SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
 
PRESENT: 
Mr. Justice Gulzar Ahmed 
Mr. Justice Mushir Alam 
 
 
Civil Petition No.4725 of 2018 
 
[Against the judgment dated 17.10.2018, passed by the Federal Service 
Tribunal, Islamabad in Appeal No.1647(R)CS/2016] 
 
 
Pakistan Aeronautical Complex through its 
Chairman, Kamra & others. 
 
 
…Petitioner (s) 
VERSUS 
 
Nazar ul Islam. 
…Respondent(s) 
 
 
For the Petitioner (s) 
: Mr. 
Khurram 
Saeed, 
Additional 
Attorney General 
Mr. M.S. Khattak, AOR 
Sqn. Ldr. Nadeem 
 
  
For the Respondent(s) 
: Mr. Muhammad Ramzan Khan, ASC 
 
  
Date of Hearing 
: 19.08.2019 
 
 
J U D G M E N T 
 
 
 
GULZAR AHMED, J.— Through the instant petition 
the petitioners have challenged judgment dated 17.10.2018 of the 
Federal Service Tribunal, Islamabad (the Tribunal) by which the 
Service Appeal of the respondent was allowed. 
2. 
 
Facts, in brief, are that the respondent had joined the 
petitioner i.e. Pakistan Aeronautical Complex, Kamra, as Assistant 
Foreman (BS-14) on 03.04.1994 and was promoted as Foreman 
(BS-16) on 30.05.1998.  In the meantime, Pakistan Aeronautical 
10-Civil Petition No.4725 of 2018 
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Complex Board Ordinance, 2000 (the Ordinance of 2000), was 
promulgated.  Section 7 with its clause (a) of the Ordinance of 
2000, is as follows: 
"7. 
Investment of the Board with certain powers.--- 
Notwithstanding anything contained in any law, regulation, rule, 
order, notification, agreement or other instrument for the time being 
applicable to any factory, or any officer or other employee 
appointed or engaged in, or in connection with, any factory, the 
Board may, in relation to such factory, officer or employee, exercise 
the following powers of the Federal Government or of any officer 
authorized for the purpose by the Federal Government, namely:- 
 
(a) to determine the terms and conditions of service, 
recruitment, promotion, transfer, posting, dismissal, 
discharge, demotion and other disciplinary actions of all 
officers and other employees. 
 
 
Provided that the terms and conditions of 
service of any officer or other employee appointed or 
engaged 
before 
the 
commencement 
of 
this 
Ordinance shall not be varied to his disadvantage 
and that he shall not be dismissed or removed from 
service or reduced in rank by any authority 
subordinate to that by which he was appointed: 
 
 
Provided 
further 
that 
the 
officers 
or 
employees appointed before the commencement of 
this Ordinance shall be given an option, after the 
service rules for the officers and employees of the 
Board have been made, to opt for the new service 
rules or to continue to be governed by their existing 
service rules; but once the option has been exercised 
by an officer or employee within the time fixed by 
the Board, it shall be final, and an officer or 
employee who does not exercise the option within 
the prescribed time shall be considered to have 
opted for the new rules: 
 
Provided also that the promotion, demotion 
or other disciplinary action against an officer or 
employee on deputation or secondment shall be 
governed by the service rules applicable to him;” 
 
Pursuant to the Ordinance of 2000, PAC Board Employees 
(Service) Rules, 2002 (the Service Rules of 2002), were framed on 
11.04.2005, which were published vide SRO No.312(1)/2005 on 
14.04.2005.  Rule 2(i) of the Service Rules of 2002, is as follows: 
" 2. 
Application.---These rules shall apply to all the employees 
in the whole time employment of the Board, working in PAC, other 
than:--- 
(i) 
the employees appointed before the commencement 
of Pakistan Aeronautical Complex Board Ordinance 
No.XXVIII of 2000, and opted to continue to be 
governed by the Civil Servants Act, 1973." 
 
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Through Factory Routine Orders dated 07.09.2010, the petitioner 
extended an option to civilian employees under Section 7(a) of the 
Ordinance of 2000, in the following term: 
"Order No.7 Discipline – Extending the Option to Civilian 
Employees under section 7(a) of PAC Board Ordinance, 2000. 
16. 
An option under Section 7(a) of PAC Board Ordinance is 
required immediately for the civilian officers and employees of MRF 
who are employed before the commencement of said Ordinance to 
opt for the new service rules i.e. PAC Board Employees (Service) 
Rules, 2002 or to be governed by their existing service rules i.e. 
Civil Servants Act, 1973.” 
 
Through letter dated 08.09.2010, it was notified as follows: 
"1. 
Reference is made to FRO’s No.187 Order No.7 dated 7 
September, 2010. 
2. 
It is requested that the civilian officers/employees who are 
employed before the commencement of PAC Board i.e. 20 July, 
2000 working under your command may please be advised to 
submit their option by 15th September, 2010, to Civil Personnel 
Section.  In case they do not exercise the option within the 
prescribed time, shall be considered to have opted for the new 
service rules.” 
 
Through further Factory Routine Orders dated 09.09.2010 the 
terminal date for submission of the option was again fixed to be 
15.09.2010.  Through the Standardization of Recruitment Rules for 
Appointment, Promotion and Transfer for PAC Employees at PAC 
Kamra (the Rules of 2012), published vide Gazette Notification 
dated 14.03.2012, the method, qualifications and other conditions 
were laid down for appointment, promotion and transfer to the 
posts in respect of Aircraft Rebuild Factory, Mirage Rebuild 
Factory, Avionics Production Factory, Avionics Production Factory 
JF-17, Aircraft Manufacturing Factory, Aircraft Manufacturing 
Factory JF-17 and PAC Hospital Pakistan Aeronautical Complex, 
Kamra.  Rule 3 (Conditions for Promotion) of this notification provides 
that ‘as defined by the appointing authority, the promotion to posts 
in column 2 in BPS-11 & above shall be made by selection on merit 
subject to qualifying the Departmental Promotional Examination …’.  
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On 16.12.2013, examinations for promotion from the posts of BS-
16 to that of BS-17 were held under the Rules of 2012, according 
to the criteria laid down therein.  The respondent, who was 
working as FM appeared in this examination and obtained 73.8 
marks while petitioner No.3, who was also working as FM obtained 
91.6 marks.  Pursuant to result of this examination, vide Office 
Order dated 25.03.2014, petitioner No.3 was promoted as 
Assistant Works Manager (Tech) in BS-17 against an existing 
establishment vacancy w.e.f. 09.01.2014.  The respondent being 
aggrieved of the appointment order of petitioner No.3, filed a 
departmental representation which was not responded to, 
therefore, the respondent filed Service Appeal before the Tribunal 
and the same was contested by the petitioners by filing written 
statement.  After hearing learned counsel for the parties, the 
impugned judgment was passed by the Tribunal allowing the 
Service Appeal of the respondent.   
3. 
 
The learned Additional Attorney General for Pakistan 
has contended that the respondent was admittedly a Civilian 
employee of the Factory prior to the issuance of Ordinance of 2000, 
but as required by Section 7 (a) of the Ordinance of 2000 and the 
subsequent Office Orders dated 07.09.2010, 08.09.2010 and 
09.09.2010, the respondent was required to opt for the new rules 
to be made under the Ordinance of 2000 or to continue to be 
governed by their existing service rules, within the time fixed by 
the Board.  He contended that the time fixed by the Board was till 
15.09.2010 and by this date the respondent had not submitted 
option and thus was deemed to be governed by the rules made 
10-Civil Petition No.4725 of 2018 
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under the Ordinance of 2000.  He contended that the option letter 
dated 21.09.2010 filed by the respondent in the first place was out 
of time and secondly it was not available in the record of petitioner 
No.1, and thus, was a fake letter.  He further contended that once 
the respondent had appeared in the examination for promotion 
from the post of BS-16 to that of BS-17 under the Rules of 2012 , 
he is estopped from alleging that he is not governed by the 
Ordinance of 2000.  He has further contended that the respondent 
has been enjoying the allowances payable to the employees of the 
petitioner factory, as fixed by the Board in terms of the Ordinance 
of 2000.  The learned Additional Attorney General has relied upon 
an unreported judgment of 3-Member Bench  of this Court dated 
03.05.2017 passed in C.P.No.350 of 2016 [Tahir Nadeem v. 
Chairman, Pakistan Aeronautical Complex Board, PAC Kamra 
& others].   
4. 
 
On the other hand, learned ASC for the respondent 
has contended that the respondent has exercised option in terms 
of the Office Orders and that there was extension in time for 
submission of option on account of Eid and thus the letter of 
option dated 21.09.2010 submitted by the respondent was within 
time and that the respondent’s service was to be governed by the 
Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 
(the Rules of 1973), as per Notification published in the Gazette of 
Pakistan dated 15.03.1990.  He has further contended that the 
promotion case of the respondent from BS-16 to that of BS-17 was 
required to be considered under the Rules of 1990 on the principal 
of seniority cum fitness and there was no need for the respondent 
10-Civil Petition No.4725 of 2018 
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to appear in the examination for the purpose of such promotion.  
As regard the allowances being drawn by the respondent, the 
learned ASC contended that it was the pay of the post of the 
respondent which is protected under the Ordinance of 2000.  In 
this regard he has made reference to Section 17 of the Civil 
Servants Act, 1973.  He has also relied upon judgment of the 
Tribunal dated 26.01.2016 passed in Appeal No.480(P)CS/2015 
[Zafar Ali v. Chairman, PAC Board, Kamra & others]. 
5. 
 
We have considered the submissions of the learned 
counsel for the parties and have gone through the record of the 
case.  The admitted fact is that the respondent was employed with 
petitioner No.1, prior to the promulgation of the Ordinance of 
2000.  By virtue of Section 7(a) of the Ordinance of 2000, the 
respondent was required to give option of his terms and conditions 
of service being governed by new rules to be framed under the 
Ordinance of 2000 or by the Rules of 1973 and no such option was 
offered by the respondent, which option he was required to submit 
to the petitioner latest by 15.09.2010.  It was also clarified in the 
Office Orders dated 08.09.2010 and 09.09.2010 that the option 
has to be submitted by 15.09.2010 and on not doing so, the 
employee will be considered to have opted for the new rules.  The 
learned ASC for the respondent has contended that time for 
submission of option was extended owing to Eid but he was unable 
to show us from the record any Office Order of the petitioner or 
any 
document 
whereby 
such 
time 
was 
extended 
beyond 
15.09.2010.  The submission of option on 21.09.2010, as asserted 
by the respondent, could not be considered to be an option that 
10-Civil Petition No.4725 of 2018 
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was offered by the respondent in terms of the Ordinance of 2000.  
Thus, the respondent apparently was to be governed by the rules 
made under the Ordinance of 2000.  The respondent in para 5 of 
the memo of appeal before the Tribunal has taken the following 
stand: 
" 5) 
That in the year 2012, Rule has been again amended by 
which the eligibility criteria of promotion to the post of Assistant 
Works Manager (Tech) BS-17 was changed and varied to his 
disadvantage.  After exercise of his option, any subsequent change 
in criteria would only be applicable to the employee of the Board 
and not to the appellant being a civil servant.  Hence the appellant 
is entitled for promotion in BS-17 on the basis of seniority cum 
fitness under the Civil Servants Act, 1973 rules, irrespective of test, 
interview or qualification/quantification introduced in Rules, 2012." 
 
5. 
 
Though the learned ASC for the respondent has 
asserted that the Rules of 2012, by which the eligibility criteria for 
promotion to the post of Assistant Works Manager (Tech) BS-17 
was changed and varied to his disadvantage, but the very Rules 
were not challenged by him in his Service Appeal, rather it was 
asserted that the respondent has to be governed by the Rules of 
1973.  Such assertion of the learned ASC for the respondent, 
apparently was not well founded for the reason that in the first 
place he has not given an option stating that he shall continue to 
be governed by the Rules of 1973 and secondly, he himself has 
participated in the departmental promotion examination, as 
prescribed by the Rules of 2012 and when he failed to obtain the 
highest marks, as required for promotion, he started raising 
grievance against the said Rules.  Once the respondent appeared 
in the departmental promotion examination held under the Rules 
of 2012, it could not be asserted that he is not governed by the 
said Rules and that he was not required to obtain highest marks in 
the departmental promotion examination.  The respondent cannot 
10-Civil Petition No.4725 of 2018 
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be allowed to blow hot and cold in the same breath.  The very fact, 
as is apparent from the record, is that there was no option given by 
the respondent being governed by the Rules of 1973 and in the 
absence of such option, the whole case of the respondent falls to 
the ground;  inasmuch as, he himself opted to appear in the 
departmental promotion examination held under the Rules of 2012 
thus, conceding that he was governed by the Rules made under 
the Ordinance of 2000.  The Tribunal has altogether failed to 
consider this aspect of the matter so also the applicable law while 
passing the impugned judgment.   
6. 
 
As regard to the unreported case cited before us, a 3-
Member Bench of this Court in para 5 of the said Judgment held 
as follows: 
"5. 
The promotion order, in this case, was passed in the year 
2014.  The Recruitment Rules pertaining to the Petitioner and the 
Respondent No.3 qua promotion were issued on 14.03.2012, which 
were obviously applicable at that point of time.  In terms of the said 
Rules, promotion was determined on the basis of “seniority-cum-
fitness” and “merit”.  The Departmental Promotion Examination 
was conducted in which the Petitioner and Respondent No.3, inter 
alia, participated.  The Petitioner thereby accepted the application 
of the said Rules.  On the basis of the result of the said 
Examination and other relevant factors the Competent Authority 
found Respondent No.3 entitled to be promoted.  As per the report 
of the Departmental Promotion Examination, the Petitioner secured 
less marks than the Respondent No.3 who has better educational 
qualification and better Annual Confidential Reports (ACRs).  Then 
the promotion of Respondent No.3 in preference to the Petitioner 
appears to be on merit and in accordance with the rules." 
 
So far as the judgment of the Tribunal, relied upon by the learned 
ASC for the respondent is concerned, the same is distinguishable 
from the facts and circumstances of the case in hand.   
7. 
 
In view of what has been discussed above, we are of 
the considered view that the impugned Judgment of the Tribunal is 
not sustainable in law and is liable to be set aside.  
10-Civil Petition No.4725 of 2018 
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8. 
 
Above are the reasons of our short order of even date 
whereby this petition was converted into appeal and allowed by 
setting aside the impugned judgment dated 17.10.2018.    
 
 
 
 
JUDGE 
 
 
 
Bench-II 
ISLAMABAD 
19.08.2019 
APPROVED FOR REPORTING 
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JUDGE