2018 PLP (C (PLC(CS)N)

IJAZ ANWAR, J.

Through this single judgment, we intend to dispose of this writ petition bearing No. 330-M/2015 as well as the connected writ petitions bearing Nos. 634-M/2016 and 694-M/2017 as common questions of law and facts are involved in all these petitions.

2. Petitioner in the instant writ petition has averred that he was appointed as Sepoy at the age of 18 years in Dir Levies Force and after getting step by step promotion, reached to the rank of Subedar, vide order dated 17.12.2009. Initially, the services of the Levies Force was governed under the Frontier Irregular Corps (F.I.C) Rules, 1962, but, later on, for regulating the service matters of the Force, the Provincially Administered Tribal Areas (PATA), Levies Force Regulation, 2012, was promulgated, whereunder the PATA Levies Force (Service) Rules, 2012, were framed for the personnel of the Provincial Levies Force besides, separate service Rules called as "PATA Federal Levies Force Service (Amended Rules, 2013" along with its Schedule were also framed for regulating the service of Federal Levies personnel performing duties in PATA. It is further alleged that vide Notification dated 12.12.2013, Schedule-I and Schedule-III of the Rules were amended and Rule 8 of the said Rules provides that "promotion shall be strictly on seniority cum fitness basis as well as on the required length of service as specified in Schedule-I", while Rule 17 says that "all levy personnel shall retire as per Schedule-III and no extension in service beyond retirement shall be granted". He further averred that Respondent No.6, namely, Pashat Khan, had joined the Force as Sepoy on 01.12.1982 at the age of 18 years whereas the Respondent No.7, Dilawar Jan, joined the Force on 01.12.1982 at the age of 20 years and both of them were to be retired on 30.11.2012, as per office order dated 20.09.2013, because their services, including promotion and retirement, are governed by the "F.I.C. Rules, 1962" and not by the subsequent Rules, therefore, they are not entitled to remain in service anymore and, as such, cannot be considered senior to him. The petitioner alleged that he rendered 31 years and 11 months service and also performed his duties as subedar for five years and 5 months besides transparent service record and was hopeful for promotion on the retirement of Subedar Major Muhammad Idrees, but as per the seniority list and the working papers prepared for filling the said post, he was dropped, hence, in this respect, he submitted an application on 24.04.2015 to Respondent No.4 which was not considered and, in the meanwhile, Respondent No.3 illegally promoted Respondent No. 6, vide Notification No. SO (Levies) HD204/DIR (U&L) dated 15th May, 2015, hence, this writ petition.

3. As per contents of W.P No. 634-M/2016, petitioner No.1, Pashat Khan, was promoted to the rank of Subedar Major, vide order dated 15.05.2015, while petitioners Nos. 2 and 3, Tariqat Yar and Muhammad Rafiq, were promoted to the ranks of Subedar, vide order dated 28.05.2015, but respondents are not ready to fix their pay in accordance with their respective higher scales from the date of their promotion. They averred that their services were regulated by PATA Levies Force (Services) Rules, 2012, which were, later on, repealed by PATA Federal Levies Force Services (Amended) Rules, 2013, wherein the time frame for retirement was amended. Subsequently, the above mentioned time frame for retirement was further amended, vide Notification No. SO (Levies) HD/FLW/1-1/20l3/Vol-I, dated 12.12.2013. The last amendment was made, vide Notification No.SO(Levies)HD/FLW/l-1/2013/Vol-I dated 25.08.2016, according to which the length of service/age for subedar major was fixed as 37 years service or 60 years of age, whichever is earlier, while for subedar was fixed as 35 years service or 60 years of age whichever is earlier whereas for Naib subedar was fixed as 33 years service or 60 years of age whichever is earlier. Under Schedule-III of the Rules, 2013, ibid, the time frame for retirement of the Levies employees was as under:- Subedar major 37 years service or 60 years of age whichever is earlier. Subedar 35years service or 60 years of age whichever is earlier. Naib-Subedar 33 years service or 60 years of age whichever is earlier. According to the petitioners, as per Notification No. SO (Levies) HD/FLW/1-1/2013/Vol-I dated 25.08.2016, their dates of retirement were 15.05.2017, 01.12.2017 and 21.07.2018 respectively but the Respondent No.3 was informed through letter No.SO(Levies)/HD/2-4/ 20l3/Dir Lower dated 06.10.2016 regarding minutes of the meeting held on 03.08.2016 pertaining to the issue of retirement of Levies Force in Dir Lower and was directed to retire the petitioners from their services. Being aggrieved, they have filed W.P No. 634-M/2016.

4. The Petitioner in W.P No. 694-M/2017, who is respondent in petition W.P No. 330-M/2015, has asserted that the dates of retirement of the petitioners in the connected writ petitions are prior to that of the present petitioner, namely, Muhammad Bashir Khan, therefore, he filed application for vacation of stay granted by this Court in favour of the petitioner in writ petition filed by Said Badshah. He alleged that if the stay is vacated, all the Subedars and Naib Subedars will be retired and the petitioner will remain as the only eligible Naib Subedar for promotion w.e.f 07.10.2017 to 18.10.2017.

5. Arguments heard and record perused.

6. The matter in hand pertains to the retiring age and promotion of the levies personnel (Frontier Irregular Corps). Their age of retirement and criteria for promotion is completely different from other Provincial as well as the Federal Government employees. The services of the Malakand and Dir Levies were, initially, governed under the Frontier Irregular Corps Rules, 1962. Rule 2 has prescribed the tenure of promotion of different posts, while rule 3 has prescribed the retirement age. Since the applicability of these rules is the main controversy between the parties, as such, for convenience, it is reproduced in original:-

2. All future promotions:- (i) To Jamadars will be for 5 years only. (ii) To subedar will be for 3 years only except in special cases in this limit. (iii) To subedar Major will be for 4 years only extendable for further one year by Local administration, provided they are not liable to retire earlier in accordance with the provisions of rules below. 3.(i) All spoys will retire after 18 years service. (ii) All non-commissioned officers will be retired after 25 years service. (iii) Al1 others will retire on attaining the age of 50 years or on completion of 30 years service, whichever is earlier. (iv) No extensions of service will be granted on attaining the age and service of 30 years. The Federal Government, vide gazette notification dated 25.5.2010, notified Federal Levies Forces Regulation, 2010, and Federal Levies Force (Service) Rules, 2010, vide notification dated 27.6.2010, however, they were made applicable to the Federal Levies personnel in the Federally Administered Tribal Areas. The above regulations were then repealed, vide gazette notification dated 7.8.2012, further notifying Federal Levies Force Regulation, 2012, and Federal Levies Force (Service) Rules, 2012. It is pertinent to mention that the provincial government also notified the PATA Levies Force Regulation, 2012, and vide notification dated 13.9.2012, notified Provincially Administered Tribal Areas (PATA) Levies Force (Service) Rules, 2012. Rule 25 of the Rules, 2012, repealed the previous rules, orders or instructions enforced in respect of the PATA Levies force. Under the newly notified rules, a procedure has been set for seniority and promotion. It was due to promulgation of the service rules and its frequent amendments, that has created confusions and a controversy cropped up regarding the retiring age of the employees. They approached this Court for getting the interim relief.

7. To appreciate the controversy, in order to resolve it, Rules 8, 16 and schedule I of the Provincially Administered Tribal Areas (PATA) Levies Force (Service) Rules, 2012, are reproduced for ready reference.

8. Seniority and promotion. Promotion shall be strictly on seniority cum fitness basis as well as on the required length of service as specified in schedule-I. The service of personnel by initial recruitment or promotion may be dispensed with or reverted if, in the opinion of the competent authority his work and conduct is not satisfactory during probation period or due to abolishment of posts, as the case may be. A seniority list shall be maintained at district level.

16. Retirement.- The force personnel shall retire from service on attaining the age of superannuation, i.e., 60 years or he may opt for retirement after completing 25 years of regular service. Schedule-I. S.# Post/rank Eligibility for promotion Promotion quota Director quota Qualification 1 Subedar major (BS-16) 05 years as subedar or 10 years service in his credit 100% -- -- 2 Subedar (BS-13) 05 years as Naib Subedar or 8 years service in his credit. 100% -- -- 3 Naib Subedar (BS-11) 05 years service as Havaldar 100% -- -- 4 -- -- v -- -- Again, amendment in the service rules for Federal Levies Force in PATA was introduced on 04.2.2013. For ready reference, the amended Rules 8, 17, schedule-I and III are reproduced as under:-

8. Seniority and promotion:- (1) promotion shall be strictly on seniority cum fitness basis as well as on the required length of service as specified in Schedle-I. (2) The service of personnel by initial recruitment, promotion or transfer may be dispensed with or reverted if, in the opinion of the competent authority his work and conduct is not satisfactory during probation period or due to abolishment of posts, as the case may be: Provided that in case of dispensing with their service or reversion the concerned authority shall record cogent reasons for such action in writing. (3) The seniority list of the Force shall be maintained at district level. Commandant shall be responsible for maintaining the seniority list of the force and shall notify annually.

17. Retirement.- All levy personnel shall retire as per schedule III and no extension in service beyond retirement shall be granted. Schedule-I. S.# Post/rank Eligibility for promotion Promotion quota Director quota Qualification 1 Subedar major (BS-16) 03 years service as subedar 100% -- -- 2 Subedar (BS-13) 04 years service as Naib-subedar 100% -- -- 3 Naib-Subedar (BS-11) 03 years service as Havaldar 100% -- -- 4 -- -- -- -- -- Schedule-III. S.# Post/Rank Length of Service/Age 1 Subedar Major (BS-16) 38 years service or 03 years service as subedar major or 60 years age whichever is earlier. 2 Subedar (BS-13) 35 years service or 03 years service as subedar or 57 years age whichever is earlier. 3 Naib Subedar (BS-11) 32 years service or 03 years service as Naib subedar or 54 years age whichever is earlier. 4 -- -- Later on, vide notification, dated 12.12.2013, schedule-I and III were, again, amended which is as under:-- Schedule-I. S.# Post/rank Eligibility for promotion Promotion quota Director quota Qualification 1 Subedar major (BS-16) one year service as subedar 100% -- -- 2 Subedar (BS-13) one year service as naib-subedar 100% -- -- 3 Naib-Subedar (BS-11) one year service as hawaldar 100% -- -- 4 -- -- -- -- -- Schedule-III. S.# Post/Rank Length of Service/Age 1 Subedar Major (BS-16) 37 years service or 60 years of age whichever is earlier. 2 Subedar (BS-13) 35 years service or 60 years of age whichever is earlier. 3 Naib Subedar (BS-11) 33 years service or 60 years of age whichever is earlier. The matter not ended here and vide notification, dated 25.8.2016, certain clarifications and modifications were, again, introduced including in schedule-III, which is reproduce as under:-- S.# Post/rank For To be read as 1 Subedar Major (BS-16) 37 years service or 60 years of age whichever is earlier. 37 years service or 03 years service as subedar major or 60 years of age whichever is earlier. 2 Subedar (BS-13) 35 years service or 60 years of age whichever is earlier. 35 years service or 05 years service as subedar or 60 years of age whichever is earlier. 3 Naib-Subedar (BS-16) 33 years service or 60 years of age whichever is earlier. 33 years service or 07 years service as subedar major or 60 years of age whichever is earlier.

8. The "F.I.C" Rules, 1962, were superseded by "PATA" Levies Force (Service) Rules, 2012. Rule 25 is the repealing clause, it is reproduced for ready reference:- S.25 Repeal: Any rules, orders or instructions enforce in respect of PATA Levies force, immediately before the commencement of these rules shall stand repealed in so far as those rule, order of instructions are inconsistent with the rules. Surely, the "FIC Rules, 1962" were inconsistent to the extent of retiring age and tenure of promotions, as such, the "PATA" Levies Force (Service) Rules, 2012, were made applicable on Employees, who were in service on the issuance of Gazette notification dated 20.09.2012. The subsequent amendments in the above Rules take precedence over the previous rules and, thus, the amended rules will apply to the serving employees.

9. It would be advantageous to reproduce the latest notification dated 25.8.2016, whereby again amendments were introduced in "PATA" Levies Rules, 2012. According to the latest amendment, the service of Federal Levy Force rendered before 2012 was made countable as pensionable, and the pension rules of the Federal Government were made applicable. The controversy created earlier on the promulgation of the rules and frequent amendments have been resolved through the above notification dated 25.08.2016, relevant Para-3 is reproduced:- "

3. Condonation of over stay exceeding the prescribed length of service or age limit shall be allowed on case to case basis with due approval of the competent authority i.e., Secretary, SAFRON after full implications are worked out and sent to SAFRON and subsequent approval by Finance Division as the over stay was not the fault of the levy personnel. This Para was purposely added as anomalies were created about the age of retirement and tenure of promotion.

10. The learned DAG has also frankly and quite rightly suggested that those petitioners may be allowed to complete their tenure of the promotion already granted as per the Rules that are presently in field. The promulgation of the notification dated 25.08.2016 has made the task of this Court much easier. In somewhat similar situation, the august Supreme Court of Pakistan in the case DCO/Chairman, Recruitment Committee, Khaniwal and others v. Kishwar Sultan and others (2016 SCMR 1288) while dealing with an anomalous situation used certain words, we borrow it and reproduce here being very relevant:- "It is never too late to mend but what to do! Retain them, is the answer of the protagonists of status quo. Don't worsen the bad if correction is possible, is the answer given by those, who are guided by prudent and progressive outlook".

11. We are, thus, not inclined to disturb the promotion already granted and would direct the respondents to allow the promoted petitioners to complete their term of promotion. Similarly to strictly follow the amended upto-date rules in the matter of promotion/retirements. Therefore, this and the connected Writ Petition No.694-M/2017 challenging the promotion orders are dismissed, while W.P.No.634-M/2016 is partially allowed. ZC/48/P Petition disposed of.