1. Iftikhar Muhammad Chaudhry, J.--Listed appeals by the leave of the Court are directed against the judgment dated 13th March 1996 and 17th November 1996 pronounced by Federal Service Tribunal in Service Appeals Nos, 501 (R)/1995 and 449(R)/1996 respectively. In both the matters identical question of the law are involved, therefore, we propose to dispose them of by means of instant common judgment.
2. Precise facts of each appeal are as under:-- CIVIL APPEAL NO. 766/1997 The respondent Qamar Hussain Bhatti joined as untrained teacher in BPS-7 under an Office Order No, F.1-1/88(SA)-FDE dated 22nd December 1988 of the Eduction Department of the Government of Pakistan in Federal Government Boys Primary School, Badana Kalan, Islamabad on the conditions appended with the appointment letter. One of them being relevant for the decision of instant appeals is reproduced hereinbelow: "13. The candidates possessing FA/FSC Certificates will get two advance increments in BPS-7 with effect from the date of joining and the candidates possessing BA/BSc degrees will also get three more advance increments from date joining in the prescribed scale (B-7) provided that no such benefit has been availed by them earlier and the increments so allowed shall not effect their normal annual increment."
2. After joining service, appellant passed FA, BA and CT examination as such attained status of Matric Trained Primary School Teacher. Appellant filed departmental representation with the request that advance increments on the basis of higher qualification of CT course and B.A. degree may be allowed to him. The request was turned down. As such he filed an appeal before the Federal Service Tribunal, which was disposed of in view of the statement of the departmental representative i,e, the department was inclined to review the case of the appellant and remanded the case to the Ministry of Education of decide the matter within two months and replay his compliance report. The department ultimately declined to grant advance increments to appellant, as a result whereof he preferred appeal before the Federal Service Tribunal, which has been allowed by means of impugned judgment dated 13th March 1996.
3. CIVIL APPEAL NO. 1432 OF 1997.
4. Appellant joined the Education Department as Matric Trained Teacher in BPS-9 in Primary- School Jhang Sayadan Islamabad on 1st December 1992. Prescribed qualification for the post being held by him was Matriculation with PTC whereas appellant possessed qualification of M.A. B. Ed. After joining service appellant applied for grant of six advance increments in pursuance of Para-5 of Finance Division O.M. No, F. (12)-(Imp)-11/91, dated 29th June 1991. The request so made by appellant remained pending before the Director School for a considerable period. Meanwhile, Service Tribunal decided the identical case of Qamar Hussain Bhatti (Appellant in C.A. 766/1997). As such in the light of said decision he submitted a fresh representation, which was rejected on 16th June 1996. Against which appellant preferred appeal before the Federal Service Tribunal, which has been accepted vide impugned judgment dated 17th November 1996."
3. Leave to appeal was granted initially in Civil Appeal No, 766/1997 preferred by Federation of Pakistan and others .and thereafter, leave to appeal was also granted to Federation of Pakistan in Civil Appeal No, 1432/1997 as identical question of law was also involved in this case as well.
4. Hafiz S.A. Rehman, learned Deputy Attorney General contended that appellant Qamar Hussain Bhatti joined the service as untrained Matriculate Teacher in BPS-7 but subsequently, vide Office Memorandum No, F.1(2)/(R)-1/91-762, dated 18th July 1991, the existing scale was revised to BPS-9 and as per the note appended therewith, advance increments for acquiring/possessing higher qualification were made inadmissible. So far as appellant Muhammad Farooq Khan is concerned, he joined from very beginning as Trained Matriculate Teacher in BPS-9, therefore, as per the Memorandum referred to hereinabove, he was not entitled for advance increments. He further argued that learned Federal Service Tribunal has proceeded to grant relief to both the appellants principally for the consideration that as the benefit of the advance increments is permissible to the Trained Graduate Teacher, therefore, the appellants who also possess higher qualification should not be discriminated.
5. The respondents M/s Qamar Hussain Bhatti and Muhammad Farooq Khan appeared in person and stated that Trained Matriculate Teacher and Graduate Teachers belongs to same class and if incentives of the advance increments is permissible to latters then on the principle of equal protection of law, the Trained Matriculate Teachers are also entitled to the same incentives. As such the judgment of the Service Tribunal being just and proper admits no interference.
6. Before dilating upon the merit of the appeals, we consider it appropriate to point out that when the appellant Qamar Hussain Bhatti was appointed in BPS-7 on 22nd December 1988, at that time Scheme of Basic Pay Scale and Fringe Benefits of Civil Employees of Federal Government 1983 was invoked vide Office Memorandum No, F. 1(1)-Iinp./83 by the Government of Pakistan Finance Division on dated 18th August 1983. As per its Para-14, incentives of advance increments to Primary School Teachers on attaining higher qualification was applicable in following terms:-- "1. PRIMARY SCHOOL (i).......................................................
5. (ii).......................................................
6. (iii)A teacher who acquires a degree of BA/B.Sc. shall be allowed three advance increments."
7. The above scheme remained applicable upto 29th June 1991, when vide Office Memorandum No, F.1(12)-Imp.-II/1991, revision of basic pay scale and fringe benefits of Civil Employees of Federal Government 1991 was introduced, according to which incentives of advance increments to officials of possessing/attaining higher educational qualification was allowed in the following terms:-- "5. Grant of advance increments to officials for possessing attaining higher educational. (i) From 1.6.1991 onwards advance increments shall be allowed without the condition of the second Division to the officials in BPS-15 for possession or acquiring higher educational qualifications over and above prescribed qualifications in the relevant Recruitment Rules, to the extent given below:-- No, of MatricAdvance F.A./F.Sc.Increments For BA/B.Sc.Obtaining MA/S.Sc.
7. (a)Where the prescribed qualification is Non-Matric2 G 8 (b)Where the prescribed qualification is MatricNil 2 I G
(c) Where the prescribed qualification is Nil Nil 2 4 FA/F.Sc.
(d) Where the prescribed qualification is Nil Nil Nil 2 BA/B.Sc.
8. It is to be seen that above noted incentive was available to all the employees of the Federal Government holding posts of BPS-1 to BPS-15. However, after the issuance of above memorandum on 13th July 1991 Ministry of Finance vide Office Memorandum No, F.1 (2)R-1/91-762, upgraded the post of Primary School Teacher from BPS-7 to BPS-9 and the post of Trained Graduate Teacher from BPS-15 to BPS-16, but it was made clear in this office memorandum that the advance increments for acquiring/possessing higher education will not be admissible for higher pay scale.
9. For sake of convenience extracts from this memorandum pertaining to entries at Sr. Nos, 1 & 6 alongwith notes is reproduced hereinbelow:-- S.No,Name of Post Existing BPSRevised BPS Primary School Teacher (Matric with PTC/S.V.BPS-7 1/3 posts in BPS-10 (Selection Grade).BPS-9 1/3 posts in BPS-10 (Selection Grade only to whose who are F.Sc (2nd Div) plus existing prescribed professional training. However, the higher scale/grades allowed to these teachers will be personal to them and the inter seniority will remain intact. -- -- -- - - - -- -- -- -- -- -- -- -- Secondary School Teachers (Trained Graduate I.C. B.A.
10. B.Sc. B.Ed.BPS-15 1/3 posts in (Selection Grade) BPS- 17BPS-16, 1/3 posts in BPS- 17 (Selection Grade)
11. Now change ' in prescribed educational qualification.
12. NOTE: The advance increments for acquiring/possessing Higher Educational Qualification will not be admissible for which High pay scales are not sanction.
8. As per above contents of the memorandum the Federal Government while allowing benefit of up grading the post being held by the Trained Matriculate Teachers and Trained Graduate Teachers withdrew the benefit of advance increments which was permissible to them vide Office Memorandum dated 29th June 1991, extracts of which has already been reproduced hereinabove.
13. Later on the Finance Division vide Office Memorandum No, F.1(2)/R/91-D,695/94, dated 24th August 1994 agreed to extend the benefit of advance increments to the Federal Government Teachers.
14. Contents of this memorandum reads as under:- To All the Heads of FGEI, Islamabad/Federal Area Finance Division O.M. No, F.1(2)/R/91-D.695/94, dated 24.8.1994.
15. The undersigned is directed to refer to the M/O Education O.M.No, 111240/93, CEI, dated the 17th July, 1994 on the above subject and to clarify that the Finance Division's U.O. No, D.105/R.1/94 dated 24.3.1994 (copy enclosed) under which the retention of the benefit of advance increments for possessing/acquiring higher educational qualification than the prescribed educational qualification of Trained Graduate Teachers has been agreed to is applicable, mutates mutandis, to all the Federal/Government Teachers of the said cadre.
16. Sd/- (Masood Iqbal) Section Officer (R.I)
9. It is equally important to note that before the Service Tribunal, appellant i,e, Secretary Finance Division opposed the claim of respondents mainly for the following reasons.
17. On the recommendation of the National Pay Committee (1991) as approved by the Govt. The posts of various categories of teachers were upgraded on the basis of higher than prescribed qualification excepting the Trained Graduate Teacher for whom no change in their existing qualification was prescribed.
18. 10.In the leave granting order dated 4th June 1997, one of the most important question for consideration has been noted namely "whether the Primary School Teachers, upgraded to BPS-9, would also be entitled to the benefit given to Trained Graduate Teachers by Government of Pakistan, Finance Division under UO No, B-105/R.1/95, dated 23rd March 1995. The Service Tribunal vide impugned judgment granted relief to the respondents on following consideration:-- But still the relief sought by the appellant was not granted to him. We fail to understand that the TGTs whose posts have also been upgraded, are being given advance increments for acquiring higher qualification but the appellant, who while in service had admittedly acquired higher qualifications, was refused the same benefit, As such the refusal would tantamount to discrimination which cannot be allowed in the circumstances of this case.
19. 11.It is also important to note that respondent Qamar Hussain Bhatti joined service vide appointment letter dated 22nd August 1988, containing condition of grant of advance increments if he acquires higher educational qualification other than the one which has been prescribed for the post. The incentive of advance increment was also kept intact while announcing Scheme for the Basic Pay Scale 1987 and same was the position in the revised pay scales announced by the Government of Pakistan dated 29th June 1991. Relevant para therefrom has already been reproduced hereinabove. Thus it is held that incentive of availing advance increments on account of possessing higher qualification other than prescribed for the post of Trained Matriculate Teacher being a favourable condition has come to vest in him as a right.
20. 12.As far as Muhammad Farooq Khan respondent in Civil Appeal No, 1432 of 1997 is concerned, his appointment took place on 18th November 1992 as Matric Trained Teachers (BPS-9). The appointment letter was issued in his favour containing a clause to the effect that "terms and condition of the service of the appointee will be the same as are applicable to other Government servants of the category". As he belongs to the class of Matric Trained Teacher, therefore, on the date of appointment, he was not entitled for the incentive of advance increments as per letter dated 18th July 1991, according to which Matric Trained Teachers who are enjoying the status of BPS-9 were prohibited from availing the benefit of advance increment, therefore, prima facie, he had no right to claim such benefit at the time of his appointment. However, while examining the cases of both the respondents in the light of the proposition that being Matric Trained Teachers (BPS-9) but possessing higher qualification other then prescribed for the post being held by them, they would not be entitled for , such benefit qua Trained Graduate Teacher in view of the provisions of Article 25 of the Constitution which guarantees for equal protection of law amongst equally placed persons. The Federal Service Tribunal examined the cases of both the respondents in view of this very principle, which has been elaborately discussed by this Court in number of judgment including LA Sharwarni v. Government of Pakistan (1991 SCMR 1041) and Managing Director SSGC Ltd. v. Ghulam Abbas (PLD 2003 SC 724). Relevant para from the latter judgment is reproduced hereinbelow:-- "After hearing learned counsel for the parties and having considered the arguments put forward before us by both the sides, we are inclined to subscribe the contentions of the learned counsel for petitioners being based upon principle of equal protection of law under Article 25(1) of the Constitution of Islamic Republic of Pakistan which envisages that all persons equally placed to be treated alike both in privileges conferred and liabilities imposed. Since in the cases of Saleem Mustafa Sheikh, Narain Das and Abdul Samad (ibid) Trainee Engineers and Management Trainee were absorbed as regular employees of the respondent-Company without qualifying IBA Test, therefore, petitioners also deserve to be treated alike. Therefore, an error in the judgment under review being apparent on the record, case is covered, under Article 188 of the Constitution of Islamic Republic of Pakistan."
21. 13.We are afraid, the argument raised by learned counsel for the appellants that the respondents' case is distinguishable from the case of Trained Graduate Teachers for the reason that the up gradation of the post of Trained Graduate Teacher being not linked with the possessing/acquiring higher education than the prescribed qualification for the said post, therefore, it is not appropriate/justified to apply the same conditions of non-granting incentives of advance increments on up-gradation of the post from BPS-15 to BPS-16, is concerned, is not available to him.
22. In this behalf reference to letter dated 18th July 1991 may be made. Relevant extract therefrom has already been reproduced hereinabove, A comparison of Item Nos, 1 & 6 will show that up gradation of the posts of Trained Matriculate Teachers and Trained Graduate Teacher was not effected for any different reason as now has been alleged in the para-wise comments before the Service Tribunal as well as in the arguments. It is to be noted that both the respondents thought have been wording as Primary School Matriculate Teachers but they possesses the qualification of B.A., M.A. and C.T. as well, therefore, if the education department after issuance of letter dated 18th July 1991 had examined the case of Trained Matriculate Teachers, they would have also recommended to the Finance Department of grant of advance increments. Thus on this analogy we are of the opinion that although the respondents are serving in a lower cadre but they belong to the category of same persons like Trained Graduate Teachers to whom incentive of advance increments has been allowed vide Finance Division O.M. No, 1(2)/R/91-D/691/94 dated 24th August 1994. As such following the principle of equal protection of law amongst the persons who belongs to same class, the respondents were also entitled for the benefit of advance increments.
23. 14.It is also to be noted that benefit of advance increments vide letter dated 24th August 1994 had been extended to Trained Graduate Teachers, in view of the fact that all other Federal Government Teachers are also enjoying same benefit, therefore, examining the case of respondents from this angle as well, we are persuaded to hold that the respondents falling within the category of all the Federal Government Teachers are also entitled for the same benefits.
24. 15.Learned Deputy Attorney General contended that if contentions raised by him on behalf of the appellants are not favoured then observation may be made that this judgment would not be applicable on the cases of other Trained Matriculate Teachers who have not approached to Federal Service Tribunal or this Court for grant of relief of incentives of advance increments.
25. Reliance in this behalf was placed by him on the judgment reported as Zulfiqar-ul-Husnain v. Oil and Gas Development )2003 SCMR 1115).
26. 16.We are afraid, the arguments so raised by the learned Deputy Attorney General, being without substance, has no weight. It may be noted that the Federal Service Tribunal by means of, impugned judgments acceded to the claim of the respondents, principally on taking into consideration the question of discrimination i,e, the respondents qua Trained Graduate Teachers and found to the former entitled for the relief by applying the underlined principle enshrined in Article 25(1) of the Constitution of Islamic Republic of Pakistan, 1973. For the same reason, the impugned judgments of Federal Service Tribunal have been approved. Admittedly, neither the Federal Service Tribunal nor this Court had decided the question involving the interest of individual employees i,e, Trained Matriculate Teachers rather had decided a legal question, benefit of which will also be available to all those Trained Matriculate Teachers who belong to the category, to which respondents belongs. In other words it would be the judgment in rem and not in personam.
27. As an important question has been raised by the learned Deputy Attorney General himself, therefore, to understand distinction between a 'judgment in rem' and 'judgment in personam' we consider it appropriate to make reference to the case of Pri Bakhsh v. Chairman. Allotment Committee (PLD 1987 SC 145). This judgment was examined subsequently by this Court in the case of Muhammad Sohail v. Government of NWFP (1996 PLC (CS) 364). Relevant paras for convenience are reads as under thus:-- "6. Mr. K.M.A. Samdani has also referred to the definitions of the terms "judgment in personam" and "judgment in rem" given in Black's Law Dictionary, Sixth Edition, which reads as follows:- "Judgment in personam or inter parties.--A judgment against a particular person, as distinguished from a judgment against thing or a right or status.. See also judgment (personal judgment).
28. Judgment in rem.--An adjudication pronounced upon the status of some particular thing or subject-matter, by a Tribunal having competent Authority. Booth v. Copley, 283 Ky, 23, 140 S.W.Ed 662, 666. It is founded on the proceeding instituted against or on same thing or subject matter whose status or condition is to be determined. Eureka Building and Loan Assnn. V. Shultz, 139 Kan.
29. 435, 32 P. 2d 477, 480; or one brought to enforce a right in the thing itself, Federal Land Bank of Omaha v. Jefferson, 229 lowa 1054, 295 N.W. 855, 857. It operates directly upon the property. Guild v.
30. Wallis, 150 Or. 69, 40 P. 2d 737, 742. It is a solemn declaration of the status of some person or thing.
31. Jones v. Teat. Tex. Civ. App., 57S. W. 2d 617, 620. It is binding upon all persons in so far as their interests in the property are concerned. See also judgment quasi in rem."
32. It will not be out of context to refer to a judgment of this Court in the case of Pir Bakhsh represented by his Legal Heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145), pointed out by Mr. S. Inayat Hussain, learned AOR for Respondent No, 4 and which has direct bearing on the controversy. In the above case Muhammad Haleern, CJ has very elaborately dilated upon the principle of stare decises, principle of ratio decidendi and the distinction between a judgment in personam and a judgment in rem. It will be instructive to reproduce the relevant extracts from the above report, which reads as under:-- "Upon a consideration of what has been stated above, the formation on behalf of the appellants cannot be accepted as it stands. In a controversy raising a dispute inter partes, the thing adjudged is conclusive as between the parties both on questions of fact and law but as to what the Court decides generally is the ratio decidendi or rule of law for which it is the authority. It is this ratio decidendi which is applicable to subsequent case presenting the same problem between third parties not involved in the original case nor will either of the original parties be bound in a subsequent dispute with a third party. It will be misnomer to say that this rule of law acts in rem, that is, as against the whole world as conceptually the applicability of the rule of law is either founded on the doctrine of precedent as under the English law or rule of stare decises, and none of the doctrines in its application is inflexible for what has been recalled elsewhere in the judgment.
33. Therefore, the judgment cannot act in rem as is sought to be argued......
34. The High Court in dislodging the appellants held that the judgment of the Supreme Court was not a judgment in rem, but in personam. The terms in rem' and 'in personam' are of Roman Law used in connect in with action that is action in rem and action in personam to denote the nature of actions, and with the disappearance of the Roman forms of procedure, each of the two terms 'in rem' and 'in personam' got tagged with the word judgments to donate the end-products of actions in rem and actions in personam. Thus, according to the civil law an action in which a claim of ownership was made against all other persons was an action in rem and the judgment pronounced in such action was a judgment in rem and binding upon all persons whom the Court was competent to bind, but if the claim was made against a particular person or persons, it was an action in personam and the decree was a decree in personam and binding only upon the particular person or persons against whom the claim was preferred or persons who were privies to them."
35. Minor in-his "Principles and Digest of the Law of Evidence" at page 563, gives the import of these terms as under:-- "The point adjudicated upon in a judgment in rem is always as to the status of the res and is conclusive against the world as to that status, whereas in a judgment in personam the point, whatever it may be which is adjudicated upon, it not being as to the status of the res, is conclusive only between parties or privies. A decision in rem not merely declares the privies. A decision in rem not merely declares the status of the person or thing, but ipso facto renders it, such as it is declared; thus, a decree of divorce not only annuls the marriage, but renders the wife fame sole: adjudication in bankruptcy not only declares; but constitutes the debtor a bankrupt; a sentence in a prize Court not merely declares the vessel prize, but vests it in the captor.
36. Section 41 of the Evidence Act does not use the term 'judgment in rem', but it incorporates the law on the subject of judgments in rem, and makes them relevant not only against strangers but also conclusive of certain matters such as whether a person was entitled to a legal character or to any specific thing not as against any specified person but absolutely.
37. Judgments in rem are an exception to the rule of law that no man should be bound by the decision of a Court of Justice unless he or those under whom he claims were parties to the proceedings in which it was given. This rule of law is referable to the maxims of Roman Law namely, 'Res inter alias judicata nullun inter alios prejudicium facit' or 'Res inter alias acta alteri nocere no debit'. Such exception of the judgment in rem in the Roman Law was the foundation of the exception in English Law. Section 41 of the Evidence Act is the foundation for the exception of judgment in rem in our corpus juris. The reason why a judgment should not be used to the prejudice of a stranger is that he is denied the fundamental right to make a defence, or to examine of cross-examine witnesss or to appeal from a judgment which aggrieves him. This is the requirement of most manifest justice and good sense."
8. It may be observed that Black's Law Dictionary gives simple definition of the above two items by providing that 'judgment in personam or inter partes' is a judgment against a particular person as distinguished from a judgment against a thing or a right or status, whereas the term 'judgement in rem has been defined, as an adjudication pronounced upon the status of some particular things or subject-matter by a Tribunal having competent Authority. Such a judgment is binding upon all persons in so far as their interests in the property are concerned."
38. 17.Similarly, Mr. Justice Ajmal Mian (as then he was) examined this very proposition in the celebrated judgment in the case of Hameed Akhtar Niazi v. Secretary Establishment Division (1996 SCMR 1185). Out of this judgment, following observations being of great importance with reference to the proposition under consideration are reproduced herein below:-- We may observe that if the Tribunal or this Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the civil servant who litigated, but also of, other civil servants, who may have not taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum."
39. 18.Later on, the above view has been reaffirmed by this Court in the case of Khawaja Abdul Hameed Nasir v. National Bank of Pakistan (2003 SCMR 1030), in the following terms:-- "In the case of Hameed Akhtar Niazi v. The Secretary Establishment Division, Government of Pakistan and others (1996 SCMR 1185), in such circumstances, benefit was extended to all the persons falling in the same category, therefore, in order to do complete justice, we hereby hold that all those employees of the National Bank of Pakistan covered by the circular are entitled to receive whole of the amount available in the provident fund account as on 30.11.1977 contributed by them and the hank."
40. 19.So far as the judgment relied upon by the learned Deputy Attorney General i,e, Zulfiqar-ul- Husnain (ibid) is concerned, it is not applicable being distinguishable on facts as well as law, thus need not to be discussed in detail.
20. In view of above settled law, we are persuaded to hold that as in the instant case relief has been granted to the respondents by laying down criteria, strictly following the principles enshrined in Article 25 of the Constitution of Islamic Republic of Pakistan, which guarantees the equal protection of law amongst the persons who are equally placed, therefore, all those persons who fall under the category to which respondents belonged, would also be entitled for the same benefits.
41. Thus for the foregoing reasons, we see no merit in these appeals, therefore, same are dismissed, leaving the parties to bear their own costs.