ABDUL RAZZAQ A. THAHIM (CHAIRMAN). ---Appellant Mr. Muhammad Wasi Alam joined the T&T Department as U.D.C. On 14-6-1971. He was promoted as Accountant (B-16) with effect from 20-12- 1989 after qualifying the T&T Accounts Service Examination, Part I and Part II in the years 1988 and 1989 respectively. Presently, he is working in Selection Grade-17. In the meantime, Pakistan Telecommunication Corporation was established under Ordinance No. XVI of 1990, known as Pakistan Telecommunication Corporation Ordinance, 1990, which became an Act. The competent Authority framed rules for the promotion of Accountants as Accounts Officer (B-17) for which passing of departmental examination had been made compulsory. The case of the appellant is that since he is governed by old rules applicable to T&T employees and on en bloc transfer of all employees to P.T.C., under section 9 of the Ordinance, their terms and conditions of service were protected. His contention is that he is not supposed to qualify the Departmental Examination for promotion as Accounts Officer (B-17) which he has already cleared in 1988 and 1989, and his case was to be considered for promotion against 100 % promotion quota as per Recruitment Rules.
2. Mr. Niaz Ahmad Khan, learned Advocate appearing on behalf of the appellant argued that the appellant was civil servant being an old employee of T&T Department and on transfer to P.T.C.
Carried his terms and conditions guaranteed under section 9 of the Ordinance and, therefore, was to be governed under the old rules. It is contended that since the appellant had qualified the Accounts departmental examination in 1988 and 1989, he was not supposed to appear in the departmental examination again for promotion to the post of Accounts Officer (B-17) and his case may be considered. It is submitted that one of the colleagues of the appellant filed Constitutional Petition No. 12777/95 in Lahore High Court, Lahore and the respondent department filed comments wherein it has been stated that no qualifying examination for promotion of Accountants (B-16) to Accounts Officer (B-17) against departmental quota will be held. He has placed on record copy of the objections.
3. The comments have been filed by respondent P.T.C. And it has been averred that the appeal is barred under Article 114 of Qanun-e-Shahadat on the ground that the appellant had himself applied for the post by participating in the departmental examination. The second legal objection is that the matter is sub judice before the Lahore High Court in Constitutional Petition No.12777/95, therefore, this appeal is not maintainable. Mr. M. Umar Quraishi, learned counsel appearing for the respondent P.T.C.L. Submitted that the P.T.C. Board had framed rules for the Accounts Officer (B-17) vide letter, dated 24th November, 1992 whereunder the departmental Accountants who are Graduates after qualifying the written examination, were eligible for promotion to the post of Accounts Officer (B-17) against 25% promotion quota.
4. Adverting to legal objections raised by the respondents in their comments that the appeal is barred under Article 114 of Qanun-e-Shahadat, it would suffice to say that whenever an aggrieved civil servant has got legal remedy and cannot succeed in a legal forum, he can invoke the jurisdiction of another legal forum for redress of his legitimate grievance because interpretation of law is to be made independently and in this case since the question of terms and conditions of the appellant are involved therefore, his willingness to appear in the examination is immaterial and cannot make this appeal incompetent. As regards filing of Constitutional petition in the High Court, we have only to say that under Article 212 of the Constitution, this Tribunal has got exclusive jurisdiction in the matters of terms and conditions f of the civil servants and without prejudice to their case in the High Court, we are of the view that the Service Tribunal has got the jurisdiction to entertain this appeal. Moreover, the respondent department before the High Court has conceded to the jurisdiction of this Tribunal, and this objection is also repelled.
5. Undoubtedly, the appellant is an old employee of T&T Department and was civil servant, as with the transfer of T&T employees to the P.T.C. On its establishment under section 9 of the P.T.C. Act, 1991, his status as civil servant remained intact and so also the terms and conditions of service which were available to him in the T&T Department. This Tribunal in Appeal No. 90(K) of 1991 filed by Shabbir Ahmed, decided on 15-4-1993, that the persons employed in the former T&T Department transferred en bloc to the newly created Pakistan Telecommunication Corporation were civil servants and their terms and conditions of service could not be changed. The appeal against the decision of the Tribunal has, perhaps, not been filed in the Supreme Court and as such this judgment-attained finality. In the present appeal, legal objection about maintainability has not been taken. It may be pointed out that both the learned counsel for the appellant and the respondent filed copies of objections filed by P.T.C. In Constitutional Petition No.12777195 (Samiullah v. P.T.C.L.) in the Lahore High Court, Lahore and their stand with regard to Jurisdiction of this Tribunal and the terms and conditions of P.T.C. Employees has been amplified in the, following words: "Preliminary legal objection:
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2. The Honourable Supreme Court of Pakistan in its judgment in P.T.C. In Riaz Ahmed (PLD 1996 SC 222) has barred the Honourable High Court under Article 212 of Constitution of Pakistan to entertain Promotions, Appointments and Service Matters of civil servants in Pakistan Telecommunication Company Limited and these aspects should be dealt within the jurisdiction of the Service Tribunal, thus making this petition, non-maintainable and lacking jurisdiction of this Honourable High Court."
The Hon'ble Supreme Court in the case reported in PLD 1996 SC 222 has thoroughly examined the vires of section 9 of the Pakistan Telecommunication Corporation Ordinance (XVI of 1990) and section 122 of the Pakistan Broadcasting Corporation Act, 1973, and has concluded that the P.T.C.
Employees are civil servants and their terms and conditions of service could not be changed. The relevant paragraphs read as under: " ....In so far the status of respondents I to 5 as civil servant is concerned, the learned counsel for the appellants has cited an unreported decision of this Court passed in Civil Petition No.334/93, dated 10-11-1993. The contention whether the employees of Pakistan Telecommunication Corporation are civil servants or not was disposed of as follows:-- "3. Aggrieved against the order of the. Departmental authority showing junior officer as seniors in the seniority list he filed Appeal No.46(K) of 1990 before the Tribunal, for restoration of his inter se seniority to the higher post of Director. The petitioner raised preliminary objection to the effect, that the respondent No. l being an employee of the Pakistan Telecommunication Corporation established under the Pakistan Telecommunication Corporation Ordinance No.XVI of 1990, is not a civil servant so as to approach the Tribunal for the relief prayed for. The learned Tribunal repelled the objection and relying on the law laid down by this Court in Abdul Rahim v. Pakistan Broadcasting Corporation and others 1992 SCMR 2113, held the respondent a civil servant amenable to jurisdiction of the Tribunal, nevertheless dismissed his appeal on merits. Hence this petition.
Learned counsel for petitioner mainly tried to distinguish the present case with Abdul Rahim's case relied by the Service Tribunal in the impugned judgment.
4. The provisions of section 9 of the Pakistan Telecommunication Ordinance (XVI of 1990) and section 12 of the Pakistan Broadcasting Corporation Act, 1973, are almost identical. The observations of this Court in the aforesaid case on the en bloc transfer of the employees to the Corporation did not change their status as civil servants fully cover the jurisdiction of the Tribunal to entertain their appeals and adjudicate the same on merits.
In view of the above stated legal position, we agree with the contention of the learned counsel for the appellants that respondents Nos. l to 5 are, civil servants within the meaning of Civil Servants Act, 1973. "
For the sake of convenience, section 9 of the Pakistan Telecommunication Corporation Act, 1991 (XVIII of 1991) is reproduced hereinbelow: "9. Transfer of departmental employees to the Corporation.---(1) Notwithstanding anything contained in any law, contract or agreement or in the conditions of service, all departmental employees shall, on the establishment of the Corporation, stand transferred to, and become employees of the Corporation, on the same terms and conditions to which they were entitled immediately before such transfer, provided that the Corporation shall be competent to take disciplinary action against any such employee.
(2) The terms and conditions of service of any such persons as is referred to in subsection (1) shall not be varied by the Corporation to his disadvantage."
Similar provision has been incorporated in section 36(2) of the Pakistan Telecommunication Company Limited Ordinance CXV of 1995. From the provisions of law and in view of the above- referred judgment of the Supreme Court, it is clear that the appellant on his transfer to P.T.C.L., carried the terms and conditions of service which he was enjoying in the T&T Department and could not be changed or varied to his disadvantage.
6. The respondent P.T.C.L. In the objections filed in Constitutional Petition No.12777/95 before the Lahore High Court made the following categorical statement: "4(c) That no qualifying examinations for promotion of Accountants (BPS-16) to Accounts Officer (B-17) against departmental quota, will be held."
Therefore, the P.T.C. Cannot deviate from its stand taken before the Lahore High Court in the identical case. The appellant had qualified the T&T Accounts Service Examination, Part I and Part II in the years 1988 and 1989 respectively and was promoted as Accountant (13-16). He was granted Selection Grade BPS-17 with effect from 3-3-1992. According to the appellant, he is fully qualified and eligible for promotion as Accounts Officer but the only hurdle in his way is the passing of departmental examination for which we are of the view that in case of old employees of T&T Department who had already qualified the departmental examination, they are not required to appear again in the examination. Since the respondent P.T.C. In their objections filed in the Lahore High Court, have done away the passing of departmental examination for Accounts Officers--- and there is nothing else against him, we direct the department to place the case of the appellant before D.P.C. For consideration for promotion as Accounts Officer (BPS-171) according to seniority- cum-fitness within a period of to months. With these observations, the appeal stands d6sed of in the above terms.