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Civil Petitions Nos. K‑133 to K‑137 of 1982, decided on 20th November, 1982.

(From the judgment dated 17th March, 1982 of the Federal Service Tribunal passed in Appeals Nos. 64 (K), 152 (K), 67 (K), 153 (K) and 154 (K) of 1980).

‑‑ Art. 212(3) read with Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, r. 3(2) and Sched. Serial No. 4, Col. 2, Note (d)‑Appointment to posts of security of4cer ‑ Leave to appeal granted to consider whether petitioners who had in response to Note (d) been selected and appointed could be denied benefit of Note after its deletion subsequently.

Habibur Rehman, Advocate Supreme Court instructed by Faizanul Haq, Advocate‑on‑Record for Petitioners.

S. Inayat Ali, Standing Counsel for Respondents.

Date of hearing : 20th November, 1982.

The petitioners in these Civil Petitions for Leave to Appeal bearing Nos. K‑133 to K‑137 of 1982 had applied in response to an advertisement issued by the Federal Public Service Commission in February, 1976 and, on being selected had been appointed as Assistant Security Officers Grade 16 in July/August, 1976. They claimed benefit of a Note appearing under clause (d) at Serial No. 4, column 2, of the Schedule to the relevant rules framed in pursuance of Rule 3(2) of the Civil Service (Appointment, Promotion and Transfer) Rules, 1973, which Note reads

"Selected candidates will initially be appointed in N. P. S. 16 for the duration of basic/on‑the‑job training. On successful completion of training, they will be required to undergo a written test and success ful candidates will fill the existing vacancies in Grades 17 & 16 in order of merit. The successful candidates not appointed in Grade 17, will automatically be appointed in Grade 16."

It appears that the Establishment Division who bad been consulted by the Administrative Ministry in the matter of framing the rules had not agreed to the inclusion of the above Note, but, perhaps, due to inadvertence, the rules had been published in the Gazette of Pakistan of 23rd January, 1976, incorporating the said Note under clause (d). However, subsequently it was notified in the Gazette of Pakistan of 7‑1‑1981 that "the Note appearing below Serial No. 4 (d) of the Schedule stands deleted, as the Note did not have the approval of competent authority".

2. The petitioners claimed that 75 % of the posts of Security Officers in Grade 17 meant for direct recruitment was to be filled from among the persons selected in response to the advertisement in terms of the said Note. The plea was in appeal turned down by the Federal Service Tribunal who observed

"We have gone through the file dealing with the framing of the rules, and we find that the Establishment Division had specifically directed that the aforesaid clause (d) should be deleted from Rules. It was inadvertently published and now a corrigendum has been issued to delete it. Clause (d), ibid, therefore, does not from part of the Rules, and the appellants' claim which is based entirely on the said clause has no force."

The Tribunal also held that the deletion of the Note in 1981 was not by way of amendment but by a corrigendum "declaring the illegality of clause (d), ibid in the Rules, which did not have the concurrence of the Establishment Division in accordance with the requirement of law" and that the Note under clause (d) "is likely to come in conflict with rule 2(ii) of the aforesaid Rules, inasmuch as it lays down that 25 % of the vacancies of Security Officers (Grade 17) shall be filled in by promotion and 75 % by direct recruitment" In this connection, the Tribunal further held:

"In the present case, no decisive step had been taken. Had the appellants been appointed Security Officers and promoted to Grade 17 and then reverted, because the rule was deleted, the action would not have been valid. In the present case, however, clause (d), ibid was not acted upon at any time, and therefore, the question of locus poenitentiae is not relevant."

3. The Rules of Business use the term "consultation", "approval" and "concurrence" at different places. Fn the context of framing of rules, the requirement under Rule 11 is only of "consultation", and not "approval" or "concurrence" with the Establishment Division, in the event of difference of opinion, the Minister primarily concerned shall try to resolve the difference in consultation with the other Minister and if no agreement is reached and the Minister primarily concerned desires to press the case the case shall be submitted to the Prime Minister or if the Prime Minister so desires to the Cabinet, vide rule 8(2) of the Rules of Business. As observed by the Tribunal, who had the benefit of seeing the departmental file, the Establish ment Division had not agreed to the incorporation of the Note in question in the rules. There is no evidence that the procedure for resolving the difference between the Administrative Ministry and the Establishment Division had been followed. However, even if the rules, as published on 23‑1‑1976 were in contravention of the requirement of the Rules of Business, the question arises whether the petitioners who had in response to the benefit of the Note had applied and had been selected and appointed should be denied the benefit of the Note after its deletion subsequently: The question requires consideration and we accordingly grant leave to appeal in all the petitions.

S. Q. Leave granted.

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