' NOOR MUHAMMAD MAGSI (MEMBER).---These four appeals have been filed by M/s. Asghar Ali Chaudhry, Saif-ur-Rehman, Malik Javed Ahmed and Rana Irfan Hussain Khan challenging the issuance of a notification dated 16-5-1994, whereunder the private respondents herein have been promoted as Deptity Directors (B-18) in the Federal Investigation Agency (hereinafter referred to as F.I.A.). Since common question of law and facts are involved in all the appeals, they have been heard together and are being disposed of by this one judgment.
' Briefly stated, the facts in the background are that all four appellants are working as Assistant Director (Legal) in BPS-17 in the F.I.A. F.I.A. (Appointment, Promotion and Transfer) Rules, 1975 (hereinafter mentioned as 1975 Rules) regulate the terms and conditions and mode of appointment/ promotion of the employees in the F.I.A. Rule 12 of the said Rules provides for the posts in six Groups viz: Investigation, Accounts, Customs, Income Tax, Engineering and Legal, whereas Rule 13 provides that appointments shall be made within the Group mentioned in Rule 12 by promotion of officers and staff working in the next lower grade or rank on the recommendations of the appropriate D.P.C. Or the Central Selection Broad, as the case may be." In a meeting held on 27th September, 1987 under the Chairmanship of the Additional Secretary (C.P.), Establishment Division, which was also attended by the Deputy Secretary (Admn.), Ministry of Interior and the Director, F.I.A., it was, inter alia, decided that 25 posts in B-18 under the F.I.A. Included in the Schedule to the P.S.P. (Composition Cadre and Seniority) Rules, 1986, shall continue to be borne on the P.S.P.
Cadre' and the officers from other departments, e.g. Income Tax. Accounts and Engineering, may be posted against the P.S.T. Cadre posts with the appproval of the competent Authority on various terms of deputation; and the remaining 10 posts in B-18 will remain at the disposal of the Ministry of Interior, which may promote officers of F.I.A. Or get suitable officers on deputation from other departments other than the Police and the Ministry of Interior will also reassess the promotion prospects of all the employees in the F.I.A. And not only the investigation staff, in the light of the F.I.A.
Act and the 1975 Rules; and further that the F.I.A. And the Ministry of Interior will update the rules, particularly taking care to include all Groups in the Rules and all posts in the Schedule, with appropriate designations and specifically showing the Groups in which they are placed. This decision was communicated by the Establishment Division vide 0.M., dated 18th October, 1987 to the Miniitry of Interior. Thereafter, 15 additional posts of Deputy Directors in B-18 were sanctioned in addition to the 10 posts already in existing, against 100 posts of Assistant Directors in B-17, comprising the strength as under:-- {{TABLE}}
(1) Investigation Group .... 63
(2) Legal Group ... 20
(3) Other Groups ... 17 100 {{TABLE}}
3. According to the appellants 25 posts of Deputy Directors had to be equitably and proportionately distributed amongst the six groups of Assistant Directors which comes to one post of Deputy Director against four posts of Assistant Director. Since the Assistant Directors of the Investigation Group had already been promoted against 7 posts of Deputy Directors, as such, there remained only 9 more posts of Deputy Directors for promotion in the Investigation Group, out of a total of 16 posts falling to their share but contrary to their due share of 9 posts, the respondents 1 to 3 vide Notification dated 16-5-1994 have promoted 12 Assistant Directors of the Investigation Group which is much in excess of their quota. This notification dated 16-5-1994, gave the cause of action to the appellants and they made departmental appeals on different dates in the month of May, 1994 and failing to get any response, they have preferred these appeals separately on different dates, after.Expiry of 90 days waiting period, under section 4 of the Service Tribunals Act, 1973, with the prayer that the Notification dated 16-5-1994, may be declared null and void and the official respondents may be directed to consider the cases of the appellants afresh for promotion as Deputy Directors (B-18) for legal group.
4. Mr. A.G. Chaudhry, the learned counsel appearing in Appeal No,236(L)/94 on behalf of Mr. Saif- ur-Rehman, gave the history of the case, in detail, reiterating the facts given in the memo. Of appeal, and submitted that with the issuance of the impugned Notification dated 16-5-1995, three posts of the Legal Group have been usurped by the Investigation Group. He contended that although no quota had been fixed for B-18 posts in any of the Groups, but the distribution of the posts had to be refixed and made on equitable and proportionate basis and he based this argument on the opinion of the Secretary, Law and Justice Division, tendered in the case of Ch. Khadim Hussain and Zakria Khan Babar, which had been the subject-matter of appeal before the Tribunal in the post. He also referred to the decision of the Lahore High Court in Writ Petition No, 3932/93, decided on 30th October, 1993 wherein similar question was involved and it was held that the Assistant Directors (Legal) were also entitled for consideration for promotion as Deputy Directors in the Lahore Development Authority, under the rules.
5. Mr. Hafiz Tariq Naseem, learned counsel appearing for the appellant in Appeal No,263 (L)/94, while adopting the arguments of Mr. A.G. Chaudhry, Advocate added that in view of the case reported in PLD 1994 SC 539, appellants were eligible for consideration for promotion as Deputy Director (B-18) and their cases deserve reconsideration. On the question of jurisdiction, he, relying on the judgment of the Supreme Court reported in PLD 1994 SC 345, contended that the Tribunal has exclusive jurisdiction to adjudicate upon the issues involved in these appeals.
6. Mr. Raja Muhammad Asghar Khan, learned Advocate appearing on behalf of the appellants Messrs Malik Javed Ahmed, and Rana Irfan Hussain Khan, in Appeals Nos.312 and 313(L) of 1994 adopted the arguments made by Mr. A.G. Chaudhry and Hifiz Tariq Naseem appearing for the appellants. He further argued that since there is no specific provision/ratio in the rules, therefore, 25 posts shall have to be distributed proportionately as opined by the Secretary, Law and Justice Division in the summary already referred to above and his opinion was binding, under the Rules of Business. He also argued that specialist group has been given more than their share for which there is no specific provision in the rules but the appellants have been deprived of their due share and it is a case of glaring discrimination. In support he referred to PLD 1987 SC 172 and 1991 SCM R 1041.
7. Comments have been filed by Mr. S. Feroze Shah, Assistant Directot Legal, on behalf of official respondents 1 to 3 wherein full facts in the background of the case have been narrated. It has been stated that for proper investigation of cases of anti-corruption and other frames, including those in the sphere of white collar/economic/banking crime, a proposal for upgradation of existing 17 posts of Assistant Directors was submitted to the Prime Minister, who approved the upgradation of the 12 posts of Assistant Directors to that of the Deputy Director (B-18) and accordingly the case for promotion of 12 Assistant Directors was recommended by the D.P.C. But the Finance Division did not agree to the proposal for want of clear cut vacancies. Subsequently the Ministry of Interior again submitted a summary to the Prime Minister, for creation of 15 posts of Deputy Directors, which was approved and the Finance Division also agreed to the proposal. It was thereafter, that the D.P.C., after considering the cases of eligible Assistant Directors recommended the respondents for promotion as Deputy Directors (B-18) and consequently the impugned notification dated 16-5-1994 was issued. It was stated that at the time when the proposal for upgradation/creation to the post of Deputy Directors was submitted no posts of Assistant Director Legal was proposed to be upgraded and that the O.M. Dated 18-10-1987 issued by the Establishment Division also does not indicate the proportion of the posts but it was for the Ministry of Interior to consider the question as to from which group the promotions were to be made. As such, keeping in view the work load in the Legal Branch, the Ministry of Interior or the D.-G. F:I.A. Were supposed to take a decision regarding allocation of vacancies to this Branch, as there was no specific provision or quota for that category,. It was further stated that under rules 12 and 13 of the 1975 Rules, the promotions in the F.I.A. Are to be made within respective groups and in accordance with the job requirement and since there are no posts of Deputy Directors Legal the appellants could not claim their promotion particularly when there was no fixed quota for them in the rules. It was further submitted, that the seniority lists for each group are being maintained separately and officers are promoted in their respective cadre only.
8. At the time of hearing Mr. Kh. Tariq Masood, the learned standing counsel for the Government, did not appear due to throat infection and on behalf of official respondents 1 to 3 M/s. Zakaullah Jan, Section Officer, Establishment Division and S. Feroze Shah, Assistant Director Legal, F.I.A. Made their submissions and reiterated the facts already given in the objections.
9. Mr. Syed Jamshed Ali, the learned counsel appearing on behalf of private respondent, Mr. Ahmed Riaz Sheikh raised preliminary objections that the appeals are not maintainable under section 4(1)
(b) of the Service Tribunals Act, 1973, as the appellants claim promotion as Deputy Director (B-18) and the prospects of promotion are not terms and conditions of service in view of the decision of the Supreme Court reported in PLD 1980 SC 972 and further that the appellants want allocation of more posts in the Legal Group, for which there is no specific provision in the rules and this question is purely within the discretion of the competent Authority. He submitted that there has been no violation of any of the terms and conditions of the appellants and this being a matter of policy, all the appeals are not competent. He vehemently argued that the appellants cannot press their claim that the word "proportionate" should be read in the rules while filling 25 posts of Deputy Directors. He referred to a decision of the Supreme Court reported in 1993 SCM R 1869, whereby the judgment of this Tribunal reported in 1993 PLC (C.S.) 14 was upheld and it was held that the Assistant Directors Legal are entitled to be considered for promotion only against the post of Deputy Director Legal and not otherwise. Therefore, since- there are no sanctioned posts of Deputy Directors Legal, the appellants have no claim. He also emphatically argued, that the opinion rendered by the Secretary, Law and Justice Division, was not binding on the Tribunal and took exceptions to the filing of copies of inter departmental correspondence by the appellants.
10. Mr. Hafiz S.A. Rehman, learned counsel for the private respondents adopted the arguments of Mr. Syed Jamsheed Ali and further added, that the appeals are not maintainable as there is no order in the field which could be challenged by the appellants and the claim of the appellants is based on hypothetical grounds because there is no specific provision of ratio in the rules, which they want to be incorporated on the principle of equity.
11. We have considered the submission of the learned counsel for the parties. In all these appeals, the appellants seek declaration that the notification dated 16-5-1994 promoting the private respondents as Deputy Directors (B-18) be declared as null and void; and that their cases be considered for promotion. Therefore, we have first to examine the validity of this notification and secondly whether the appellants, who are working as Assistant Director (Legal) are eligible to be considered for promotion as Deputy Directors in B-18. The F.I.A. (Appointment, Promotion and Transfer) Rules, 1975, have been framed under section 9 of the F.I.A. Act, 1974, and regulate the service structure and method of appointments in the F.I.A. The relevant provisions of Rules for the purposes of these appeals, are contained in Rules 6, 12 and 13. Rule 6 provides that not more than 50 per cent. Of the posts in Grades 16, 17 and 18 shall be filled by promotion of officers, serving in the Agency on regular basis; provided that if no suitable officers possessing the requisite qualification, experience and length of service are available, the posts may be filled by transfer or direct appointment. Rule 12 provides, for the purposes of promotion, direct appointment and transfer, the posts in the F.I.A. In the following groups:
(i) Investigation;
(ii) Accounts;
(iii) Customs;
(iv) Income;
(v) Engineering;
(vi) Legal. ' with the proviso, that these groups may, for the smooth administration of the Agency and with the prior approval of the Federal Government, be added to or modified as may be considered appropriate by the Director-General. Rule 13 contemplates that appointments by promotion, shall ordinarily be made within the Groups mentioned in rule 12 by promotion of officers and staff working in the next lower Grade or rank on the recommendations of the appropriate D.P.C., or the Central Selection Board, as the case may be. From the above-quoted provisions of Rules, the position which emerges, is that 50 % of the posts in Grades 16, 17 and 18 are to be mace by promotion. The Director-General, with the approval of the Federal Government has been empowered to modify the number of Groups as considered appropriate; and that the appointments by promotion are to be made within the Groups. Admittedly, the appellants are working as Assistant Director (B-17) in the Legal Group and under the rules, as mentioned above, they can get their due share for promotion within that Group and as such they have no locus standi to claim promotion out of their Group. Such a question had been the subject-matter of an appeal filed by Ch. Khadim Hussain before this Tribunal after examining the case in depth, had held that officers of F.I.A. Working in Legal Group could only get promotion within that Group and not in the Investigation Group. The case is reported in 1993 PLC (C.S.') 14, and this decision of the Tribunal was upheld by the Honourable Supreme Court reported in 1993 SCM R 1869.
12. In view of the facts and legal position urged before us by the learned counsel for the parties, one aspect of the case is clear that the promotion to higher posts, reserved for, promotion quota, can be made within the group and not collectively. This is evident, as already observed, from rule 12 of F.I.A. (Appointment, Promotion and Transfer) Rules, 1975. The question to be decided, however, is different. We have to see if the letter of 18th October, 1987 issued by the Establishment Division has been complied with in letter and spirit. Para. 2(c) of aforesaid letter reads as under:-- "(C) that the Ministry of Interior will re-assess the promotion prospects of all the F.I.A. Employees and not only the investigation staff, in the light of the F.I.A. Act, 1974 and F.I.A. (Appointment, Promotion and Transfer) Rules, 1975."
' The case of the appellants is that additional posts, which have been made available for promotion of the officers of the F.I.A., have not been equitably distributed among different groups and that any rule or order, contrary to this principle would be discriminatory. There is substance in this contention but we cannot of our own make allocation to the different groups of the posts in F.I.A.. This is a prerogative of the Government which shall have to decide the issue by taking into consideration, the total strength, the work load and the prospects of promotion. Besides that, the rules also provide for adding to the existing groups and we have not been informed as to what other groups have been created and formed. Naturally, the other groups so framed will also have a share in the additional posts sanctioned by the Government. In view of these facts, we are of the opinion that what is required, is just and equitable rules for proper distribution of posts of Deputy Directors in the F.I.A. Which cannot be sorted out at our level. Further, the rules also require to be amended so as to include the groups which might have been created after the first promulgation of the rules. It is also for the competent Authority to take a decision as to how many Deputy Directors should be in each group and thereafter promotions may be made to fill in posts so allocated. In short, the whole issue needs to be re-examined in the light of our observations and after specific number of posts in the each group has been determined, the question of promotion of eligible persons may be considered on merit and in accordance with law.
13. Before we part with these appeals, we may point out that on behalf of respondents, objection has been taken that the question involved is that of fitness for promotion and this Tribunal is not competent to adjudicate in view of bar placed in proviso (b) to section 4 (1) of the Service Tribunals Act, 1973. This objection has no base because the appellants' main contention is that allocation has not been made judiciously and the number of posts of Deputy Directors, under each group has not been determined in accordance with the spirit of Establishment Division's directions. The question of fitness as such is not involved and this Tribunal has full jurisdiction to adjudicate.
14. In view of the foregoing reasons, we direct the respondents to review the case of appellants in the light of our observations in the preceding- paras. Since the departmental appeals of the appellants are also pending with the appellate authority, it would be appropriate if these appeals are decided by the Department by passing an appropriate and detailed order with reasons, as laid down by the Supreme Court in 1991 SCM R 2330 within two months and communicate the decision to the parties so as to enable them to take legal recourse according to law. With these observations, all these appeals stand disposed of with no order as to costs.
15. Parties to be informed.