2007 PLP (C (PLC(CS))

MOAZZAM HAYAT (MEMBER).

With this judgment we shall decide above titled appeals filed by above named appellants as the facts are identical and same prayer is made by the appellants for setting aside the reversion orders passed against them.

2. The appellants were declared surplus and, therefore, they were offered lower posts and were then posted against lower posts.

3. Appellant Khalid Akhtar was an Assistant Research Officer in BPS-17. He was posted as Commercial Assistant in BPS-11 vide order,-dated 28-1-2002.

4. Appellant Mrs. Shehla Bashir was also an Assistant Research Officer. She too was posted as Commercial Assistant in BPS-11 vide order, dated 30-4-2002.

5. Appellant Muhammad Siddique was a Divisional Head Draftsman in BPS-16. He was assigned the post of Draftsman in BPS-11 vide order, dated 19-4-2003.

6. Appellants Muhammad Aslam and Muhammad Saeed were aggrieved by the orders, dated 28-1-2002 by which they were posted as Commercial Assistants in BPS-11 whereas they were working as Assistant Research officers in BPS-17:

7. Appellant Ahmed Jameel Arshad was also declared surplus. He was a Draftsman in BPS-11 and was posted as Junior Clerk in BPS-5 vide order dated 28-1-2003.

8. Like appellants Muhammad Aslam and Muhammad Saeed appellants Khalid Akhtar and Abdul Latif were down graded and posted as Commercial Assistants, they were Assistant Research Officers in BPS-17 and were reverted to the posts of Commercial Assistant BPS-11 vide order, dated 28-1-2000. Appellants Khalid Akhtar, Muhammad Ali and Imtiaz Ahmed were Draftsman in BPS-11 but they were posted as Assistant Linemen in BPS-5 vide order, dated 24-1-2003.

9. The appellants have argued that respondents had absolutely no authority to revert them from their substantial posts to lower posts. They have also argued that inspite of existence of vacancies they were reverted to lower posts. Their last argument is that they have been made victims of discrimination as many employees who were junior to them were allowed to remain at their original posts whereas they being senior were demoted.

10. The respondents have resisted all the appeals. It is submitted that since the appellants had been rendered surplus, therefore, in exercise of powers conferred by section 11-A of Civil Servants Act, 1973, as adopted by the respondents. The competent Authority passed the impugned orders, however, showing compassion in allowing the appellants to continue in service. It is also submitted that the appellants were allowed to draw the pay which they were drawing in their original grades. According to the respondents no adverse order was pissed against the appellants, therefore, the appeals are not competent.

11. We have heard the learned counsel for the parties and have also perused the record.

12. Gul Badshah, Jamshid Khan, Mehar Ali, Rehmat Ullah Khan, Muhammad Ali Khan, Malik Shahmasul Zaman and Zarif Khan were Assistant Research Officers. They were also declared surplus. They were posted against posts of lower grade but their pay was protected. All of them filed Appeals Nos.269(L)(C.S.), 270(L)(C.S.) of 2002, 389(R)(L.S.) of 2002, 390(R)(L.S.) of 2002, 391(R)(L.S.) of 2002, 479(R)(L.S.) of 2002 and 779(R)(L.S.) of 2002 in the Federal Service Tribunal, Islamabad. These appeals were decided on 27-2-2004 by a Bench comprising of Mr. Justice (Retd.) Aman Ullah Abbasi, Chairman, and Mr. Jehan Zaib Burki, Member. It was held by the Tribunal in para.12 of its judgment that "On merits, we find that the respondents had acted strictly according to section 11-A of the Amended Civil Servants Act, 1973 as adopted by WAPDA. The above provision of law authorizes the competent authority to absorb an employee who had been rendered surplus in a lower post while protecting the pay he was drawing in the higher post which he held preceding his adjustment to the lower post. As such, we do not find that the respondents have violated any law or rules on the subject. The appellants were at liberty to either accept the lower post offered or to demand compensation pension under the WAPDA Pension Rules. They had duly accepted the lower post offered voluntarily. Hence, they were not entitled to agitate against the same later on."

13. Section 11-A was inserted in the Service Tribunals Act, 1973 by Civil Servants (Amendment) Ordinance No.XX of 2001 dated 14-4-2001. This provision of law is reproduced in verbatim as under:-- "Notwithstanding anything contained in this Act, the rules, agreement, contract or the terms and conditions of service, a civil servant who is rendered surplus as a result of reorganization or abolition of a Division, Department, Office or abolition of a post in pursuance of any Government decision may be appointed to a post, carrying basic pay scale equal to the post held by him before such appointment; if he possesses the qualification and fulfils other conditions applicable to that post: Provided that where no equivalent post is available he may be offered a lower post in such manner, and subject to such conditions, as may be prescribed and where such civil servant is appointed to a lower post the pay being drawn by him in the higher post immediately preceding his appointment to a lower post shall remain protected." This provision of law gives ample powers to the respondents to absorb the surplus employees either in the same grades or on non-availability of vacancies in the same grades on posts of lower grades. Since the pay of the surplus employee is protected, therefore, we are of the view that in the present appeals the respondents had not violated any law or rule on the subject. In the presence of the judgment of the Tribunal and the express provision of law, referred to above, we hold that the appellants cannot succeed on this ground that the respondents had no authority to post them against posts of lower grades.

14. However, we find that in almost all the appeals the appellants have categorically stated that inspite of existence of vacancies they were posted against posts of lower grades. They have also asserted that some of -their juniors were not reverted and they being senior were adversely affected by the impugned orders. This aspect of the case requires consideration by the respondents. This situation would not have arisen had the respondent served the appellants with notices before passing the impugned orders. But even at this stage the grievance of the appellants can be resolved by the respondents. The respondents can after joining the appellants decide and resolve the grievances voiced by them. We accordingly direct the respondents to decide this issue afresh that whether vacancies in same grade existed and inspite of existence of vacancies in the same cadre/grade, the appellants were posted against lower grades and that whether some juniors to the appellants were not given the same treatment as had been given to the appellants. The appellants would be given every opportunity to produce evidence showing existence of vacancies and also that some juniors had been promoted. The matter shall be decided by the respondents within six months from the date a copy of this order is received in their office.

15. In some cases departmental appeals have not been filed. Since the respondents have themselves stated that the impugned orders were not penal in nature therefore, we agree with the learned counsel for the appellants that there was no need for filing such appeals. In some appeals appellants have filed departmental appeals. Keeping in view the rules of consistency we shall not throw away the appeals in which departmental appeals were not filed. The appellants in such appeals deserve the same treatment as is being given to the other appellants who had filed the departmental appeals. The principle of law decided by this Tribunal and by the apex Court has to be extended to all the employees similarly placed even if they have not filed departmental appeals or appeals in this Tribunal. In case such benefit is not extended to all the employees evenly placed there would not only be multiplicity of proceedings but the principles of natural justice shall also be violated.

16. The appellants have stated that although their pay is protected their allowances are not protected. They have requested that their allowances be protected in the .same manner in which their pay is protected. The learned counsel for the respondents have stated that pay is substantial right of an employee whereas an allowance is not given as of right, therefore, for allowances appeal cannot be filed in this Tribunal. Normally civil servant on retirement gets pension on emoluments which he was drawing at the time of his retirement. The term "emoluments" includes pay and many other allowances permissible by rules. So the respondents are not totally correct in saying that allowances are not part and parcel of the pay which is drawn by a civil servant.

17. Notwithstanding this legal position we feel that rules must be framed by the competent authority for allowing allowances to surplus employees who are/were absorbed against posts carrying lower grades. We accordingly issue a direction in this behalf to the respondents. Till such time these rules are framed the appellants shall not be deprived of the allowances which they were getting along with their pay in their original scales.

18. No order as to costs. Parties be informed. H.B.T./61/FST Order accordingly.