1. ' SYED DEEDAR HUSSAIN SHAH, J.---This judgment will govern the above appeals which are outcome of the impugned judgment dated 18-3-1996 passed by the Federal Service Tribunal involving same facts and law.
2. ' Brief facts of the case are that respondents Rana Khalid Mahmood in Civil Appeal No, 1756 of 1996 respondent and Noor-uz-Zaman Qureshi in Civil Appeal No,1757 of 1996 were granted selection grade in BS-17 as Accountants in Pakistan Railways, whereas Mst. Shakila Yazdani and Mst. Fauzia Imtiaz, Secondary School Teachers were also allowed selection grade in BS-17 and they were allowed the facility of ACC passes. However by an order dated 12-9-1995 the entitlement of ACC passes and other facilities was revised by the Pakistan Railways mentioning 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 respondents and they submitted departmental representations but of no avail. Thereafter, the respondents filed appeals before the learned Federal Service Tribunal which were allowed by the impugned judgment.
3. ' This Court on 17-11-1996 granted leave to appeal in the following terms:-- "Learned counsel submits that the respondents were not entitled to get the fringe benefits/privileges because they were not the regular promotees on the ground that they could not be treated at par with those employees of the petitioners who were holding substantive pay scale PBS-17. It is argued that there is difference between a person regularly promoted to BPS-17 and an employee in PBS-16 who had merely been given selection grade BPS-17. According to the learned counsel, grant of selection grade is not a promotion in law entitling the respondent to claim benefits of higher scale. Inter alia, the points raised by the learned counsel need consideration. Leave to appeal is, accordingly, granted to the petitioner."
4. ' We have heard Mian Masood-ur-Rehman, learned counsel for the appellants and Mr. Afzal Ahmad Qureshi, learned counsel for the respondents.Mian Masood-ur-Rehman, learned counsel for the appellants contends that the respondents were in BS-16 and they could not equate themselves with BS-17 and were holding BS-17 only as selection grade and not as substantive Grade-17, that 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 the decision to withdraw the facility could not be challenged in service appeal being a policy matter. He relied upon case of The Engineer-in-Chief Branch v. Jalaluddin (PLD 1992 SC 207). The learned counsel has further pointed out that the respondents had approached the Lahore High Court by filing writ petitions where they agitated the withdrawal of ACC passes facility but their writ petition as well as IntraCourt Appeal bearing No,69 of 1993 were dismissed on the ground that facility of grant of the A.C.C. Passes was part of terms and conditions of service which could not be enforced by way- of Constitutional petition, therefore, the Intra-Court Appeal was dismissed which has no bearing to the case of the respondents and this fact was also considered by the Federal Service Tribunal.
5. ' Learned counsel for the respondents has drawn our attention to a letter whereby the respondents were promoted as Accountants and Teachers. He has further pointed out to Government of Pakistan Finance Division (Regulation Wing) 'Officers Memorandum dated 8-5-1983 which reads as under:-- "The undersigned is directed to refer to Ministry of Railways (Railway Board) O.M. No,Re.6/31/86-A.II, dated 27-1-1988 on the subject mentioned above and to say that School Teachers who have been allowed selection grade in B-17 are entitled to the privilege of A.C.C. Passes for travelling by rail and also facility of House Rent ceiling as admissible to other Government servants in BPS-17.
6. ' Learned counsel for the respondents further pointed out that the order for issuance of A.C.C.
7. Passes to the Accountants according to the Selection Grade B-17 was made by the Chief Accounts Officer, Pakistan Railways, Lahore, dated 24-10-1992 which provides as under'- "The 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 the pass holders who will be accommodated in the seats are available after accommodating all the revenue passengers."
8. ' In view of this background, we would like to discuss the case-law cited by the learned counsel for the appellants.
9. ' In the Engineer-in-Chief Branch v. Jalaluddin (PLD 1992 SC 207) respondent Jalaluddin was never promoted to NPS-11 and no decision of the competent authority had been placed on record to substantiate the contentionof the respondent about his fixation in NPS-11. This Court while considering the principle of locus poenitentiae and allowing the appeal observed as follows:-- "The order under which the payment was made to the respondent had no sanction of law. Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The appellants when came to know that on the basis of incorrect letter, the respondent was granted Grade-11, they withdrew the said letter. The principle of locus poenitentiae would not apply in this case. However, as the respondents had received the amount on the bona fide belief, the appellant is not entitled to recover the amount drawn by the respondent during the period when the latter remained in the field."
10. ' It would be advantageous to refer to case of Government of the Punjab and others v. Muhammad Awais Shahid and others (1991 SCM R 696), wherein it has been observed that ' whenever there is a change of grade or post for the better, there is an element of selection involved that is promotion and it is not earned automatically, but under an order of the competent Authority to be passed after the consideration on the comparative suitability and the entitlement of those incumbents.
11. ' In the case of Muhammad Islam and others v. General Manager, Pakistan Railways (1994 SCM R 1626) this Court while considering the case and reiterating the very principle laid down in 1991 SCM R 696, as pointed out hereinabove, concurred the view taken in that case.
12. ' In the case of Government of Pakistan v. Syed Akhlaque Hussain and another (PLD 1965 SC 527) this Court has observed that a condition of holding an office means obviously a condition on which office is held. Any benefit or disadvantage that attaches to the holding of an office as such is a condition of service or condition of holding of office.
13. The respondents were granted selection grade in BS-17 by the competent Authority after observing all legal formalities and thereafter ACC passes were allowed to the respondents by the Railway Authorities which were fringe benefits falling within the terms and conditions of service of a person which cannot be taken away by the appellants. The order of the appellant withdrawing the ACC passes in favour of the respondents is not based on equity, fairplay and rather it appears to be arbitrary which shows that the respondents were being discriminated by the appellants.
14. ' We have minutely gone through the material placed on record and have also considered the submissions of the learned counsel for the parties and we find that impugned judgment passed by the Federal Service Tribunal is based on settled principles of law. There is no misreading or non- reading. Of the evidence. The writ petition filed by the respondents before the High Court as well as Intra-Court Appeal were dismissed for want of jurisdiction as grievance of the respondents related to terms and conditions of service, therefore, the appropriate forum for redress of their grievance was the Service Tribunal. The selection grade awarded to the respondents in BS-17 is a promotion and on this account fringe benefits as well as ACC passes allowed to them by the appellants, subsequently cannot be withdrawn which itself will be a discrimination against the respondents.
15. The case-law cited by the, learned counsel for the appellant has no relevancy to this case.
16. ' For the facts, circumstances and reasons as well as case-law referred to hereinabove, we are of the considered opinion that these appeals are devoid of merit and substance, warranting any interference with the impugned judgment by this Court, which must fail and the same are hereby dismissed.