1. IMAM ALI G. KAZI, J.--On 1st October, 1978 the President of Pakistan, (late Muhammad Ziaul Haq) visited West Wharf of Karachi Port to see off Haj Pilgrims when certain members of staff of Customs Department posted there met him and apprised him of their problems. The President decided that posts of Preventive Officers of Customs Department working in Basic National Pay Scale Grade 10 be placed in Grade-13 while appraisers in Grade-13 be upgraded and placed in Grade-17. He recorded his such decision in a minute which was forwarded to the Ministry of Finance, Government of Pakistan and Secretaries of other departments on 2nd October, 1978 for implementing it. Ultimately the Central Board of Revenue, Government of Pakistan issued a Notification bearing No, 155-ACE.I/80 on 15th September, 1980 on the basis of the order of the President of Pakistan mentioned hereinbefore appointing 148 Principal Appraisers/Appraisers in Grade-16 to such upgraded posts in Grade-17 with effect from 1-3-1979 until further orders. They were appointed in that grade on probation for a period of one year and in case such period was neither curtailed nor extended their appointment would be deemed to be until further orders on completion of such-probationary period. The present 52 petitioners are some of such officers who were appointed to the upgraded posts of Principal Appraisers/Appraisers by that notification.
2. The respondents Nos, 3 to 16 herein are officers either working as Assistant Collectors or other equivalent posts in Basic National Pay Scale, Grade-17 of the Customs and Excise Group, of service.
3. All of them were appointed in that Grade on different dates after the date of appointment of petitioners. By a Notification bearing No, 132.ACE.I/83 issued on 19th June, 1983 four out of the said fourteen respondents were promoted to Grade-18 while remaining ten respondents were likewise promoted by Notification No, 285- ACE.I/84 issued on 24th September, 1984.
4. The petitioners being aggrieved by the two notifications referred to above whereby respondents 3 to 16 herein were promoted to Grade-18 have filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 praying that this Court be pleased to:- (A)hold and declare that the (1) Notification No, 132/ACE.I/83, dated 19-6-1983, (2) Notification No, 285-ACE.I/84, dated 24-9-1984 (3) and Notification No, 252.ACE.I/85, dated 15-10-1985 notifying the promotions of respondents Nos, 3 to 16 as incumbents of Grade-18 Officers in Customs and Excise Group being without considering the competing claim of the petitioners, is illegal, arbitrary and consequently have no legal effect.
5. (B)hold and declare that the petitioners are entitled to be considered for promotion as per procedure contained in Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 to the post in Grade-18 in the aforesaid Customs and Excise Group with effect from their respective dates of completion of five (5) years' qualifying service and accordingly direct that the respondents Nos, 1 and 2 shall take appropriate action in that direction according to law.
6. (C)grant such other relief or reliefs or pass such order or orders as may be deemed fit in the circumstances of case.
7. (D)Award the costs of the petition.
8. Mr. Kunwar Mukhtar Ahmed, Advocate for some of the petitioners contended as under:- (1)That the petitioners were appointed to posts carrying Basic National Pay Scale, Grade-17 by the order of the President of Pakistan in exercise of his powers under section 23 of the Pakistan Civil Servants Act, 1973. No exception can be taken to exercise of such power under any law.
9. (2)That petitioners under the rules were senior to respondents 3 to 16 as they were appointed in Grade-17 earlier. It made no difference if the petitioners held posts designated as Principal Appraisers/Appraisers while the respondents held the posts in the same grades carrying designation of Assistant Collectors.
10. (3)That the petitioners had completed 5 years of service in Grade-17 and were entitled to be promoted to Grade-18 under the rules before the respondents 3 to 16 could be promoted to such grade.
11. Mr. Kunwar Mukhtar Ahmed, Advocate for some of the petitioners in support of his first contention relied on section 23 of Pakistan Civil Servants Act, 1973. Reliance in support of his second contention has been placed on the order passed by a Division Bench of this Court on 5-8-1985 in C.P. No D-139 of 1985 wherein it was observed that posts of appraisers and Assistant Collectors of Custom are both in Grade-17. He based his third contention on the broad framework of rules and regulations given on page 729 under the heading of "Customs and Excise Group.' of the Estacode.
12. He further contended that the petition is competent and placed his reliance on cases reported in PLD 1976 Lah. 1310, PLD 1980 Kar. 703, PLD 1980 SC 153 and PLD 1981 Kar 290.
13. Mr. Manzoor Ali Khan, Advocate for the remaining petitioners supported the arguments advanced by Mr. Kunwar Mukhtar Ahmed and further contended that all the petitioners as is evident from the plain reading of the notification appointing them referred to hereinabove were in fact 'appointed' in Grade-17 under the orders of the President of Pakistan. It has therefore not been mentioned in the notification that they have been promoted and appointed in that grade. Similarly respondents 3 to 16 were also "appointed" in that grade. Under the circumstances there can be no dispute in determining their inter se seniority since the petitioners were admittedly appointed earlier in time According to the Rules promotion to Grade-18 is to be made merely on completion of service for 5 years in Grade-17. The petitioners having completed service for 5 years in Grade-17 were qualified to be considered for promotion to Grade-18 before respondents 3 to 16 could be promoted. On question of maintainability of this petition he further relied on cases reported in 1982 PLC 599 and PLD 1986 SC 560.
14. Mr. Khalid Anwar, the Advocate for respondents 3 to. 16 mainly contended that as the petition relates to terms and conditions of service, it is not maintainable in view of Article 212 of the Constitution. A civil servant according to him does not have a vested right to seniority under section 8(1) and (2) of the Pakistan Civil Servants Act, 1973 so as to be able to maintain a petition for enforcement of such a right. He relied on the case reported in 1985 SCMR 386.
15. Mr. Shahudul Hague, Advocate for respondents Nos, 1 and 2 supported the ground taken by Mr. Khalid Anwar, Advocate for other respondents and heavily relied on Article 212 of the Constitution.
16. The President of Pakistan by his minute, dated 1st October, 1978 decided that posts of officers of the Customs Department working in Basic National Pay Scale-10 be placed in BPS-13 while Appraisers be upgraded in BPS-17. Such orders were in fact passed by him in exercise of his powers contained in section 23 of the Civil Servants Act, 1973 which reads as under:-- "23. Saving.-- Nothing in this Act or in any rule shall be construed to limit or abridge the power of the President to deal with the case of any civil servant in such manner as may be appear to him to be just and equitable: Provided that, where this Act, or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided in this Act or such rule."
17. From the plain reading of this section, it becomes clear that the power conferred on the President of Pakistan to deal with the cases of civil servants under this provision of law is without any fetters or restriction of any kind and no exception can be taken to exercise of such unlimited powers. In the present case certain posts in the Customs Department were upgraded and incumbents of that posts were appointed to hold the same post in the upgraded pay scale. The result of the order of the President was that the petitioners and others were appointed to the upgradedd posts and they became the holders of posts in the Basic Pay Scale-17 like the Assistant Collectors of Customs and other officers holding other posts in the same pay scale.
18. The grievance of the petitioners is that they alongwith respondents Nos,3 to 16 were serving in National Pay Scale-17 and they having been appointed prior in time were also entitled to be considered for promotion to National Pay Scale-18 by the first two respondents. The dispute in this case relates to promotion in a higher pay scale and not to the higher post in the service. The officers serving in National Pay Scale-17 in the Customs and Excise group as Appraisers, Principal Appraisers, Assistant Collectors and such other equivalent posts can be considered for promotion in National Pay Scale-18 on completion of five years service in National Pay Scale-17 as prescribed in Establishment Division's O.M. No, 3/7/74-AR-II, dated 29th May, 1974. Such a promotion would not involve a promotion to higher post. Promotion in a grade according to the rules contained in the Circular mentioned above merely prescribed a particular period of service in National Pay Scale-17 for the purpose of promotion to Basic Pay Scales-18, 19 and 20. Such a promotion will only entitle the incumbents for better pay scale without promoting them to higher posts. Admittedly the petitioners and respondents Nos, 3 to 16 were all serving in National Pay Scale-17 and if certain posts in higher grade (National Pay Scale-18) became available, the petitioners on the basis of their seniority could claim to be promoted to that higher pay scale.
19. In circumstances of the present case we are unable to accept the contention of Mr. Khalid Anwar, Advocate that the present petition is not competent under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in view of the bar contained in its Article 212. All that the petitioners want in this case is that they were entitled to be considered for promotion to the National Pay Scale-18 alongwith respondents Nos, 3 to 16 and they seek a direction to the effect that the first two respondents be directed to consider their case in juxtaposition with the case of respondents Nos, 3 to 16. Such a direction indeed cannot be given by a Service Tribunal constituted for the purposes.
20. We, therefore, hold that the present petition is competent and direct the respondents Nos, 1 and 2 to consider the case of the petitioners in accordance with rules and law applicable to their case for the purpose of promoting them to a higher grade of pay scale.
21. In view of above, we allow this petition with no order as to costs.