1. Briefly stated that the petitioner was promoted to the rank of Additional Inspector-General of Police in BPS-20-vide Gazette Notification dated 29-9-1988. The Prime Minister of Pakistan on 12-4-1989 announced that the post of Additional Inspector-General of Police would be placed at BPS-21. In consequence thereto, a Notification No. F.2(32)R-289, dated 1-8-1989 was issued by the competent Authority to upgrade the post of Additional Inspector --General from BPS-20 to 21. Consequently the upgradation Notification No.Ll--6/89-E3 (Police) was issued on 1st of August, 1989 whereby certain officers of the rank of Additional Inspector-General Police in the police service of Pakistan were granted BPS-21. The petitioner feeling aggrieved qua the omission of his name, made a representation before the competent Authority and having remained unsuccessful, he approached the Federal Service Tribunal through Appeal No.672-R/89 for the redressal of his grievance with a following prayer: "that the appellant ,be placed in BPS-21 with effect from the date of issue of the Prime Minister's directive on April 12, 1989 or in the alternative with effect from 1-8-1989 with all back benefits and be assigned the same seniority position in the gradation fist of Additional I.-G.P. In BPS-21, which he held before the upgradation of the post on the gradation list of Additional I.-G.P s. In BPS-20. It is further prayed that the Establishment Division's D.O. Letter No. F.2(32)-8.2/89 (Annex. D) be declared as one beyond the scope of the Prime Minister's directive and directed to be suitably amended.", The Federal Service Tribunal, Islamabad accepted the -appeal through its judgment dated 23-10- 1990 and directed as under:-- "The upshot of the above discussion is that the appeal before us succeeds. We direct that the appellant be placed in BPS-21 as he has already been promoted to the rank of A.I.-G.P. With effect from 29-9-1988. However, the date of grant of BPS-21 would be 1-8-1989 as the letter of Finance Division (Regulation Wing) for upgradation was issued on that date. Order accordingly."
2. The respondents in spite of the incessant approach by the petitioner did not implement the decision of the Federal Service Tribunal in letter and spirit. Faced with this situation the petitioner resorted to the present Constitutional petition making prayer in the nature of writ of mandamus that the respondents be directed to implement the decision of the Federal Service Tribunal so as to upgrade and allow him BPS-21 w.e.f. 1-8-1989, the date, which was fixed by the Tribunal in its judgment.
3. Learned counsel appearing for the respondents Federal Government has taken two-fold exceptions; firstly, it is stated that the matter pertains to the terms and conditions of an employee, as such, the petitioner should have approached the Federal Service Tribunal for its implementation and secondly that the judgment of the Federal Service Tribunal being of declaratory nature, cannot be enforced through resort to the Constitutional petition in the nature of writ of mandamus. In support of his contentions he has relied upon State of Pakistan v. Meraj Din PLD 1959 SC 147 and Pakistan v. Nasim Ahmad PLD 1961 SC 445 and an unreported judgment dated 15-12-1991 delivered in Writ Petition No.11025 of 1991.
4. I have considered the contentions. The argument that writ of mandamus cannot be issued is devoid of any force. The petitioner approached Federal Service Tribunal having jurisdiction in the matter created under the mandate of Article 212 of the Constitution of Islamic Republic of Pakistan.
5. This shows that in obedience to the mandate of the Constitution the legislature through Act 70 of 1973 established Service Tribunal having exclusive jurisdiction qua terms and conditions of a civil servant and the appeal against the same is provided by Article 212 itself to the Supreme Court of Pakistan. The two authorities of the Hon'ble Supreme Court relied upon by the respondent are not apt on the ground that in both these cases declaratory decrees subject matter of appeal were secured under Specific Relief Act, 1870. Furthermore, at that time the salary of a civil servant was considered to be a bounty of the State which principle has been done away with long before. It is pertinent to mention here that while accepting the appeals of the Government and recalling declaratory decrees secured by a contesting respondent, the Hon'ble Supreme Court further observed as under in the latter precedent: "In doing so, however, it will not be inappropriate to point out that the pitiable plight in which the respondents now find themselves cannot be allowed to continue indefinitely. Under the decrees of competent Courts of law they were treated as being in the employment of the State and all the disadvantage and liabilities attaching to such employment continued to find them, as for example, they could not seek employment elsewhere and possibly could not even acquire any property. On the other hand, by the authorities, failure to respect and honor the decrees passed by the Courts of the State they came to be placed in the deplorable position that they neither received any salary from the State nor were free to earn their livelihood elsewhere. It may be that they erroneously believed that the benefits of the declarations in their favour endured for all these years and they were entitled to be treated as if in service throughout but at the same time this state' of affairs should not have been allowed to continue. It would, therefore, have been only just and equitable on the part of the authorities concerned to have treated the temporary employees concerned as having been in employment until the dates on which the sanctions for their respective posts lapsed, as was indicated in the case of Noorul Hassan v The Federation of Pakistan. This was unfortunately not done. But even now. It will not be unreasonable to expect that the authorities will do what they ought to have done then and take steps to relieve the respondents of their plight and treat them with compassion. Nay even with generosity by honoring the decrees in their favour and giving to them at least the salaries which they would have received had they continued in service during the periods the sanctions for their respective posts lasted for after that they could not in any even claim to remain in service. We can but hope that the bounty will not be unduly begrudged to the respondents."
6. The reliance of the respondents on a Single Bench judgment delivered in W.P. 11025 of 1991 titled Liaqat Ali Ch. v. Federation of Pakistan is also not apt as in that case the order of the Service Tribunal was implemented, according to the learned Deputy Attorney-General in letter and spirit and consequential benefits were also allowed.
7. However, in the case in hand the remedy resorted to was under the dictate of the Constitution and there is no justification for the respondents to decline its implementation for all this period. It is also to be noticed that the Federal Government did not file any appeal against the judgment of the Federal Service Tribunal. Even before the Service Tribunal the Law and Justice Division also supported the stance of the petitioner as reflected from para. 10 of the judgment of the Tribunal which reads as under:-- "In our view, the opinion expressed by the Law and Justice Division supported by the Honourable Attorney-General in no uncertain terms regarding the erroneous implementation of the Prime Minister's directive in this case is binding on the respondents as held in PLD 1978 SC 61. The Government of Pakistan should remain benevolent in interpreting the rules concerning its employees."
8. Even after the judgment of the Federal Service Tribunal Law and Justice Division was not in favour of filing of an appeal and consequently no appeal was filed. In 1983 CLC 1954 Sheikh Inamul Haq v.
9. Secretary, Establishment, Government of Pakistan, a Division Bench of this Court took exception in not re-instating Sheikh lnamul Haq who got favourable order from Federal Service Tribunal against decision of whom appeal was taken before the Supreme Court. However, the judgment of the Federal Service Tribunal was not suspended/stayed by the Supreme Court and the learned Judges took. Strong exception to the stance taken by the Government in not implementing the judgment.
10. The case in hand is on better footing to it. Here the matter was not even taken before the Supreme Court and the. Law and Justice Division categorically decided not to file the appeal but in spite of all these features respondents have declined to implement the judgment of Federal Service Tribunal. The stance taken by the respondent is appalling and shocking. Their act of not implementing tile decision of the Federal Service Tribunal amounts to frustrate the mandate of the Constitution.
11. Reverting to the objection of bar of jurisdiction under Article 212 of the Constitution in relation to the maintainability of this Constitutional petition suffice it to say that so far as determination of rights of the petitioner as regards his terms and conditions those have already been adjudicated upon by the Service Tribunal and in this Constitutional petition the only relief claimed is to give effect to the said adjudication made by the Tribunal created under the command of the Constitution obedience to which is the obligation of every citizen as enjoined by Article 5 of the Constitution. The objection is repelled.
12. In view of what has been stated above this petition is accepted and it is directed that the decision of the Federal Service Tribunal dated 23-10-1992 whereby the petitioner was given BPS-21 with effect from 1-8-1989 shall be implemented in letter and spirit forthwith, with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.