Syed Rafique Hussain Shah, Member.--The titled appeals have got,the chequered history in the sense that the poor appellants had to move for quite some time from post to pillar and pillar to post for redressal of their grievances. Since all the titled appeals have common background and have been arisen in the similar circumstances, they are taken together for disposal through the instant single judgment to be recorded in Appeal No. 359(P)CS/2013.
2. Appellant Gulab Khan of Appeal No. 359(P)CS/2013 was recruited as a Sepoy (BS-1) in the Bajaur Levy Force on 14.06.1989. Later on he was upgraded as a result of General Upgradation Policy in the year 2010.
3. During the year 2007 militancy in the Bajaur area reached to its climax and destroyed all the social fabric of the region. The militants were equipped with sophisticated weapons which were being supplied to them by the enemies of the country while the Levy personnel, on the other hand, had inferior weaponry. Anyhow, the Levy Force of Bajaur Agency was posted at crucial and important check posts to resist and stop the offensive of the militants. Allegedly the appellant alongwith co-appellants deserted the check posts and left them at the mercy of the militants thereby displaying their cowardice and that after their desertion all of them disappeared and did not attend the duty despite repeated calls by the authority. And ultimately the authority was compelled to dismiss all of them from service.
4, While narrating his ordeal, the present appellant submitted that he alongwith his other colleagues was unlawfully dismissed from service vide office order dated 26.11.2007 with immediate effect. The said order was challenged by the affectees before the Federal Service Tribunal through Appeal No. 2(P)CS/2009. The appeal was accepted by the Federal Service Tribunal vide its judgment dated 16.07.2010, reinstating all the appellants in service and setting aside the impugned dismissal orders. The appellant and his colleagues were reinstated by the authority with effect from 24.08.2010 vide office order dated 02.09.2010. That subsequently the Respondent No. 3 (Political Agent/Commandant Bajaur Agency) again terminated the services of the appellant and other Levy personnel on the same charges vide office order dated 27.10.2010 with, immediate effect by treating the intervening period from the date of former dismissal upto the date of reinstatement in service (26.11.2007 to 24.08.2010) as Extra Ordinary Leave. The appellant and other aggrieved Levy personnel again challenged the said order dated 27.10.2010 in the Federal Service Tribunal in Appeal No 49(P)CS/2011. The Federal Service Tribunal vide its judgment dated 27.06.2011 again reinstated the appellant and others in service by setting aside the order dated 27.10.2010. The respondents issued another order dated 24.11.2011 thereby reinstating the appellant and others with immediate effect instead of from the date of their illegal termination from service. Later on, the respondents initiated fresh disciplinary proceedings against the appellant and others and again imposed the major penalty of compulsory retirement from service under the Removal from Service (Special Powers) Ordinance, 2000 vide order dated 13.03.2012 and its corrigendum dated 05.06.2012 with immediate effect. As per the aforesaid corrigendum the period from the, date of their termination from service upto the second reinstatement in service (27.10.2010 to 24.11.2011) was treated as Extra Ordinary Leave (without pay). That on the analogy of upgradation of Police personnel, the posts of Levy personnel in the Bajaur Levy Force were upgraded vide notification dated 20.10.2010. That after compulsory retirement of the appellant and others their pension was calculated on the basis of their previous grade / scale without counting the period treated as Extra Ordinary Leave towards their qualifying service and without fixation of their pay / increment admissible to them in upgraded post held by the appellant and others at the time of compulsory retirement on 13.03.20.12. That the appellant submitted departmental representation dated 07.11.2012 to Respondent No. 3 to remove the anomaly and discrimination to redress his .Grievance but it was not responded to despite the lapse of statutory period and, hence, finding no other way the appellant had to resort to the Federal Service Tribunal under Section 4 of the Service Tribunals Act, 1973 on the grounds, inter alia, that the post of Sepoy had been upgraded to BS-7 before the compulsory retirement of the appellant on 13.03.2012, therefore, pension of the appellant be fixed and calculated in the upgraded post at the time of his retirement from service whereas the respondent-department did not do so and their such act amounted to discrimination; in violation to Articles 4 & 25 of the Constitution of Islamic Republic of Pakistan, 1973, that Respondent No. 2 had already set aside the order of Respondent No. 3 regarding the appellant's dismissal from service with all back benefits by treating the intervening period (26.11.2007 to 24.08.201G) as leave on full pay and, as such, the appellant was entitled to count the period towards qualifying service.
Besides, the Federal Service Tribunal had already set aside the unlawful order dated 27.10.2010 regarding the appellant's dismissal from 26.11.2007 to 24.08.2010 and no further order with regard to Extra Ordinary Leave was issued by the respondent- department, therefore, the said period would be supposed to be duty period and the appellant would be entitled to pay / increments for the said period. That the omissions on the part of the respondents amounted to depriving the appellant and the others of the means of livelihood, which was against the Constitutional obligation imposed upon the State and its Agencies regarding promotion of social justice.
5. It was prayed by the appellant and others to direct the respondents to make their pension in the upgraded post held by them at the time of their compulsory retirement on 13.03.2012 by treating the period of Extra Ordinary Leave from 26.11.2007 to 24.08.2010 and from 27.10.2010 to 27.06.2011 as duty period countable towards their qualifying service, with all consequential benefits.
6. The respondents in their parawise comments resisted the claim of the appellant and others. It was submitted by them that the appellant and others were imposed major penalty as a result of inquiry conducted against them as per law. It was further submitted that at the moment when the appellant was retired he was no more a member of the Levy Force but the benefits of retirement were provided to him as well as to his other companions. However, a person who was retired could not be paid his monthly salary when he was no more member of Levy Force.
7. In this background we have heard the arguments of the learned counsel for the parties and have also gone through the relevant record
8. The stance taken by the respondents in their parawise comments seems irrelevant rather funny because, on the one hand, they admit that the appellant was compulsorily retired from his service as a Levy personnel while, on the other hand, they say that the appellant was retired and, hence, was no more a member of Levy Force. The appellant was certainly a member of the Levy Force and that is why he was compulsorily retired from his service by the respondents. Similarly, on the one hand; according to the respondents, the appellant and others were not members of Levy Force while, on the other hand, they submit that the benefits of retirement were provided to the appellant and his other companions. If they were not the member of the Levy Force then why they were provided the benefits of retirement. The appellant and his colleagues do not ask for monthly salary rather they pray for calculation and fixation of their pension in their upgraded scales.
9. The background highlighted earlier would show that the appellant and others had to face great hardships in connection with seeking redressal of their grievances. All the time they were being dismissed or terminated by the authority, using its unbridled might and all the times they had to approach this Tribunal to get their dismissal orders set aside from here. The respondents in their parawise comments have never denied the fact that the post of Levy Force Sepoy was not upgraded in the year 2010 and the appellant and others were not compulsorily retired in the year 2012. Since there is no specific denial of the said facts from the respondents, the claim of the appellant and others would be presumed to be correct. The appellant has placed on the file office order of FATA Secretary Peshawar dated 12.012010 whereby the Secretary Law and Order had been pleased to accept the appeal of Mr. Nasir Khan, Levy Sepoy bearing Rgt. No. 2625 for reinstatement and setting aside the decision made by the Political Agent/Commandant Bajaur Levies Force vide order dated 26.11.2007 and reinstating Mr. Nisar Khan with full pay and allowances as admissible to him before his dismissal. The intervening period was treated as leave with full pay. The learned counsel for the respondents could not justify such discrimination and preferential treatment with one individual while depriving the others of the same. Needless to explain no discrimination is allowed in our Constitution where equality before law is to be upheld.
10. The learned counsel for the appellant has produced copy of the service book of appellant GULAB Khan wherein he has been awarded BS-7 due to upgradation of Federal levies Force personnel vide notification dated 20.02.2010. The respondent have been unable to deny the contents of entry of the same. It is, therefore, established that at the time of retirement the appellant and others were placed in BS-7.
11. Putting all the relevant factors together in the light of the available record, we think it appropriate rather more nearer to justice that the appellant and his colleagues, similarly placed, should not be meted out discriminatory treatment as compare to their fellow being namely Nisar Khan and many others. We also think it unjust that a person retiring in the year 2012 when the post of Levy Sepoy had been upgraded to BS-7, should not be given pensionary benefits according to the upgraded status of the post. In these .Circumstances, we are constrained to direct the respondents to calculate and fix 'the pay and pension of the appellant and others in the upgraded scales i.e. BS-7 held by them at the time of their compulsory retirement from service, treating the period of Extra Ordinary Leave on duty countable towards their qualifying service.
12. Similarly, appellants of the connected appeals namely Yar Muhammad, Noor Shad, Zar Said, Abdul Hakim, Muhammad Zada and Amir Badshah who were having the ranks of Lance Naiks and Naiks at the relevant time should be given the pensionary benefits according to their scales by then. .
13. Parties to bear their own costs and they be informed in accordance with Rule 21 of the Service Tribunals (Procedure) Rules, 1974.
14. This judgment will mutatis mutandis be applicable to Appeals No. 360 to 369(P)CS/2013.