' SH. RIAZ AHMAD, J.---This judgment shall dispose of above two appeals which, by leave of the Court, are directed against the judgment and order dated 5-10-1994 delivered by the Federal Service Tribunal whereby a major structural change in the Customs and Excise Group in the Service of Pakistan was ordered to be effected.
2. The facts in brief giving rise to the institution of these appeals are that appellants in C.A. No,673 of 1995 and respondents Abdul Haseeb and others in both appeals are employees in the Customs and Excise Department. The respondents are working as Principal Appraisers in BPS-17 in the Customs Department while appellants were direct recruits in BPS-17, who were selected by the Federal Public Service Commission through a competitive examination. In October, 1978, Late General Ziaul Haq, the then President of Pakistan visited Karachi Port Trust where he met with the staff of the Customs Department. The staff placed their grievances for better pay scales before the President whereupon he decided that the post of Preventive Officer in BPS-10 be upgraded to BPS- 13 while the posts of Appraisers in BPS-13 be upgraded to BPS-17. In pursuance of the directive of the President, the Central Board of Revenue vide notification dated 15-9-1980 upgraded the posts of 194 Principal Appraisers/Appraisers from Grade 16 to Grade 17 including 52 respondents in both these appeals with effect from 1-3-1979. Vide the said notification they were placed on probation for one year as required under the Rules. As stated earlier, appellants Muhammad Anis and others were appointed on different dates as Assistant Collectors in Grade-17 in the Customs and Excise Group on the recommendation of the Federal Public Service Commission through competitive examination after the up gradation of the respondents. In due course of time, some of the appellants/direct recruits were promoted to Grade 18 vide separate notifications. The promotion of the appellants gave rise to the present dispute. The respondents after making departmental representations filed a petition under Article 199 of the Constitution in the High Court of Sindh at Karachi and the same was allowed vide judgment dated 20-5-1990 whereby the Department was directed to consider the case of the respondents for promotion in accordance with the rules and the law applicable to them. The appellants assailed the said order in this Court. Vide judgment dated 6-3-1994 this Court set aside the judgment of the High Court of Sindh and held that the High Court had wrongly assumed jurisdiction in the matter because the same was barred under Article 212 of the Constitution as the dispute necessarily pertained to the enforcement of terms and conditions of service. The concluding paragraph of the judgment of this Court is reproduced below:- "We would, therefore, allow the above appeals and set aside the judgment under appeal with no order as to costs. However, we would remand the case to the Tribunal with the direction that the above writ petition filed by the private respondents before the High Court shall be treated as a service appeal pending before it, which will be decided after notices to the parties concerned in accordance with law."
' In the light of the orders of this Court the respondents approached the Service Tribunal and resultantly the impugned judgment was passed.
3. We have heard the learned counsel for the parties at length. It was strenuously contended that the case of the appellants stands on a different footing as compared to the respondents inasmuch as the appellants were selected by the Federal Public Service Commission through a competitive examination for being appointed as Assistant Collectors in BPS-17 and as such they are members of the Customs and Excise Group as contemplated by the Administrative Reforms contained in ESTACODE, 1989 Edition. Relevant provisions read as under:-- "3. Grade 17.--75% posts in Grade-17 will be filled through competitive examination conducted by the Federal Public Service Commission and 25% through promotion. After completion of one years' training at the Academy for Administrative Training, the probationer officers allocated to this group will undergo departmental and on-the-job training to be followed by an examination. Officers promoted to Grade-17 may also be required to undergo such departmental training as the Central Board of Revenue may prescribe.
4. The following provisions are being made to enable educationally qualified persons in Grade 16 and below to secure entry in Grade 17:--
(a) They can appear in the competitive examination up to the age of 30 years provided they have put in at least 2 years' service. A maximum of two chances will be allowed after one has entered Government service.
(b) There will also be a departmental examination under which departmental candidates can be considered for accelerated promotion in their own department. The upper age limit for this examination will be 45 years for the first examination, 40 years for the next examination, and 35 years for all subsequent examinations."
4-A. It was further urged that the claim of the respondents to be promoted along with the appellants as members of the Customs and Excise Group was fallacious because the promotion of the respondents is to be governed on the basis of quota as provided by the rules and merely because they are holding an upgraded post in Grade 17 would not bring them at par with the appellants as members of the Customs and Excise Group. On the other hand, it was urged on behalf of the respondents that they were appointed to the upgraded posts in Grade-17 under the Presidents' Order in exercise of the powers vesting in him under section 23 of the Civil Servants Act, 1973 and therefore, the Principal Appraisers as well as Assistant Collectors carrying Grade-17 were to be treated at par and since they had been appointed earlier than the, appellants, they would be considered to rank senior to them and after completion of 5 year's service in Grade-17 were eligible for promotion to Grade-18. It was further contended that the promotion of the appellants to Grade- 18 was unjust and illegal being junior to the respondents. It was also urged before us on behalf of the respondents that having become officers in Grade-17, they stood automatically inducted into the Customs and Excise Group and downgrading their posts to Grade-16 in 1983 was illegal and the Presidential Order having been acted upon, could not be revoked on the principle of locus penitential.
5. After anxious consideration, we are of the view that the contentions raised on behalf of the respondents are devoid of force. Reliance placed by the respondents on section 23 of the Civil Servants Act, 1973 is irrelevant and is opposed to the letter and spirit of the provisions of section 23 of the Act, which reads as under:- "23. Saving: Nothing in this Act or in any rule shall be construed to limit or abridge the power of the President to deal with the case of any civil servant in such manner as may appear to him to be just and equitable: ' Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favorable, to him than that provided by this Act or such rule."
From the perusal of the above provision it is abundantly clear that this provision can only be resorted to in an individual case of hardship and not for upgrading the posts of 194 Principal Appraisers/Appraisers. Furthermore, it will be appropriate to refer to provisions of section 5 of the Civil Servants Act, 1973, which reads as under:-- "5. Appointments: Appointments to an All-Pakistan Service or to a civil post of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with defence shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf."
It is obvious that the up gradation ordered by the Central Board of Revenue in pursuance of the Presidential Directive was violate of section 5 of the Act and therefore, the appointments of the respondents in a higher grade could only be considered to be ad hoc conferring no substantial rights on them.
6. The Federal Service Tribunal also dealt with the issue of subsequent downgradation of the posts of the respondents as ordered in 1983. In this context the Tribunal also referred to its own judgment in Appeal No,7(K) of 1984 (Baleeghur Rehman v. Secretary, Establishment Division and others) decided on 28-11-1987. The Tribunal in this appeal while discussing the matter in detail came to the conclusion that the Government was competent to upgrade or downgrade or designate any post as it may deem fit. The Tribunal after referring to this judgment did not proceed further and confined itself to the pleading of the parties in the writ petition, which as stated earlier was decided in favour of the respondents, but the judgment was set aside and the writ petition was remanded to the Tribunal to be treated as an appeal. On further consideration of the facts, we are of the view that posts of the respondents were upgraded through a Presidential Order issued in 1978 and after perusing the provisions of the Administrative Reforms we are of the view that this up gradation was personal to the respondents and in the year 1983 again the posts of the Principal Appraisers/Appraisers were retained in BPS-16 and BPS-14 respectively. In this view of the matter, their seniority is to be determined under the provisions of section 8 of the Civil Servants Act, 1973 and such seniority would be having a reference to the post and not the grades as the words 'grade' was omitted vide Ordinance III of 1983 with effect from 1-7-1987. In this view of the matter, the claim of the respondents that since they were working in Grade-17, therefore, they should be brought at par with the direct recruits in Grade-17 has no bearing on the issue. Furthermore, unless the respondents are inducted regularly as Assistant Collectors in Grade-17, they cannot claim promotion in Grade-18 in the Customs and Excise Group. Reference to the provisions of Administrative Reforms above is clear on the subject and the Customs and Excise Group is constituted through the direct recruits, who are selected by the Federal Public Service Commission through competitive examination. This group was constituted under the administrative reforms and comprises of the posts in the Customs and Excise Department according to the rules, 75% posts in Grade-17 are to be filled by the Federal Public Service Commission while 25% posts ate to be filled through promotion and after one year's training in the Academy, the probationers are allocated to the Group. It thus follows that without induction into the group as provided by the administrative reforms and after necessary training in the Academy, a person cannot be treated a member of the Customs and Excise Group.
7. The Federal Service Tribunal came to the conclusion as stated above, but strangely enough while holding so, issued certain directions which, in our view, amount to contradiction in terms. The Tribunal directed the Central Board of Revenue to process the case of the respondents for their regular induction as Assistant Collectors with retrospective effect in the Customs and Excise Group and for further promotion in Grade-18, according to rules. With utmost respect to the Tribunal, we are of the view that this direction was uncalled for as it is against the spirit of policy laid down under the administrative reforms as discussed above.
8. Resultantly, we allow these appeals while upholding the conclusions arrived at by the Federal Service Tribunal except the direction referred to above and the judgment of the Tribunal to that extent is set aside. The Central Board of Revenue would be under no obligation to process the case of the respondents such for their regular induction retrospectively as Assistant Collectors in the Customs and Excise Group. The parties shall bear their own costs.