Muhammad Mushtaq Jadoon, Member.--The appellant has filed this appeal against the impugned order dated 2.3.2018. Appellant joined as Junior Auditor (BS-11) in April, 201.1. He filed departmental appeal on 22.09.2017 to CGA praying for amendment in recruitment and promotion rules and to add provision for promotion of Junior Auditors to AAO on passing of PIPFA Examination.
Earlier the appellant filed Service Appeal No. 06(Q)CS/2018 which was disposed off, vide Court order dated 26.01.2018, with the direction to the Appellate Authority to consider the departmental appeal dated 22.09.2017 as pending and decide the same within a period of two months as per provisions of Rule-6 of Civil Servant (Appeal) Rules, 1977. Accordingly, the respondents issued final order dated 2.3.2018, rejecting the departmental appeal citing reasons of on-going direct recruitment for 771 posts of Auditors (BS-16). Appellate Authority further stated amendment in rules, at this stage, would stop the whole recruitment process. However, it was indicated in the cited order that the matter May be taken up with the Establishment Division/FPSC once the recruitment process is over.
2. Appellant has prayed that:-- a) on acceptance of appeal the impugned appellate order dated 2.3.2018 may be set aside and the respondents may be directed to amend the recruitment rules for the post of Junior Auditor (BS- 11) in CGA by adding a provision of promotion from Junior Auditor to Assistant Account Officer (BS- 17) on passing PIPFA Exam;
(b) he further prayed that the Junior Auditor may also be provided an opportunity of training in line with the approved O.M. dated 21.11.2013, issued by the Establishment Division;
(c) Benefits of FST judgment dated 30.01.2017 and the judgment passed by the Hon'ble Supreme Court of Pakistan dated 20 and 21.11.2014 may be extended to the appellant as well.
3. Arguments advances by the learned counsel for the appellant focused on the amendments made, vide impugned appellate order dated 2.3.2018, and prayed that the respondents i.e. CGA may be directed to add provision of promotion directly from Junior Auditor to AAO on passing PIPFA examination and may also be given permission of PIPFA training to Junior Auditor in line with Establishment Division O.M. dated 21.11.2013. In support of his arguments he relied on FST judgment in Appeal No. 405,406(R)CS/2014 & 438(R)CS/2016 dated 30.01.2017 and Hon'ble Supreme Court judgment in CA No. 599-602/2014 and CMA No. 3434 of 2014, CMA No. 4915/2014 & CA No. 1547/2014 dated 20/21.11.2014. He further contended that CGA framed 2008-Rules for promotion to AAO from Junior Auditors as per following criteria:- S.#Designation & BS of the PostPersons eligibleConditions of eligibility 12 3 2Audit (BS-17) OfficerAssistant Audit Officer (BS-16)03 years service as Assistant Audit Officer (BS- 16)
3Assistant Audit Officer (BS-16)Senior Auditor (BS- 14)/Junior Auditor (BS-07)(i) 03 years services as Senior Auditor (BS-14) or 05 years services as Junior Auditor (BS-07)
(ii) Having qualified the SAS/PIPFA (Public Sector).
BS-14 to BS-16 and BS-16 to BS-17. In 2013 CGA draft recruitment/promotions rules which were forwarded to Establishment Division which were approved by the Establishment Division vide O.M. dated 21.11.2013. Same were sent back to the CGA with the direction to seek concurrence of FPSC.
4. Apart from promotion criteria from Junior Auditor to Senior Auditor and AAO the quota for promotion, and direct recruitment was prescribed. CGA forwarded the approved rules vide O.M. dated 21.11.2013 to FPSC for concurrence and FPSC, without having powers, made the drastic changes amounting to rewriting of rules. FPSC also changed the appointment of direct and promotion quota, which falls within the purview of parent Division (i.e. Finance Division/CGA) and Establishment Division. The same were notified as such by CGA vide SRO dated 15.7.2014 without questioning the validity and legality of such changes. The rules were not circulated by AG, Balochistan for information of officers and the appellant came to know about the changes when he applied for PIPFA training.
5. The learned counsel for the appellant dilated upon the role of FPSC as set by the Hon'ble Supreme Court judgment in CA No. 599-602/2014 and CMA No. 3434 of 2014, CMA No;4915/2014 & CA No. 1547/2014. Vide para-9 of the judgment, the Hon'ble Supreme Court held that the role of FPSC is mainly advisory and pertains to examination, qualifications and method of recruitment and thus has no mandate to make fundamental changes in the rules framed by CGA and approved by the Establishment Division, as both were competent under Rule 6(1) of Civil Servant (APT) Rules, 1973 and Rules of Business, 1973 (henceforth to be referred as ROB). He concluded his arguments that in view of FST and Hon'ble Supreme Court judgments the appellant is entitled to the benefits of cited decision extended to other civil servants as held in 1996 SCM R 1185.
6. Learned AAG, alongwith DR, opposed the arguments put forward by the learned counsel for the appellant and contended that appellant has no locus stand' and amendment in rules is the mandate and power of the government. The Tribunal, vide its order dated 22.9.2017, only directed the respondents to consider his appeal which was duly considered and rejected vide order dated 2.3.2018. FPSC proposed amendments in the Draft Rules which were agreed to by CGA and duly notified vide SRO dated 15.7.2014. Furthermore, the recruitment process of 771 posts of Senior Auditors (BS-16) through FPSC is almost in final stage and revision in rules at this stage is not feasible. While Respondent No. 3 (FPSC) in their comments relied on Rule 3(2) of Civil Servant (APT)
Rules, 1973, Section-71(b) of FPSC Ordinance, 1977, Establishment Division O.M. dated 27.8.1978, page 1239-1240 of Estacode-2007, and 10.7.1988 page 60-61 of Estacode-2007, SRO No. 639(1)12014.
Learned AAG was of the view that it is not the moot point whether FPSC was competent to make such drastic policy level amendments in the Draft Rules or not? The fact is that the parent department i.e. CGA did not object to it and notified the Rules containing all the amendments inserted by the FPSC. Rules have been duly notified and the appellant has no locus standi to challenge the same.
7. We have heard the arguments from both sides and have perused the record.
8. Rules of Business, 1973 (hereinafter to be referred as ROB) have been framed directly under Article 99 of the Constitution. It authorizes the Federal Government to frame rules for allocation and transaction of its business and specify the manner in which orders and other instruments made and executed in the name of President shall be authenticated. Thus, it is the Legislative Authority delegated to the executive i.e. Federal Government by the legislature under the Constitution.
Therefore, sanctity and superior role assigned to the Divisions under ROB. All- other authorities and roles have been delegated under same Act, Rules and executive orders. The word "Rules" should not be equated with other rules framed under the Acts and Ordinances. ROB are the rules to run the State. One of the rare delegation of powers by the legislature, under the Constitution, to the executive (Cabinet) to frame rules. Under the ROB the Constitutional, legal (law), rules and executive decisions are to be stream-lined and regulated. Thus the role and responsibilities assigned to the Divisions and other entities under ROB are for more superior and pervasive then the role assigned to an entity under an Act, Rules, directives or Office Memorandums.
9. Powers and functions of parent Division have been clearly defined in ROB, 1973, FPSC Ordinance, 1977, Civil Servants Act, 1973 and Estacode. In this case parent Division is Finance Division while CGA is an attached department as per Schedule-Ill, (Rule-4(4) of ROB). Approval of rules under Civil Servants Act, 1973 falls within the domain of Establishment Division as per Schedule 5(v). Strictly following ROB, CGA should have routed the draft rules through Finance Division. It is the domain of Establishment Division as per Schedule-II of Rules of Business to review and regulate all matters regarding the civil posts in connection with the affairs of the Federation and all Pakistan service in regard to recruitment, promotion, conduct and discipline, policy regarding recruitment to various grades, training in public administration, administration of Civil Servants Act, 1973 and rules made therein, re-organization of Division or an attached department and determination of status of government officers. Functions of FPSC have been defined under FPSC Ordinance, 1977 and FPSC Rules, 1978.
10. Procedure of framing rules by the attached department, consultation with the FPSC, role of parent Division and ultimately the final approval by the Establishment Division, have been clearly defined in the Rules of Business, 1973 and OMs issued from time to time. Yet both procedural path and role assignment are either not followed or violated as proceedings and record of this service appeal indicates.
11. To start with CGA, framers of rules in this case, is an attached department of Finance Division (S.No. 28, Schedule III of ROB). Secretary of Division, as per Rule 5(9)(g), shall be responsible for the careful observance of Rules of Business, 1973. Consultation among Divisions laid out in Part B, Rule-
8. Matter referred to the Secretaries Committee as per Rule 9. Consultation among Division set-out the broad principles by each Division and in the subsequent Rules, specific role of each Division prescribed. Consultation with a particular Division is subject and issue-based. Powers and business of each Division explained in Schedule II of ROB.
12. We revert back to instant appeal to discuss powers and role of Establishment Division delegated under ROB, as below:- 10(A) "11(d) a change in the terms and conditions of service of Federal civil servants; 11(e) a change in the statutory rights and privileges of any Federal Government servants; 11(i) rules for recruitment to any post or service, including the question of removing a post of service from the purview of the Federal Public Service Commission for the purpose of recruitment.
Schedule 5A making of rules under the Civil Servant Act, 1973. Schedule II. S.No. 10 Establishment Division.- 10(1) Regulation of all matters of general applicability to [civil posts in connection with the affairs of the Federation] including,--
(i) Recruitment; 2[ia] Promotion;] iii) Verification of character and antecedents; iv) Terms and conditions of service (including reemployment after retirement) other than those falling within the purview of the Finance Division; 10(3) Policy regarding recruitment to various grades.
10(B) Rule-12. Consultation with Finance Division.-- 12(1) No Division shall, without previous consultation with the Finance Division, authorize the issue of any orders, other than orders in pursuance of any general or special delegation made by the Finance Division, which will affect directly or indirectly the finances of the Federation or which in particular involve.- 12(h) a change in the terms and conditions of service of Government servants, on their statutory rights and privileges, which have financial implications; 12(i) interpretation of rules made by the Finance Division; 10(C) Rule-14. Consultation with the Law Division.- 14(c) before the issue of or authorization of the issue of an order, rule, regulation, by-law, notification, etc. in exercise of statutory powers; 10(D) All Divisions Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.
13. In view of spirit and principles laid down in the ROB and to avoid duplicity, discrimination and repugnancy the following procedure must be followed in a sequential manner, in service matters. a) Framing of Draft Rules - Attached Department. b) Law and Justice Division. Vetting of Draft Rules. c) Submission to and clearance by the Parent Division. d) Concurrence of Finance Division in case of financial implications. e) Consultation with FPSC by the Attached Department. f) Resubmission to parent Division alongwith comments of FPSC and to Finance Division, if so required. g) Submission to Establishment Division for final approval. h) Approval by Establishment Division and reference back to Parent Division, so that to enable the parent Division to note and examine the amendments made by the Establishment Division. i) Go ahead signal to Attached Department for Gazette notification by the parent Division.
14. Function of FPSC defined under Section 7 of FPSC Ordinance, 1977, as under:-- "7. Function of the Commission;
(1) The functions of the Commission shall be--
(a) To conduct tests and examinations for recruitment of persons to All Pakistan Services, the civil services of the Federation and civil posts in connection with the affairs of the Federation in basic pay scales 16 and above or equivalent, 1a) The recruitment to the posts in basis pay scales 11 to 15 made by any authority or person on or after the 28th May, 2003, other than through the Commission, shall, notwithstanding any provision of this Ordinance or any other law, rule, notification or any order, decision of judgment of any Court or forum, be deemed to be, and always to have been validly made, taken or done and shall not be called in question in any Court or forum or any ground whatsoever."
(b)To advise the President; i) On matters relating to qualifications for and method of recruitment to, services and posts referred to in clause (a); ii) On the principles to be followed in making initial appointments to the services and posts referred to in clause (a) and in making appointments by promotion to posts in BPS 18 and above and transfer from one service or occupational group to another; and iii) On any other matter which the President may refer to the Commission, and
(c) To hold examinations for promotion for such posts as the Federal Government may, from time to time, by notification in the official Gazette, specify."
15. Respondent No. 3 (FPSC), in their parawise comments, has relied on Rule 3(2) of Civil Servants
(APT) Rules, 1973, Section 7(1)(b) of FPSC Ordinance, 1977 and Establishment Division O.M. dated 27th August, 1978 (Pp 1239-1240 of Estacode-2007) and 10 July, 1988 (Pp 60-61 of Estacode-2007). In the comments the FPSC has used the word "Concurrence" while in the covering letter dated 23.12.2013 addressed to the CGA the word "Approved" has been used, which has caused confusion.
As held by the Hon'ble Supreme Court of Pakistan in CP No. 599-602/2014 and CMA No. 3434 of 2014, CMA No. 4915/2014 & CA No. 1547/2014 that the role of FPSC is mainly of advisory nature as the very opening word "To advise the President" Such advice shall be on matters relating to "qualifications" for and ."method of recruitment" to service and posts referred to in Clause (a). Word "Recruitment" is used in Section 7 (a) of FPSC Ordinance, 1977 has been defined in the explanation as under:- "Explanation.--In this section, "recruitment" means initial appointment otherwise than by promotion or transfer. The Federal Public Service Commission (Functions) Rules, 1978 which prescribe the posts in connection with the affairs of the Federation recruitment to which should be made through the Commission.....
(emphasis added atpage-1008 of Estacode-2015)
16. Plain reading of law, Civil Servants Act, 1973, Civil Servants (APT) Rules, 1973, FPSC Ordinance, 1977 and provision contain in Estacode relating to consultation with the FPSC further crystallize the view point that it mainly pertains to qualifications in method of recruitment for posts in BS-16 and above.
Policy of Government (notified through 0.Ms. of Establishment Division), laws, rules, setting the scope of consultation with the FPSC. It cannot be stretched beyond the parameters set under the law and the cited judgment of Hon'ble Supreme Court. Thus the promotion, recruitment BS-16 and promotion versus direct recruitment quota are excluded from the purview of consultation with the FPSC. It is the authority which solely rests with the concerned attached department, parent Division and ultimately the Establishment Division. Estacode 2015 (page-1008-9) prescribes procedure of framing of rules and consultation with the FPSC.
".... It is open to the Ministry/Division concerned either to make a simultaneous reference on the subject to the Establishment Division and the Federal Public Service Commission, or to first consult the Establishment Division and thereafter make a reference to the Commission. If there have been any cases after the 22nd December, 1977 when the FPSC Ordinance came into force, where the concurrence of Establishment Division was obtained but not that of the Commission, an immediate reference may now please be made to the Commission so that the requirements of the statute are complied with....
It is evident that recruitment means fresh appointment. Posts in Clause (a) means posts in Basic Pay Scale 16 and above or equivalent. While sub-section 7(1) b(ii) defines the role of FPSC in regard to principles to be followed in making initial appointments (emphasis added) to the service and posts referred to in Clause (a), which means BS-16 and above.
17. Thus the advisory role of FPSC is in regard to; a) Matters relating to qualifications for (BS-16) and above; b) Method of recruitment; and c) The principles to be followed in making initial appointment to the service and posts in BS-16 and above.
FPSC, in an advisory role, can either concurs as such with the proposal or may propose amendments and such concurrence would be within the parameters, and to the extent of aspects, explained as above. In this case entire draft rules revised and that too in regard to promotion, from BS-11 to BS-16 plus the promotions and direct quota as well which is against the spirit of laws and Rules of Business. FPSC has offered no advice pertaining to prescribed role as elaborated above.
18. Respondent No. 3 (FPSC) reference to Establishment Division O.M. dated 27.8.1978 the same has been explained at para 4.1 of Estacode-2015 (Page-1008) whereby the amendment in Section 7 of FPSC Ordinance, 1977 were notified. The word recruitment used in Section 7 (a) has been clarified in the explanation to the O.M. and the "Recruitment" mean initial appointment other than by promotion or transfer and these rules provide that all posts in BS-16 and above which are filled by direct recruitment shall be filled through FPSC. The consultation with the FPSC in matters of appointment dealt in para 4.2 of Estacode-2015 (page-1009) as "Consultation with the FPSC in matters of appointments prescribed that Ministry/Division are requested to ensure that all posts in BS-16 and above, falling in the direct quota, continued to be filled by the FPSC". Vide para-3 of 4.2 further elaborate provision contain in Section 1(b) of FPSC Ordinance, 1977 that the Commission will advise the President on matters relating to qualifications for in method of recruitment, the services and posts recruitment which are required to be made through Commission.
19. Principles and spirit of ROB assign the role of frame draft rules to the Head of the Attached Department and the Division, who have the professional and technical knowledge about the nature of work of various tiers of organization, qualifications, expertise and level of experience required. In this case it is CGA and the Finance Division being parent Division. A Division or Institution might be having multiple powers but in case of offering comments, and expert opinion, the role must be, logically, confined to the limits and parameters of proposed draft of rules, which a Division or other Institution exercises as per ROB, laws, rules and OMs. Such role of Divisions have also been defined as exercising intra Division consultation and specific role while concurring and rendering advice.
Like role of Law Division in vetting the rules is to ensure that legal language and context is correct and not repugnant to fundamental rights and the Act under which Rules are being framed.
20. In this case Finance Division is the parent Division. Thus the comments offered by Respondent No. 1 (i.e. Finance Division) in regard to recruitment rules framed by CGA, an attached department of Finance Division, taking the stance that the CGA has full powers with respect to its employees is not correct. The fact is that it not an ordinary petition or service appeal of BS-14 employee of CGA but by implication the appellant has challenged the vires of CGA notified rules. Thus the Finance Division, being parent Division, has the prescribed and assigned role as per mandatory provisions of ROB. As a matter of fact the CGA must have routed Draft Rules through the Finance Division for onward submission to Establishment Division. Otherwise, also any amendment or revision of service rules which would be having financial implications and all such cases like promotion policy invariable carry financial implications, as it would affect directly or indirectly the finance of the Federation. As per Rule 11 of Rules of Business Establishment Division is the Competent Authority in regard to terms and condition of civil servants, statutory rights and privileges. Establishment Division has institutional knowledge, broad picture of all the employees of Divisions, Institutions, entities, bodies and thus in a much better position to review such promotion and recruitment rules to ensure that such rules are neither discriminatory nor more beneficial to one organization.
21. Government has the powers to frame or amend the rules, but such powers are not unbridled and subject to fundamental rights and principles of policy as enshrined in the Constitution and Section 3(2) of Civil Servants Act, 1973. In reported case 2002 PLC (CS) 94, while relying on 1991 SCMR 1041 (I.A. Sherwani and others vs. Government of Pakistan through Secretary, Finance Division) it was held "It is evident that it has been constantly held that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any is by way of appeal before the Service Tribunal even when case involves vires of a particular service rules or notification". In another case the Hon'ble Supreme Court of Pakistan, in PLD 1980 SC 153 (Iqam Ahmed Khurram Pditioner vs. Govt. of Pakistan and others) further elaborated as "As the rules per force alter the method of recruitment and promotion in supersession of existing rules which provides a cause of action for the grievance qua the alteration of terms and conditions of service and an appeal will lie to the Service Tribunal". In a recent judgment Hon'ble Supreme Court of Pakistan, in Civil Petition No. 4852 of 2019 (on appeal from FST judgment dated 17.10.2019, passed in Appeal No. 1057(R)CS/2018), The Secretary Finance Division etc. (Petitioner) versus Shafiq-ur-Rehman (Respondent) held that, "It may not be out of context to mention here that for the factual controversy, Service Tribunal is the highest adjudicating forum." Similarly, the Hon'ble Supreme Court dictum in PLD 2019 SC 503 that the Supreme Court and Tribunal can examine the vires of rules.
22. Record indicates that the CGA submitted the draft rules to the Establishment Division vide letter dated 21.2.2013 with the following qualifications and experience for promotion plus the promotion quota.
S.#Designation & BS of the PostPersons eligibleConditions of eligibility 1 2 3 2Audit (BS-17) OfficerAssistant Audit Officer (BS-16)03 years service as Assistant Audit Officer (BS- 16)
3Assistant Audit Officer (BS-16)Senior Auditor (BS- 14)/Junior Auditor (BS-07)(i) 03 years services as Senior Auditor (BS-14) or 05 years services as Junior Auditor (BS-07)
(ii) Having qualified the SAS/PIPFA (Public Sector).
Promotion quota:- Sr.#Designation & BS of the PostPersons eligibleConditions of eligibility 1 2 3 4 2.Assistant Audit Officer (BS-16)Senior Auditor (BS- 16)/Junior Auditor (BS-11)(i) 05 years services as Senior Auditor, 10 years service as Junior Auditor for non- graduate and 07 year service as Junior Auditor for Graduate,
(ii) Having qualified the SAS/PIPFA (Public Sector Exam),
(iii) On the date of DPC promotion as Assistant Accounts Officer would be considered on seniority cum fitness basis subject to observance of ratio 1:2 b/w unqualified Senior Auditor and SAS/PIPFA (Public sector) Exams Qualified Senior Auditors/Junior Auditors respectively.
3.Senior Auditor (BS-16)Junior Auditor (BS-11)i) 50% of 33% promotional quota Graduate in Commerce/ Method of appointment to the posts shall be as under:- Sr.No. Designation and BS of the postMethod of appointment in percentage By PromotionBy Initial appointment
(1) (2) (3) (4)
1. Accounts Officer (BS-18) 100% --
2. Assistant Accounts Officer (BS-17) 67% 33%
3. Senior Auditor (BS-16) 33% 67%
23. In response to query of Establishment Division, vide U.M. dated 31.12.2012, the position was further clarified that promotion to AAO would be considered on seniority cum fitness basis subject to observance of ratio 1:2 between non-qualified Senior Auditor and SAS/PIPFA examination qualified Senior and Junior Auditors, respectively. Establishment Division accorded approval of the draft rules vide O.M. dated 21.11.2013.
24. The same were forwarded to FPSC for concurrence by the CGA. FPSC vide letter dated 23.12.2013 conveyed the advice of the Commission, just reproduced as under:- "Commission has "approved" the recruitment rules which now be notified." Thus both the words advice and approval have been used in the covering letter. The FPSC made the following changes in the promotion quota and method of appointment, which is reproduced as under:- S.No.Designation BPS (1)(2) (3)
1. Accounts Officer 18 2.Assistant Accounts Officer17 3.Senior Auditor 16 Method of Appointment S. No. Name and BPS of the Post Method of appointment By PromotionBy Initial appointment
(1) (2) (3) (4)
1. Accounts Officer (BS-18) 75% 25% 2.Assistant Accounts Officer (BS-17) 100% ----
3. Senior Auditor (BS-16) 10% 90% Condition for Promotion S. No.Name and BPS of the PostPersons eligibleConditions of eligibility
(1) (2) (3) (4)
1.Accounts Officer (BS- 18)Assistant Accounts Officer (BS- 17)05 years as Assistant Accounts Officer (BS-17)
2.Assistant Accounts Officer (BS- 17)Senior Auditor (BS- 16)03 years' service as Senior Auditor (BS-16) with qualification of APE/SAS/PIPFA (Public Sector) Exam (Senior Auditors on the date of DPC would be considered for promotion on seniority -cum-fitness basis subject to observance of ratio of 1.2 between unqualified and APE/SAS/PIPFA (Public Sector Qualified Senior Auditors respectively.
3.Senior Auditor (BS- 16)Junior Auditor (BS- 11)10 % Graduate in Commerce with three years' service as Junior Auditor 20 % Graduate with five years' service as Junior Auditor.
25. Comparison of Draft Rules sent by CGA, vide para 21 ante, and the amendments made by the FPSC indicates that changes were made not only in experience, and other qualifications but also the promotion quota, while the Junior Auditors quota reduced from 90% to 10% and also excluded from training course for Senior Auditors.
26. In parawise comments Respondent No. 3 (i.e. FPSC) has raised the issue of limitation as well which falls in the domain of CGA, Establishment Division and Finance Division. In case of consultation and concurrence the word "approved" carries different connotation under the law.
Both in concurrence and consultation the opinion or advice is sought which must pertain to the extent of role of that Institution. For approval, in this case the Competent Authority is Establishment Division. It is approval of entire set of rules. In this case the experience for promotion and promotion quota was changed by the FPSC. The role of FPSC has been extensively defined under Section 7 of FPSC Ordinance, 1977. In parawise comments FPSC, in regard to concurrence, referred to Rule 3(2) of Civil Servants (APT) Rules, 1973. Rule 3(2) of Civil Servants is reproduced below: "3(2) The method of appointment and the qualifications and other conditions applicable to a post shall be as laid down by the Ministry or Division concerned in consultation with the Establishment Division."
Cited rule hardly provides any role for respondent.
Rule 3(2) of Civil Servants (APT) Rules, 1973 is crystal clear that qualifications and other conditions applicable to post shall be laid down by the concerned Division. In this case it should have been prescribed by the CGA and Finance Division, in consultation with the Establishment Division. Section 7(i)(b) of FPSC Ordinance, 1977 relates to matters of qualifications and recruitment to service and posts as per Section 7(1)(a), which means the post in BPS-16 and above. While Section 7(b)(ii) deals with initial appointment to the service and post in BS-16 and above and making appointment by promotion to post in 13S-18 and above and from one service or Occupational Group to another and lastly any other matter which the President may refer to the Commission. In the instance case it was not only the recruitment, conduct of examination and qualifications but also the promotion quota which has been changed by the FPSC and that too in case of promotion from BS-11 to BS-16.
27. In a similar case of Pakistan Military Accounts Department (PMAD) carrying the same nomenclature experience and grade, the rules were challenged before the Service Tribunal in Service Appeal No. 405, 406(R)CS/2014 & 438(R)CS/2016 (Navees Ahmed and others vs. Chairman, FPSC & 03 others) Vide para-12 of the judgment it was allowed to add provision of promotion of Junior Auditor to the post of AAO, who had qualified PIPFA examination. Accordingly, the Pakistan Military Accounts Department (PMAD) issued amended rules vide Gazette Notification dated 31.5.2017 with the following amendments in promotion, qualification and promotion quota.
Sr.
No.Name of Post Person eligible Condition for eligibility 1.Assistant Accounts Officer (BS-17) Senior Auditor (BS- 16)/Junior Auditor (BS- 11)Against 67% vacancies
(i) 03 years' service in BS-16 or 05 years' service in BS-11 and above,
(ii) Having qualified the APE / SAS / ICMA (INTER)/CA (Inter) PIPFA) (Public Sector) exam. Against 33% vacancies Senior Auditors would be considered for promotion as AAO on Seniority Cum Fitness basis.
2.Senior Auditor (BS- 16)Junior Auditor (BS- 11)Against 35% vacancies Graduate Junior Auditor with 03 years Service.
Against 15% vacancies Non-Graduate Junior Auditor with 07 years' service on seniority cum fitness basis.
28. Similar stance has been reiterated by the Hon'ble Supreme Court judgment in 2015 SCMR 581 (FPSC & others vs. Altaf Hussain and another) dated 20 & 21.11.2014 in CA No. 599-602/2014 and CMA No. 3434 of 2014, CMA No. 4915/2014 & CA No. 1547/2014. The relevant para of cited judgment is as under: "9....
In other words, the Appellant has only advisory role for the purpose of qualification of different persons and has not been conferred with the powers to determine eligibility or otherwise of a candidate in recruitment process of a department. Recruitment Rules are framed by the respective department of the Federal Government in consultation with the Establishment Division and the Appellant (Commission) has to strictly follow the eligibility or ineligibility criteria mentioned in the Rules. The appellant has not been conferred with the power to amend or modify the recruitment rlesw in terms of Section (7) ibid."
29. In this case not only the criteria in regard to qualifications and quota. In consultancy or concurrence an institution can only offer comments and tender advice to the extent of defined role and not to drastically change the entire piece of legislation which the respondents CGA issued without application of judicious mind. Unilateral changes made by an institution without having the legal powers would create anomaly between same cadre of employees working in CGA and PMAD.
Such discrimination is violative of spirit of Section 3(2) of the Civil Servants Act, 1973, Article 4 and 25 of the Constitution.
30. Procedural irregularities amounting to illegalities committed. Hon'ble Supreme Court in the cited judgment has held that the appellant (FPSC) has not been conferred with the power to amend or modify the recruitment rules. FST judgment in service Appeal Nos. 405, 406(R)CS/2014 & 438(R)CS/2016 dated 30.01.2017 having similar facts of the case in of PMAD has been complied with.
Same cadre of Accounts and Auditor Officers under PMAD and CGA have been subjected to two set of rules, and this discrepancy and discrimination resulted due to drastic amendments made by the FSPC. Appellant in this case is entitled to benefits of judgments of the Hon'ble Supreme Court of Pakistan and the FST on the basis of principle laid down in 1996 SCMR 1185 (Hameed Akhtar Niazi vs. Secretary, Establishment Division.
31. It is classic case of non-exercise of powers vested in an institution and exercise of powers by an institution not vested in it. In exercise of powers vacuum hardly exists. When an institution cedes grounds by not exercising powers, vested in it, the other may arrogate the same to itself.
32. In view of the reasons cited above, appeal is accepted in the following terms:-- i) Recruitment of 771 Senior Auditors (BS-16) already made shall deemed as valid; ii) APT Rules, 1973 notified, vide CGA notification dated 23.12.2013, are set aside. iii) Respondents (Establishment Division, Finance Division, CGA and FPSC) must follow the procedure and sequence as laid down in the Rules of Business, 1973 and as discussed vide para- 13/ante. iv) To avoid discrimination and following the spirit of Articles 4 & 25 of the Constitution and Section 3(2) of Civil Servants Act, 1973 the Rules may be redrafted having same qualifications, promotion and direct quota as held in the FST judgment dated 30.01.2017 and Gazette notification PMAD issued by SRO No. 614(1)/2017 dated 12.06.2017. v) While prescribing qualifications, experience and length of service from BS-11 to BS-16, and then from BS-16 to BS-17 and 18 may be harmonized with the terms and conditions as contained in Finance Division 0.M of 1983, Establishment Division O.Ms, and the amendments made from time to time. vi) A copy of this judgment may be sent to Establishment Division with the direction to circulate procedure and sequence of framing of draft rules, as per para-13/ante to be followed by the attached departments/Divisions, consultation with FPSC, Law Division, Finance Division in case of financial implications and final approval by the Establishment Division.
33. No order as to cost. Parties be informed.