' IRSHAD HASAN KHAN, C.J.---Through this common judgment we intend to dispose of Civil Appeals Nos.925 to 943 of 1999 and Civil Appeal No, 1068 of 2000, with leave of the Court, which have arisen out of a consolidated judgment dated 16-3-1999 and judgment dated 18-3-1999 passed by the Federal Service. Tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeal No,583-R of 1997 and Appeal No, 561-R of 1997 involving identical questions of facts and law.
2. The appellants in all these appeals are in the employment of respondent-Oil and Gas Development Corporation, Islamabad (hereinafter referred to as the Corporation) having joined the Corporation as Assistant Officers (Non-Technical) on various dates. Admittedly, there were two categories of Assistant Officers, namely, Technical and Non-Technical. Prior to 28-1-1986, the Assistant Officers of both categories used to be placed in National Pay Scale BPS-16 but Assistant Officers (Technical) by way of initial monetary benefit were guided to five advance increments. On 28-1-1986 the Board of Directors of the Corporation (hereinafter referred to as the Board), by its policy decision replaced the system of grading the officers with reference to National Pay Scale by Executive Group (EG) I to VIII. With the introduction of the Executive Group the Assistant Officers (Non-Technical) were placed in EG-I while Assistant Officers (Technical) were placed in EG-III and at the same time the practice of five advance increments to Assistant Officers (Technical) was done away with. Under the new system, the Assistant Officers were entitled to promotion after five years. In the case of the appellants they were promoted from EG-I to EG-II.
3. The case of the appellants is that they are entitled to be promoted from EG-I to EG-III in order to maintain uniformity between the Assistant Officers (Non-Technical) and Assistant Officers (Technical) as was the practice in the past, inasmuch as, both categories pertain to Assistant Officers, therefore, shifting from EG-I to EG-II would not amount to promotion. The Tribunal vide impugned judgment dated 16-3-1999 took the view that the Assistant Officers who had been placed in EG-I could not jump over to EG-III without having put in five years' service in EG-II and that the Assistant Officers on Non-Technical and Technical sides could not be treated alike.
4. Leave to appeal was granted on 29-6-1999 in the, following terms: "2. The petitioners in all the petitions are in the employment of the respondent-Oil and Gas Development Company Limited having joined as Assistant Officers (Non-Technical) on various dates. Admittedly, there are two categories of Assistant Officers, namely, Technical and Non- Technical and prior to 28-1-1986 the Assistant Officers of both the categories used to be placed in National Pay Scale 16 (BPS-16), but Assistant Officers (Technical), by way of initial monetary benefit were entitled to five advance increments. From 28-1-1986, the system of grading the officers with reference to national pay scale was replaced by Executive Group (EG) I to VIII. With the introduction of the Executive Group the Assistant Officers (Non-Technical) were placed in EG-I while Assistant Officers (Technical) in EG-II, at the same time the practice of five advance increments to Assistant Officers (Technical) was done away with. Under the new system the Assistant Officers were entitled to promotion after five years. In the case of petitioners they were promoted from EG-I to EG-II.
However, the contention is that grades EG-I and EG-II both pertain to Assistant Officers and therefore, shifting from E-I to E-II would not amount to promotion, as such it is submitted that they are entitled to be promoted from EG-I to EG-III in order to maintain uniformity between the Assistant Officers (Non-Technical) and the Assistant Officers (Technical) as was the practice in the past."
5. We have heard the learned counsel for the parties and perused the material available on record.
Admittedly, the Board in its meeting held on 26-1-1986 approved policy of introduction of Pay Groups instead of Pay Scales for its Officers vide Office Memorandum ' No,Board-0104/4/1709 dated 28-1-1986, relevant portion whereof reads thus: ' OIL & GAS DEVELOPMENT CORPORATION HEAD OFFICE, ISLAMABAD ' No,Board-0104/4/1709, 28th January, 1986.
' Subject: INTRODUCTION OF PAY-GROUPS INSTEAD OF PAY SCALES FOR OFFICERS.
' "It is hereby notified that the Board of Directors in their meeting held on 26th January, 1986 have approved, with immediate effect, the introduction of pay-groups instead of present pay-scales for OGDC Officers as indicated below. The Officers would therefore, be identified by new pay-groups like E-I, E-II & E-III rather than be classified by pay-scales like pay-scales 16, 17 or 18. The Executive Groups approved by the Board are as under:-- Officers/Designations Executive GroupsPay-scales introducedRemarks Assistant Officer I 1125-80-2325 Assistant Officers (Technical Trainees) Graduate Engineers & M.Scs.II 1500-120-3060 The Officers placed in this pay-group shall not be entitled to 5 (five) advance increments.
Officers III 1800-120-3060 -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- ' "The promotion criteria and other terms and conditions of employment of Officers shall, however, remain unchanged after introduction of these pay-groups."
6. The Chairman of the Corporation vide Office Memorandum No,AAO-103-15, dated 2nd February, 1987 formulated Promotion Policy in Executive Group to the effect that: "as a result of introduction of Executive Pay Groups i.e, E-I to E-VIII instead of the Basic Pay Scales, the promotion shall be effected from one Group to another i.e, from E-I to E-II, and onwards, irrespective of the previous pay-scale of any particular post in any department." In partial modification of the above Office Memorandum and in continuation of O.M. Of even number dated 12-11-1984, it was notified vide O.M. Of even number dated 9-6-1988 that the Officers working in the erstwhile Pay Scale-16, possessing at least 3 years' experience in the existing cadre, prior to introduction of Pay Groups i.e, prior to 26-1-1986, would be considered for promotion to Executive Group-III, and those who had been working/inducted in the Executive Group-I, would be considered for promotion to Executive Group-II in accordance with the policy, already notified.
7. The grievance of the appellants is that in spite of the fact that they were qualified for promotion to EG-III they were promoted to EG-II.
8. Learned counsel for the appellants in Civil Appeals No, 925 to 931 of 1999 has placed on record an 'Organizational Chart' of the Officers divided into three levels as follows:-- 3 Level Senior Officers (EG-IV)
2 Level Officers (EG-III)
1 Level Asstt. Officers (EG-1)
Non-TechnicalAsstt. Officers (EG-II)
Technical ' He vehement y argued that as EG-I and EG-II pertain to Assistant Officers, therefore, shifting from EG-I to EG-II would not amount to promotion and that in order to attain uniformity between the Assistant Officers (Non-Technical) and Assistant Officers (Technical) they are entitled to be promoted from EG-I to EG-Ill as in the case of Assistant Officers (Technical).
9. Learned counsel for the appellants also placed reliance on the previous judgment of Tribunal in Appeal No, 417-R of 1997 titled "Muhammad Ali v. The Chairman, Oil and Gas Development Corporation, Islamabad", decided on 13-2-1998 wherein a contradictory view was taken in somewhat similar circumstances as reflected in paragraph 7 of the Tribunal's judgment, which reads thus: "7. We have considered the arguments advanced by the parties and also examined the relevant rules/instructions. The only objection by the Corporation to consider the appellant for EG-IV is that he had been mistakenly promoted to EG-III from EG-I without spending five years in EG-II and therefore, could not be considered for further promotion unless and until he completed the required length of service in that Group. In this connection we refer to the Corporation's letter dated 28-2-1986 whereby new Pay Groups were introduced instead of Pay Scales. Through this letter Group-I was prescribed for Assistant Officer (Non-Tech.) whereas Group-II was allocated to Assistant Officers (Tech.). Admittedly, the appellant is a non-technical officer and being so he could be promoted from Group-I to Group-III only i.e, to the Grade of officer and could not be promoted to the cadre of his colleague Assistant Officers (Technical) carrying Pay Group-II. The promotion letter of the appellant is absolutely clear and do not contain any condition of promotion whereas the so-called ban imposed for further promotion vide O.M. Dated 30-1-1994 refers to those officers who had been promoted to EG-111 as a special case. The appellant having been promoted not as a special case but in routine on merits, the said O.M. Is not applicable to him and we are of the considered view that after having put in five years' service in EG-III, he is eligible for consideration to next Group in accordance with the promotion criteria notified by the Corporation on 9-12-1986. Besides, we are of the view that the Corporation should also honour its commitment before the High Court to consider the appellant in accordance with the regulations. In thisrd nd st connection we may safely refer to the judgment of the Hon'ble Supreme Court reported as 1994 PLC 369."
10. Being aggrieved with the above judgment of the Tribunal dated 13-2-1998, the Corporation approached this Court through Civil Petition No,337 of 1998 but leave to appeal was declined with the observations that the Tribunal was right to consider Muhammad Ali Accountant-respondent No,1 therein for promotion to Group IV in accordance with the promotion criteria and regulations framed by the Corporation.
11. Mr. Shah Abdur Rashid, learned Advocate Supreme Court for the Corporation reiterated the stand taken by the Corporation in its written comments before the Tribunal with particular reference to paragraphs Nos.5 and 6 thereof, which read thus: "5. The contents of this para are ambiguous and confusing. The fact of the matter is that Assistant Officers in B-16, who belonged to technical side and had been given five advance increments on induction, were placed in EG-II while non- technical officers who were in BPS-16, were placed in EG- I. It is denied that both the categories after five years, were to get EG-III. Promotion from EG-I, after five years, was to be made to EG7II and promotion to EG-III was to be made after completion of five years' service in EG-H. However, in exceptional cases, where the performance of an officer is outstanding he can be considered for promotion even before completing five years' service in a Group."
"6. Previously, there were national basic scales of service. They were replaced by Executive Groups.
Obviously, those in EG-II would be eligible for promotion in EG-III after putting five years' service in EG-II, whereas those in EG-I, would first be eligible for promotion in EG-II after five years and then putting in five years' service in EG-II, would be eligible for promotion to EG-III and so on Five years' service in a grade is the minimum requirement depending upon the availability of the post and administrative requirement of the respondent. A person may not get his promotion from one group to another group in five years if the post is not available or there are other administrative reasons."
12. After hearing the arguments of the , learned counsel for the parties and perusing the material, available on record we are inclined to hold that the Assistant Officers (Non-Technical) EG-I and Assistant Officers (Technical) EG-II fall within the same category of employees, therefore, no discriminatory treatment can be meted out to either category in the matter of promotion to the next higher group i.e, EG-III, inasmuch as the promotion of an Assistant Officer (Non-Technical) from EG-I to EG-II would amount to his promotion from Non-Technical Group to Technical Group, which would run counter to the policy whereby Pay Groups were introduced instead of Pay Scales.
We also do not agree with the contention of the learned counsel for the Corporation that after five years Assistant Officers of both the Groups will be placed in EG-III because the Assistant Officers (Technical) having been placed in EG-II at the outset would have an edge over the Assistant Officers (Non-Technical) in terms of pay for a period of five years.
13. When faced with this Mr. Shah Abdur Rashid learned Advocate Supreme Court for the respondent-Corporation respectfully submitted that if any relief is given to the present appellants that will affect about 300 employees of the respondent-Corporation and would thus upset its entire administrative set-up. The plea is not sustainable, in that the order proposed to be passed in these proceedings will be confined to the cases of the appellants alone and not other employees who failed to approach the Tribunal for redress of their grievance. Clearly, the cases of such employees would be hit by the doctrine of past and closed transaction. There is, therefore, no justification to withhold the relief to the appellants in these proceedings.
14. Mr. Shah Abdur Rashid next contended that upgrading of a particular post or group of posts was a matter of policy, which could be decided by the authority concerned in its discretion, in that, the Board had delegated its Administrative and Financial powers including power to promote under section 6(1-C) of the Oil and Gas Development Corporation Ordinance, 1961 to the Chairman of the Corporation, therefore, the question of promotion of the appellants should be examined in the light of the Promotion Policy laid down by the Chairman. We are afraid the above plea is not wholly in line with the policy decision taken by the Board as reflected in the Board's letter dated 28-1-1986 wherein it was clearly stipulated that the promotion criteria and other terms and conditions of employment of Officers shall remain unchanged after introduction of Pay Groups. Clearly, the Chairman/Delegatee could not lay down a policy of promotion which had the effect of nullifying the decision taken by the Board itself. Learned counsel for the respondent-Corporation was unable to satisfy us that the promotion claimed by the appellants from EG-I to EG-III would be in conflict with the decision of the Board as spelt out from the letter dated 28-1-1986.
Civil Appeal No, 1068 of 2000
15. Brief facts of this case are that a circular was issued for appointment of Marketing Officer either in EG-II or EG-III, depending on experience. The appellant at that time was in the Accounts Branch.
He applied for this post as internal candidate and was selected as Marketing Officer, EG-II. Later, he submitted an application' to the effect that he should have been appointed in EG-III instead of EG-II because he had more experience and secondly because EG-III is not for non-technical Officers.
This request of the appellant was rejected. However, when he completed 4 years in EG-Il he was promoted to EG-III by order dated 5-2-1994 with effect from 1-7-1994, the date on which DPC meeting was held. He again applied on 7-9-1994 that instead of EG-III he should have been promoted to EG-IV with the plea that initially he should have been appointed in EG-Ill.
16. According to Shah Abdur Rashid, learned counsel for the respondent-Corporation, without fresh advertisement/circular and without any DPC meeting, he was appointed in EG-III from that date. He was originally appointed in EG-II i.e, with effect from 9-5-1990, which according to the learned counsel, was a wrong order, as also against the Human Rights Case in Re: Abdul Jabbar Memon and others (1996 SCM R 1349). The appellant was confirmed. He submitted that after some time, the respondent-Corporation realized that it had passed a wrong order and withdrew the same with the result that on 9-4-1996 the original position was restored i.e, EG-II from 9-5-1990 and EG-III from 1- 7-1994. He filed a civil suit which was withdrawn and the order in his favour was restored. This process of allowing and disallowing him promotion in EG-III was undertaken several times over.
17. The case of the appellant is that under similar circumstances 14 Assistant Accountants in EG-I (Rs,1450-105-3025), namely, Mr. Sulaiman A. Khan, Mustafa Haroon, Abdul Ghafoor, Fazal Mahrnood, Tariq Mahrnood, Iftikhar Mirza, Muhammad Khalid, Abdul Rahim, Akhlaq A. Farooqi, Shaukat Ali, Naveed Hamid, Muhammad Ali, Malik Muhammad Riaz and Asif Naseem, were promoted to the post of G Accountants in EG-III (Rs,2300-155-4160) with effect from 1-7-1990 following the decision of the Tribunal passed in Appeal No, 417-R of 1997, which was affirmed by this Court in Civil Petition No, 337 of 1998 on 19-11-1998, therefore, there was no reason for not granting promotion to the appellant to EG-III with effect from 9-5-1990.
18. The Tribunal vide the impugned judgment dated 18-3-1999 while placing reliance on its earlier decision in Appeal No, 583-R of 1997 dismissed the appeal of the appellant holding that when he was appointed as Marketing Officer in EG-II vide order dated 9-5-1990, he was already working as Assistant Accountant in EG-I; he accepted the offer and joined as Marketing Officer without any protest; and after about seven months he represented on 24-12-1990 to the respondent- Corporation for placement in EG-III as stated earlier, relying on various office orders passed from time to time by the respondent-Corporation whereby he was allowed/disallowed placement in EG- III. The Tribunal also observed that the appellant cannot claim the benefit of the principle of locus poenitentiae, in that, orders granting back-benefits to him passed in the past were illegal.
19. Irrespective of the technical rival, contentions on behalf of the parties on various issues we are satisfied that discriminatory treatment has been meted out to the appellant as well qua 14 other Assistant Accountants in EG-I, similarly placed as him, in the matter of grant of EG-III from a specified date.
20. Resultantly, the appeals succeed. The impugned judgment dated 16-3-1999 of the Tribunal to the extent,of the appellants in Civil Appeals Nos.925 to 943 of 1999 are set aside with the result that the appellants shall be entitled to the grant of promotion to EG-III with effect from the dates they were promoted to EG-II. The judgment dated 18-3-1999 impugned in Civil Appeal No, 1068 of 2000 is also set aside and it is held that the appellant therein is also entitled to placement in EG-III with effect from the date of his original appointment i.e, 9-5-1990. No costs.