1. MUNAWAR ALI KHAN (CHAIRMAN). -- This appeal has arisen from the facts and circumstances, which are briefly narrated as follows. The appellant Allah Wassayo was working as Chief Engineer (BPS-20) in the Irrigation and Power Department, Government of Sindh (hereinafter referred as the said Department), when Government of Pakistan in Finance Division, issued Office Memorandum No. F-2 (3)-8.3/86 dated 7th April, 1987 spelling out the mechanism for grant of BPS-21 and 22 to Technical and Professional officers, specially meritorious, of Federal and Provincial Governments.
2. According to the said memorandum 14 posts of BPS-21 and 22 were allocated to the Sindh Province. From these posts one post of BPS-21 was earmarked for the said department. In its meeting held on 10-9-1990 the Provincial Selection Board No. I recommended respondent Mr. Muhammad Alim Baloch, who happened to be the Secretary of the Irrigation and Power Department, for award of BPS-21 against the quota reserved for the said department. Accordingly his name along with the names of other selectees was forwarded to the Federal Government for approval. The Establishment Division of Government of Pakistan vide its No. S/2/90-CP-4, dated 18- 10-1990 conveyed the approval of the competent authority to the grant of BPS-21 to seven officers including the said respondent, requiring the Provincial Government to notify the same in the specified pro forma. It was accordingly notified as per the S&GAD's Notification No. S.O.I (S&GAD)-1/8190, dated 1st November, 1990. Feeling aggrieved by the said notification, the appellant made review petition dated 1-12-1990 to the Chief Minister. As the said petition remained undecided until after the expiry of the statutory period, the appellant filed the present service appeal on 21-3-1991.
3. We heard the learned counsel for the parties at great length and took pains to examine all those documents very closely, which were relevant for disposal of the appeal.
4. The foremost legal objection raised at the Bar was that this Tribunal had no jurisdiction to hear the present appeal. The contention of the private respondent's learned counsel was that since the order impugned in this appeal was made with approval of the Prime Minister, the Provincial Tribunal lacked the requisite jurisdiction to interfere with the said order. It would therefore be necessary to dispose the above objection before proceeding further to scrutinize the merits of the case. It is well-settled that Article 212 of the Constitution of Pakistan provides for total ouster of jurisdiction of all Courts including Constitutional jurisdiction of High Court in Service matters of Government employees. Therefore, the only forum available in such cases is Service Tribunal. We have Federal Service Tribunal at the Federal level and Provincial Service Tribunal at Provincial level.
5. The former deals with cases of Federal employees arising from orders/actions of Federal Departmental authorities whereas the cases of provincial employees arising from orders/actions of Provincial departmental authorities are dealt with by Provincial Service Tribunal. We have to see if this tribunal, which is operating at Provincial level, possesses the necessary jurisdiction to deal with the present appeal.
6. In this connection reference may be made to section 4 of the Sindh Service Tribunals Act, 1973, which inter alia, prescribes the conditions on which this Tribunal can exercise its jurisdiction.
7. Section 4 reads as under: - "Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to himprefer an appeal to the Tribunal having jurisdiction in the matter: Provided that---- (a)where an appeal, review or representation to a departmental authority is provided under the Sindh Civil Servants Act, 1973, or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred; and (b)no appeal shall lie to a Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of a person, to be appointed to or hold a particular post or to be promoted to a higher post or grade: and
(c) ...........................................................................................................................
8. Explanation: -In this section, `departmental authority' means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants."
9. It would appear that for exercise of our jurisdiction four conditions are to be satisfied; namely, first that the appellant is a civil servant within the meaning of its definition given in section 2(a) of the said Act; second that he is aggrieved by final order, original or appellate, of a departmental Authority in respect of terms and conditions of his service; third the appellant has exhausted the departmental remedy and fourth that the appeal does not involve point of determination of the appellant's fitness or otherwise for holding particular post or for appointing or promoting to such post.
10. It is an admitted position that the appellant is Chief Engineer in the Irrigation and Power Department of the Provincial Government of Sindh and as such is a `civil servant' as defined in clause (a) of section 2 of the said Act. Thus he satisfies the first condition. Before touching the second and third conditions which are interlinked, we would like to make sure if requirement of the fourth condition has been fulfilled. As pointed out above, the fourth condition to be satisfied for conferring jurisdiction on this Tribunal is that the appeal does not involve the determination of the appellant's fitness or otherwise for appointment or promotion to a particular post. Looking at the appellant's prayer superficially, it may tantamount to seeking of the private respondent's demotion from the post of BPS-21 and in his place the appellant's own elevation to the said post. But that is not so. The careful perusal of the Federal Government's memorandum, dated 7th April, 1987, would negative the impression that the private respondent has been promoted to the post in BPS-21.
11. Nowhere throughout the above memorandum, is there any indication that for grant of BPS-21 and 22, equivalent number of posts were to be created either in the Federal Government or provincial Government concerned. In absence of such posts, the question of making promotion thereto would not arise. Whatever misgivings may still be persisting in this regard is set at rest by sub-paras. (i)
12. And (vi) of para. 2 of the memorandum. The said sub-paras read as under: -- "(i)In specially meritorious cases. BPS-21 or 22, along with allowances and fringe benefits may be allowed with the approval of the Prime Minister, to technical and professional officers without requiring them to move from their technical posts where their expertise is particularly needed."
13. (vi)Grant of Scale 21 or 22 to the Officer will be personal to him. There would be no need to upgrade the post. He would, however, carry this higher scale in the event of his transfer to another post.--- It is thus clear that the intention of the memorandum is to all allow BPS-21 and 22 to technical and professional officers as a sort of reward in recognition of their special merit, without moving them from their posts. That is to say that with grant of higher scales, which would be personal to them, there would be no consequent upgradation of their posts, and they would carry their higher scale of pay wherever they are transferred. Moreover, for awarding higher scales to them, their cases would not be cleared by the Departmental Promotion Committee but instead special committee would be set up for this purpose and they would be awarded higher scales of pay only on recommendations of the said special committee. Taking all these factors into consideration we are of the view that this is not case of promotion and therefore determination of fitness or otherwise of the promotee, as required by proviso (b) of section 4 hereinabove is not involved. Thus, the fourth condition stands satisfied.
14. As stated above the conditions Nos. 2 and 3 being interlinked are discussed together. Apparently the appellant felt aggrieved by the S&GAD's Notification, dated 1st November 1990, issued over the signature of the Chief Secretary, Government of Sindh. But while interpreting the words "competent authority" mentioned in the said notification, the learned counsel for the private respondent contended that the reference was obviously to the Prime Minister and therefore the order of awarding BPS-21 to the private respondent was actually issued with the approval of the Prime Minister. Therefore, the learned counsel's argument was that the order impugned in this appeal could not but be held as that of the Federal Departmental authority, barring the jurisdiction of this Tribunal. He further submitted that since the impugned order was passed with the approval of the Prime Minister, the departmental appeal was also to be filed before the same authority in the shape of review petition. Since this was not done, he contended, the appellant could not be field to have exhausted departmental remedy before coming to the Tribunal. According to the learned counsel not only the post in which the private respondent was inducted was of Federal Government but also the order whereby his induction was made in the said post was of departmental authority of that Government. Consequently, the Provincial Service Tribunal has absolutely no jurisdiction in the present case. We have given our due consideration to the above arguments of the learned counsel. It is not disputed that for the desired relief the appellant had to approach no forum other than Service Tribunal. If for a moment we accept the arguments of the private respondent's learned counsel that Provincial Service Tribunal has no jurisdiction to deal with the present appeal, then the only alternative available to the appellant would be the forum of Federal Service Tribunal. Could he successfully prosecute his appeal before that forum? Certainly not; because the appellant being Provincial employee would not be regarded as `civil servant', falling within its definition given in the Civil Servants Act, 1973, the Federal Law. Thus, the appellant would be confronted with the real dilemma which has got to be overcome., paving the way for him for seeking relief at the appropriate legal forum.
15. The Memorandum issued by the Federal Government on 7th April, 1987 is the most important document. On its interpretation hinges the fate of the appeal. Article 240 of the Constitution of Pakistan which pertains to Civil Services of Pakistan provides for three services; namely, Federal Service, Provincial Service and Pakistan Service. Parliament is authorized to pass laws in respect of Federal Service and Pakistan Service and Provincial Assembly is invested with legislative powers to legislate for Provincial Service. The question would arise which of the above three categories of service covers the award of BPS-21 and 22 enunciated in the aforesaid Federal memorandum, As has been explained above, the grant of BPS-21 and 22 to the officers specified in the said memorandum is not intended to create as many posts, of such BPS-21 and 22 nor is its intention to follow the procedure of making promotions for filling such posts. Therefore, the Departmental Promotion Committees or Board are not required to sit to clear the suitable candidates for award of BPS-21 and 22. The grant of these B.P.S. To any officers would be personal to them without altering the status of posts they would be occupying at the relevant time, and further more they would carry these BPS wherever they were transferred. But since these B.P.S. Were to be granted to especially meritorious officers of the technical and professional fields, certain mechanism has been devised to be observed for making award of the said B.P.S. We are therefore of the considered view that said B.P.S. Not being posts by themselves do not form part of any of the three services.
16. Consequently they are not governed by the respective laws applicable to three categories of service mentioned above. As already stated the award of the said B.Ps.S. Is rather regulated by totally a new mechanism laid down in the aforesaid Federal Government's memorandum itself. It would be seen that the entire spade work had been left to be done at the Provincial level though formal approval for grant of the said BPS was to be given by the Prime Minister. If the Provincial authorities did not take the steps entrusted to them in the above memorandum, the Prime Minister would obviously not accord his approval in the vacuum. Even after his approval, the formal notification has been left to be issued by the provincial authorities. Thus, if at all any civil servant felt aggrieved by the ultimate notification their grievance prima facie would be directed against the issuing authorities namely provincial authorities. Even otherwise the Prime Minister's approval was to be based on recommendations of the special Committee. Again the special committee was required by the memorandum to be set up at the provincial level. As pointed out above if the said committee did not make any recommendations there would be no approval of the Prime Minister.
17. In the instant case the appellant has grievance more against the recommendations of the Special Committee and the ultimate notification issued by the Provincial Authority than against the Prime Minister's approval. From above discussion we have concluded that if the abovesaid B.P.S. Were granted to the officers holding the posts of Federal-Government, they would be considered as the B.P.S. Of the Federal Government and if they were granted to Provincial Officers, they would be held to have been included in the provincial pool and as such would remain as provincial B.P.S. To be given to Provincial Officers, one after the other, as and when they fall vacant. The approval of the Prime Minister, in our opinion, was merely a formality dependent upon the observance of the specified process culminating in the recommendations of the Special Committee. In fact it is the recommendations of the special Committee which really matter. The said special committee is obviously free from all sort of pressure in making assessment of comparative merits of various candidates for grant of higher scales of pay of 21 and 22. If at all any grievance is ventilated from any quarter against the grant of the said B.P.S., it is actually and factually directed against the recommendations of Special Committee and not against the approval of the Prime Minister which is only of formal nature. Of course he could refuse to give his approval if it was brought to his notice that the recommendations made by the Special Committee were partisan or were one-sided. In no other case, as is clear from the memorandum, he could withhold his approval. We would therefore repeat that it is the recommendations alone and nothing else which are capable of providing any cause of grievance to any party with regard to grant of the said higher scale of pay. It is not disputed that the recommendations are formulated by provincial body i.e. Special Committee set up by the Provincial Government. Even. In the instant case the appellant was really aggrieved by the recommendations of the said Committee. In other words he had grievance against the recommendations of the Provincial departmental authority. We have also been shown the private respondent's transfer orders from Provincial Government to the Federal Government. There is clear indication in the said order that the said private respondent is a provincial employee. Therefore, the departmental appeal was rightly filed by the appellant to the Chief Minister. Thus, all the four conditions including conditions Nos. 2 and 3 are fulfilled and consequently this tribunal has the requisite jurisdiction to hear this appeal.
18. Having given the above findings, our next concern would be to examine the appellant's grievance on merits. In an attempt to show that merit wise his case was based on better footing than that of the private respondent, the appellant has made long and elaborate statement in the memo. Of appeal, supporting the same with relevant documents which have also been enclosed with the said memo of appeal. In course of their arguments, the appellant's learned counsel also made liberal use of the said material. They also tried to bring home to us that the appellant was better qualified than the private respondent and therefore in their view the BPS-21 awarded to the said respondent should have been granted to their client. May be the plea taken by the appellant in this regard and the arguments made by this counsel in support of the plea were acceptable, but still we could not help him by substituting ourselves in place of the special Committee and sit down to judge his merit in comparison to the merit of the private respondent. In other words we had no power to interfere with the job entrusted to the Special Committee. It was for that Committee to undertake the detailed scrutiny of the service record of the various officers placed before them and come to their own conclusion as to who amongst them was outstanding to deserve the award of higher scale of pay. No doubt the committee's assessment of the officers' merit would be confined only to the cases of those officers whose service record was made available to the Committee. The appellant's learned counsel submitted that the appellant's case was never sent to the Committee, even though his service record in comparison to that of the private respondent was far superior. In support of their submissions, they have referred to the departmental admissions contained in the written statement filed on behalf of the official respondents. We may reproduce hereunder the relevant paras of the memo of appeal relating to appellant's claim for his superior service record in comparison of the service record of other officers of his department particularly that of the private respondent. The second portion of para 3 of the memo of appeal reads as under:- "The comparative study of the service record, quality of expertise and other prescribed conditions of the appellant vis-a-vis the respondent No. 2, would positively indicate that the appellant was the solitary officer in the Irrigation Department, fulfilling the qualities of merit, prescribed for award of BPS-21 while the respondent No. 2 did not fall within the range of eligibility for award of BPS 21 In reply to the appellant's above assertions, the official version contained in corresponding para. 3 of the written statement has listed the quantification of the seven officers of the Irrigation Department including the appellant as well as the private respondent, as under:-- "(1)Mr. Mohsin Hassan Shaikh76.17 (2)Mr. Muhammad Yaqoob Khan69.20 (3)Mr. Muhammad Idris Rajput72.60 (4)Mr. Aligohar Shah70.46 (5)Mr. Muhammad Alim Balouch (Respondent)74.89 (6)Mr. Abdul Qadir Abro73.32 (7)Mr. Allah Wasayo Bhatti81.41"
19. While describing the weaknesses in the private respondent's service career in para. 5 of the memo of appeal, the appellant's version reads as under:- "Respondent No. 2 had been compulsorily retired under provisions of MLR 114 in March 1972. He was however, reinstated to service in 1978 under MLO-23 losing the pecuniary and other service benefits .....................................Regarding his seniority, he extended his claim at the departmental level, in appeal before Sindh Service Tribunal and finally before the Honourable Supreme Court but his claim was outright rejected at each- stage ..........However by manipulation of record as Secretary of the concerned department, within a very short time through his political influence, he earned the restoration of his original seniority invoking plenary powers of the Provincial Government under section 24 of the Sindh Civil Servants Act 1973 by Notification No. SOI (S&GAD)3/54/88, dated 27 September, 1990 within one and half months after his assumption of power as Secretary of the Department "
20. The appellant's above plea has been categorically admitted in corresponding para. 5 of the official written statement in the following words:- "That the contents of para 5 are admitted. The seniority in BPS-19 and 20 restored by Government (to respondent No.2)
21. It would appear that the above admission made in the written statement also includes the admission of the appellant's allegations that after rejection of his claim of seniority departmentally, and by Service Tribunal and Supreme Court, the respondent No. 2 by manipulation of the record as Secretary of the Department concerned, through his political influence succeeded in getting his seniority restored under extraordinary powers vested in the Government under section 24 of the Sindh Civil Servants Act, 1973, despite his ouster from service with consequent loss of seniority from 1972 to 1978 under MLR-114.
22. In corresponding para. 6 of the said written statement, the allegations made in para. 6 of the memo of appeal have also been admitted inasmuch as that the contents of para. 6 are admitted.
23. The allegations which have thus been admitted are reproduced as under.--- "In consideration of the brilliant record of the appellant, he i.e. Appellant approached the respondent No. 2 with a request that the case of the appellant be also processed for consideration for award of BPS-21.
24. The respondent No. 2, however, blatantly told the appellant that award of BPS-21 was already reserved for himself and he would not forward the case of appellant for consideration. The respondent No. 2 boldly spurted out that no doubt the quantification of the appellant according to the Annual Confidential Reports was more than 80 and that of respondent No. 2 himself was not even bare minimum of 75 as prescribed by the Federal Government Memorandum; but the award of BPS-21 would be reserved for respondent No. 2 and no other officer would be even considered from amongst the officers holding current posts in the department."
25. The appellant has described his service record in an attempt to prove his superiority over the private respondent in para. 9 of the memo of appeal. The relevant portions of the said para may be reproduced as under:--- "(a)The appellant is the solitary officer of BPS-20 who holds academic qualification of M.E.
26. (Irrigation and Hydraulics) from Mehran University of Engineering and Technology passed in the year 1982.
(b) The appellant also holds Post-Graduation Diploma in Soil Mechanics.th
(c) The appellant is the only officer in the department having the honour of being author of 3 Technical Publications of International Standard. The 3 publications are as under:--
(i) Embankment Construction, Compaction and Supervision.
(ii) Construction Methods.
(iii) Breach closing operations published recently in the year 1990.
(d) The appellant is the only officer considered to be the best expert in the department in the field of controlling and closing Canal and River breaches. This is evident from the fact that whenever breaches of extraordinary magnitude occurred in various canals or river sites, irrespective of his place or charge of posting, the appellant was invariably called upon and given the assignment of closing and controlling the breaches.
(e) The appellant has to his credit nearly 29 years of service in BPS-17 and above. The appellant served as BPS-17 Officer from the years 1962 to 1971, as BPS-18 Officer from the years 1972 to 1984, BPS-19 Officer from 1985 to 1987 and thereafter in BPS-20 as Chief Engineer.
(f) ........ In addition, on a number of occasions the appellant has been conferred with written notes of appreciations of his proficiency and calibre and quality of his performance from his superior officers.
27. The appellant. Also state with confidence that no other officer can ever match with him on account of grading in the Annual Confidential Reports and qualification calculated.
(g) The appellant may be permitted to state that in the entire department in quality of expertise and on the point of gradation and rating, he is unmatched by any other officer.
(h) In addition, it also falls to his credit alone that he is visiting Professor in Sindh Agriculture University Tando Jam. He is also nominated in his capacity as an expert of prominence as member of Selection Boards in two universities namely Mehran University of Engineering and Technology, Jamshoro and Sindh Agriculture University Tando Jam. On this score also the appellant is unmatched by any other officer in the department."
28. The appellant's claim of his superiority as reflected in para. 9 of the memo of appeal hereinabove has been admitted in toto in corresponding para. 9 of the official written statement. Para. 10 of the memo. Of appeal wherein are enumerated the demerits of the respondent No. 2, reads as under:-- "(a) He does not hold any foreign degree or diploma.
(b) He does not hold any post graduation degree or diploma.
(c) He has never exhibited any extraordinary standard of expertise in any assignment in the department.
29. He is just a plain engineer but not on any standard an `Expert' which was prerequisite requirement of the Federal Government Memorandum cited above.
(d) He does not hold to his credit any Research or published or unpublished project.
(e) As per his own version which can be fully confirmed from Annual Confidential Reports of the appellant and respondent No. 2, the quantification of respondent No. 2 which is below 75 which would be another prerequisite requirement prescribed by the Federal Government cited above."
30. It would be interesting to note that private respondent's demerits listed above have been fully admitted in the corresponding para. 10 of the written statement.
31. In view of the admitted service record of both the appellant and private respondent as stated above, it may not pose any problem for Special Committee to make their choice of the meritorious officer at least from the above two. But as is clear from para. 11 of the written statement that the selection board which performed the job of Special Committee in this case had no occasion to consider the appellant's case as it was never sent to the said Board. The admission made in this connection in the said para. Reads as under.
32. "The case of appellant was not sent by the I&P Department to Selection Board although his score was more than 75.00 as such his case could not be considered by the Selection Board."
33. However, the explanations furnished by respondent No.2 in para 11 of his own personal written statement for not sending the appellant's case for consideration of the Selection Board is that "since the three senior most officers in Grade-20 were already in the run for promotion to BPS-21, the allegations of concealment have been raised with a mala fide intention against the respondent No. 2".
34. The explanation is far from satisfactory. It has already been held that award of BPS-21 or 22 was not promotion case so that procedure prescribed for promotion was to be followed. The Special Committee (Selection Board in this case) had to act in accordance with the mechanism laid down in the Federal Government's memorandum referred to above for the purpose of awarding the higher Pay Scales of 21 to 22. The memorandum did not restrict the Selection Board to consider the cases of only limited number of officers and therefore the idea of considering only three officers for award of the higher scale of pay was not in keeping with the spirit of the Federal Government's memorandum. As has been noted above, the intention of the memorandum was to grant the higher scale to "specially meritorious officer". It may be quite possible that the desired officer may be found at lower rungs of the seniority list. If the selection was limited to specified number of officers in order of seniority, the very object of selecting the deserving meritorious officer was bound to be frustrated. In any case we are of the firm view that the memorandum did not limit the consideration by the Selection Board to any definite number of officers. The appellant who admittedly had very commendable service record should have been considered by the Selection Board and his case should have been placed before the board. The respondent No.2 happened to be the Secretary of the Department concerned at the relevant time. That was perhaps the reason that appellant's case was withheld from consideration of the Selection Board. We have been shown the minutes of the meeting of the Selection Board held on 10-9-1990 in which amongst others, the respondent No. 2 was selected for award of BPS-21. It was rather surprising that the composition of the Selection Board included the name of the respondent No.2 as its member. That is to say he participated in the proceedings relating to his own selection. His solitary name appears at page 14 of the minutes under Irrigation and Power Department, suggesting that he alone was considered and no other officer of the said department came under consideration of the Selection Board. In these circumstances the selection of the respondent No-2 for award of BPS-21 could not be held to have been made in accordance with the requirements of the Federal Government's Memorandum.
35. His own presence in the meeting as member of the Selection Board had obviously the effect of influencing the Board's proceedings in respect of his selection.
36. The upshot of the above discussion is that appeal is allowed with no order as to costs and the impugned order is set aside.