HAFIZ TARIQ NASIM, J.--- Facts leading to this writ petition are that the petitioners while serving in the agricultural census organization were declared surplus through order dated 15.5.1997 when they were in BPS-16: Later on through order dated 07.10.2002 they were absorbed in BPS-11, however, their pay was protected.
Aggrieved by this the petitioners approached the Federal Service Tribunal but could not succeed.
2. The learned counsel for the petitioners submits that adjustment in lower grade is an outcome of arbitrariness and mala fide, further submits that one colleague of the petitioners approached the Hon'ble Supreme Court of Pakistan through CP. No. 1043 of 2006 the same was decided on 19.1.2007 and the Hon'ble Supreme Court of Pakistan not only granted the relief to the colleague namely Mrs. Farkhanda Tallat but she was granted the compensation of Rs. 25,000/- and even it was directed that an amount of Rs. 1000/- out of the said amount of Rs. 25,000/- shall be paid by the Establishment Secretary from his on pocket on account of his above-mentioned conduct.
3. The learned counsel for the petitioners submits that the petitioners are entitled for the same relief which was granted by the Hon'ble Supreme Court of Pakistan to the petitioners' colleague namely Mrs. Farkhanda Tallat.
4. On the other hand, the learned Deputy Attorney General for Pakistan, submits that the judgment referred is a judgment in personem and not in rem and the benefit of that judgment cannot be extended to the present petitioners, because if they felt aggrieved of the judgment of the Federal Service Tribunal they could move before the Hon'ble Supreme Court of Pakistan like the petitioners' colleague namely Mrs. Farkhanda Tallat but the petitioners did not approach the apex Court hence they cannot be held entitled for the same relief. Further submits that as the judgment of the Federal Se,rvice Tribunal is against the petitioners, which had attained finality, the petitioners cannot reopen the matter at this belated stage. Further submits that the petitioners were not .Only accommodated but their salaries were protected and no injustice was done with the petitioners.
5. Arguments heard; record perused.
6. So far the judgment of the Federal Service Tribunal is concerned, of course the petitioners' appeals were dismissed, however, there was a specific observation in para-8 of the judgment which is reproduced as under:- "This is a pathetic case which should be considered by the respondents on compassionate grounds. It is an admitted fact that the juniors to the appellants have been retained in grade-10.
The respondents may find out ways and means to restore the appellants to their original posts in grade-10 or to any equivalent post."
7. In the case of Mrs. Farkhanda Tallat, which was of the same controversy the Hon'ble Supreme Court of Pakistan after examining each and every aspect of the matter resolved the controversy in the following terms:-- "21. Needless to and that as has been mentioned above, the condition precedent permitting the kind of action impugned before us was the NONAVAILABLITY OF AN EQUIVALENT POST and not . The NON-AVAILABILITY OF A REQUISITION WITH THE ESTABLISHEMENT DIVISON 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 and 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 post 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 and 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 Government 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(R)CS/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 declared 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 Rs. 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 Rs. 25,000/- shall be paid by the Establishment Secretary from his on 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."
8. The learned Deputy Attorney-General for Pakistan put emphasis on the sole ground that as the petitioners did not agitate before the apex Court, so they are not entitled for the same relief which was extended to the petitioners' colleague namely Mrs. Farkhanda Tallat cannot be a convincing argument particularly when there is ample law laid down by the Hon'ble Supreme Court of Pakistan wherein it is held that "according to Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 all citizens are equal before law and entitled to equal protection of law and if this Court decides a point of law relating to the terms and conditions of civil servant who litigated and there were other civil servants who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to others civil servants also, who may not be parties to that litigation in.Stead of compelling them to approach the Tribunal or any other legal forum."
9. In support of these findings, reliance can safely be placed on Hameed Akhtar Niazi v. Secretary Establishment Division (1996 SCM R 1185) and Tara Chand and others v. Karachi Water and Sewerage Board (2005 SCM R 499) and on a recent judgment passed by the apex Court comprising of four Hon'ble Judges and the author of the judgment is the Hon'ble Chief Justice of Pakistan (Government of the Punjab v. Samina Parveen etc. And others) Criminal petition No. 71-L and 72-L of 2008 and C.P. No. 215-L/2008 and others dated 29.4.2008.
Taking strength from the law supra, this writ petition is allowed impugned orders to the extent of the petitioners are declared illegal and are set aside. The petitioners shall be entitled for all consequential benefits too.