Justice (R) Sayed Zahid Hussain, Chairman.--Zafar Ali, Assistant Tech Adjt Office, has filed this appeal under S.4 of the Service Tribunals Act, 1973 with the prayer that he may be "promoted to the post of Superintendent (BS-16) with effect from the date i.e, 15.06.2015" when his juniors i.e, Respondents No, 3 & 4 were promoted.
2. Tariq Mahmood Khan, Assistant MCA-3020, seeks a similar relief through his Appeal No, 498(P)CS/2015. Both appeals raising almost identical issues and questions, have been heard together and this judgment will determine the fate of both of them.
3. The case of the appellants is that both of them joined the service as LDC/UDC long ago and are at present Assistant (BS-14) and entitled to promotion as Superintendent (BS-16), but have been denied the promotion on the ground "not eligible for promotion due to less qualification"; and that they made departmental representations which exercise has proved futile.
4. The learned counsel for the appellants while stating the factual and legislative background of the matter, has contended that the appellants were civil servants and governed by the law and rules applicable to the civil servants and are not employees governed by the PAC Board Employees (Service) Rules, 2002 notified on 14.04.2005 or notification dated 14.03.2012 by which the eligibility criteria for promotion to the post of Superintendent (BS-16) was changed and varied to their disadvantage. According to the learned counsel the appellants belong to a category who had exercised an option to remain civil servants under the PAC Board Ordinance, 2000 and the PAC Board Employees (Service) Rules, 2002. Any subsequent change in criteria would only be applicable to the employees of the Board and not the appellants - civil servants. He has made reference to the provisions of Pakistan Aeronautical Complex Board Ordinance, 2000, PAC Board Employees (Service) Rules, 2002 as framed under S.7 of the Ordinance and the Board Notification of 2012. It is thus contended that the appellants were entitled to promotion on the basis of seniority- cum-fitness rule, irrespective of the qualification of graduation degree introduced in 2012. It is further contended that the appellants are not asking for reversal of the promotion of Respondents No, 3 & 4 and are only praying for their own promotion on-the strength of seniority-cum-fitness.
5. In the para-wise comments/objections filed by official Respondents No, 1 & 2 the maintainability of the appeals has been questioned on the ground that it relates to the determination of fitness of appellants for promotion, it does not lie under Section 4(1)(b) of the Service Tribunals Act, 1973 and that the appeals are time barred as the promotion criteria was notified on 14.03.2012, whereas the appeals have been filed long thereafter in the year 2015. The further objection is that the PAC Board is the competent authority under S.7 of the Ordinance, 2000 to make Rules, therefore, the said rules are applicable and not any other law.
6. The learned standing counsel while defending the stance of the respondents vehemently contends that the exercise of option by the appellants does not entitle them to seek promotion as they were found ineligible due to lack of qualification. He has also relied upon a judgment, of the Tribunal dated 26.08,2015 in Appeals No, 579 to 608(R)CS/2015 and the review dismissing order dated 10.12.2015.
7. The respective stance of the parties and contentions of the learned counsel have been considered in the light of the material on record and the law cited.
8. Both the appellants are Assistants in BS-14 and they are at S. No, 36 & 37 respectively, whereas the Respondents No, 3 & 4 are at S. No, 38 & 39 in the seniority list. Thus both these appellants are senior to the said respondents as per the prevailing seniority list. The Respondents No, 3 & 4 have been promoted, whereas the appellants have been declared "ineligible due to less qualification". It is in this context that the plea of these appellants is to be considered and judged whether they were eligible to be considered for promotion as Superintendent (BS-16). For that matter the position of law and the rules applicable is to be kept in view.
9. The legal position established is that question of "eligibility" is different than the question of "fitness for promotion". In "Muhammad Anis and others vs. Abdul Haseeb and others (PLD 1994 SC 539)" the distinction between eligibility and fitness has been succinctly brought out "that the question of eligibility relates primarily to the terms and conditions of the service and their applicability to the civil servant concerned and, therefore, the Tribunal has jurisdiction, and whereas the question of fitness is a subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of a Tribunal or of a Court, and, therefore, the Tribunal has no jurisdiction on the question of fitness".
10. Thus there should remain no doubt whatsoever that the question of fitness of a person for a particular post is not within the ambit of jurisdiction of the Tribunal. However, the determination of question of eligibility is well within its jurisdiction. Another established principle is that the competent authority always has the power to amend the rules in the interest of efficiency of service and the rules of promotion can be changed for this purpose. This principle was restated by the Hon'ble Supreme Court of Pakistan in Falak Sher Khan and another vs. Mukhtar Ahmad and others (PLD 1989 SC 262).
11. There is no cavil that it is the domain and prerogative of the Government to change the law, amend or add to the criteria/conditions for recruitment/promotion. It also falls within the 13 domain of policy making authority of the Government, which hardly calls for interference by the Courts. In Zafar Iqbal vs. Director, Secondary Education (2006 SCM R 1427) it was categorically held by the Hon'ble Supreme Court of Pakistan that "the Government is always empowered to change the promotion policy and the domain of the Government to prescribe the qualification for a particular post through amendment in the relevant rules, is not challengeable". Almost similar view was expressed in Fida Hussain vs. The Secretary, Kashmir Affairs and Northern Affairs Division (PLD 1995 SC 701) and Dr. Alyas Qadeer Tahir vs. Secretary M/o Education (Now M/o CADD), Islamabad and others (2014 SCM R 997). The essence of these dictums is that laying down criteria for recruitment/promotions is the exclusive domain of the Government and in case the higher qualification for recruitment/promotion is added by athending the law/rules, the same cannot be objected to nor interfered with. However, whether the amended rule is applicable to a particular situation and a person is again determinable with reference to its scope and extent, if however the Government or the competent authority itself has created categories of its employees through proper exercise of power, unless an appropriate amendment is made in doing away the different categories the persons falling in the respective categories will be governed by law/rules applicable to each of them. In the instant case, the law itself i.e, S. 7 of the Ordinance and Rules of 2002 had created a category of employees who had exercised the option for continuing to be governed by the civil servants laws and rules. The addition of qualification of graduation made through notification dated 14.03.2012 is of no legal efficacy qua such category of persons who exercised option like the appellants.
12. There is no denial of the fact that the appellants joined service in 1977 and 1980 respectively.
They were subject to normal service rules. However, with the promulgation of Pakistan Aeronautical Complex Board Ordinance, 2000 (Ordinance No XXVIII of 2000) on July 7, 2000 a Board was constituted. Its S. 7 invested certain powers in the Board enabling it; "(a) to determine the terms and conditions. of service, recruitment, promotion, transfer, posting, dismissal, discharge, demotion and other disciplinary actions of all officers and other employees: Provided that the terms and conditions of service of any officer or other employees appointed or engaged before the commencement of this Ordinance shall not be varied to his disadvantage and that he shall not be dismissed or removed from service or reduced in rank by any authority subordinate to that by which he was appointed.
Provided further that the officers or employees appointed before the commencement of this Ordinance shall be given an option, after the service rules for the officers and employees of the Board have been made, to opt for the new service rules or to continue to be governed by their existing service rules; but once the option has been exercised by an officer or employee within the time fixed by the Board, it shall be final and an officer or employee who does not exercise the option within the prescribed time shall be considered to have opted for the new rules".
[Underlining supplied for emphasis purposes]
13. The first proviso affords protection to the employees appointed before the commencement of the Ordinance that their terms and conditions shall not be changed to their disadvantage.
14. The second proviso is of more significance and gives choice to the employees appointed before the commencement of the Ordinance to exercise an option either to opt for the new Service Rules or continue to be governed by existing service rules. Such an option was given to the employees.
The appellants are among those who exercised such option and a list of such employees has been placed on record with the comments.
15. The Rules which are being invoked by the respondents to declare the appellants as ineligible are PAC Board Employees (Service) Rules, 2002 notified on 14.04.2005. Those were framed under Section 7 of the Ordinance. Its Rule 2 is of relevance which is as follows:- "2. Application.--These rules shall apply to all the employees in the whole time employment of the Board, working in PAC, other than:-
(i) the employees appointed before the commencement of Pakistan Aeronautical Complex Board Ordinance No, XXVIII of 2000, and opted to continue to be governed by the Civil Servants Act, 1973; (ii)the employees appointed on deputation, secondment or contract unless their terms of appointment or contract make these rules applicable.
[Underlined for emphasis purposes]
16. Rule 4(1) clause (g) of the Rules is also of relevance which defines "Civil Servant"; 4(1)(g) 'civil servant' means Employees of PAC Board appointed before the commencement of PAC Board Ordinance No, XXVIII of 2000 and opted to continue to be governed by the Civil Servants Act, 1973". [Underlining for emphasis purposes]
17. Now reading of the provisions of S. 7 of the Ordinance, Rule-2 and R.4(1)(g) of the Rules, 2002 leaves no room for any doubt that those employees who exercised option to be governed by Civil Servant Act, 1973 and other service laws were excluded from the purview and ambit of the Rules, 2002. For clarity sake their exclusion is fortified by Rules by using the term "other than". As per Chambers 21st Century Dictionary, Revised Edition, page 975, "other than" has different meanings like "otherwise; differently; someone or something considered separate, different, apart from etc". Therefore, the law visualized two categories distinct from each other.
18. The law itself i.e, the Second Proviso to S,7 of the Ordinance, 2000 and the rule-making authority by means of Rule-2 and R.4(1)(g) of Rules, 2002 has created two categories of employees; those who exercised option as envisaged by S. 7 of the Ordinance to be governed by the Civil Servants Act and the relevant laws and the others to be governed by the Rules of 2002. The appellant in a categorical statement in paragraph 4 of the Memorandum of appeal has stated; That the rules were framed by the respondent department i.e. PAC Kamra vide S.R.O dated 11.04.2005, whereby the employees were asked to opt for either to remain under Chairman PAC Rule/Board or remain/continue under Civil Servants Act, 1973 for Promotion. In response, the appellant along with 52 others MRF Civilian Employees exercised his right and opted that they want to be remained under civil Servant Act instead of PAC Rules.Contents of Para-4 of the Appeal are misleading hence denied. The exercise of option by the appellant does not entitle the appellant for consideration to promotion without fulfilling pre-requisities of mandatory criteria of promotion as defined in the recruitment rules governing the subject post.
The exercise of option by the appellant thus is not denied, which is otherwise established from the record.
19. A further amendment made in the Rules of 2002 is by means of Notification dated 14.03.2012 which made the addition of graduation degree (BA/B.Sc.) in the following manner:- S.No. Ref S.No. at Para 1,2 &7Name/Designation and BPS of the post Persons eligibleConditions of eligility
66.
76. Superintendent 16 Assistant/Sectt Asstt. (BPS-14)Graduation degree (BA/BSC)
(b) 04 years service as Asstt./Sectt Asstt in BPS- 14(c)
Qualification 66% It is this condition of graduation degree by which the appellants were declared "ineligible due to less qualification".
21.It may be noted that this amendment is also in the Rules of 2002 framed under the enabling provisions of Section 7 of the Ordinance. It cannot be overlooked that 2002 Rules itself had excluded the appellants (having exercised the option to continue to be governed under the old Rules) from the purview of new Rules. This change/addition in the form of condition of eligibility introduced later on would not in any way militate against the established position of their being covered and governed by the already existing Service Rules.
22. The undisputed position is that prior to the above change/ addition of qualification, graduation for promotion the eligibility criteria was seniority-cum-fitness, the appellants continued to be governed by the said criteria as they fall in the category of those who exercised option and continued to be governed by the service laws.
23. There is another aspect of the matter also and that is that the separate categorization of those who exercised the option to be continued to be governed by the then existing laws was made under S.7 of the Ordinance; whereas an attempt has been made to undo the same through a Notification seeking amendment in the rules. Such a course is not permissible as a subordinate executive measure cannot override the provisions of parent law i.e, S.7 of the Ordinance, 2000, nor it can erode the legal efficacy of a legislative provision Thus a futile exercise has been made to deprive the appellants of their status recognized by the Statute i.e, the Ordinance.
23. By applying the eligibility condition or criteria as laid down in the Rules of 2002/2012 the respondents have overlooked and ignored the provisions of Ordinance i.e, S. 7(1)(a) and its proviso, the Rules of 2002 i.e, Rule 2 and Rule 4(1 )(g) and acted erroneously in declaring the appellants as "ineligible due to less qualification". What the appellants were demanding was absolutely consistent with the law and the rules. They were not asking any thing over and above the law applicable. Rather the approach and action of the respondents has no backing of the law and is unsustainable.
24. Reliance of the official respondents on judgment of the Tribunal in the case of Qaiser Shahzad dated 26.08.2015 (Appeals No, 579 to 608(R)CS/2015) and subsequent order dated 10.12.2015 dismissing the Review Petition No, 169/2015 is in apt inasmuch as in that case the question as to the competency of PAC Board to amend the Rules was involved to which there can be no cavil but the question in the present appeal is about the factum of option exercised by the appellants and its effect and import in the context of the second proviso to S. 7(1)(a) of the Ordinance, the Rules of 2002 and the notification of 2012 and their applicability; and that in the instant appeal the option exercised by the appellants is not in dispute and is rather admitted by the respondent through their comments. Further, in the case of Qaiser Shahzad and Others the respondents had denied the exercise of option by the appellants therein. In the judgment passed in review it is noted that; "10. The respondents have denied that there was exercise of any option by the review petitioners to remain as civil servants. Contrarily, the review petitioners could not controvert the claim of the respondents".
Thus the said ruling of the Tribunal is hardly attracted to the facts and circumstances of the present case as the option exercised by the appellants is an admitted fact.
25. Since the appellants were ignored for promotion due to wrong and inapplicable rules on 25.06.2015 when the Respondents No, 3 & 4 were promoted as Superintendent (BS-16) and departmental appeal is said to have been rejected on 27.07.2015, the filing of appeal on 03.08.2015 is by no means time barred, the objection as to the appeal being time barred, is misconceived and untenable.
26.For the reasons stated above, we accept this appeal to the extent that criteria and condition of promotion sought to be invoked against the appellants by the respondents, has no backing of the law. They are not bound to fulfill the condition of graduation for promotion as Superintendent (BS- 16) and are thus eligible for consideration for promotion to the said post.
27". We are informed that the appellant Zafar Ali is likely to retire on attaining the superannuation with effect from 30.09.2016. It is expected from the respondents to take early steps for the completion of process of consideration for promotion expeditiously.
28. The appeal is accepted accordingly with no order as to costs.