' The petitioners who are 14 in number were the Members of the erstwhile Civil Service of Pakistan and are now serving in the Secretariat Group. They have filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 impleading the Federation of Pakistan as also the Province of Punjab as parties seeking the following reliefs:-- "It is therefore prayed that this petition be accepted and the following declarations and directions given to the respondents:
(i) That the bifurcation of the Civil Service of Pakistan (renamed as the All-Pakistan Unified Grades) into the District Management Group and the Secretariat Group is without lawful authority.
(ii) That, in any case, there is no lawful basis for promoting ex-C.S.P. Officers of the 1967, 1968 and 1969 batches placed in the District Management Group to Grade-21 without even considering the cases of the petitioners for such promotions.
(iii) That respondent No, 1 must forthwith consider the petitioners for promotion to Grade-21 on the basis of their seniority vis-a-vis their colleagues of the 1967, 1968 and 1969 batches of the ex-C.S.P.
Placed in the District Management Group.
' It is also prayed by way of interim relief that respondent No, 1 may be directed to consider on merits, at the next meeting of the Central Selection Board, the cases of the petitioners for promotion to Grade-21 on the basis of their inter se seniority vis-a-vis their colleagues in the 1967, 1968 and 1969 and subsequent batches of the ex-C.S.P. Placed in the District Management Group."
2. In order to appreciate the nature of controversy, it is necessary to refer to certain facts forming background of the dispute. After the independence of the country, the question of creation of Civil Service on All-Pakistan basis was taken up by the federation and the four Provinces. On 8-11-1950 a meeting of the representatives of the Federal Government and the Provincial Governments was held in which through a resolution known as `C.S.P. Resolution' it was decided to set up a Centralised Civil Service on All-Pakistan basis. This decision was given effect to by promulgating Civil Service of Pakistan (Composition and Cadre) Rules, 1954 by the Governor-General in exercise of powers under section 241 of the Government of India Act, 1935.
3. It is a common ground between the parties that the petitioners were appointed to the Civil Service of Pakistan between 1966 to 1977 on the recommendations made by the Federal Public Service Commission on the basis of open competitive examinations held by it. In 1971, the Government of Pakistan decided to carry out administrative reforms in the civil services. As a first measure the Pakistan Services (Change in Nomenclature) Rules, 1971 were promulgated which provided that notwithstanding anything contained in any Rule, order resolution of instruction the names of the Civil Service of Pakistan and the Police Service of Pakistan shall stand changed to All- Pakistan Unified Grades and all persons who were members of Civil Service of Pakistan or Police Service of Pakistan shall stand appointed in their existing posts in All-Pakistan Unified Grades.
Except for the change in the name, this measure did not bring about any practical change.
4. On 23-1-1974, a memorandum was issued by the President of Pakistan constituting an occupational group called "The Accounts Group" comprising of various posts mentioned therein.
This was followed by another memorandum on 23-2-1974 which was issued by the Establishment Division with the approval of the Prime Minister of Pakistan for creation of another occupational group to be called "District Management Group" comprising of field staff for the administration of Districts and Divisions like Commissioners, Deputy Commissioners, Additional Deputy Commissioners and the Assistant Commissioners etc. All Members of the erstwhile service of Pakistan became the members of that group.
5. On 21-2-1975, yet another group known as Secretariat Group" was set up by the Establishment Division through Memorandum No, 2/2/75-ARC. This group comprised of posts of Deputy Secretaries and above in the Federal Secretariat and such posts in the Provincial Secretariats as are borne on the cadre of All-Pakistan Unified Grades. The method of appointment to the various posts like Deputy Secretary, Joint Secretary, Additional Secretary and Secretary in the Federal Secretariat and also to the posts in Provincial Secretariat was laid down in para. 3 which inter alia provided for horizontal movement of Officers of other groups to the posts in equivalent grades in that group. The petitioners opted to join Secretariat Group. Subsequently, in supersession of Memorandum dated 21-2-1975, another Office Memorandum bearing No, 2/2/75/ARC was issued by the Establishment Division on 12-41976 which made certain changes in the service structures inasmuch as though the original memorandum provided for two methods of appointment viz. Through initial appointment by lateral entry and appointment by transfer from other occupational groups, the new memorandum also provided for filling in the posts through promotion from Office Management Group.
6. It is the case of the petitioners that despite the creation of the two occupational groups for Field Officers and those serving in the Secretariat, no distinction was maintained as regards the posting and transfer among the officers and the posts in the two groups were treated as interchangeable.
Even in the matter of promotion the incumbents of the two occupational groups were treated similarly till the year 1990 and the Officers in both the groups were being promoted simultaneously.
7. The grievance of the petitioners arose in the year 1990 when that Members of the District Management Group were promoted without any reference to or considering the cases of the petitioners on which they started raising protest. On 7-11-1992, the Chief Minister, Punjab addressed a letter to the Prime Minister of Pakistan pointing out unfair treatment being meted out to the Members of the Secretariat Group and requested that a Ministerial Committee be formed to look into the matter. Pursuant thereto, a Committee was set up by the Federal Government which met once but thereafter no progress was made at all. It is in this background that the present petition has been filed.
8. Mr. Shahid Hamid, the learned counsel for the petitioners in the first instance challenged the validity of the memorandums creating Secretariat Group by arguing that the two office memoranda issued in that behalf on 23-2-1974 and 12-2-1976 did not have the approval of the competent competent Authority i,e, the President/Prime Minister. In that respect, it was pointed out that in the memoranda/notifications creating other Groups like 'Accounts Group, District Management Group, 'Foreign Service Group, the approval of the President and the Prime Minister was not only obtained but the memoranda in question specifically recited the fact of the said approval having been obtained which is not so in the case of Secretariat Group. According to the learned counsel in the absence of any sanction of the President/Prime Minister Secretariat Group has no existence in law.
8. In the alternative, it was urged that the Scheme setting up separate Occupational Groups for the Officers in the field and those in the Secretariat was never practised or given effect to and for all practical purposes, the Officers in the two groups were continuously considered to be in the same service and the posts in the two groups were also treated as interchangeable. In that respect, the learned counsel has placed on record certain lists reference to which shall be presently made.
9. The last submission of the learned counsel for the petitioners was that though the petitioners had opted for induction into the Secretariat Group in the year 1975 but the structure of that group was radically changed as a result of its reconstitution in the year 1976 yet no fresh option was obtained from the petitioners and as such the petitioners cannot be said to be Members of the Secretariat Group as reconstituted.
10. Relying on Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, the learned counsel contended that the petitioners were being unfairly discriminated against in comparison to the Officers in the District Management Group though there is no difference regarding qualifications, training selection of the Officers in the two Groups, moreso when the posts in both the Groups have been treated interchangeable by the Government itself.
11. On behalf of the respondents, the case was argued by Ch. Ijaz Ahmad, the learned Deputy Attorney-General who objected to the maintainability of this petition on the strength of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. He further contended that the petitioners are estopped by their own conduct from filing the petition which badly suffers from laches and acquiescence.
' On merits, the learned Deputy Attorney-General urged that the creation of Secretariat Group was legal, valid and had been made after following the prescribed procedure and as the petitioners on their own showing had opted to join the Secretariat Group by giving an option, they cannot withdraw the same nor can they challenge it. The learned Deputy Attorney-General pointed out that the creation of functional group has been held to be valid and legal by the Supreme Court of Pakistan in the case of Fazal-i-Qadir and others v. Secretary Establishment Division and others (PLD 1988 SC 131)
12. On an application filed by Mr. Birjees Nagi, who is a Member of the Secretariat Group, he was also allowed to contest this petition. On his behalf, the case has been argued by Mr. Birjees Nagi, Advocate who raised certain preliminary objections. The learned counsel submitted that the petitioners have not come to this Court with clean hands and the petition was collusive, mala fide and badly suffers from laches, acquiescence and waiver. He argued that the petitioners cannot be allowed to approbate and reprobate. He joined the learned Deputy Attorney-General in the objection that as the dispute relates to terms and conditions of service of civil servants, the Service Tribunal has the jurisdiction to resolve the same.
13. In reply, to the arguments, the learned Deputy Attorney-General and the learned counsel for the intervenor, Mr. Shahid Hamid submitted that as the petitioners were being treated at par with Officers in District Management Group till 1990 and the posts on the two groups were also considered to be interchangeable and as such no grievance arose to the petitioners till that time, whereafter, the petitioners have been repeatedly agitating their rights which fact is borne out from the letter of the Chief Minister to the Prime Minister of Pakistan. According to the learned counsel, in the circumstances of the case, the petition cannot be said to be suffering either from laches or acquiescence nor can the petitioners be said to be estopped from filing this petition.
14. Having heard the learned counsel for the parties at length and perused the available record, I am of the view that the grievances voiced by the petitioners in this petition are justified. True enough that the Scheme creating separate occupational groups has been upheld by the Supreme Court of Pakistan in the case of Fa7al-i-Qadir and others v. Secretary, Establishment Division and others (PLD 1985 SC 131) but as pointed out by Mr. Shahid Hamid, the question as to whether "Secretariat Group" has been created with the approval of the competent Authority namely the President,/Prime Minister was not in issue before the Supreme Court of Pakistan nor was it urged before it with the result that no decision was rendered thereon.
15. It cannot be disputed that approval of the President/Prime Minister of Pakistan or the person authorised by him was necessary in view of section 25 of the Civil Servants Act as also rules 15 and 15-A of the Rules of Business of the Federal Government framed under Articles 90 and 99 of the Constitution of Islamic Republic of Pakistan, 1973. It may also be mentioned that the Civil Service of Pakistan (Composition and Cadre) Rules, 1954 have never been repealed.
16. Although it is correct that presumption of regularity does attach to all official acts but a significant fact to be noticed is that unlike all other memoranda the Office Memorandum dated 21- 2-1974 creating "Secretariat Group" does not even recite that the approval of the President or the Prime Minister had been obtained. There is a mark distinction between this memorandum and the memoranda creating other groups like District Management Group, Foreign Service Group wherein the fact of approval of the President and the Prime Minister was specifically stated. In these circumstances, it is highly doubtful whether the memorandum creating separate group for Secretariat Officers having been issued by the Establishment Division itself has any validity.
17. Be that as it may, the principal ground on which this petition must succeed is that there is no manner of doubt that the petitioners have been treated in a discriminatory manner contrary to Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. From the facts obtaining on the record the inevitable conclusion is that the underlying Scheme creating separate occupational Groups for Officers in the field and those in the Secretariat was never implemented or given effect to by the two Governments and the bifurcation remained on papers and was never translated into practice. This contention of the petitioners is not only supported by respondent No,2 but is also fully borne out from the perusal of the lists placed in this behalf which show that as regards the posting of the officers notionally in one group was indiscriminately made against the posts reserved for other groups without any regard to the division or bifurcation. In the written statement filed by the Province of Punjab this position has been conceded and it has been stated that respondent No,2 could not draw any distinction between Officers of the Secretariat Group or the District Management Group. This conclusion is also fortified by the letter addressed by the Chief Minister of Punjab to the then Prime Minister of Pakistan on 7-11-1992 (Annexure P-11) in which it has been inter alia stated that:- "...It may be pointed out that compartmentalization of APUG Officers into District Management Group and Secretariat Group was neither possible nor practised in any of the four Provinces and it is for this reason that todate the cadre strengths District Management Group or the Secretariat Group have not been finalised."
18. The learned counsel for the petitioners has stated that as a result of the actions of the respondents, the Officers who were junior to the petitioners and notionally in the District Management Group are now in Grade-21 while the petitioners still continued to remain in Grade-
20. It is also pointed out by the learned counsel for the petitioners that in view of this position no one has opted to become a Member of the Secretariat Group after 1990. Even the Chief Minister of the Province of Punjab in his letter dated 7-11-1992 was of the view that the petitioners were being discriminated against unfairly.
19. It is also undeniable that till 1990 the petitioners have at all material times been treated at par with their colleagues in the District Management Group. Notwithstanding the constitution and re- constitution of the Secretariat Group, the Officers placed in the District Management Group and the Secretariat Group held interchangeable posts. There was no exclusive reservation of posts for either set of Officers. On the other hand, it was normal practice for the Government to make appointments to the posts in the field or the Secretariat irrespective of the group to which the Officers belonged. For all intents and purposes, the bifurcation of the Officers into two groups was a dead letter and the petitioners are correct in asserting that the two Governments treated them and the Members of the District Management Group to be in one service till the year 1990. That being so, there was no occasion to make any distinction between the two sets of Officers when the stage arrived for promotion to Grade-21. The petitioners are clearly entitled to the same treatment as has been meted out to the persons of their seniority in the District Management Group.
20. The learned Deputy Attorney-General relying upon section 10 of the Civil Servants Act, 1974 has contended that notwithstanding the formulation of occupational groups, Members of one group can be asked to serve in the other group by the Government. There can be no cavil with this proposition that the Government may ask a member of one group to serve in the other but such an arrangement can be resorted to only in the event of necessity and in an exceptional case but not as a general rule.
21. As regards the objection raised by the learned Deputy Attorney-General and Mr. Birjees Nagi, Advocate on the maintainability of this petition. It is unnecessary to refer to the various cases cited by them in support of their submission that this petition is barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. By now it is well-settled that Constitutional petition does not lie before this Court if the dispute pertains to the terms and conditions of civil servant and can competently be taken to the Service Tribunal for adjudication. As observed by the Supreme Court of Pakistan in IA. Sherwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCM R 1041), the ouster of jurisdiction of this Court is not all pervasive but is limited to those cases in which appeal lies to the Service Tribunal against the decisions of the Departmental Authority. In the present case, there is no order passed by any Departmental Authority which could be challenged by the petitioners by filing an appeal before the Service Tribunal under section 4 of the Service Tribunals Act, 1974. The grievance of the petitioners on the other hand, is that the treatment being meted out to them is discriminatory and violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. In view of the rule laid down in IA.
Sherwani's case supra this petition is clearly maintainable. It is also to be noticed that despite the recommendation of the Provincial Government the Federal Government has failed to pass any order with respect to the grievance of the petitioners. In these circumstances, in the absence of any fmal order being passed by the Departmental Authority, this petition before this Court is held to be maintainable.
22. Reverting now to the contention of the learned counsel for the respondents that the petition is barred by the principles of acquiescence, waiver and estoppel, it is no doubt correct that the petitioners had opted to join occupational group of Secretariat Officers in 1975 but the real grievance in the present case is that the underlying Scheme pursuant whereto the occupational groups were created was not implemented or given effect to with the result that the posts in the Secretariat were being occupied by the Officer belonging to the District Management Group and that the division into the two groups was never given effect to till the year 1990, even in the matters relating to promotion. It is clear from the record that since the petitioners have been continuously agitating the matter before the Federal Government which, however, for reasons best known to it failed to take any final decision, even despite the letter of the Chief Minister of Province of Punjab calling upon the Federal Government to creating a Ministerial Committee to look into the grievance of the petitioners. It is also a common ground between the parties that a Ministerial Committee had since been constituted which only met once but no final decision had been made. In this view of the matter, the objection raised by the respondents cannot prevail. Another reason for repelling this objection is that the impugned action of the respondents had been found to be violative of fundamental rights guaranteed by Article 25 of the Constitution and, therefore, the factor pointed out by the respondents cannot be made a ground for denying relief to the petitioners. Reference may also be made to the judgment of the Supreme Court in Pakistan Post Office v. Settlement Commissioner (1987 SCM R 1119) wherein it had been observed that if the Court comes to the conclusion that the justice of the situation demands that the grievance of a petitioner must be redressed, he cannot be denied relief merely on the ground of laches etc. ' In view of what has been stated above, this petition is allowed and the respondents Federation is directed to treat the petitioners at par with the Officers who have been notionally placed in the District Management Group and allow the consequential benefits to them. No order as to costs.