1991 PLP 1203 (SCMR)

Date of hearing: 19th August, 1990. SHAFIUR RAHMAN, J.‑‑‑The Government of Balochistan was granted leave to appeal under Article 212 (3) of the Constitution in two separate cases disposed of by a consolidated judgment dated 28‑12‑1986, to examine; whether respondents in the two appeals had a vested right and were entitled to be absorbed in the Secretariat Ministerial Service with effect from Ist July, 1970; and whether the Tribunal had correctly so ordered.

2. The respondents were recruited to the Regional Office establishment of the Chief Engineer, prior to July, 1970 i.e. dissolution of West Pakistan, except two of them who were recruited subsequently. They were all governed by the West Pakistan Buildings and Roads Department Ministerial Service (Regional) Rules, 1962. On the dissolution of West Pakistan and creation of a separate Province of Balochistan on Ist of July, 1970, the Office of the Chief Engineer continued to remain a non‑Secretariat Office but the Chief Engineer was required to function ex‑officio as Secretary to the Government of Balochistan in the relevant department.

3. On 12th November 1970, the Governor of Balochistan notified an amendment in the West Pakistan Secretariat Ministerial Service Rules, 1963, by introducing Rule 5‑A in the following words:‑‑ "5‑A (1) Notwithstanding anything contained to the contrary in these rules, the appointing authority may, on the recommendations of the Selection Board constituted for the purpose, appoint Superintendents, Assistants, Senior Scale Stenographers, Junior Scale Stenographers Grade‑I, Junior Scale Stenographers Grade‑I1, Senior Clerks and Junior Clerks, by direct recruitment or by transfer from other attached departments and subordinate offices of the Government. (2) For the purpose of this rule, the conditions of age and qualifications, shall stand suspended in case of persons already in service of the Provincial Government. (3) The inter se seniority of officials so selected shall be fixed by the Selection Board on merit, and they shall stand below such officials, in their respective grade, as are already serving in the Secretariat. (4) This rule shall have effect for a period of six months from the date of publication of this notification, unless specifically extended by the appointing authority."

4. The options were called for from serving personnel in non‑Secretariat Offices and others, for appointment to the Secretariat service under this rule but none of the respondents availed of it.

5. A Scheme was initiated in 1973 by the O&M Division of the Federal Government which was finalized on 26‑2‑1978 whereby bifurcation of the Chief Engineer's office into a Secretariat Portion and a non‑Secretariat portion was undertaken. Options were invited from those who were serving in that office which included the respondents in the two appeals, for absorption in the Secretariat or non‑Secretariat Office. The respondents insisted that the option called for should be not from 26‑2‑1978 when actual bifurcation took place but from 1‑7‑1970 when the Chief Engineer started functioning ex officio as Secretary. They brought their claim to the Service Tribunal where they were all allowed to be treated as Secretariat officials those entering service prior to 1‑7‑1970, from 1‑7‑1970 and others from the date of their appointment considering it to be their vested right. The exact declaration granted by the Tribunal is as hereunder:‑‑ "In view of the above‑mentioned position, we declare that the appellants at S. Nos.l to 6 and 8 to 10 belong to ministerial service of Balochistan Secretariat as from the date of their first posting in the office of the Chief Engineer‑cum‑Secretary, C&W Department in the year 1970 and rank senior in their respective grades to those inducted through the said Selection Board subsequently, if any. The appellants at S. Nos.7 and 11 also created their vested rights and their seniority be fixed amongst Secretariat staff as from their initial date of induction. All back benefits are attached. No order as to costs."

6. In resisting the claim of the respondents to be treated as Secretariat Staff, the Government had taken up the following grounds before the Tribunal:‑‑ "The Ministerial staff of the aforesaid office could not be treated at par with the staff of other Secretariat Departments for the reasons that recruitment to the Secretariat posts is made under the relevant recruitment Rules prescribed for these posts which did not provide for filling thereof by transfer. Therefore, unless a person first becomes a member of the Secretariat Ministerial Service in accordance with the prescribed manner he cannot be appointed to a Secretariat post. Above all, since no Ministerial Post on Secretariat level was provided for the office of the Chief Engineer‑cum‑Secretary C&W Department, there was no question of allowing the Secretariat status to the Staff of the amalgamated Regional offices because of their working partly on Secretariat level as no Secretariat Ministerial post existed in the office of the Chief Engineer‑cum‑Secretary C&W Department before 26‑2‑1978. Therefore, there is no question of their absorption against the non‑existing Secretariat Ministerial posts with effect from 1‑7‑1970."

7. The Tribunal in treating the respondents as Secretariat Staff from 1‑7‑1970 or from the date of recruitment of two of them committed three errors of law, all in violation of express provisions of the law. Firstly., all the respondents were recruited to regional cadre and not to the Secretariat Service. They were under an obligation under the Service Laws to serve any office and in any capacity when required to do so. The only protection available to them was that their remuneration was not to be altered to their disadvantage, while. so serving (Section 10 of the Balochistan Civil Servants Act). Their vested right; if any, was to remain in the non‑Secretariat regional cadre unless expressly ordered by the competent authority in accordance with rules otherwise. Secondly ,there were and continued to exist, properly framed and duly enforced Rules of Recruitment for the Secretariat Ministerial Staff. The Tribunal could not in total disregard of those rules direct that the respondents be treated as recruited to that Service from 1‑7‑1970 or from the date of their appointment if it happened to be later. Thirdly the Tribunal in granting the relief was not enforcing any of the terms and conditions of service of the respondents, as none has been referred or cited in the judgment but it was altering a policy decision of the Government, viz. of bifurcating the Chief Engineer‑cum‑Secretary's office into Secretariat and non‑Secretariat from 26‑2‑1978. The Tribunal has directed that the whole Office should be treated as Secretariat office from 1‑7‑1970. It is only on this premise that the Tribunal has allowed the Secretariat status to all the respondents who were employed therein on 1‑7‑1970 or subsequently. This was outside its jurisdiction under sections 4 and 5 of the Service Tribunals Act. The respondents could not on the established facts claim that they belonged to Secretariat service as from 1‑7‑1970, nor that bifurcation should not have taken place on 26‑2‑1978 but from 1‑7‑1970. Hence, the two appeals are allowed and the judgment of the Tribunal is set aside.

9. There is another aspect of the case. The respondents claimed that they had been performing more arduous/onerous duties in the combined office of the Chief Engineer which entitled them to compensation in accordance with rules for extra duties. Such a specific claim, it appears, was never made though a general allegation is contained in their memos of appeal before the Tribunal that‑‑ "Yet in spite of their representation they were not included in the cadre of Civil Secretariat nor given the Pay Scale as admissible to each one of them. The representations of the appellants were repeatedly forwarded by the Secretary, C&W Department to the Respondent Government but to no consequence." If we take the recital above as it is, or leave it open for the Tribunal, their appeals would be directly hit by bar of limitation because they could not claim benefit of increase in emoluments, if any, of 1970 in 1984/1985. We would, therefore, leave that aspect of the matter open for the respondents to agitate before competent authorities, including the Tribunal, if they can show that they have a locus standi and are within time to raise such a claim. With these reservations, the two appeals are accepted and the judgment of the Tribunal set aside and the service appeals filed by the respondents before the Service Tribunal are dismissed. A.A./G‑308/S Appeals accepted.