IJAZ AHMAD CHAUDHRY, J.~ Through this Constitutional petition the petitioner seeks declaring of letters dated 22.9.1990 and 24.12.1990 as without lawful authority and of no legal effect, it is also prayed that the respondents may be directed to grant move-over to the petitioner with effect from 1.12.1 984.
2. The brief facts of the case are that the petitioner qualified M.Sc. Physics and joined the PCSIR Laboratories in January, 1958 as Technical Assistant. The petitioner was promoted as Research Officer with effect from February, 1964 and in 1967 the petitioner was promoted as Senior Research Officer. He was also promoted in June, 1977 as Principal Scientific Officer in basic pay scale No.. 19.
The petitioner reached the ceiling of basic pay scale No. 19 on 1.12.1983. According to the petitioner as per the move-over policy of the Government, he was eligible to basic pay scale 20 with effect from 1.12.1984, and all the officers of basic scale No. -19 who were due for move- over on 1.12.1984 were granted move-over from the due date, but the petitioner was not granted move-over with effect from T.12.1984. Then the petitioner find a representation to the Chairman, respondent No. 1 but no reply was given to the petitioner. Thereafter the petitioner moved to learned Wafaqi Mohtasib who called for comments from respondent No. 1 and first time the petitioner came to know that he was denied move- over only for the reason that out of five preceding years he had two good and three average reports instead of three good reports which were required. The learned Wafaqi Mohtasib disposed of the petitioner on the ground that it was a service matter and was beyond his jurisdiction.
3. The petitioner was granted move-over on 22.10.1989 in basic pay scale No. 20 with effect from 1.12.1988. The petitioner find representation to Secretary, Establishment Division, Government of Pakistan for the grant of move-over from 1.12.1984 but the petitioner was informed through letter dated 28.5.1990 that the request of the petitioner for ante-dating his move-over to Grade-20 has been considered and rejected. The petitioner again through letter dated 22.9.1990 find representation to Secretary, Establishment Division and the petitioner was informed vide letter dated 24.12.1990 that due to the earlier decision, the request of the petitioner has been declined.
The petitioner was allowed move-over on 20.5.1991 with effect from 1.12.1987.
4. The petitioner was continuously agitating the matter for the grant of move-over in Basic Pay Scale No. 20 with effect form 1.12.1984. But all the efforts failed, hence, this writ petition was find. This Court on 20.1.1997 ordered that since a short point is involved in this matter let it be find for final determination in the first week of April, 1997.
5. Learned counsel for the respondents has raised preliminary objection that all the employees of PCSIR Laboratories after the induction of Section 2-A in the Federal Service Tribunal Act have become civil servants; similarly the matter relates to the terms and conditions of service and they can file appeal before the Federal Service Tribunal. Hence, under Article 212 of the Constitution of Islamic Republic of Pakistan the bar is contained to entertain the matter relating to terms and conditions of service, hence, this petition is not maintainable.
6. Learned counsel for the petitioner on the other hand has vehemently opposed this preliminary objection on the ground that the Federal Service Tribunal under Section 4-A of the Federal Service Tribunal Act cannot decide and adjudicate upon the matters regarding the cases of civil servant who were considered for promotion but not found fit, hence, this writ petition is maintainable.
7. Learned counsel for the petitioner further contends that the petitioner has not been considered for promotion with effect from 1.12.1984 only due to the reason that the petitioner secured two good and three average reports, instead of three good reports from 1980 to 1984. Learned counsel for the petitioner relying upon Muhammad Anwar v. The Secretary, Establishment Division, Rawalpindi and 2 others (PLD 1992 Supreme Court 144) and he also relied upon Federation of Pakistan v.
Muhammad Qaisar Khan (1994 SCM R 544), argues that the average reports are declared as good reports and not as adverse reports which cannot be made basis for the refusal of granting move over in basic pay scale i.e. Grade-20 by the respondents. Hence, the petitioner has been wrongly deprived of move over in grade-20 with effect from 1.12.1984.
8. On the other hand learned counsel for the respondents has argued that if the writ petition is accepted it will cause great loss to the respondents as they will have to consider the cases of all other affecties due to this reason. They will have to burden with heavy financial responsibilities.
9. I have heard the learned counsel for the parties at length. The case of the petitioner is that he was entitled for the grant of move-over in grade 20 with effect from 1.12.1984. According to the policy of the Government of Pakistan as he reached the ceiling of BPS-19 on 1.12.1983 for this purpose respondents claimed that the case of the petitioner was considered and he secured two good and three average reports and he was not found fit for the grant Conover-over in basic scale No. 20 due to this reason. The determination is definitely against the law laid down by the August Supreme Court of Pakistan in Muhammad Anwar v. The Secretary, Establishment Division, Rawalpindi and 2 others (PLD 1992 Supreme Court 144) which is reproduced as under:- "* If there is no adverse report against him and he gets "average reports" they would have to be treated cannot be treated as adverse unless specifically so treated and then conveyed to the civil servant as an adverse report. Notwithstanding the grading regarding the average in other aspects of civil service, in the context of move-over expression "generally good" would, amongst others, apply to mixed sort to reports containing good and average reports. Thus in the case of the appellant he had earned also three average reports. The effect of all these reports was "generally good" reports."
The similar view has been taken in the case titled as Federation of Pakistan and others Vs. Muhammad Qaisar Hayat Khan (1994 SCM R 544).
10. Hence, the petitioner could not be deprived of awarding move over in basic pay scale No. 20 with effect from 1.12.1984. The petitioner has succeeded in making out his case on merits. As far as the objection raised by the learned counsel for the respondent is concerned, there is no cavil that all the employees of the autonomous bodies have become civil servants after the induction of Section 2-A in the Federal Service Tribunal Act and Section 2-A shall operate retrospectively in view of the law laid down in the following cases:- (1) Waseem Ahmad Khan Vs. Wapda and 3 others (1997 SCM R 2000), (2) Zahir Ullah and 13 others v. Chairman, Wapda Lahore and others (2000 SCM R 826), (3) Gulzar Hussain Vs. Sui Northern Gas Pipelines Limited and 2 others (2000 SCM R 959), but the case in hand does not fall within the jurisdiction of Federal Service Tribunal under Section 4(b) of Service Tribunal Act which is reproduced as under:- "4.(b). No appeal shall lie to a Tribunal against an order of decision of departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade: It is crystal clear from the abovesaid provision that the case in hand in which the department has considered the case of the civil servant and has not found fit for the promotion, the Service Tribunal has no jurisdiction. Under Article 212 of the Constitution of Islamic Republic of Pakistan the bar is contained where, the Service Tribunal has jurisdiction to entertain and decide the same but in this case the petitioner has been considered and has been deprived of move over in basic pay scale No. 20 on the ground that he secured two good and three average reports. He was declined by the Service Tribunal under Section 4(b) of the Service Tribunal Act, as the Federal .Service Tribunal has no jurisdiction to entertain the appeal against the said determination of the respondents, hence, this Court can interfere and the bar contained under Article 212 of the Constitution of Islamic Republic-of Pakistan does not attract in such like cases. Therefore, I hold that this Court can entertain the petition of the employees whose cases have been considered by the department and have not been found fit for promotion and the bar under Article 212 of the Constitution of Islamic Republic of Pakistan does not affect the writ jurisdiction of the High Court. As the petitioner, due to the abovesaid discussion, has succeeded in making out a case that he was deprived of granting move over in basic pay scale No. 20 with effect from 1.12.1984, this petition is accepted and the respondents are directed to grant move-over in BS-20 to the petitioner with effect from 1.12.1984. As the petitioner has since been retired from service, respondents are directed to make payment while calculating the same after joining the petitioner within 60 days from the receipt of this judgment.