' MUHAMMAD RAZA KHAN (MEMBER).---This judgment will also dispose of connected Appeals Nos.
294, 295 and 296(L) of 1996 as identical questions are involved in all these appeals.
2. The appellants in all these four appeals joined the erstwhile Office of the Deputy Comptroller, PT&T Department, Lahore as L.D.C. (one of them joined on 12-1-1958 while the other three joined in 1965). The Office of the Deputy Comptroller was a subordinate office of the Comptroller PT&T Karachi. In 1976 the Office of the Deputy Comptroller at Lahore was upgraded as Auditor-General, PT&T. In the year 1981 the office of the Auditor-General, PT&T was bifurcated in three units and the staff working in the said Organization was shifted en bloc along with their posts/seats to the Post Office Department, T&T Department and Audit Department. For the present we are concerned with the case of the staff allocated to the Post Office Department: The appellants as well as the private respondents were transferred to the Post Office Department. Prior to this bifurcation an agreement was finalized whereby not only the terms and conditions of service of the employees so being transferred were being protected but their promotion prospects in their own cadre was also protected. Para. (b) of the agreement dated 28-12-1980, relating to the parties before us, reads as under:-- "(b) The employees of Pakistan Audit Department holding post in NPS 1 to 15 at the time of their transfer to Post Office Department shall continue to form separate cadres and shall be eligible for promotion from one grade to another as at present. The employees who were, immediately before their transfer to Post Office Department, eligible to appear in the Examination for promotion to Grade-16 posts prescribed by the Pakistan Audit Department, shall be eligible to appear' in the Examination prescribed by the Pakistan Post Office Department for promotion of their employees to Grade-16 posts and the existing benefit of promotion against 33% of posts of Accountants (Grade- 16), otherwise than by qualifying the said Accountants (Grade-16) Promotion Examination, shall continue to be admissible to such employees, such benefit being applicable to the number of posts, transferred from Pakistan Audit Department to the Post Office Department and the additions made to such posts from time 'to time."
' Thus a combined seniority list of the officials in B-11 was issued in 1981 wherein the appellants were placed at Serial Nos. 34, 31. 32 and 40 respectively. It is alleged that the above said policy was being implemented by all the three Departments, however, the respondent-department allegedly violated the policy in 1996 whereby the private respondents Nos. a and 5 were promoted on regular basis to the post of Assistant Accounts Officer (B-16) and the private respondents Nos. 6 and 7 were promoted on acting charge basis as Assistant Accounts Officer (B-16). The appellants; considering themselves senior to the said private respondents agitated the issue by filing departmental appeal and after waiting for the statutory period of ninety days the present appeal has been filed.
3. The department as well as the private respondents contested the appeals. Written objections were filed. The contention of the respondents is that actually in the year 1991 the rules had been changed and the junior Accountants were declared to be eligible for promotion to the post of Assistant Accounts Officer (B-16) and that in case of non-availability of eligible Junior Accountants the Senior Accounts . Clerks were also held eligible for such promotion against the said quota and since the notification has not been challenged for almost five years, therefore, the department was justified to promote the Junior Accountants in accordance with the prevailing promotion policy. It was further added that four posts of Assistant Accounts Officers became vacant. In consultation with the Establishment Division, the dispute with regard to the distribution of quota was resolved and thus the private respondents were promoted. Hence the action of the respondent-department was said to be fully justified. We have listened to the arguments and perused the record with the help and assistance of the learned counsel representing all the parties.
4. At the out-set it may be clarified that there appears to be a confusion with regard to the applicability of the Promotion Policy of 1991. As will be discussed hereinafter, the Promotion Policy of 1991 has not been applied to the cases of promotion to the post of Assistant Accounts Officer (B-16) till 1994. Actually the analysis of the entire set of rule lead us to believe that there were two parallel cadres in the Accounts Section of Pakistan Post Office Department. Prior to the bifurcation of the Office of Auditor-General, PT&T, the Post Office Department had its own cadre in the Accounts Branch consisting of Assistant Accountant (Grade-7), Junior Accountant (Grade-12), Senior Accountant (Grade-16) and Junior Accounts Officer (Grade-17). The promotion to the post of Senior Accountant (Grade-16) was by promotion from amongst Junior Accountants in accordance with para. 3 of the Notification dated 8-7-1981 and in para. 3 the conditions for promotion was specified .As three years' service in Grade-12 with the condition of having been qualified Part II of the departmental examination. In the year 1983 this notification was amended relating to some other categories of employees but the method of appointment and condition of promotion to the post of Senior Accountant (Grade-16) remained the same. In 1991 the said policy was changed and the post of Senior Accountant (B-16) was continued to be filled 100% by promotion but two major changes were made in the earlier policy. Firstly that 1/3rd of the promotion was reserved for promotion on the basis of seniority-cum-fitness without the requirements of qualifying the departmental examination and secondly. The Senior Accounts Clerks in B-11/15 were also allowed to be considered for promotion to the post of Senior Accountants (B-16) in case of non-availability or non-eligibility of Junior Accountants. Para. 10 of the Notification clarifies the confusion which reads as under:-- "10. This Notification issues with the concurrence of the Establishment Division as contained in their O.M. No,28/5/77/-R.5, dated 14th November, 1991 and supersedes this Ministry's (Pakistan Post Office ) Notification No,SRO 742(1)/81, dated 8th July, 1981 and SRO 157(1)/83, dated 12th February, 1983 as amended from time to time, in respect of the post included in this notification."
5. This shows that the Notification of 1991 is in sequence with the Notification issued on 8-7-1981 and 12-2-1983 and the Notification dated 13-12-1991 practically supersedes the said earlier notification.
The first paragraph. Of the Notification dated 31-12-1991 further clarifies the issued by saying that "The following method, qualification and other conditions are laid down for appointment to Accounts posts in BPS-16 and BPS-17 (Departmental Cadre) under the Pakistan Post Office Department. The term "departmental cadre" mentioned in para. 1 resolves the entire controversy. It clarifies that there was a departmental cadre in the Post Office Department prior to 1991 and a policy of the said cadre was framed in 1981 which was partially amended in 1983 and finally changed in 1991. This policy had no concern with the employees joining the Accounts Department of Pakistan Post Office on the bifurcation of the Office of Auditor-General. PT&T for the following reasons:--
(i) Firstly that the officials transferred from the Auditor-General's Organization were to constitute a separate cadre as quoted in para. 1 hereinbefore in the extract from para. (b) of the agreement dated 28-12-1980;
(ii) Secondly, the staff transferred from Audit Department were so transferred en bloc with their seats. It is admitted that 33 seats of BPS-16 were transferred from Audit Department to the Post Office Department as a result of agreement of 1980. The Senior Accounts Clerks in BPS-11 and above were entitled to promotion to the post of Accountant (B-16) to the extent of 1/3rd of the vacancies on the basis of seniority-cum-fitness and without the requirement of qualifying the departmental examination. This facility was available even prior to 1980 to the accounts staff of the said Audit Department while this facility was not available to Junior Accountants in the Post Office Department till the policy of 1991. The terms and conditions of service of the transferred employees were protected and, therefore, to the extent of 11 seats out of the 33 seats the Senior Accounts Clerks were entitled to promotion on the basis of seniority-cum-fitness;
(iv) Thirdly, in sequence with the above, the Junior Accountants were previously working in the Audit Department and promoted to the post of Junior Accountants from the Senior Accounts Clerks could compete for the posts in the "departmental cadre" only. However, those Junior Accountants who had been transferred in junior capacity from the Audit Department can claim their entitlement to the extent of 1/3rd of the posts in BPS-16 on the basis of their seniority as Senior Accounts Clerks and not on the basis of their capacity as Junior Accountants;
(v) Fourthly, the cadre of Junior Accountants, admittedly, being the dying cadre, can certainly be adjusted as Senior Accountants/Assistant Accounts Officer (B-16) on the basis of 1/3rd posts in the departmental cadre i,e, other than the 33 posts transferred from the Audit Department. They can also compete against the 2/3rd quota of the posts of Assistant Accounts Officer (B-16) on the basis of qualifying departmental examination. They can further be considered for promotion as Assistant Accounts Officer in their previous status as Senior Accounts Clerks (so transferred from the Audit Department) against the 1/3rd posts of the 33 seats on the principle of their seniority-cum-fitness in that cadre. Finally they can also compete for the remaining 22 posts of the said 33 posts on the basis of qualifying the departmental examination in their capacity as transferees from the Audit Department. Hence with the passage of time this cadre will be merged in the main channel.
However, the Junior Accountants cannot be considered on priority basis for promotion against the 1/3rd quota of the Assistant Accounts Officer out of 33 seats so transferred from the Office of the Auditor-General, PT&T.
6. It is now established principle that any civil servant joining another department as a result of mutual agreement cannot be deprived of the benefits of the terms and conditions so guaranteed in the agreement. In Inter-Departmental agreement, dated 28-12-1980 two main conditions were approved:
(i) Firstly that the transferees from the Audit Department shall constitute a separate cadre; and
(ii) Secondly that they shall exclusively be entitled to the promotion against 33% of posts of Accountants (now Assistant Accounts Officer (B-16) without requirement of qualifying the departmental promotion examination. The said agreement has been implemented till 1994 in the Pakistan Post Office Department and was being allegedly implemented without any hindrance in the sister organizations of the T&T and Audit. The deviation from the terms and conditions as per agreement of 1980 cannot be held to be legal. As stated earlier the policy of 1991 was applicable to the original departmental cadre of Pakistan Post Office Department and had no concern whatsoever with the separate cadre of transferees from the Audit Department. However, to dispel the doubts perpetually it may be clarified that the agreement dated 28-12-1980 was to be honored in letter and spirit.
7. The private respondents alleged that the said four vacancies that had occurred in 1995 belonged to the total strength of Assistant Accounts Officer (B-16) and not entirely out of the 33 seats transferred from the Audit Department. However, this contention was negated by the learned counsel for the respondent-department by saying that practically the seats were vacated by the Officers belonging to the transferees cadre and falling within the 1/3rd quota of such cadre. In this view of the matter the post vacated by an incumbent of a particular cadre has to be filled from the employees of the same cadre as per rules applicable to them and not from any other cadre on the basis of re-calculation, quota or seats subsequently.
8. It was argued on behalf of the respondents that the change in the promotion policy was effected in 1991 by competent forum and the same has not been challenged by the appellants in time.
Hence after the expiry of the prescribed period of limitation, the policy has attained finality and now it was too late to challenge the policy issued by way of a service appeal. The argument, though developed brilliantly is not available to the respondents for three reasons:-
(i) Firstly, the policy letter of 1991 was, as stated earlier, applicable to the departmental cadre and the appellants were neither divested of their rights nor had Any cause to challenge the same at that time; '
(ii) Secondly, the department has itself demonstrated that the Policy of 1991 was applicable to the departmental cadre not to the transferees by their practice of promoting transferees Senior Accounts Clerks to the post of Senior Accountant/Assistant Accounts Officer (B-16) till 1994 despite the availability of the said Promotion Policy of 1991 which clearly proves that the department itself was conscious of the fact that the Policy of 1991 was not applicable to the employees joining the Post Office Department on transfer from Audit Department; and
(iii) Thirdly, there is no proof that the said policy was promulgated with the consent of or notice to the appellants. Notification published in the official gazette gets a presumption of truth and a presumption of notice to all concerned but in view of the directive of Honorable Supreme Court, the principle of natural justice has to be read as part and parcel of every statute, the vested rights of the appellants could not be withdrawn without affording proper opportunity of being heard after due notice. Thus, we hold that the Policy of 1991 is not applicable to the cadre of the appellants.
However, for the sake of argument even if it is believed to be so applicable, it will be ineffective on the rights of the appellants for being violate of the principle of natural justice.
9. For the foregoing reasons, we accept these appeals, set aside the impugned order dated 30-5- 1996 and direct that the appellants may be considered for promotion against the posts with effect from the dates the posts had become available on the vacation from the previous incumbents.