IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL
MR. JUSTICE MUNIB AKHTAR
A-FP-
CWIL PETITION NOS. 1092 & 1093 OF 2018
Against the judgment dated 8.3.20 18
passed by Islamabad High Court, Islamabad
in ICA No.859 of 2013
Khushdil Khan Malik (in both cases)
VERSU$
Petitioner(s)
The Secretary, Establishment Div. Cabinet Block 
(in CP 1092/2018)
Islamabad & others
Federation of Pakistan thr. Secretary Establishment, (in CP 1093/2018)
Cabinet Block, Islamabad 
Respondent(s)
For the Petitioner(s) 
[n-person
For the Respondent(s) 
NI?
Date of Hearing: 12.9 .20 18
JUDGMENT
MUSHIR ALAM, J.- The instant Civil Petitions No. 1092 of 2018 and
1093 of 2018 arise out of the impugned consolidated judgment dated
08.03.2018 passed in I.C.A No.859 of 2013 allowed by the learned
Bench of the Islamabad High Court against the judgments dated
13.05.2013 passed in Writ Petition No.828 of 2011 and dated
10.03.20 17 passed in Writ Petition No. 4118 of 2016.
2. Succinctly stated facts are that the Petitioner was
originally appointed as Headmaster (BPS- 18) on 24.2.1996 in the
Federal Government Educational Institutions (Cantts/Garrison)
thereinafter referred to as the parent department]; which falls under
the administrative control of the Ministry of Defence. The petitioner
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CIVIL PETITION NOS. 1092 & OF 2018 
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was posted as Deputy Secretary in the Federal Government on
deputation basis w.e.f. 13.09.2004. The period of deputation was
extended from time to time under section 10 of the Civil Servants Act,
1973 (hereinafter referred to as the "Act of 1973'). The petitioner, while
being serving as Deputy Secretary, States and Frontier Regions
Division, was repatriated to his parent department w.e.f. 03.02.20 10
r vide Notification dated 20.01.2010 on alleged misconduct. The
petitioner challenged his repatriation orders before the Islamabad High
Court through Writ Petition No.828 of 2011. He was promoted from
BS-19 to BS-20 as Headmaster vide Notification dated 22.04.2011 and
posted to FG Tech. High School Tariqabad Rawalpindi. The date of
promotion to BS-20 was revised later on Four Tier Service Structure
Formula, in pursuance of Notification and the petitioner was granted
financial benefits of BPS-20 w.e.f. 25.10.2004 while transferring his
services to NACTA, Interior Division, and Government of Pakistan.
Vide Office Memorandum dated 20.10.2011, the Establishment
Division was requested to notify the transfer of services of the
petitioner against the post of Director General (35-20) in NACTA under
Section 10 of the Act 1973 and the Notification dated 20.10.2011 was
issued by the Cabinet Secretariat Establishment Division accordingly.
The petitioner was given an additional charge of the Joint Secretary
(Law) vide letter dated 17.11.2011. The Government of Pakistan vide
Office Memorandum dated 30.05.20 12 circulated the policy for
induction of Civil Servants (BS-20) as well as persons in BS-20/
equivalent in service of Federal! Provincial Autonomous Bodies! Semi-
Autonomous Bodies! Corporations etc. as Joint Secretary (35-20) in
ecretariat Group and invited nominations from all the concerned
Ministries/ Divisions. When the petitioner's request for induction in the
CIVIL PETITION NOS. 1092 & OF 2018 
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r
Secretariat group was not considered, he filed amended petition in
Writ Petition No.828 of 2011, which was allowed accordingly on
13.05.13 and the respondents in that case were directed to process
petitioner's case for induction/ absorption in the Federal Government
(Secretariat Group) as per rules and regulations applicable. The said
judgment was assailed by the Federal Government through I.C.A. No.
r 859 of 2013. The Prime Minister of Pakistan had issued a directive
whereby the financial benefits under the 'Time Scale Formula' were
granted to the Teaching Staff of the Federal Directorate of Education,
Islamabad and, pursuant thereto, the Capital Administration and
Development Division issued the Office Memorandum dated
15.09.2011. The Ministry of Defence forwarded a summary to the
competent authority for extending the Time Scale Formula' to the
Teaching Staff in BPS-16 and above employed and working in the
parent Department. The said summary was endorsed by the Secretary
Finance vide note dated 14.02.20 14 and the approval, accorded by the
Prime Minister, was duly communicated to the Defence Secretary on
16.10.20 15. A summary had already been forwarded by the parent
department to the Ministry of Defence for granting promotion to the
petitioner on the basis of meritorious service. The Ministry of Defence,
vide office Memorandum dated 24.06.2015, sought the advice of the
Establishment Division to this effect. The latter regretted that the
petitioner was transferred vide Notification dated 29.07.2013 without
seeking its concurrence or that of the parent department. Moreover, it
was further observed that the petitioner had barely served in BPS-19
and BPS-20 in his parent department. The Establishment Division,
vide Office Memorandum dated 17.12.2015, observed that petitioner
could not be promoted on the basis of meritorious service. It transpires
CIVIL PETITION NOS. 1092 & OF2QTh
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from the record that the petitioner's repatriation orders to his parent
department were issued again through Notifications dated 18.10-2012
and 05.05.20 16 but the same orders were never Complied with.
Nonetheless, the petitioner continued to serve outside his parent
department for many years. The petitioner filed W.P. No.4 118 of 2016,
seeking the grant of Time Scale Promotion' in BPS-21 w.e.f
r 01.01.2011 and thereafter forwarding his case for the grant of BPS-22
on the basis of meritorious service'. The said Writ Petition was allowed
by the learned Single Judge in Chambers of the Islamabad High Court
vide judgment dated 10.03.2017. The respondents in the said petition
were directed to issue a notification in favour of the petitioner for the
grant of Time Scale Promotion' in BPS-21 w.e.f. 01.01.2011 and then
to forward his case for promotion to BPS-22 on the basis of
meritorious service. The Secretary Establishment Division challenged
the judgment dated 10.03.2017, through I.C.A. No. 123 of 2017, while
the same had also been assailed by the parent department through the
Ministry of Defence by filing I.C.A. No. 117 of 2017. The petitioner was
transferred vide Notification, dated 12.01.2017, to the National
Security Division and later directed to report to the Establishment
r 
Division. The said transfer order was also challenged by the petitioner
by filing Cr1. Org . Petition No. 11 of 2017 in C. P. No.23 of 2012 and
the same was dismissed by the Islamabad High Court vide order dated
30.01.2017. The petitioner filed W.P. No.427 of 2017 before the
Islamabad High Court, which was disposed of vide order dated
06.02.2017. Another Writ Petition No.1230 of 2017, filed by the
petitioner, was also disposed of by the Islamabad High Court vide
order dated 10.04.2017. Pursuant to the aforesaid orders, dated
1.02.2017 and 10.04.2017, the Secretary Establishment Division
CIVIL PETITION NOS. 1092 & OF 2018 
5
passed order, dated 26.04.2017, and the relevant portion thereof is as
follows:
'WOW, THEREFORE, the undersigned, in compliance
with the orders of the honourable Islamabad High
Court, has heard the petitioner and is of the view
that an appropriate placement, that too in
consultation with his parent department or
repatriation of the officer to is parent department,
would be decided in pursuance to any final order of
the honourable Islamabad High Court (LC.A. No.
85912013) for which an application for early hearing
has already been filed. A seat of OSD for the officer
will be created in the Establishment Division
meanwhile, for pay purposes.
3. The respondent filed three Intra Court Appeals No. 117 of
2017, titled "Federation of Pakistan through Secretary, Ministry of
Defence, Secretariat No.2, Rawalpindi & another v. Khush Dil Khan
Malik & others" and I.C.A. No.123 of 2017, titled The Secretary
Establishment Division, Islamabad v. Khushdil Khan Malik and others'
before the Islamabad High Court. The learned bench of the Islamabad
High Court decided I.C.A. No.859 of 2013 in W.P. No.828 of 2011
along with the aforementioned Intra Court Appeals through impugned
consolidated judgment dated 08.03.20 18 and allowed all the three
appeals filed by the respondents while setting aside judgments, dated
13.05.2013 passed in W.P. No.828 of 2011 and dated 10.03.2017,
passed in W.P. No.4118 of 2016. The learned bench of the Islamabad
High Court observed that:
"It will be open to the Federal Government to proceed
with the placement of the respondent in the light of
paragraph 8 of the order, dated 26-04-2017, passed
by the Secretary, Establishment Division."
I
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CIVIL PETITION NOS.] 092 & OP 2018 
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4. The instant Civil Petition No. 1092 of 2018 before this
Court arises out of the judgment dated 10.03.2017, passed in W.P.
No.4118 of 2016 and the Civil Petition No. 1093 of 2018 arises out of
the judgment dated 13.05.2013 passed in W.P. No.828 of 2011, which
were set aside through the impugned consolidated judgment dated
08.03.2018 in I.C.A. No.859 of 2013.
C. The petitioner contended that the respondent has
inducted/ absorbed similarly placed officers in the Secretariat Group
despite the fact that they were not members of any Occupational
Group/ Service. He further contended that he has a vested right to be
considered for promotion on the basis of 'Time Scale Formula' and that
the learned Single Judge in Chambers of the Islamabad High Court
after considering all the achievements of the petitioner correctly
directed the respondent process the case of the petitioner for
induction/ absorption in the Secretariat Group vide judgment dated
13.03.2013 in W.P No.828 of 2011. He contended that the repatriation
orders issued vide Memorandum dated 20.01.2010 were in response to
his request to the then Prime Minister of Pakistan seeking his
induction/ absorption in the Secretariat Group on the analogy of some
p.' blue eyed officers. That no misconduct has ever been proved against
him throughout his career and he possesses unblemished service
record; and for the same reason the parent department had
recommended the grant of the higher pay scale on a meritorious basis
however the same was arbitrarily regretted by the Establishment
Division. The petitioner argued that the impugned consolidated
judgment dated 08.03.20 18 suffers from legal infirmities and has
failed to correctly appreciate the facts and circumstances of the case.
CIVIL PETITION NOS. 1092 & OF 2018 
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6.
The arguments advanced by the petitioner in-person and
the record perused with his able assistance.
7.
The petitioner invoked the constitutional jurisdiction time
and again under Article 199 of the Constitution, seeking direction for
his absorption/ induction in the Secretariat Group, benefits of BPS-21
under the Time Scale Formula and thereafter, his further promotion to
r BPS-22 under the policy relating to the grant of the higher pay scale
on a meritorious basis. The constitutional petitions were allowed
which were later on set aside through impugned consolidated
judgment. In order to appreciate the nature of controversy, it is
necessary to examine the respective laws and policies forming the
background of the dispute. The matter of creation of Civil Service on
All-Pakistan basis was considered for the first time after independence
on 8.11.1950 in a meeting of the representatives of the Government a
Resolution which was passed to set up a Centralized Civil Service on
All-Pakistan basis. This resolution was given effect to by promulgating
Civil Service of Pakistan (Composition and Cadre) Rules, 1954 by the
Governor-General in exercise of powers under section 241 of the
Government of India Act, 1935. In order to improve the efficacy of civil
services the Government of Pakistan carried out administrative
reforms in the year 1971 and as a first measure the Pakistan Services
(Change in Nomenclature) Rules, 1971 were promulgated which
provided that the names of the Civil Service of Pakistan and the Police
Service of Pakistan shall stand changed to All-Pakistan Unified Grades
and all persons who were members of Civil Service of Pakistan or
Police Service of Pakistan shall stand appointed in their existing posts
in All-Pakistan Unified Grades. Different occupational groups were
created from time to time to become part of All Pakistan Service. The
CIVIL PETITION NOS. 1092 & OF 2018 
8
Secretariat Group was set up by the Establishment Division in
continuation of Memorandum No.2/2/75-ARC dated 17.01.1975
through O.M. No.2/2/75-ARC dated 12 .04 . 1976. 1 This Group
Composed of officers of the former CSP, DMG who opted for this
Group; officers of 0MG on promotion to the posts of Deputy
Secretary and officers of other services/groups who opted for or were
inducted in Secretariat Group- 2 The Secretariat Group has been placed
under the administrative control of the Establishment Division and
Clauses 3, 4, 5 and 6 of the Office Memorandum, dated 12.04.1976
prescribe the modes for appointment as well as induction in the
Secretariat Group. Clauses 3 and 4 of the said ON provide that:
"3. Deputy Secretary.- Appointment to the post of
Deputy Secretary will be made in accordance with the
following methods:
i. By promotion of Grade 18 officers of the
Office Management Group and the
Secretariat Group on the recommendations
of the Central Selection Board.
By horizontal movement from other
Occupational Groups of Grade 19 Officers
who have been recommended by the
Ministries/Divisions/Departments or
Provincial Governments and have been
found fit by the Central Selection Board.
iii. By direct appointment on the
recommendations of Federal Public Service
Commission of persons possessing such
qualifications and experience etc., as may
be prescribed.
4. Joint Secretary. --- Appointment to the post of Joint
Secretary will be made as under
MANUAL ON APPOINTMENT, PROMOTION AND TRANSFER (Edition -2013), Appendix A.
Page No 280.
2 MANUAL ON APPOINTMENT, PROMOTION AND TRANSFER (Edition -2013). Appendix A.
Page No. 244.
CIVIL PETITION NOS. 1092 & OF 2018
i.
By promotion of officers in the Grade of
Deputy Secretary on the recommendations
of the Central Selection Board.
ii.
By horizontal movement of such Grade 20
Officers of the various occupational groups
as are recommended by the Ministries!
Divisions, Departments Provincial
Governments etc. and are found fit by the
Central Selection Board.
C iii. By direct appointment on the
recommendations of the Federal Public
Service Commission of persons possessing
such qualifications and experience etc. as
may be prescribed."
It is apparent from the language employed in clauses 3 and 4
reproduced above that three modes can be adopted for the
appointments against the posts of Deputy Secretary or Joint Secretary,
as the case may be. Firstly, it can be made through the promotion of
grade 18 officers of the Office Management Group and the Secretariat
Group. Secondly such appointments can be made by the horizontal
movement of officers in BPS-18 from other Occupational Groups.
Thirdly direct appointments can be against the posts of Deputy
Secretary or Joint Secretary, on the recommendation of the Federal
Public Service Commission. It is pertinent to mention here that
ppointment through horizontal movement of officers in BPS 18 again
has to meet three conditions; the first prerequisite is that the officer
considered for appointment must belong to one of the Occupational
Groups. Secondly, such an officer is required to be recommended by
the concerned Ministry, Division, Department or Provincial
Governments, as the case may be; and lastly such an officer shall be
found fit by the Central Selection Board. These three conditions must
necessarily be fulfilled by every officer who aspires to be inducted in
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CIVIL PETITION NOS. 1092 &OF 2018 
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the Secretariat Group as Deputy Secretary or Joint Secretary.
Admittedly the petitioner was inducted into service against the post of
Headmaster (BPS-18) on 24.12.1996 in the Federal Government
Educational Institutions (Cantts/GarrisOn). In the year 2004 he was
transferred to the Federal Government on deputation basis and he was
repatriated to the parent department vide Office Memorandum dated
20.10.2010; he had hardly served in his parent department as
member of the Teaching Staff when he was again transferred in the
year 2011 to the Federal Secretariat under section 1.0 of the Act of
1973. The petitioner is neither an officer of Management Group nor of
Secretariat Group as provided in clause 3 supra. Moreover he doesn't
belong to any of the 'Occupational Groups' in terms of clause (viii) of
Rule 2 of the Occupational Groups and Services (Probation, Training
and Seniority) Rules, 1990; therefore he cannot be considered for
appointment through horizontal movement. Moreover there is nothing
on record to show that he was ever recommended by the controlling
Ministry of the parent department to be considered for such
appointment. Therefore the petitioner has no vested right to be
considered for induction/ absorption in the Secretariat Group as per
prescribed eligibility criteria and conditions laid down in the relevant
laws and policies, despite his best service record and the learned
ench of the Islamabad High Court has fully appreciated this aspect of
the matter in paragraph '7' of the impugned consolidated judgment
and we see no reason to set aside the same.
8. Now adverting to another contention of the petitioner that
benefits under Time Scale Formula may be granted to him, it is
essential to consider the terms and conditions of service of the
petitioner under the Act of 1973 read with the Civil Servants
CIVIL PETITION NOS. 1092 & OF 2018 
11
I
(Appointment, Promotion and Transfer) Rules, 1973 hereinafter
referred to as Rules 1973. The petitioner being a civil servant was
appointed under the Act of 1973 and transferred and promoted under
the procedure and conditions prescribed under the same Act and
Rules 1973. The Act of 1973 doesn't define the term 'Time Scale
Promotion'; therefore it cannot be considered as a term and condition
of service. Promotion on the basis of Time Scale is not a regular
promotion but a matter of policy granted to specific categories of
professions by the relevant competent authority with the concurrence
of the Finance Division. Such a policy is meant to grant benefits of
higher pay scales to those cadres of civil servants which do not
ordinarily get promotions to higher grades under the Rules 1973 on a
regular basis. The monetary benefits under the Time Scale Formula
cannot be extended generally to all civil servants but to class of civil
servants as mentioned in the approved policy. The Establishment
Division, expressly mentioned in Office Memorandum dated
19.09.2011, that Time Scale Formula is simply the grant of financial
benefits of a higher pay scale without change in designation of the post
and does not tantamount to up-gradation of the said post nor requires
amendment in the recruitment rules. It was further clarified by the
Finance Division, vide letter dated 10.09.20 13, that even after the
grant of higher time scale the incumbent continues to hold the same post
without there being any change in its status. The explicit conditions of
the Time Scale Formula as mentioned in the relevant policy make it
crystal clear that it does not tantamount to regular promotion under
the Rules 1973. The monetary benefits under the Time Scale Formula
were initially granted to the Teaching Staff of the Federal Directorate of
Education, Islamabad and later, at the request of the Ministry of
- 
C
CIVIL PETITION NOS. 1092 & OF 2018 
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Defence, these were extended to the Teaching Staff of the parent
department pursuant to approval given by the Prime Minister which
was duly communicated on 16.10.2015. The petitioner admittedly
belongs to the cadre of the Teaching Staff of the parent department;
however, he is serving on ex-cadre posts since 2011 and has hardly
served as an officer of Teaching Staff in the parent Department. He
Could not be extended the benefits of Time Scale Formula, particularly
when at the same time he was also seeking his induction in the
Secretariat Group. Therefore, the request of the petitioner for
consideration of his promotion on Time Scale basis at this stage is not
feasible. However, it is open to the relevant competent authority to
consider his case on Time Scale basis after his repatriation to the
parent department.
9. The last contention of the petitioner is that he may be
promoted on the basis of meritorious service. Finance Divisions Office
Memorandum, dated 18-08-1983 envisages the policy regarding grant
of Basic Pay Scales 21 and 22 to Technical and Professional Officers
on meritorious basis in paragraph 7(a) (c). The criteria and modalities
of the same policy were notified vide Office Memorandum, dated
07.04.1987 by a Committee constituted for the very purpose. The
same policy was revised and accordingly notified vide Office
Memorandums dated 25.11.2008 and dated 04.10.2012. The revised
policy 2008 encapsulates the revised criteria on the following terms:
"a. Officers be considered for grant of BPS-21 and BPS-22
on the basis of meritorious service in order of seniority.
b. P.E.Rs. should be quantified in present and previous
scales as per existing promotion policy and assigned a
weightage of 70%.
c. Training from NIPA, Staff College and National Institutes
of Management may be given 15% weightage. In case
CIVIL PETITION NOS. 1092 & OF 2018 
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the training information/ requirement is not relevant,
overall professional competence be judged and notional
marks be assigned on the basis of his previous record.
d. Minimum of 3 years' active service in BPS-20 for BPS-21
and 5 years active service in BPS-20 and above
including 3 years in BPS-21 for BPS-22 will be required
excluding the period of long leave (4 months or more).
e.
The Special Selection Committee shall scrutinize
significant contribution of the Technical and
Professional Officers in their relevant fields of
specialization, consulting Secretary concerned and
Head of Offices,/Organizations about the background,
level of competence and general reputation and allocate
marks out of 15 to the officers being considered for
grant of BPS-21 and BPS-22 on the basis of meritorious
services.
f Minimum threshold in this way shall be 75% marks."
The terms of aforementioned revised policy make it clear that the
Special Selection Committee shall scrutinize significant contribution of
the Technical and Professional Officers in their relevant fields of
specialization, consulting Secretary concerned and Head of
Offices/ Organizations about the background, level of competence and
general reputation and allocate marks accordingly to the officers for
being considered for grant of BPS-21 and BPS-22 on the basis of
meritorious services. It is exclusively the prerogative of the Special
Selection Committee to consider the competence of the officer for the
grant of promotion to BPS-21 and BPS-22 to Technical and
Professional officers, and not a vested right of a civil servant. It is
actually a reward for such technical and professional officer who has
distinguished himself by rendering meritorious services as an
acknowledgment for exceptional contributions in his specialized field.
The role of Special Selection Committee cannot be assumed by any
other authority by any stretch of interpretation of the revised policy,
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CIVIL PETITION NOS. 1Q2iQF2fflS 
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not even by the Court. As the petitioner has been serving outside the
parent department since 2011 and he is not holding any technical or
professional office in his parent department, therefore the Ministry of
Defence sought clarification from the Establishment Division and the
latter regretted the recommendations made by the parent department
for being in violation of violation of the conditions and procedure, inter
alia, prescribed in Office Memorandum, dated 25.11.2008. The
petitioner no doubt served on higher grades for many years and might
have rendered service to the best of his ability; however we are afraid
the same aspects could be considered by the Special Selection
Committee and not by us. Therefore, both the instant Civil Petitions
No.1092 of 2018 and 1093 of 2018 are hereby dismissed and the
impugned consolidated judgment dated 08.03.20 18 is upheld.
Judge
Judge
ISLAMABAD
12th Sep., 2018
Approved for Reporting"
T
