2004 PLP (C (PLC(CS))

completed 4 years unblemished OR Graduate and should have completed one year's unblemished service in the cadre. (Sd.) (ZAFAR ALI CHAUDHARY) CHIEF ENGINEER (RECRUITMENT, RULES AND REGULATIONS) 3 Later on, the authorities of the Company granted BS‑11 only to the Operators of Overseas Division (Gateway) vide Notification No.RRR.1I‑1/97, dated 22‑5‑1997, contents whereof are also reproduced below:‑‑ "PAKISTAN TELECCOMMUNICATION COMPANY LTD. Headquarters, Kamran Centre, Jinnah Avenue. No. RRR.I1‑1/97 Islamabad the 22nd May, 1997.

1. The competent authority has been pleased to approve the following: (a) Graduate Telephone Operators (BPS‑7/9) of Overseas (Gateway) should be given BPS‑11 with effect from 1‑1‑1995 subject to the condition that they were graduate on 1‑1‑1995, they shall be given BPS‑11 with effect from the date they passed the examination of Graduation. (b) Similarly those Telephone Operators, working in BPS‑7/9 in Overseas Division (Gateway) who had Intermediate qualification on 1‑1‑1995 and have 4 years experience shall be given BPS‑11 with effect from 10‑1‑1995. Otherwise this facility shall be given to them with effect from the date they passed their examination of Intermediate afterwards as required.

2. However, these facilities shall be subject to handling of at least 40 (forty) matured calls by each Telephone Operator per shift. Continuous failure in meeting this performance standard may result to reversion of their substantive scale. This is with reference to the earlier notification issued vide No.CC/Misc.4‑3/92.E(1), dated 12‑3‑1992 and 16‑6‑1995. (Sd.) (M. SIYAR KHAN) Director (Rules and Regulations)"

4. Above noted Notification created a situation of deprivation amongst the Telephqne Operators of the Company holding the post of Inland Operators, as according to them they were also entitled to BS‑11 as per earlier Notification dated 16th May, 1995 but a discrimination has been done with them contrary to law. On this, jurisdiction of Federal Service Tribunal was invoked by filing Appeal No.33‑L of 1998 which was allowed vide judgment dated 5th May, 2000 in, the following terms:‑‑ "Admittedly, the appellant was promoted and given grade 11 on passing the B.A. Examination vide letter dated 7‑4‑1997. After over a span of five months the appellant was reverted from Grade 11 to Grade 8 vide letter dated 27‑9‑1997 on the plea that those orders relate to Telephone Operators of overseas (Gateway), having qualification prescribed therein. Before reversion no show‑cause notice was served upon the, appellant as required under the law. Legally the orders once issued and acted upon cannot be withdrawn without due process of law. Moreover neither the appellant has committed any misconduct nor .his service record is poor, therefore, the plea taken by the respondent that the order relate to Telephone Operators of Overseas (Gateway) is not justified. In these circumstances we accept the appeal and set aside the impugned order dates 27‑9‑1997 and direct the respondent to promote the appellant to Grade 11 from the date when it was withdrawn." Whereas another Bench of the Service Tribunal while disposing of the identical Appeals bearing Nos. 31, 32, 33 and 34(R)CS/2001 declined to grant relief vide judgment dated 28‑6‑2003. Relevant para. of the judgment is reproduced hereunder:‑‑ "We have heard the counsel of both sides and perused the record. There is no impugned order but the learned counsel for the appellants relying on judgment m 1991 SCMR 1091 has contended that Rules and orders adversely affecting the terms and conditions of employees can be challenged as impugned orders. His main contention is that the appellants were discriminated against in violation of Article 25 of the Constitution. We are afraid we cannot agree with them for the following reasons: (a) It is domain of the Government or for that matter an organization to make rules/policies governing grant of higher grades to its employees and to amend, modify or rescind them. Nobody had vested right in any policy or rule. In this case no valuable right had accrued to the appellants because of the Notification dated 16‑5‑1995. The respondent PTCL was well within its rights to amend the notification and restrict its application to operators of the Gateway Exchange. (b) Telephone Operators of Gateway Exchanges have been treated as a separate: class. The nature of their duties demand better education and higher standards of efficiency than those working in Inland Exchanges. Incentive to them in the form of higher grades is therefore justifiable. The appellants are not placed in the same situation as the operators of Gateway Exchanges and therefore no discrimination is involved. (c) The case of Muhammad Akram Telephone Operator is distinguishable. He was granted BS‑11 and after five months the same was withdrawn after it had taken legal effect without show‑cause notice. Relevant para. of the Tribunal's Judgment reads:‑‑ "Admittedly, the appellant was promoted and given Grade 11 on passing the BA Examination vide letter dated 7‑4‑1997. After over a. span of five months the appellant was reverted from Grade 8 vide letter dated 27‑9‑1997 on the plea that these orders relate to Telephone Operators of Overseas (Gateway) having qualification prescribed therein. Before reversion no show‑cause notice was served upon the appellant as required under the law. Legally the orders once issued and acted upon cannot be withdrawn without due process of law. Moreover, neither the appellant has committed any misconduct nor his service record is poor, therefore, the plea taken by the respondent that the orders relate to Telephone Operators of Overseas (Gateway) is not justified. In these circumstances we accept the appeal and set ‑aside the impugned order dated 27‑9‑1997 and direct the respondents to promote the appellant to Grade 11 from the date when it was withdrawn." It may be noted that the above judgment was assailed before this Court by filing C.P.S.L.A. No.1727‑L of 2000 but it was dismissed being barred by time, vide judgment dated 28‑7‑2000.

6. Learned counsel for the petitioners contended that in order to resolve the controversy, and to remove the anomaly which has cropped up on account of two different versions pronounced by the Tribunal, it is a fit case for grant of leave to appeal. He was called upon to demonstrate that if the Notification dated 22‑5‑1997 has been issued by .the competent authority in pursuance whereof drastic changes were made in. the earlier Notification dated 16‑5‑1995 he insisted that Notification dated 22‑5‑1997 has equal status qua earlier notification. Be we, are, prima facie, of the opinion that as the former Notification was issued under section 20 of the Pakistan Telecommunication Corporation Act, 1991 (hereinafter referred to as the Act) by the Board with the approval of the Federal Government. Wh9reas latter Notification dated 22‑5‑1997 had not been issued .in the same manner. He further explained that as the nature of the duty of the Telephone Operators of the Gateway is of a different nature, therefore, a separate clause in respect of those Telephone Operators has been created to provide them incentive so that they could perform their duties in more proper manner, notwithstanding the qualification and method of, recruitment being same for both the categories of the Telephone Operators.

8. After hearing the learned counsel for the petitioners, inter alia, following questions emerge for examination:‑‑ (1) What is the legal status of the Notification dated 16‑5‑1995 and 22‑5‑1997. And as to whether both of them have been issued by the competent authority in exercise of powers conferred upon it under section 20 of the Act? (2) Whether the Notification dated 22‑5‑1997 had been issued by the competent authority under its authority to create separate clause in respect of the Telephone Operators working in the Gateway Exchanges? (3) As to whether discrimination, had not been caused between the Telephone Operators who are working in inland Exchanges and those who are working in Gateway Exchanges? (4) Whether the Notification dated 16-5 ‑1995 which had created a right in favour of operators of 1Af~,:d Exchanges legally could be I withdrawn after its implementation by issuing a separate Notification dated 22‑5‑1997? (5) What would be the effect of the contradictory decision of the Tribunals as it has been pointed out hereinabove?

9. Leave is granted. S.A.K./P-7/S Leave granted.