2004 PLP (C (PLC(CS))

ABDUL GHANI SHAIKH (CHAIRMAN).‑‑‑Facts in nutshell are that appellant in the year, 1967 joined Education Department as a Graduate Teacher. During service he improved his academic qualification and obtained following degrees; (a) M.A. (Economics) IInd Division in 1971. (b) B.Ed. in 111rd Division in 1971 (as an external candidate). (c) M.Ed., in (`B') Grade in 1980). In the year, 1992 the status of High Schools was raised to the Higher Secondary level and certain posts of Subject Specialists (B‑17) were also created. The Government of Sindh, Education Department, through notification dated 14th July, 1994 notified the method, qualification and other conditions for appointment of Subject Specialist/Lecturer' Higher Secondary School, whereby 50% of such posts were to be filled by initial appointment and 50% by promption from amongst High School Teachers/Higher Secondary School Teachers. It is the case of the appellant that he being qualified and eligible for the post of Subject Specialist applied for the same but his name was not considered in the meeting of Departmental Promotion Committee on the pretext that he did not possess B.Ed. Degree in IInd Division although he possesses M.Ed. Degree which is higher in status than B.Ed. Degree. Feeling dissatisfied, he preferred departmental appeal to the Secretary, Education Department which was rejected and such rejection order was communicated to the appellant through letter dated 4‑10‑1999. It is contended that appellant being senior and qualified hand is eligible for the post of Subject Specialist as he possesses degree of M.Ed. in `.B' grade which is much higher academic qualification than B.Ed. In this connection, learned counsel for appellant referred to a letter of erstwhile Govt. of West Pakistan, S&GAD, dated 2nd February, 1970. Further, it is argued that number of appellant's juniors have been promoted but without any plausible reason appellant has been denied his legal and legitimate right and that Department may be directed to consider the case of appellant for the promotion to the post of Subject Specialist in the light of directives contained in letter dated 2nd February, 1970. On the other hand, learned Asstt. A.‑G. submitted that the appeal is not maintainable as prior to invoking the jurisdiction of this Tribunal no departmental appeal was filed by the appellant, which is a condition precedent under section 4 of the Sindh Service Tribunals Act, 1973. In reply to the above legal objection, learned counsel for the appellant submitted that non consideration of the case of appellant for promotion was an original order against which appellant filed departmental appeal to the Secretary, Education Department, Govt. of Sindh, Karachi, thus a requirement of section 4 of the Act XV of 1973 was fully complied with before approaching this Tribunal. He contended that it is not always necessary that there must be an order in writing but any action which caused grievance to the civil servant can be treated as an original order. In support of his contention, he relied upon (i) 1987 PLC (C.S.) 432, and (ii) 1994‑SCMR 1033. We have considered the above submissions, perused the material placed on the record and have gone through the case‑law referred to by the learned counsel for the appellant. We first deal with the legal objection raised by the learned Asstt. A.‑G. It is the mandatory requirement of law that filing of departmental appeal against the original order is a condition precedent for invoking the jurisdiction of this Tribunal under section 4 of the Sindh Service Tribunals Act, 1973. It is, however, not necessary that original impugned order must be in writing. It is a settled law that an order for the purpose of Service Tribunals Act can have many forms. It maybe a general order. It may be a particular order directed against an individual. It may be a policy decision. It may be a decision of a particular grievance or an order refusing to redress a grievance. All such orders, if they affect the terms and conditions of the service of the employee would qualify as departmental orders ex facie issued by the authority within the Department empowered to do so. Reference is invited to the case of Muhammad Arshad Saeed, D.I.G. Police, v. Govt. of Pakistan and others, 1994 SCMR 1033. In the case of Muhammad Asar v. Islamic Republic of Pakistan NLR 1987 Service 30, it was held that the fact that no written order was passed by Department which prejudiced a civil servant, cannot deprive him of his right of filing appeal before Tribunal if, for a fact, action has been taken altering to his disadvantage pension of retired civil servant. In the instant case, the appellant applied for his promotion to the post of Subject Specialist but his case: was not placed before the concerned Departmental Promotion Committee which caused him legitimate grievance, thus the same can' be termed as an original impugned order against which appellant preferred departmental appeal to the Secretary of Education Department which as stated above was rejected. The instant appeal is thus very much maintainable and competent. On merits, the appellant's case is that he being qualified hand is eligible for the post of Subject Specialist. The minimum qualification for the post of Subject Specialist according to the notification dated 14‑7‑1994 is as under: "Master's degree in the relevant subject with B.Ed. both IInd. Division from a recognized University. The condition of B.Ed. will be relaxed in the case of holders of Master's degree in Natural Science, Mathematics, Statistics or‑English." Admittedly, appellant possesses Master's degree in Economics in IInd Division. He passed B.Ed. in IIIrd Division but then acquires degree of M.Ed., in `B' grade in the year, 1980 i.e. much prior to the issuance of notification dated 14‑7‑1994. The degree of M.Ed. undoubtedly is higher in status to that of B.Ed. degree. In this regard, learned counsel for appellant referred to a letter dated 2‑2‑1970 of erstwhile Government of West Pakistan, S&GAD addressed to all Administrative Secretariats and other functionaries, the text of which for the sake of convenience is reproduced as under: "I am directed to say that for some post under Government the minimum qualification which a candidate is required to possess is a Bachelor's Degree not below second, class. A question has arisen whether a candidate who did his B.A. in third class can be considered eligible for such posts. Government is of the view that Master's degree in third Division‑ is definitely a higher academic attainment than the Bachelor's Degree in the second division as it cannot be attained without two years successful study after passing the B.A. Examination. It has, therefore, been decided that holders of Master's degree‑in third Division should be considered eligible for the posts for which a minimum qualification is a B.A. degree not below second division." In view of the above letter, the appellant's case on the basis of M.Ed. degree which is higher academic qualification for the purpose of promotion to the post of Subject Specialist was to be considered by Department but it was pot done and the appellant was non‑suited on the ground that he possessed B.Ed. degree in IIIrd division and not IInd Division as required under the notification dated 14‑7‑1994, which means that letter dated 2‑2‑1970 was not considered at all by the Department which ought to have been considered. Accordingly, we accept the appeal, set‑aside the impugned order dated 4‑10‑1999 and direct the respondent to consider the case of the appellant for promotion to the post of Subject Specialist in the light of letter dated 2‑2‑1970 and the observations made hereinabove. No order as to costs. Announced in open Court. Given under our hands and the Seal of this Tribunal this 11th day of April, 2003. H.B.T./132/KST Appeal accepted.