1993 PLP (C (PLC(CS))

(2) Peoples Works Programme. (3) Local Government. which were merged by a notification dated 9‑10‑1978 (Annexure `A') into one Department known as Local Government and Rural Development. As a result, all posts in all the three Departments were abolished as from 10‑3‑1979 by a Notification dated 28‑2‑1979 (Annexure `B') and were indeed created afresh in the new Department w.e.f. the same date i.e. 10‑3‑1979 stipulating that: "The existing personnel will be adjusted against the posts carrying the same pay and scales e.g. those already in NPS‑17 will be adjusted against NPS‑17 posts created in the reorganised set up." Before the date of abolition, however, a majority of officers of BPS‑16 in the P.W.P. were promoted to BPS‑17 as Project Managers on probation till they were regularised years later. It was claimed that in this way the appellants and respondents became members of the safe unified service/cadre in Grade‑17 in the new Department carrying designations of Project Manager/Assistant Director and that they were always treated interchangeable as per the Department's own version made in their replies Annexures `D' and `E' submitted to the High Court in' writ petition. Additionally, according to them, even consolidated seniority lists of all those officers holding the posts of Project Manager/Assistant Director were notified respectively in the years 1979, 1984 and 1988.

3. The appellants felt aggrieved of the Service Rules, 1981 wherein though the posts of Assistant Director/Project Manager were bracketed together, yet quite anomalously avenue for next promotion i.e. Grade‑18 was reserved exclusively only for the Assistant Directors having held that post for five years and as a corollary denied the avenue to the Project Managers who in spite of having been bracketed together with them. In the same grade, and even interchanging the posts, may not have per chance held the office of the Assistant Director for no fault of theirs for a term of five years. They asserted that they had been making representations against this discriminatory policy and had even assailed it in Writ Petition No. 4633/87 wherein the Department had indicated that amendments in the Rules were in process to remove the anomaly.

4. To the appellants' entire dismay, the Department issued three Notifications dated 5‑4‑1990, 10‑4‑1990 and 27‑6‑1990, whereby the earlier consolidated list (Annexure `G') was disintegrated and de-bracketed so as to resurrect the pre-merger seniority list existing in the three merging Department by this process, two Groups namely Groups I and II were created; Group I consisted of officers hailing from the former Local Government and Peoples Works Programme while Group II was made of the officers corning from the I.R.D.P. The third notification dated 27‑6‑1990 purported to relegate the officers in Group 11 to a secondary position inasmuch as they were rendered ineligible to hold any of the posts of Assistant Director until all officers of Group I had first held them. They averred that by giving preference to 82 officers of Group I over Group II, it had virtually become impossible for the latter even to hope remotely to get any of the 42. posts which in a way stood reserved for the former. They assailed the notification dated (27-6-1990) in Writ Petition No. 2819 of 1990 on the basis of discrimination and but it was dismissed on 19‑12‑1990 on the ground that the subject -matter related to terms and conditions of service and the same view was affirmed by the Supreme Court. Thereafter the appellants made to the Chief Secretary and the Governor and finally brought the present appeal.

5. The main ground of attack was that the aforesaid notification was mala fide; parochial, retrogressive, discriminatory and arbitrary because of absence of any objective criterion to place one officer in Group I and the other in Group II especially in the background that they were at par by having been bracketed together and holding interchangeable posts without any difference as to qualifications, experience or otherwise and that thereby it was violative of Articles 8 and 25 of the Constitution. In addition; their submission was that they had clear chances of promotion to BPS‑18 in the pre‑merger set up and that denying them the same by any machination or contrivance was obviously repugnant to the scheme of merger which never meant any hegemony for any vested group or tended to provide accelerated chances of promotion to those who were erstwhile junior to them. Still further they stressed that once a consolidated seniority list was issued, it could not have been upset by de consolidating the seniority inter se so as to render one group totally ineligible to get BPS‑

18. They prayed for setting aside the three notifications referred to earlier and also the Service Rules, 1981 being hit by Articles 8 and 25 of the Constitution and contrary to the scheme of the merger. They also sought the consequential relief of amending the aforesaid rules.

6. The respondent‑Department in their written objections took up the plea that the appeal in so far as it assailed validity of the Service Rules, 1981 and the two notifications respectively dated 5‑4‑1990 and 10‑4‑1990, was bared by time. Otherwise, they conceded largely that in the merger the Assistant Directors and Project Managers were bracketed together, were interchangeable, were borne on a consolidated seniority list for some years, and above all were to possess the same educational qualifications to determine their eligibility. They however added that the post of Project Manager was upgraded to BS‑17 from that of the Development Assistant falling in BS‑11 with the stipulation that its incumbents would hold it as personal to them until they acquired the basic qualifications required for promotion to BS‑

18. They averred, in addition, that the IRDP was not a permanent Department and hence its officers could not possibly claim to have held substantive posts entitling them to ask for promotion to BS‑

18. They maintained that since the Project Managers were intended to be posted at Thana level, they could not be considered to be square to the Assistant Directors whose place of posting being the District Headquarters claimed somewhat higher responsibility and supervisory status. Nonetheless, their averment was "that the promotion of Project Managers was in no way intended to be blocked and the officers of Group II will be posted as Assistant Directors as and when the officers appearing in Group I are exhausted" (para. 12).

7. The contesting respondents (Nos. 2 to 72) also opposed the appeal almost on the same lines. They questioned its maintainability on the grounds that the seniority list was tentative that it suffered from misjoinder of causes of action and the parties in that either some of the appellants had not made representations to the Governor, or were not promoted as Project Managers on regular basis and therefore got benefit of the notification Annexure R‑2 illegally. In addition, they submitted that the posts held by the appellants were upgraded, or were allowed to them as personal without conferring eligibility on them to seek promotion to the next higher post.

8. There was no controversy about the main features of the case. Before 1‑10‑1978 the three Departments existing independently perhaps had over lapping functions; those were merged on 9‑10‑1978 by a notification of even date (page 24); although isle, merger itself put an end to their individual existence, yet those were specifically abolished by means of another notification dated 213‑2‑3979 (P.25); instead an entirely new Department with a different nomenclature was set up with a view to remove their all vestiges, posts required for the new Department were recreated on 10‑3‑1979 by a separate instrument; and lastly an integrated seniority list showing respective seniority of the officers earlier holding comparable scales was issued on no less than three different occasions. The cadre of Assistant Director/Project Manager (NPS‑17) forming subject‑matter of the present appeal, was bracketed together treating them for all purposes to be of the same status and character. Even the qualifications prescribed for entering into it were the same. The relevant portion of the schedule at page 40 is reproduced below for the purposes of convenience.

6. Assistant Director/ Master Degree (2nd Divn) in 90% by initial Project Managers Sociology/ Social Works or recruitment and NPS‑17 Public Admn/Economics/ 10% by promo Psychology or LLB from a tion recognised University.

9. In spite of all this, the process of merger was claimed to have been reversed lately on issuance of (i) the notification dated 5‑4‑199() (p. 72), (ii) the order dated 10‑4‑1990 (pp. 74‑75) and (iii) the Memo dated 27‑6‑1990 (p. 91). By these instruments the aforesaid post of Assistant Director/Project Manager was de-bracketed; a sort of fresh Division was made among the officers of Grade‑17 by placing them into two different groups namely Group I and Group II; those placed in Group I were accorded the privilege of getting a prior right of promotion to Grade‑18, while those included in Group II were denied promotion to Grade‑18 until officers of Group I had been totally exhausted.

10. Mr. Samdani for the appellants laid considerable stress on the point that when incumbents of the two pots namely Assistant Director and Project Manager had the same qualifications as per schedule reproduced above and were bracketed together in the same NIPS‑17, there was no justification whatsoever for according preferential treatment to one of them (Assistant Director) and relegating the other (Project Manager) to a comparatively lower position so as to deny him an equal chance of promotion to the next higher me He claimed that this discrimination was violative of Article 25 of the Constitution besides being perverse otherwise inasmuch as a group of elite was sought to be created much too against the spirit of merger of the old Departments; abolition of the old posts, creation of new posts, and the process of bracketing them together for the purposes of future entry into it. He relied upon 1989 NLD 2153 (Indian Supreme Court) (not available) wherein absence of promotional prospects was deprecated observing pointedly that it was likely to degenerate a service which in turn may not be conducive to the best interests of the Administration. He urged that the aforesaid instruments were bad in law in so far as those completely denied even a right of hearing to the appellants in the matter of promotion. He referred to 1992 PLC (C.S.) 898 (Re: Nakshbandi Industries Mazdoor Union v. Muhammad Sarwar and 5 others) wherein it was explicitly ruled that a civil servant had a vested right of at least being heard in relation to his chances of promotion. He claimed to be aware of the opposite view, namely, that promotion was not a vested right as held in Re: Secretary to Government of Sindh Education Department v. Syed Riyazul Hassan Zaidi and others 1986 SCMR 64) nor even a term or condition of service as per the ratio of 1980 SCMR 972 (Re: Dr. Ihsan‑ul‑Haq v. The Province of Punjab and others) but tried in his own way to distinguish those decisions on the ground that his case was not intended merely to seek promotion but was conversely founded on refusing eligibility to the appellants to get NPS‑18 on the basis of discrimination created against them. He asserted forcefully that eligibility to get promotion was always treated as one of the terms and conditions of service so that whenever it was affected a civil servant would have a right to assail it before the Tribunal.

11. He adverted attention to his application under section 14 of the Limitation Act for condonation of delay in bringing the appeal here as late as 13‑3‑1991. He explained that the appellants first went to the High Court in a writ petition, and then to the Supreme Court as they earnestly believed that in so far as they were aggrieved of discrimination in denying them the next promotion, their remedy lay before the High Court, but somehow they failed to drive home their view point, and hence were advised finally by the Supreme Court to come to the Tribunal. He strongly argued that the effort made by the appellants before the High Court was quite bona fide and that therefore, time taken by them therein merited to be excluded in terms of section 14 ibid. Still further he maintained that the order giving rise to the cause of action in their favour being a nullity, could not be protected on the ground of lapse of limitation. He sought support in this behalf from 1977 PLC (C.S.) 110 Re: Ch. Rafiq Ahmed Shad and others v. Chairman, Punjab Road Transport Board).

12. Mr. D.M. Awan counsel for respondents (Not. 2 to 73) dwelt primarily upon the circumstances existing before the merger of the three Departments with a view probably to impress that the appellants and the respondents (No. 74 to 267) constituted a class of a subordinate service placed in Grade‑11 of a temporary organisation like the IRDP of the Department of Agriculture so that they could not have a claim of comparison with respondents 2 to 73 who belonged to regularly established Departments like PWP and the LG & RD. He highlighted this distinction by stressing that while the appellants were intended to be posted earlier at Markaz or Thana level in rural areas, the contesting respondents had entirely different functions at the District Headquarters. Still further, he sought support from the fact that the appellants' entry into NPS‑17 was not based upon any merit as conversely their. former grades viz. No. 11 and No. 16 were upgraded two times respectively on 28‑8‑1972 and 23‑1‑1978. His argument was that upgradation of a scale was not even promotion and thus the appellants were not justified to claim themselves to be officers of NPS‑

17. This is how, according to him, the appellants could not be members of service of the Assistant Directors and therefore, there was no concept of their interchanging with the Project Managers like the appellants.

13. We have hesitation to agree with Mr. Awan on the point. If the appellants' post was placed in Grade‑11 in 1972, and if the same was upgraded to scale No. 16 in 1974, and still later if it was further upgraded. to scale 17, it could not be reason to operate against a subsequent merger which was certainly a deliberate attempt to create a new Department by placing all officers of comparable status in the same scale that is NPS‑

17. This placement was not simply a wishful arrangements. Contrarily certain basic educational qualifications were prescribed by bringing the respective officers at par with each other in the scale. The process was described as bracketing them together with no other object than to treat them alike for all purposes. This was clearly discernible from the Schedule reproduced above indicating in particular that the Assistant Director and the Project Manager would be allowed initial entry in NPS‑17 provided they had the same academic qualifications. Others, who did not possess those qualifications were allowed the scale as personal to them obviously with no right or claim to further promotion. Any arrangement existing prior to this amalgamation, function-wise or place of duty-wise had had no reference to the point in hand. It was the Government's own stance, as made before the High Court in the Annexures D & E that these officers held interchangeable posts and were even borne on the same consolidated seniority list. Creation of new posts was clearly meant for fomenting a unified service by bracketing together personnel with equivalent qualifications and this was the reason why they had been invariably changing posts. Further, the raison d'etre for abolishing the three different Organisations was the overlapping nature of their functions and instead creating a well‑knit consolidated and organised formation bearing the same nomenclature with equal chances to all concerned 'If getting further promotion. When once the idea was put into practice by interchanging the posts among them, and showing them on a consolidated seniority list, anything done to overturn the new set up, was indeed parochial, retrogressive and designed only to defeat the entire purport of the exercise. In the sequel, the appellants were cast aside as a group, not entitled to promotion to Grade‑18 until the other group could exclusively avail the same. It would evidently tend to work as naked discrimination created between the officers erstwhile placed in a unified cadre. Article 25 of the Constitution was manifestly attracted. Again, it was not denial of promotion simpliciter, but in effect it rendered the appellants ineligible to claim it till an awkward contingency of first exhausting the elite group had taken place. It goes without saying that eligibility to be considered for promotion is a matter which squarely fell within the competence of this Tribunal. The rule enunciated in 1992 PLC (C.S.) 898 (Ashfaq Ahmad Quraishi v. Province of Punjab etc.) seems to support the appellants' claim that they could bring the present appeal for establishing that they were eligible to be considered for NPS‑

18. Any argument raised against this proposition and even the authorities including 1985 SCMR 950: PLD 1962 SC 409; PLD 1990 SC 851 (855) and 1992 SCMR 957 (963) cited by Mr. Awan in support thereof were not aptly applicable to the case in hand. The basic reason to hold this view would be that only the officers holding the same and similar educational qualifications were placed in NPS‑17 as a cadre, without putting any condition on their further advancement in the career. Since those who did not qualify themselves education wise were allowed NPS‑17 as personal to them by way of grace. They had no occasion to compete with the respondents and therefore, it did not lie in their mouth to say that the persons inferior to them qualification-wise were being allowed to erode their chance of promotion. The various authorities referred to above could be distinguished, as the point of merging officers with equivalent qualifications did not appear to be the focal point falling for consideration in those cases.

14. It was really inconsequential to say that while the respondents were always posted at the District Headquarters, the appellants were meant for Markaz/Thana level posting. When their posts were bracketed together, doing duties here or there should not be the criterion to determine eligibility for further promotion, all the more when on the respondents own showing these posts were interchangeable till recently. The stance of interchange ability created yet another anomalous position. If a Project Manager was lucky to avail a chance of interchanging the post as Assistant Director and continued performing those duties for five years, he would find himself eligible for Grade‑18 but his colleague, less fortunate in getting such a posting despite being eligible, would be refused promotion because he could not serve as Assistant Director for five years. Such a vagary of events may not be allowed to be acted upon as a rule to favour a few and disfavour others. Mr. Awan then urged that by virtue of job assignment/evaluation/analysis, there was a large difference between the two posts so that they could not have been really interchangeable. The argument was somewhat hypothetical and indeed opposed to the facts because the posts were not only merged together in the initial scheme of merger but were also freshly created after abolishing their original character and additionally, were so held by the Department itself by ordering inter se postings of the parties. Had there been any difference in the respective jobs of the two types of officers, the basic qualifications prescribed therefore should have been quite different. Contrarily, both were to have the same qualifications and hence, could not be differentiated against each others, merely because of job assignments etc.

15. Bar of limitation was pleaded against the appeal. The contention was ;hat the appellants intended to assail, firstly, the Service Rules, 1981 and secondly, the notifications/orders dated 5‑4‑1990, 10‑4‑1990 and 27‑6‑1990 by she appeal filed as late as 13‑3‑1991 Mr. Awan was of the view that the appellants could not create a forum for themselves by having gone to the High court or the Supreme Court and that they could not thereby seek condonation of delay suffered by them. He relied upon PLD 1988 SC 155 (159‑162) (Re: Ch. Muhammad Insha Ullah v. Chief Conservator of Forests) and also PLD 1989 SC 262 (266) (Re: Muhammad Azam Malik v. A.C. and SDM) in this regard.

16. We took a view in the preceding parts of this judgment that there was reason for the appellants to drive home their contention that they had been discriminated against. Somehow this contention did not find favour with the High Court, nor even the Supreme Court. We noticed that there was no deliberateness on their part in creating a forum for themselves in going to the High Court in the exercise of its Constitutional jurisdiction. In fact, we are in a way agreeing with their contention that they had been discriminated against vis‑a‑vis their colleagues bracketed together with them some time ago. The effort on their part in getting relief in the Constitutional jurisdiction, could not be styled to be wanton or mala fide. On the other hand, they were making a bona fide attempt to seek redressal of the delay.

17. As a result we accept the appeal, set aside the impugned notifications/orders dated 5‑4‑1990, 10‑4‑1990 and 27‑6‑1990 and direct that the eligibility of the appellants as well as the respondents for promotion to NPS‑18 will be based on the consolidated seniority list dated 1‑1‑1988 existing before issuance of the aforesaid three notifications/orders. The employees of the defunct‑IRDP, PWP and Local Government having been integrated into a unified service, the condition of five years service as Assistant Director laid down for promotion to the post of Director (NPS‑18) against item No. 4 in the Schedule attached to the Punjab Local Government and Rural Development Service Rules, 1981 so as to exclude others, is not only repugnant to the purposes and objectives of the scheme of merger but also discriminatory, unfair, anomalous and self defeating. It is clearly hit by Article 25 of the Constitution of Pakistan. The Tribunal has the necessary jurisdiction to strike it down as held in 1991 SCMR 1041 (1063) and in exercise thereof, we proceed to declare it null and void in so far as it adversely affects the appellants and the respondents Nos. 74 to

267. A.A./436/Sr.P Appeal accepted.