer of Grade 21/22, appeals/representations against his orders cannot be lodged before the Secretary Communication, who himself is an officer in Grade-21/22. He averred that even a lawful authority becomes an unlawful authority, if it over steps the parameters fixed by the law. He maintained that in the present case, the Secretary Communication had no appellate power against the decision of Chairman, Pakistan Postal Services Management Board and, therefore, the impugned order being unlawful is liable to be set aside.
11. The learned counsel for the appellant summed up his arguments with the prayer as follows:---
(i) that the impugned order, dated 8-1-2004 passed by the Secretary communication (respondent No,2) may be set aside since, as stated by him, it is not tenable in the eyes of law;
(ii) that the order, dated 24-6-2003 passed by Chairman, Pakistan Postal Services Management Board may be restored in its original position and substituted for the impugned order;
(iii) any other relief in the circumstances of the case may also be granted to the appellant to meet the ends of justice.
12. The departmental representative for respondent No,2 argued that the appeal is not maintainable and liable to be rejected under section 4(1)(a) of the Service Tribunals Act, 1973 in that the appellant has preferred the appeal before this Tribunal without first preferring representation or appeal before the appropriate departmental authority. The learned counsel argued that under section 22 of the Civil Servants Act, 1973, the legal course available to the appellant was representation to the Prime Minister against the order passed by the Secretary Communication and, therefore, by not preferring any appeal/ representation to the departmental authority i,e, the Prime Minister of Pakistan, the appellant has failed to comply with the mandatory requirement of adopting the legal course. He, therefore, argued that the appeal is liable to be rejected on this ground alone.
13. It was also argued on behalf of respondent No,2 also argued that the appeal is not a memorandum of appeal in accordance with Rule 6 of Service Tribunals (Procedures) Rules, 1974 under which it is a mandatory requirement that every memo. Of appeal shall be signed or thumb- impressed by the appellant. He argued that the appeal having not been signed by the appellant or thumb-impressed by him does not fall in the definition of memo. Of appeal and is liable to be dismissed in limine.
14. It was further argued that order, dated 24-6-2003 by respondent No,3 being without jurisdiction was rightly set aside by the Secretary Communication being the Competent Authority in the case.
It was stated that the contention of the appellant that Chairman, Pakistan Postal Services Management Board is Competent Authority to decide service matters of officers in Grade-17 to 19 in the department has no substance as powers have been assigned to Chairman, Pakistan Postal Services Management Board in respect of only departmental employees/officers and not in respect of officers inducted into the Postal Group through the FPSC. He further averred that Civil Servants Act, 1973 exclusively regulates terms and conditions of service of persons in the service of Pakistan which includes officers belonging to the Postal Group. He, therefore, maintained that the application of Pakistan Postal Services Management Board Ordinance, 2002 to the terms and conditions of service of officers of Postal Group has no legal basis and relevance.
15. The departmental representative on behalf of respondent No,2 further argued that the contention of the appellant that Secretary Communication is not the Authority to set aside the orders of the Chairman, Pakistan Postal Services Management Board is baseless as Pakistan Post Office is an Attached Department of the Ministry of Communication as per Rule 4(4) of Schedule-III, Serial No,8 of the Rules of Business, 1973 and therefore, the Administrative Secretary of the Division/Ministry is legally empowered to take notice of any irregularity/illegality committed in the Attached Department of the ministry. It was averred that the action on the part of Chairman, Pakistan Postal Services Management Board in allowing seniority to the appellant being extra- judicial, the decision of the Secretary Communication to set aside the same was very much within the ambit of the law.
16. It was stated on behalf of respondent No,2 stated that the contention of the appellant that the order, dated 24-6-2003 by the Chairman, Pakistan Postal Services Management Board was based on the decision of the Honourable Supreme Court of Pakistan in Civil Appeal No,1895 of 2000 is totally misconstrued since the apex Court's decision was in a different context. He further contended that the Chairman, Pakistan Postal Services Management Board due to jurisdictional constraints was not empowered to interpret the decision of the Honourable Supreme Court and apply the same to the appellant by inference. It was further maintained that the above-quoted judgment of the apex Court is based on section 9-A of Compulsory Service in the Armed Forces Ordinance, 1971 (Ordinance No,XXXI of 1971) and as the appellant did not get Commission in the Pakistan Army under the said Ordinance, his claim to seniority on the basis of this Ordinance is illegal and uncalled for. His case, therefore, the learned counsel asserted, has no bearing or relevance to the case of Capt. (R.) Abdul Qayyum and, therefore, the question of application of the judgment of the Honourable Supreme Court to the category that the appellant's case belongs by other Courts including this Tribunal does not arise.
17. It was also argued on behalf of respondent No,2 that the contention of the 'appellant that Secretary Communication was not the Appellate Authority and only the Prime Minister could have exercised the powers to set aside the order of the Chairman, Pakistan Postal Services Management Board is not based on facts since the Prime Minister is the appellate authority in disciplinary cases under the Removal from Service (Special Powers) Ordinance, 2000, whereas, in the instant case the aggrieved officers submitted their representation under section 22 of the Civil Servants Act, 1973 to the Secretary Communication against the decision of the Chairman, Pakistan Postal Services Management Board. He argued that the Secretary Communication in such matters is the Competent Authority as the Pakistan Post Office is an Attached Department of the Ministry of Communication. It was further argued that the order of the Chairman, Pakistan Postal Services Management Board, dated 24-6-2003 changed the seniority of almost 61 officers of the Postal Group. He stated that the subject of seniority falls in the definition of terms and conditions of civil servants in accordance with section 8 of the Civil Servants Act 1973 and cannot be varied to the disadvantage of officers as per section 3(2) of the Civil Servants Act, 1973 without recourse to the relevant rules not covered by the Pakistan Postal Services Management Board Ordinance. The departmental representative argued that the Chairman, Pakistan Postal Services Management Board by giving seniority to the appellant had over stepped his authority and, therefore, his order, dated 24-6-2003 has no legal basis.
18. The departmental representative on behalf of respondent No,2 further argued that the aggrieved Civil Servants of Postal Group had not filed their representation under Removal from Service (Special Powers) Ordinance, 2000. Therefore, the question of special law viz. Pakistan Postal Services Management Board Ordinance prevailing over the general law viz. Removal from Service (Special Powers) Ordinance, 2000, as contended by the appellant, does not arise as no recourse was made to the latter by the aggrieved officers.
19. The departmental representative also argued that the contention of the appellant that the Chairman, Pakistan Postal Services Management Board being an officer of Grade-21/22, no appeal/representation against his order would lie before the Secretary Communication, who is also an officer in Grade-21/22, is baseless since decisions by the Director-General, Pakistan Post Office/Chairman of the Pakistan Postal Services Management Board, would be subject to scrutiny by the Ministry as Pakistan Post Office which as mentioned earlier, is an Attached Department of the Ministry of Communication according to Rule 4(4) of Schedule-III, Serial No,8 of the Rules of Business. Therefore, the grades of Secretary Communication and the Director-General Pakistan Post Office/Chairman, Pakistan Postal Services Management Board, even if equivalent do not vatiate the orders passed under section 22 of the Civil Servants Act, 1973 by the former being the relevant authority against the orders passed by the Director-General/Chairman, Pakistan Postal Services Management Board.
20. While concluding it was argued by the departmental representative that the appellant had joined the Postal Group on his own free will and that there was no compulsion on him to join the Pakistan Army or the Civil Service (Postal Group) and, therefore, he cannot claim relief under the Compulsory Service in the Armed Forces Ordinance, 1971. He further stated that the appellant's representation to the Secretary, Establishment Division for induction into DMG, PSP or Foreign Service Group has no relevance to the present case. It was alleged that the appellant succeeded in getting an undue favour from the Chairman, Pakistan Postal Services Management Board through the back door and, therefore, the order, dated 24-6-2003 was rightly set aside by the Secretary Communication. He further reiterated that the appellant's reliance on the case of Capt (R.) Abdul Qayyum decided by the apex Court in Civil Appeal No,1895 of 2000 has no relevance to his case as he was neither granted Commission in Pakistan Army under Compulsory Service Ordinance, 1971 nor was he retained even for a single day in Pakistan Army under the said Ordinance.
21. The respondent No,1 (Establishment Division) submitted before this Tribunal that they have been impleaded in pro forma capacity in the said appeal and that the main respondents are Ministry of Communication and the Chairman, Pakistan Postal Services Management Board. The respondent No,1 (Establishment Division) further submitted that they support and adopt the parawise comments as submitted by respondent No,2 i,e, Ministry of Communication and requested that the parawise comments submitted by respondent No,2 may be treated as parawise comments on their behalf also.
22. Respondent No,3 in written comments has prayed that the Chairman, Pakistan Postal Services Management Board's order, dated 24-6-2003 giving the advantage of seniority of his Army Service to the appellant may be upheld and the order of the Secretary Communication, dated 8-1-2004 may be annulled/set aside on the following grounds:--
(i) that the order, dated 24-6-2003 of the Chairman, Pakistan Postal Services Management Board has the support of the decision of the Honourable Supreme Court in Civil Appeal No,1895 of 2000 in the case of Capt. (R.) Abdul Qayyum v. Government of Punjab and others;
(ii) that the decisive step having been taken by allowing benefit of service in Pakistan Army with consequential benefits in favour of the appellant i,e, Capt. (R.) Khalid Zaman by the Chairman, Pakistan Postal Services Management Board such step cannot be rescinded, withdrawn or amended in view of section 21 of the General Clauses Act, 1897. Reliance has been placed on PLD 1980 Pesh. 128, 1984 PLC (CS.) 576 and PLD 1965 Pesh. 31;
(iii) that the order, dated 8-1-2004 by the Secretary Communication represents an administrative decision rather than a decision based on judicial considerations and is, therefore, rendered illegal in the eyes of law;
(iv) that on establishment of Pakistan Postal Services Management Board w,e,f, 15-11-2002, changes of significant importance were effected as under:--
(a) that the Management of the Pakistan Post Office (PPO) department has been entrusted to Pakistan Postal Services Management Board vide para. 3(1) of the Pakistan Postal Services Management Board Ordinance, dated 15-11-2002;
(b) that the Chairman, Pakistan Postal Services Management Board has been made Appointing Authority in respect of B-17 and B-18 officers and the Competent Authority in respect of B-17 to B-19 officers;
(c) that the PPO Department is no more an Attached Department of the Ministry of Communication w,e,f, 15-11-2002.
(v) that the powers under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 are no more available to the Secretary, Communication Division after promulgation of the Pakistan Postal Services Management Board Ordinance, dated 15-11-2002. Pakistan Postal Services Management Board ordinance, dated 15-11-2002 being a special statutory provision in relation to the employees of Postal Group takes precedence over a general enactment in the nature of Civil Servants Act, 1973 and the rules made thereunder;
(vi) that the Chairman, Pakistan Postal Services Management Board, being an officer in B-21/22, has exclusive powers as appointing authority in respect of officers in B-17 to B-18 and as Competent Authority in respect of officers in B-17 to B-19 and as such, he stands at par with the Secretary Communication, who cannot revise, amend, alter or set aside any order, passed by the Chairman, Pakistan Postal Services Management Board and he is also legally barred to alter, cancel, set aside or amend any order passed by him in accordance with the provisions of a valid and legal statutory provision under Pakistan Postal Services Management Board Ordinance, dated 15-11-2002.
23. The learned counsel for private respondents Nos.4 to 65, by the large, maintained the line of argument adopted by respondent No,2 with regard to maintainability of appeal and its being liable to be rejected as it contravened section 4(1)(a) of the Service Tribunals Act, 1973. The learned counsel also supported the stand that the Secretary Communication was competent to set aside the orders of the Chairman, Pakistan Postal Services Management Board. The learned counsel also maintained that the decision of the Honourable Supreme Court in the case of Capt. (R.) Abdul Qayyum v. Government of Punjab, having been based on section 9-A of the Compulsory Service Ordinance, 1971 was not applicable in the case of the appellant as he was not inducted in the Pakistan Army under the said Ordinance nor was he retained in the Army even for a single day under this Ordinance. The learned counsel for the private respondents further argued that the appellant does not fall under the definition of Essential Person as in section 1(2)(a) of the said Ordinance. He further argued that although Capt. (R.) Abdul Qayyum was not granted Commission under the Compulsory Service Ordinance, 1971, but he was retained in the Army under the said Ordinance and, therefore, he was given relief by the apex Court.
24. The learned, counsel for the private respondents stated that the case of the appellant is analogous with the case before the FST which vide its judgment, dated 28-7-2004 accepted the following appeals.
S. No.Appeal No. Appellant
1. 177(R)(C.S.) of 2002Aziz-ur-Rehman Malik
2. 201(R)(C.S.) of 2002Waqar Ahmed
3. 283(R)(C.S.) of 2002Akhtar Jan
4. 284(R)(C.S.) of 2002Munir Ahmed
25. The learned counsel for the private respondents argued that the above mentioned appeals were accepted on the ground that the respondent in the appeals namely Major (R) M. Arshad Mirza was not inducted in the Pakistan Army through Compulsory Service Ordinance, 1971. He maintained that the instant case also falls in the same category as the appellant i,e, Capt. (R.) Khalid Zaman got Commission through the normal procedure and was not inducted through Compulsory Service Ordinance, 1971 nor was he retained in Army under the same Ordinance.
26. The learned counsel for the private respondents further reiterated that there was no similarity between the case of the appellant i,e, Capt. (R.) Khalid Zaman and the case of Capt. (R.) Abdul Qayyum, since Capt. (R.) Abdul Qayyum was an engineer and fell in the category of Essential Person and was retained in the Army under Compulsory Service Ordinance, 1971, whereas, the appellant Capt. (R.) Khalid Zaman neither fell in the category of Essential Person nor was he inducted or retained in the Army even for a single day under Compulsory Service Ordinance, 1971.
27. We have heard the learned counsel for both the appellant as well as the respondents and carefully perused the record. The appellant has based his claim for the counting of his service rendered in Pakistan Army towards his seniority in the Postal Group of the civil service on the following grounds:---
(i) On the basis of relief provided to Capt. (R.) Abdul Qayyum by the Honourable Supreme Court in Civil Appeal No,1895 of 2000 vide judgment, dated 18-12-2002;
(ii) That the Secretary Communication, Government of Pakistan was not competent to set aside the order of the Chairman, Pakistan Postal Services Management Board assigning seniority to the appellant by counting the service rendered by him in Pakistan Army towards seniority in the Postal Group;
(iii) That the judgment of FST, dated 28-7-2004 in Appeals Nos.177(R)(C.S.) of 2002 (Aziz-ur- Rehman Malik), 201(R)(C.S.) of 2002 Waqar Ahmed), 283(R)(C.S.) of 2002 (Akhtar Jan) and 284(R)
(C.S.) of 2002 (Munir Ahmed) v. Federation of Pakistan through Secretary, Establishment Division, Islamabad (2) Secretary, Defence Division, Ministry of Defence, Rawalpindi and (3) Major (Retd.)
Muhammad Arshad Mirza, Private Secretary to the Minister for Communication and Railways, Islamabad) is not applicable in the case of the appellant.
28. Before examining the above issues, we shall take up the initial objections raised by respondent No,2 and private respondents to the effect that the appeal is not maintainable and liable to be rejected under section 4(1)(a) of the Service Tribunals Act, 1973 on account of:-- "(a) its being filed before preferring representation before the appropriate departmental authority and
(b) that the appeal is not a memorandum of appeal in accordance with rule 6 of Service Tribunal (Procedure) Rules, 1974 in that the memorandum of appeal has not been signed or thumb- impressed by the appellant."
' We shall first take up the contention of the respondent No,2 and the private respondent' that the appeal is not maintainable and liable to be rejected under se ion 4(1)(a) of the Service Tribunals Act, 1973. It will be seen from the record that Secretary Communication vide his order, dated 8- 1/2004 set aside Chairman, Pakistan Postal Services Management Board order, dated 24-6-2003 on receiving representation from aggrieved officers of Postal Group under section 22 of the Civil Servants Act, 1973. It will further be seen that Civil Servants Act, 1973 is silent with regard to redressal to a person like the appellant in the present case, aggrieved on account of decision under section 22 of the Act. The next higher authority above the Secretary of a Division/ Ministry is the Prime Minister of Pakistan and the latter figures under section 9 of the Removal from Service (Special Powers) Ordinance, 2000, when a person is aggrieved on account of orders passed by the former under section 3 of the same Ordinance i,e, Removal from Service (Special Powers) Ordinance, 2000.
The order, dated 8-1-2004 not having been passed under Removal from Service (Special Powers)
Ordinance, 2000, we feel the appellant had no forum for the redressal of his grievance except the Service Tribunal as there was no legal remedy available before the next higher departmental authority. In view of these facts we are inclined to hold that the appeal before this Tribunal is in order. Regarding the objection that the memorandum of appeal has not been signed or thumb- impressed by the appellant, it is noted from the record that the affidavit accompanying the memorandum of appeal has been duly signed by the appellant as also the rejoinder submitted by him against the objection to the appeal filed by respondent No,2 and the private respondents. The lacuna if any is adequately covered by the signing of the affidavit which is a part of the memorandum of appeal and therefore, we are inclined to take a lenient view and to hold that the appeal is not vitiated.
29. We shall now examine the issues as in para.26(i) to (iii) raised by the appellant. With regard to the issue whereby relief was provided by the Honourable Supreme Court to Capt. (R.) Abdul Qayyum in Civil Appeal No,1895 of 2000, it is observed that such relief was provided in terms of Compulsory Service in Armed Forces Ordinance, 1971 whereunder an officer in the Pakistan Army falling under the definition of Essential Person and compulsorily inducted into the Army for any particular length of service and/or retained under the same Ordinance and subsequently inducted into the civil service is entitled to count the service rendered by him in Pakistan Army towards seniority and other matters in the civil service. In this context, the significant point of law involved is section 9-A of the Compulsory Service in Armed Forces Ordinance, 1971 as amended in 1978. In order to comprehend the question of benefits allowed by this section, it will be worthwhile to reproduce section 9-A of the Ordinance which reads as under:-- The Gazette of Pakistan Extraordinary Published by Authority Islamabad Saturday January 28, 1978 Part I Acts, Ordinance, President's Orders and Regulations Government of Pakistan Ministry of Law and Parliamentary Affairs (Law Department)
Islamabad the 28th January, 1978 ' No,F.21(1)78.Pub. The following Ordinance made by the President on the 25th January, 1978 is hereby published for general information:-- ORDINANCE NO.IV OF 1978 AN ORDINANCE ' Further to amend the Compulsory Service in the Armed Forces Ordinance, 1971
(2) It shall come into force at once and shall be deemed to have taken effect on the third day of December, 1971.
2. Insertion of new section 9A, Ordinance, XXXI of 1971 (XXXI of 1971), after section 9, the following new section shall be inserted namely:-- "9A. Concession to medical practitioner released from service with the Armed Forces.--- Notwithstanding anything contained in any other law for the time being in force a medical practitioner who following his release from service with the Armed Forces after having rendered satisfactory service under this Ordinance for a period of not less than two years, enters employment of the Federal Government or a Provincial Government shall be entitled to count towards his seniority in such employment the period of service rendered by him under this Ordinance and to his pay in such employment being fixed after giving him credit for the service to rendered.
Explanation.-In this section, "medical practitioner" has the same meaning as in section 3."
(Sd.) Fazal Elahi Chaudhry President.
(Sd.) C.A. Rahman, Additional Secretary."
30. It will be seen from the above amendment to Compulsory Service in the Armed Forces Ordinance, 1971 by means of Ordinance No,IV of 1978 whereby section 9A has been added that relief has been provided to medical doctors inducted into the Army under the Ordinance of 1971.
Subsequently, in 1983 the question of extending benefit of compulsory service in. Pakistan army towards seniority and other matters in civil services was agitated before a Full Bench of the Federal Shariat Court, which delivered a comprehensive judgment, the relevant extract of which is reproduced as under:- "That the omission of the engineers who are also compelled to serve the Armed Forces is a violation of the human rights of equality before law and equal protection of law which is proved by the Qur'an and Sunnah. After the words Medical Officer in section 9A words 'or an Engineer' shall be added."
31. As a result of the aforementioned judgment of the Federal Shariat Court, further amendment took place in 1984 in the Compulsory Service Ordinance, 1971 allowing the benefit of service rendered in the Army towards seniority in civilian departments to Essential Persons including Engineers. The significant point to be noted is that for an officer to get the benefit of the years of service rendered by him in Pakistan Army towards seniority in the civilian departments where he is, subsequently, appointed is that the service in Pakistan Army has to be as a result of induction or retention under the Compulsory Ordinance, 1971. Capt. (R.) Abdul Qayyum, although he was not inducted into Army service under the Compulsory Service Ordinance, 1971, but when, Pakistan Army had sought options from officers including Capt. (R.) Abdul Qayyum, belonging to Army Corps of Engineers inducted under the Direct Short Service Commission (DSSC) for the project relating to the construction of Kara Koram Highway, for either regular commission or for release from the Pakistan Army, Capt. (R.) Abdul Qayyum had opted for release from the Army. However, it is important to note that Capt. (R.) Abdul Qayyum was not released from Pakistan Army in spite of his option on account of the extraordinary situation in the country after the war of 1971. The Honourable Supreme Court in Civil Appeal No,1895 of 2000 has highlighted this fact in the following words:- "... The appellant had opted for the release from the Pakistan Army, but on account of extraordinary situation in the country after the war of 1971, his release was declined. It was the year 1975 when he was released enabling him to compete for any suitable job in the civil departments. Respondents in the present appeal were appointed as Assistant Engineers in the Communication and Works Department, Government of Punjab after 21-10-1969 and the appellant on release from the Pakistan Army was also appointed as Assistant Engineer in the same department in 1975...."
' In view of the above, it is amply clear that Capt. (R.) Abdul Qayyum was given relief by the Honourable Supreme Court in Civil Appeal No,1895 of 2000 on account of the fact that he was compulsorily retained in Pakistan Army from 1971 to 1975 whereafter he was finally released.
32. It would be pertinent to examine whether the appellant in the present appeal was inducted into the Pakistan Army under the Compulsory Service in Armed Forces Ordinance, 1971 or retained therein compulsorily under the provisions of this Ordinance. From the record it is amply clear that the appellant was neither inducted into Pakistan Army under the Compulsory Service Ordinance, 1971 nor was he retained in Pakistan Army for any period of time or for that matter even for a single day under the provisions of the Ordinance of 1971.
33. It will now be relevant to refer the rules under which the seniority of officers in the various Groups of the Civil Services is determined. It will be seen that seniority of officers in any of the services against which officers are inducted through an examination conducted by the FPSC including the Postal Group is governed by para.12 of the Establishment Division's OM No,1/2/75-ARC, dated 27-1-1995 as amended from time to time in pursuance of S.L.18(7)(ii) of the Schedule appearing at page 1184 of ESTACODE, 2000. Furthermore, Rule 5 of Civil. Servants (Seniority) Rules, 1993 relates to seniority of Army Officers on induction into civil service, cadre or post stipulating that seniority of such officers counts from the date of such induction. Rule 5 or Civil Servants (Seniority)
Rules, 1993 reads as under:-- "5.. Seniority of officers of the Armed Forces on induction in civil posts.--- Officers of the Armed Forces of Pakistan who are inducted in a civil service, cadre or post in accordance with the Government orders and instructions shall take seniority in that service, cadre or post from the date of such induction:" .
' Provided that the officers inducted in one batch shall on induction, retain their inter se seniority as in the Armed Forces of Pakistan."
34. Therefore, in view of the fact that the appellant was neither inducted into the Pakistan Army nor retained therein under the Compulsory Service Ordinance, 1971 and keeping in view the rules governing the seniority of officers of Pakistan Army inducted into civil posts, we have no hesitation in holding that the relief provided to Capt. (R.) Abdul Qayyum by the Honourable Supreme Court in Civil Appeal No,1895 of 2000 cannot be invoked by the appellant in the present case.
35. We shall now turn to the second ground invoked by the appellant i,e, that the Secretary, Communication, Government of Pakistan was not competent to' set aside the order, dated 24-6- 2003 of the Chairman, Pakistan Postal Services Management Board whereby the benefit of service rendered by the appellant in Pakistan Army was allowed to him. In this connection, it would be relevant to examine the powers of the Chairman, Pakistan Postal Services Management Board, as laid down in the Pakistan Postal Services Management Board Ordinance, 2002. The powers of the Chairman under this Ordinance are mentioned in para.4, are as follows:-- "4. Chairman.--- (1) Subject to the provisions of this Ordinance, the rules and regulations made thereunder, the Chairman shall be as BS-21 or 22 Officer.
(2) The Chairman shall have administrative and financial powers as specified in Schedule "I" and "II" to this Ordinance."
' A close examination of the administrative and financial powers of the Chairman, Pakistan Postal Services Management Board, as laid down under Schedules I and II of the Pakistan Postal Services Management Board Ordinance, 2002, makes it clear that no where this Ordinance or Schedule I and II thereunder, extend any authority to the Chairman, Pakistan Postal Services Management Board to determine or alter seniority of officers inducted into the Postal Group consequent to their appointment on the recommendation of the FPSC. Under Schedule-I of the Pakistan Postal Services Management Board Ordinance, 2002, the powers of initial appointment by the Chairman extend to making first appointment to posts in BPS-17 and 18 other than the posts filled through FPSC and powers of promotion to all the posts from BPS-16 to 17, 17 to 18 and 18 to 19 again other than the posts filled through FPSC. Therefore, the Chairman, Pakistan Postal Services Management Board not being empowered by the Pakistan Postal Services Management Board Ordinance, 2002 to determine or alter seniority etc., of officers of Postal Group inducted through examination conducted by FPSC and by wrongly invoking the relief provided to Capt. (R.) Abdul Qayyum by the Honourable Supreme Court in Civil Appeal No,1895 of 2000 had clearly overstepped his authority.
Consequently, any illegal order issued by the Chairman, Pakistan Postal Services Management Board in violation of the powers vested in him under the Pakistan Postal Services Management Board Ordinance, 2002, brought to the notice of the Ministry of Communication, could be taken cognizance of by the appropriate authority in that Ministry. In this case, the Secretary Communication, being the principal accounting officer in the Ministry of Communication and, therefore, the appropriate authority, we are persuaded to hold was competent to set aside the unlawful orders issued by the Chairman, Pakistan Postal Services Management Board.
36. The contention of the respondent No,3 that on promulgation of Pakistan Postal Services Management Board Ordinance, 2002, the Postal Department no longer remained under the Ministry of Communication is not correct as under rule 4 of Schedule-III, Serial No,8 of the Rules of Business, 1973, Pakistan Post Office Department has been clearly shown as an Attached Department of the Ministry of Communication. There has been no amendment in the Rules of Business changing the status of the postal department as being an Attached Department of under the Ministry of Communication subsequent to the promulgation of the Pakistan postal Services Management Board Ordinance, 2002. Even a cursory examination of the Pakistan Postal Services Management Board Ordinance, 2002 would reveal that this Ordinance was promulgated with a view to delegating certain administrative and financial powers to the Board and to the Chairman, Pakistan Postal Services Management Board. As such, the Board and the Chairman, Pakistan Postal Services Management Board had necessarily to confine themselves to the powers delegated to them under this Ordinance and the Schedule-I and II thereunder. Therefore, we have no hesitation in holding that the Secretary Communication acted quite correctly under the provision of section 22 of Civil Servants Act, 1973 while setting aside the orders of the Chairman, Pakistan Postal Services Management Board whereby he had extended the benefit of seniority to the appellant in violation of the powers conferred on him by the Pakistan Postal services Management Board Ordinance, 2002.
37. With regard to the contention of the appellant that the judgment in Appeals Nos.177(R)(C.S.) of 2002, 201(R)(C.S.) of 2002, 283(R)(C.S.) of 2002 and 284(R)(C.S.) of 2002 (Aziz-ur-Rehman Malik and others v. Major (Retd.) Muhammad Arshad Mirza is not applicable to him, we are constrained to observe that this contention of the appellant is wide off the mark for the reason that the judgment relates to the case of an officer serving in Pakistan Army and inducted into the Office Management Group of the Civil services through the process of examination conducted by the FPSC. The case of the appellant is at par with that of Major (Retd.) Muhammad Arshad Mirza in the above judgment, the only difference being that Major (Retd.) Muhammad Arshad Mirza was inducted into the Office Management Group while the appellant was inducted into the Postal Group of the Civil services.
The appeals were upheld through the above judgment on the ground that the respondent i,e, Major (Retd.) Muhammad Arshad Mirza was neither inducted nor retained in Pakistan Army under the Compulsory Service Ordinance, 1971. The case is, therefore, in every way similar to the case of the appellant Capt. (R.) Khalid Zaman in that the latter too was neither inducted nor retained in Pakistan Army under the Compulsory Service Ordinance, 1971. Therefore, we have no hesitation in holding that the contention of the appellant that the judgment does not apply to his case is not correct.
38. In view of the above, we see no merit in the appeal and IF therefore, dismiss it.
39. No order as to costs.
40. Copies of this judgment be sent to the parties under registered cover and to the relevant quarters as per Rule 21 of the Service Tribunals (Procedure) Rules, 1974.