By means of Notification dated 10.05.2005 Muhammad Jamil, was imposed major penalty of "dismissal from service" under S.8 of the Removal from Service (Special Powers) Ordinance, 2000, he assailed that order by filing appeal before the Tribunal, which appeal was decided on 19.04.2010.
That judgment as per stance of the parties was not assailed any further. For the implementation thereof this matter is before the Tribunal over again. The operative part of the judgment dated 19.04.2010 is as follows:-- "6. <i>Since the appellant had been upgraded in BS-17, therefore, an adverse order against him could be passed only by the Chief Executive of Pakistan and not by any inferior authority. However, on the persistent request of the learned counsel for the respondents we direct the respondents to determine the status of the appellant viz a viz his grade. If he had been upgraded at the time the impugned order was passed the matter shall be placed before the competent authority for fresh decision. In the event the appellant was not upgraded and had remained in BS-16 the impugned order would remain effective as it has not been challenged on any other ground except that it was passed by incompetent authority. The process may be completed preferably within a period of three months from the date a copy of judgment is received in the office of respondents".</i> ' The judgment since was not assailed any further, it has attained finality.
2.Ever since the judgment of the Tribunal, the petitioner has been clamoring for its implementation firstly before the Hon'ble Islamabad High Court (W.P.No, 3270/2014 disposed of on 26.01.2015) and eventually filed Misc. Petition No, 440/2015 before the Tribunal in which after repeated interim orders the petition was disposed of on 18.03.2015 with a direction to the respondent to implement the judgment of the Tribunal dated 19.04.2010 within one month. Not having been done, again Misc.
Petition No, 985/2016 has been filed by him alleging non-implementation of the judgment of the Tribunal.
3.The case of the petitioner is that since the posts of Assistant Estate Officer (BS-16) had been upgraded to BS-17 and re-designated as Joint Estate Officer vide Notification dated 14.01.1998, he was BS-17 officer, the competent authority in his case was the Secretary of the Department in terms of Notification dated 10.05.2001 issued under the Removal from Service (Special Powers) Ordinance, 2000; and that as the Competent Authority i,e, the Secretary had not taken any action against him, the order of imposition of major penalty of dismissal from service was without lawful authority.
4.The stance of the respondent-Department however is totally to the contrary inasmuch as it is denied that the petitioner was a BS-17 officer. According. to them be had remained an Assistant Estate Officer (BS-16) whose Competent Authority had taken action against him and passed the order of dismissal from service gut. him.
5.The respective stance of the parties have been considered in the light of the material on the record.
6.An omnibus Notification dated 14.01.1998 had been issued by the competent authority according to which all posts of Assistant Estate Officer (BS-16) were upgraded to BS-17 and their re- designation was also ordered as Joint Estate Officer. The said Notification is reproduced as follows: "GOVERNMENT OF PAKISTAN, WORKS Division * Islamabad, the 14th Jan, 1998.
NOTIFICATION No, F.25(5)/94-E-IV. The competent authority has been pleased to approve the up-gradation of posts of Assistant Estate Officer. PBS 16 to BPS .17 <u>and their re-designation</u> as Joint Estate Officer with the direction that the Joint Estate Officer will supervise the work of Superintendents.
Sd/- (Saif Ali)
Deputy Secretary"
The Notification .applied to all Assistant Estate Officers (BS-16), obliterating the post of Assistant Estate Officer and uplifting them to BS-17 with their new designation as Joint Estate Officers.
7. This Notification had been subject matter of litigation as well which assumes relevance.
Muhammad Ashraf another Assistant Estate Officer like the petitioner had raised the issue of effective date of up-gradation of the posts of Assistant Estate Officers (BS-16) to (BS-17) i,e, the date of Notification (14.01.1998) or 15.10.1998 the date of promotion. He filed Appeal No, 394(L)CS/2006 before the Tribunal, which was decided on 14.12.2009. In that the stance of the respondent-Department was that the post of Assistant Estate Officer (BS-16) was upgraded after following the procedure; that his promotion was deferred due to disciplinary proceedings pending against him; that "Up-gradation of post does not mean that the incumbent shall also be automatically up-graded. Up-gradation of the incumbents of the upgraded posts involves the same process as is required for promotion to a certain post"; and that the promotion of the appellant was made with effect from 15.10.1998 as Joint Estate Officer (B5-17) like others. The appeal was however accepted on 14.12.2009 holding as follows: "4. The up-gradation is not a promotion. When a post is upgraded the order becomes effective from the date it is issued unless provided otherwise. Since the post of appellant was upgraded on 14.1.1998 and there was no indication that up-gradation could be from a future date he was entitled to up-gradation from that date. In the circumstances we allow the appeal and hold that the appellant was upgraded with effect from 14.1.1998. He shall be allowed benefits accordingly".
8. The judgment of the Tribunal was assailed by the respondent-Department before the Hon'ble Supreme Court of Pakistan in C.A. No, 736 of 2010 which was dismissed on 08.07.2013. It reads as follows: "Admittedly, Respondent No, 1 was working in BPS-16 and such post was upgraded on 14.1.1998 to BPS-17 and redesigned as Joint Estate Officer. Subsequently, the department seemingly issued order dated 15.10.1998 purporting to be a promotional order from BPS-16 to BPS-17; the issue between the parties is, what shall be the date on which Respondent No, 1 shall be considered to have attained BPS-17 i,e, either from 14.1.1998 or 15.10.1998. It is clear-to us, that the up-gradation has nothing to do with the promotion and, therefore, any promotional order of the office was a superfluous exercise and has no nexus to the up-gradation of the post, which undoubtedly, as has been admitted by the learned Deputy Attorney General before us today, took effect from 14.1.1998.
Resultantly, Respondent No, 1 shall be entitled to all the benefits of BPS-17 from the date i,e, 14.1.1998 and not 15.10.1998. In the circumstances, we withdraw the leave granting order dated 9.8.2010 and dismiss the matter accordingly".
The judgment of the apex Court to which the respondent-Department was party (as appellant) has held the field till date. The same has even been implemented vide Notification dated 26.02.2014.
9.The net effect of the above mentioned judgment of the Tribunal and of the Hon'ble Supreme Court of Pakistan is that the up-gradation of the post ok Assistant Estate Officer (BS-16) took effect from the date of Notification dated 14.01.1998 and not from 15.10.1998 i,e, the date of promotion. order. The observation of the Hon'ble Supreme Court of Pakistan that<i> "It is clear to us, that the up-gradation has nothing to do with the promotion and, therefore, any promotional order of the office was a superfluous exercise and has no nexus to the up-gradation of the post"</i>, leaves no manner of doubt that the post of Assistant Estate Officer (BS-16) in the Ministry of Housing and Works stood upgraded as Joint Estate Officer (BS-17) and thus the said Muhammad Ashraf was held to be entitled <i>"to all the benefits of BS-17 from that date i,e, 14.01.1998 and not 15.10.1998"</i>.
The petitioner is also an officer/employee of the same Department of Housing and Works and identically placed holding a similar position as Assistant Estate Officer (BS-16) on 14.01.1998 he also stood upgraded as Joint Estate Officer (BS-17) and cannot be denied the similar treatment and io entitled to all such benefits as was the entitlement of Muhammad Ashraf. So far as the import and effect of the Notification and judgment of the Court and its extent of application is concerned.
Suffice it to observe that up-gradation was a policy decision of competent authority about Assistant Estate Officers and not for any fi particular individual. It was not dependent upon any other event.
10.As to the binding force of judgment of Hon'ble Supreme Court of Pakistan, there are numerous precedents by now on the subject. In Pir Bakhsh vs. The Chairman, Allotment Committee and others (PLD 1987 Supreme Court 145) it was held that "In a controversy raising a dispute inter parties, the thing adjudged is conclusive as between the parties both on questions of fact and law, but as to what the Court decides generally is the ratio decidendi or rule of law for which it's the authority".
Further "The rule of conclusiveness to this extent is one of the most inflexible principles of the law; insomuch that even if it were subsequently held by the Courts that the decision in the particular case was erroneous, such holding would not authorize the reopening of the old controversy in order that the final conclusion might be applied thereto". In State Bank of Pakistan and others vs. Mst. Mumtaz Sultana and others (2010 SCM R 421), it was held Undoubtedly and undisputedly the State Bank of Pakistan was party before this Court in all the above-referred judgments. The legal position stated and declared by this Court about the scheme was not for one segment of employees. It was for one and all, failing within the purview of the Scheme. The ambit of Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan, 1973 would get attracted with all force.
There is no dearth of precedents where as a result of the legal position stated by the Court benefits accruing, were given even to those who were not party before this Court. Reference in this context may be made to Hameed Akhtar Niazi's case (supra), Chairman Pakistan Railways case (supra), Khawaja Abdul Hameed Nasir's case (supra), and Aamir Ikram's case (supra)". It was further held; "
It may be mentioned that the issue about the employees not being party to the litigation before this Court loses significance as the Bank itself was party, who was obliged to follow and implement the judgment in letter and spirit, to one and all. The effect of the judgment of the Supreme Court cannot be whittled down or washed away on such premises as are being canvassed by the Bank".
Quite recently in Federation of Pakistan, thru. Secretary Revenue/ Chairman FBR vs. Muhammad Ashfaq Ahmed C.P.No, 1721 of 2016 decided on 04.07.2016 it has been ruled by the Hon'ble Supreme Court of Pakistan as follows: "3. At the very outset when we asked the learned ASC. whether the case of the respondent is at par with that of the appellant before the Tribunal who has been granted relief in Appeal No, 1014(R)CS/2014 decided on 25.02.2015 the answer was in the affirmative.
When this being the case, the respondent could not be treated with a different yardstick. He is not required to file an appeal before the departmental authority or the Service Tribunal, as such benefit has to be extended to the respondent in view of the judgment rendered in the case of Hameed Akhtar Niazi (1996 SCM R 1185) without there being an appeal or representation".
11.By judgment dated 08.07.2013 the Hon'ble Supreme Court of Pakistan has made determination conclusive in all respects about the import and effect of Notification dated 14.01.1998. It is binding on the respondent/Department, under Arts. 189/190 of the Constitution and no one should even think of tinkering with the judgment of the Hon'ble Supreme Court of Pakistan.
12.Thus like Muhammad Ashraf, who had been ignored in the process of promotion due to pending inquiry against him, the petitioner whose post had also been upgraded from BS-16 to BS- 17 with effect from 14.01.1998, the Competent Authority in the matter was the Secretary- of the Department and not any other officer. The stance of the respondent/Department that he continued to remain as Assistant Estate Officer (BS-16) cannot be countenanced as it runs counter to the clear dictum 'of the Hon'ble Supreme Court of Pakistan qua the effective date of Notification dated 14.01.1998. The Notification having been interpreted by the Hon'ble Supreme Court of Pakistan and its effect laid ,2n-, itthe respondent/Department who was party before the Hon'ble Supreme Court of Pakistan, thus they cannot rely upon any other general principle about the effect of up- gradation.
13. It is thus not possible either for the respondent-Department or for any other to take any stance which may have the effect of eroding or .thwarting the very foundation of the judgment of the Hon'ble Supreme Court of Pakistan. The petitioner has thus to be treated as officer BS-17 with effect from 14.01.1998. The authority competent to proceed against the petitioner is specified in Notification dated 10.05.2001 which is as follows: "GOVERNMENT OF PAKISTAN, MINISTRY OF HOUSING AND WORKS Islamabad, May, 10, 2001.
NOTIFICATION No, F.6(18)/2000-Admn.I. In pursuance of the Establishment Division's Notification No, SRO.281(I)/ 2000, dated 27.05.2000 read with. SRO.411(I)/2000, dated 17.06.2000, the authority specified in column 3 of the Table below shall be the competent authority under the Removal from Service (Special Powers) Ordinance, 2000 for persons in various posts in the Estate Office Management in basic pay scales specified in column 2 of the Table.
TABLE Sr.No. Basic Pay Scale of Post Competent Authority
(1) (2) (3)
1. Posts in Basic Pay Scales 17-19 Secretary, Housing and Works
2. Posts in Basic Pay Scales 10-16 or equivalentJoint Secretary (Works)
3. Posts in Basic Pay Scales 1-9 Estate Officer (BS-19). (If the Estate Officer is in BS-18, DS(E). will be the competent authority for posts in BS 3- 9 Sd/- (Ali Akbar Shaikh) Section Officer (A-I)"
Thus only Secretary of the Department could take action against the petitioner and none else.
14. Incidentally during the pendency of the proceedings, the Secretary, Housing and Works has passed order dated 14.09.2015 upholding the imposition of major penalty of dismissal from service against the petitioner. That order appears to have escaped the notice of the petitioner, which ought to have been assailed by him through proper proceedings. He has expressed his intention to file appeal against the same. As he had been continuously pursing the matter in these Miscellaneous Petitions (MPs No, 440/2015 & 985/2016) he may avail the remedy qua the order of the Competent Authority i,e, 14.09.2015. The question of limitation will undoubtedly be considered by the relevant forum as and when any such occasion arises.
15. The petition is disposed of accordingly.