Dr. Nazir Saeed, Member.--This Judgment is meant to dispose of all the above mentioned appeals, as the same involve the common questions of facts and law.
2. Vide Order of the Honble Supreme Court dated 24.10.2013, the decision of the Honble Islamabad High Court, Islamabad dated 3.6.2013 passed in ICA No. 734 of 2013 was set aside with direction to the Tribunal that the Writ Petition filed by the above mentioned petitioners be treated as service appeals for decision afresh in the matter.
3. The appellants were aggrieved by the Respondents Notification dated 11.6.2010 whereby eleven officers of Grade-18 belonging to Pakistan Audit and Account Service and Income Tax Group were permanently absorbed in the Military Land and Cantonment Group (ML&C) which may block the promotion of the Grad-17 officers(i.e Appellants) of the Military Land and Cantonment Group to BPS-18. As they had legitimate expectancy of promotion to the next higher grade, but the action of transferring officers from other groups and absorbing them in ML&C service, jeopardized their future prospects in service.
4. The facts of the case, in brief, as given in the memo. Of appeal, are that in pursuance of administrative reforms, an occupational group to be called "Military Lands and Cantonment Group" was formed apart from other occupational groups vide Establishment Division's 0.M dated 11.5.1975.
At the time of establishment of the Group, it was provided that 75% posts in Grade-17 will be filled through competitive examination to be conducted by the Federal Public Service Commission and remaining 25% were to be filled from amongst the departmental incumbents holding posts in Grade 11 and above by completing the required training. It was however, provided that in order to meet shortage of officers, appointment will be made to the post in the group by transfer from any grade of other group or through lateral entry of persons engaged in a profession or in the service of a corporation or private organization. Subsequently in the year ' 2000, the induction in the Military Lands and Cantonment Group was suspended which later on caused the temporary shortage of officers in the ML&C Department.
' Afterwards, when the ban was lifted, the Ministry of Defence (Administrative Ministry of ML&C Department) with consultation of Establishment Division and after getting necessary clearance from lending department (i.e. Pakistan Audit & Accounts Service and Income Tax Group) transferred some officers of BS-17 in the ML&C Department on deputation .Basis for a period of three years in order to meet the shortage of officers. Subsequently, these officers (i.e. Private Respondents Nos. 6 to 11) who were promoted to BS-18 in their parent department had been absorbed in the ML&C through the impugned Notification dated 11.6.2010.
5. The learned counsel for the appellants has assailed the impugned notification dated 11.6.2010 inter alia on the grounds that the practice of permanent absorption of the "Officers of other groups in BS-18 results in blocking the promotion of the Grade-17 officers of the ML&C Group, because vacancies in the cadre are filled by absorbing officers belonging to the other groups which is neither legal nor lawful. That the said practice is also contrary to the Civil Servants occupational groups and services (Probation Training and Seniority) Rules, 1990 which have been validated by the Civil Servant (Validation of Rules) Ordinance, 2001. The learned counsel for the appellant has further placed reliance on the judgment of the Hon'ble High Court of Sindh, Karachi in W.P No. D-932 of 2009 in which it was held that bringing a person from one department of the government to another department of the government as a deputationist and then absorbing him in the borrowing department is not permissible under the law. It is stated by the learned counsel that the respondents have no authority to absorb members of other occupational groups in the ML&C Group, however, even if the authority is assumed, the exercise of discretion is malafide and it has been etercised in utter disregard of the legal principles. The learned counsel has also ascertained that if a person while working as deputationist with a borrowing department is promoted by the lending department, he actualizes the promotion in the lending department and at least after three years can be re-sent on deputation. In the instant case, the deputationists working in ML&C Department were promoted in their lending department but continued working in the ML&C Group and subsequently permanently absorbed in the ML&C Group. By summing up the arguments, the learned counsel states that the direct recruitment to the permanent cadre of any occupational group is only in BS-17 through CSS examination conducted by FPSC under Rule 10 of the Civil Servants (APT) Rules, 1973 read with Section 7(1)(a) of the Federal Public Service Commission Ordinance, 1977 or through induction from Armed forces by the selection Boards constituted for this purpose. Hence the act of private respondents has distorted the proportion of recruitment quotas laid down by the Establishment Division for various regions and Provinces vide their 0.M dated 12.02.2007. In support of his arguments, the learned counsel placed reliance on the cases reported as 2012 PLC(CS)1232,2010 PLC(CS) 1377 and 2011 PLC(CS) 956.
6. The official as well as private respondents have vehemently opposed the appeal mainly on the grounds of limitation as well as that these appeals have been filed in violation of Section 4 of the Service Tribunals Act, 1973 whereby before approaching the Tribunal, the civil servants have first to avail departmental remedy and then come to the Tribunal against original or appellate order. On merits, it is stated by them that the appellants have got no cause of action for the reason that three of the appellants have already been promoted to Grade 18 and the promotion of remaining appellants is in the process of consideration which could not be completed due to issuance of stay order ill the matter by the Islamabad High Court. It is contended by the respondents that the private respondents posted in the ML&C Group initially were on deputation and in order to meet the shortage of staff from other groups, consent was obtained from borrowing as well as lending departments and thereafter they were absorbed. The learned counsel further states that prior to their absorption, the selection committee was constituted and on the recommendation of the selection committee, officers were absorbed in accordance with the rules as provided in ESTACODE. So at this stage, under the principle of locus poenitentiae, a right has accrued to them and the same cannot be taken away. The respondents have also affirmed that the appellants being the departmental incumbents, do not get affected by such absorption in higher grades in any manner, whatsoever. From a logical standpoint based on the settled law, if there was any adverse affect on the appellants due to absorption of CSS qualified officers, such as the respondents Officers, the appellants could not have claimed the adverse affect on their future promotion prospects for the reason that their promotion to Grade 18, as and when it would become due, would be duly considered against the available vacancies, which are still plenty in numbers.
Hence these appeals have been filed on the basis df surmises and conjectures.
7. We have heard the learned counsel of the respective parties and have also carefully perused the record.
8. First, we would like to address the objections of the respondents that these appeals are hit by the principal of limitation as well as contrary to Section 4 of the Service Tribunals Act, 1973. In this regard, we referred to of the Order of the Hon'ble Supreme Court dated 24.10.2013 whereby the case of the appellants was remitted to the Tribunal for decision in accordance with law. It is pertinent to mention here that the respondents while remitting matter to this Tribunal did not raise the question of limitation but had also given their agreement on the treatment of Constitutional Petition as service appeal. Now, at the forum of this Tribunal, the question of limitation raised by the respondents carries no weight and becomes irrelevant. Secondly, the .Hon'ble Supreme Court was conscious of the fact while deciding the appeal of the appellants that they were challenging the impugned order before the Islamabad High Court has not followed the procedure as provided in Section 4 of the STA, 1973, but even then ignored such facts and remitted the Writ Petition of the appellants to this Tribunal for decision, meaning thereby that the apex Court has not pressed such facts and directed for decision of the appeals on merits. So, in the light of such observations, the preliminary objections raised by the respondents are not sustainable.
9. Now we would like to discuss the issue of absorption whether it was legal or not without emphasizing its impact on seniority. By perusal of record, it is pointed out that vide Notification dated 11.6.2010 which has been assailed through these appeals, two officers of Pakistan Audit & Accounts Service and nine officers of Income Tax Group were absorbed in the Military Lands & Cantonments Group who were all in BS-18. It is an admitted fact that during the year 2000, the ML&C Group was disbanded and subsequently restored in 2010 which resulted in the shortage of staff in the ML&C Group due to non-recruitment of officers. In this respect, it is observed that a representation was made to the then Prime Minister, wherein it was decided after consultation that the CSS qualified officers already working on deputation be absorbed in ML&C Department. In this regard, a committee was constituted by giving the mandate to decide the absorption case of the private respondents. On the recommendation of the committee, the Prime Minister being the competent authority accorded approval which was in our opinion according to rules and regulation. Moreover, it is also an admitted fact that the appellants who agitated the notification of absorptions in this Tribunal have no cause of grievance regarding promotion as three of the appellants have already been promoted during the pendency of the appeals as well as the remaining are to be considered for promotion after pronouncement of this decision. Thus in the circumstances, we find not a single illegality in the whole process of absorptions as has been carried out in accordance with Establishment Division 0.M dated 11.5.1975. In this regard, the case reported as 2013 SCM R 1752 as referred by the learned counsel for the appellant is distinguishable from the facts of this case, as the reported case surrounds on the absorptions which had been made in the several departments of Sindh Government on the orders of Chief Minister, Sindh Government by taking the element of political influence. In the present case no such element has been found. Secondly, if the contention of the learned Counsel for the appellant is accepted regarding extension of benefits of the judgment of the apex Court, then the sufferers of the benefits accrued tie, the Private Respondents would be left with no remedy which . Would be against the principle of audi alteram. Partem. Therefore, with due reverence and diligence, we feel that the present case could not be decided on the analogy of those cases which had already been decided by the Hon'ble Supreme Court through C.R.P No. 193/20134ttc, as we feel that the same are distinguishable from the facts and circumstances of the present case.
10. As far as legal aspect of the case is concerned, Clause 08 of Serial No. 10 (ML&C Group) of Rules and Procedures provided in ESTACODE is to the following effect: "Lateral Entry:--In order to meet shortages of officers in the Military Lands Cantonment Group or to meet specific requirements, appointments may be made to posts in Group in any Grade by transfer from other Groups, or by recruitment through lateral entry of persons engaged in a profession or in the service of a corporation or private organization, who possess such professional qualifications and experience, as may be prescribed from time to time." (underlined to provide emphasis)
' The aforesaid provision of law clearly shows that the Establishment Division had the authority to absorb officers from other services into ML&C service on account of shortage of officers. Thus, the aforesaid provision supported the absorption of the.Private respondents, and as such, it cannot be considered as illegal unless the aforesaid provision is omitted. Hence, the impugned Notification dated 11.6.2010 does not suffer from any illegality and the same is up-held.
11. However, before parting .With the judgment, we want to agitate the point of adverse effect on the seniority of the existing civil servants which had emerged while exercising the practice of absorption. In this regard, it needs to be mentioned here that the seniority of existing civil servants in any Group of service should not be disturbed as a result of absorption from one Group to another. Because, if this tendency is encouraged, it will create much frustration in the other employees of same Grade and cadre and will also obstruct and hinder the right of promotion of the deserving employees. The good governance demands that efforts should be made to fill up the posts in accordance with rules. Our constitutional and legal system attaches foremost importance to transparency and fairness in the administration of matters relating to appointment and career building of civil servants who are required to perform sensitive public duties strictly in accordance with law. There is no room for spoils system in our jurisprudence. Therefore, while exercising the practice of absorption from one service Group to another, these observations should be given due consideration in order to avoid the element of depriving lawful right of promotion as well as to save the public exchequer from unnecessary litigation. With this direction, the appeals are disposed of.
12. This judgment shall apply mutatis mutandis to all the appeals mentioned above.
13. No orders as to costs. Parties be informed.