' MUHAMMAD RAZA KHAN (MEMBER).---This judgment will dispose of the Appeals Nos. 14, 30, 31, 32, 33, 34 and 35 (L) of 1996 as similar questions of law and facts are involved in all these seven appeals.
2. The appellants of Appeals Nos. 30 to 33(L)/96 are Secondary School Teachers and the appellants of Appeals Nos. 34, 35 and 14(L) of 1996 are Accountants. All the appellants were employees of Pakistan Railways in BPS-16 and they have been granted selection grads BPS-17 with effect from various dates in accordance with the percentage reserved for their cadre. In the order granting selection grade to the school teachers it was provided that "secondary school teachers who have been allowed selection grade will be entitled to the fringe benefits as admissible to the regularly promoted BPS-17 officers in terms of para. 1(i) of this Ministry's Letter No,E-IV/74-PC. 1/82, dated the 16th March, 1986". Moreover, by an Office Memorandum dated 8-5-1988 it was provided that "school teachers who have been allowed selection grade in BPS-17 are entitled to the privilege of A.C.C. Passes for travelling by rail". Similarly, by another order dated 22-10-1992 it was announced that "competent Authority has approved the proposal to grant A.C.C. Passes to the Accountants who are working in Selection Grade (B-17) and the revenue passengers will, however, have preference over pass holders who will be accommodated if the seats are available after accommodating the revenue passengers". Thus the facility of grant of A.C.C. Passes was extended to all the appellants consisting of the school teachers and the accountants who have been granted B-17 by way of selection grade. However, by an order dated 12-9-1995 the entitlement of A.C.C. Passes and other facilities was revised and it was provided therein that "grant of scales due to move-over or grant of selection grade will not entitle an employee to claim higher class of travel". This sentence contained in the Circular dated 12-9-1995 affected the present, appellants.
They moved departmental representations and have filed the present appeals thereafter.
3. The, respondents contested the appeals on the ground, inter alia, that the privilege of free pass was not a vested right and it was simply a facility which can be modified or altered by the department at its discretion and that the decision to withdraw the facility was a policy-matter and could not be challenged through service appeal. It was also alleged that some of the appellants had filed civil suits on the same cause of action which have been rejected, therefore, present appeals were hit by the principle of res judicata.
4. The contention with regard to the facility of free pass being a vested right or privilege at the discretion of the respondent department needs some elaboration as in the following sub-paras.:--
(a) The facility of A.C.C. Passes was extended to the School Teachers vide O.M. Dated 8-5-1988 which was further supplemented by the concluding paragraph of order granting selection grade to the School Teachers. Similar facility to the Accountants was extended by Notification dated 22-10- 1992. In the first notification pertaining to the School Teachers dated 8-5-1988 it has been laid down that School Teachers who have been allowed selection grade in B-17 are entitled to the privilege of A.C.C. Passes. The word "entitled" refers to the existence of a vested right. Once a person is entitled to a particular privilege, he will have the right to enforce the said entitlement through the process of law if such entitlement is refused thereafter.
(b) Similarly, the concluding para. Of the notification granting selection grade to the school teachers provides that the Secondary School Teachers who have been allowed selection grade will be entitled to the fringe benefits as admissible to regularly promoted B-17 Officers. This has again reiterated, by a specific expression, the entitlement to all the fringe benefits to the selection grade teachers. The word "entitlement" again denotes the existence of a right and the term "fringe benefits" will include all the benefits and facilities attached to a particular post and such fringe benefits includes the benefits of travelling, accommodation, etc. As laid down in PLD 1965 SC 527.
(c) Vide Notification dated 22-10-1992 it was announced that the competent Authority has approved the proposal to grant A.C.C. Passes to the Accountants who are working in Selection Grade (B-17). Thus that the approval of proposal amounts to a decision and decision to grant particular facility to a specific class of employees will create a right in all the members of that class/cadre. Once a decision is made and the facility is extended, it does not remain a discretion of the department any more but becomes a vested right which can be enforced through legal process.
(d) The respondents have relied on para. 1 of pass manual to show that "passes cannot be claimed as a right, their issue is, without exception, subject to the discretion of the Administration". These instructions contained in the manual are almost half a century old, which are supposed to be superseded by the recent notifications referred to in the preceding paragraphs. Even otherwise the notifications are issued in exercise of the said Administrative discretion. Once a discretion is exercised to allow a privilege, the recipient can get it enforced as a right.
(e) It has been held in several judgments of the superior Courts as well as in the administrative instructions of the Federal Government that the move-over to the next grade is not a promotion whereas the selection grade is considered to be promotion for all practical purposes. Thus the grant of selection grade to an employee in B-17 shall invest such employee with the right to claim all the benefits attached to the post in B-17 and this right cannot be modified or withdrawn by administrative instructions.
(t) All the privileges to which an employee is held entitled after approval from the competent authority becomes a part of the terms and conditions of service and can be enforced by way of service appeal.
(g) The leArned counsel for the respondents referred to a judgment of Lahore High Court in Intra- Court Appeal No, 69 of 1983 (Muhammad Latif v. Chairman, Railway Board) to show that Constitutional petition for the continuation of facility of A.C.C. Passes was dismissed on the ground that grant of pass cannot be claimed nor enforced as a matter of right. The perusal of the said judgment shows the petition was dismissed on the ground that the facility of grant of passes was a part of the terms and conditions of service and cannot be enforced by Constitutional petitions.
(h) Under the Rules of Business the terms and conditions of a civil servant cannot be altered without the prior consultation of the Establishment Division and if such terms and conditions have financial implications, the consultation with Finance Division will also be necessary. Since the promotion to the next higher grade is considered to be a regular promotion for all benefits attached to the higher grade, the discrimination order of withdrawal of certain facilities to the employees in selection grade will amount to the alteration of privileges attached to a service and, therefore, any decision by the respondents without the consultation of the Federal Government in the Establishment Division and the Finance Division will be a violation of the Rules of Business, 1973 and devoid of legal sanctity.
5. Next contention is with regard to the legality of challenging policy-matters. All policy decisions are not immune: Any policy which affects the rights of the civil servants with retrospective effect can certainly be challenged by way of service appeal. A policy can certainly be framed with prospective effect but those employees who already allowed specific privileges cannot be affected by the alteration of a policy on the principle of locus poenitantiae. Even prospective application of a policy to the detriment of an established principle shall be a nullity and a policy decision whereby the promotion to selection grade is equated with the facility of move-over shall have no legal effect.
6. The contention of res judicata is also not applicable because two ingredients of "Court of Competent Jurisdiction" and "regular hearing and final adjudication on merits" are not applicable to the case decided by the Civil Court. It may also be mentioned that the appellant in Appeal No,14(L)/96 had not instituted a civil suit. The rest of the appellants filed the suits for temporary injunction and the plaint was rejected under Order 7, Rule 11 of the C.P.C. Even the said order of rejection was passed on 3-3-1996 whereas the present appeals have been filed much earlier than that. Even on this count the principle of res judicata will not be applicable.
7. The result is that we accept these appeals, set aside the impugned order dated 12-9-1995 to the extent it affects the School Teachers, Accountants, etc. Working in BPS-17 in Selection Grade and direct that the words "or grant of selection grade" may be deleted from the last-but-one sentence of Notification dated 12-9-1995.
8. No order as to costs.
9. Parties be informed.