Constitutional petition leave to appeal

Back ground
The petitioner is a BPS-17 officer of the Pakistan Audit & Accounts Service which is an occupational group of Central Superior Service (CSS) to which fresh recruitment is made through FPSC (Federal Public Service Commission) and by induction of senior audit/accounts officers. The petitioner is serving as assistant Director (BPS-17) in the Department of the Auditor General of Pakistan (DAGP). Department of the Auditor General of Pakistan (DAGP) is an attached Department of the Ministry of Finance. The office of the Controller General of Accounts (CGA) is also under the administrative control of the Ministry of Finance. The Controller General of Accounts and the Department of the Auditor General of Pakistan are two separate Departments having distinct duties and responsibilities. DAGP operates through thirty (30) Field Audit Offices throughout The cadre administrator of the petitioner is the Auditor General of Pakistan which posts him in the above mentioned Audit and Accounts offices through out Pakistan. The petitioner is the Inter Departmental Cadre (IDC) officer being transferable to all offices and establishments under the CGA and DAGP. In the year 2010, the office of the Controller General of Accounts (CGA) and the Department of the Auditor General of Pakistan (DAGP) upgraded the posts of Audit Officers/Accounts Officers, Assistant Audit Officers/Assistant Accounts Officers, Senior Auditors and Junior Auditors along with the incumbents as per following details: Name of Post Old Grad e 17 N ew Grade

Sr.No

.1

Accounts officer/Audit Officer ((AO Assistant Accounts Officer/Assistant (Audit Officer (AAO Senior (Auditor (SA Junior Auditor ((JA

18

.2

16

17

.3 .4

14/15 07

16 11

 The aforementioned up-gradation was the result of the initiative taken by the employees of the offices under the administrative control of the Controller General of Accounts (i.e. Accountants General Offices in provinces and AGPR in Islamabad), as they felt aggrieved of the discriminatory treatment meted out to them when similar posts involving identical duties in the Inspectorate of Treasuries and Accounts Treasuries/ District Accounts Offices were upgraded by the Finance Department, Government of Punjab, while the Accounts Officers belonging to federal structure were ignored. The employees of the offices under the administrative control of CGA approached the Federal Service Tribunal (FST) for up-gradation on the above ground. The FST decided the case in the favor of the CGA employees on 05.12.2008 and directed the Ministry of Finance (Respondent No.1) to take up the issue of up-gradation of the posts and decide the same within 90 days of the receipt of the judgment in the light of the recommendations of CGA and AG Punjab (Respondents No.2 & 3 respectively). As the orders of the FST were not implemented by the respondents therefore the employees again approached the FST for implementation of its decision dated 05.12.2008. The FST in its decision dated 19.12.2009 once again directed to implement the FST judgment dated 05.12.2008 within 90 days. The Ministry of Finance filed a civil petition in the Supreme Court of Pakistan (SC) against the judgment of FST dated 19.12.2009. The SC in its decision dated 15.03.2010 directed the Secretary Finance, CGA and AG Punjab to implement and dispose off the case strictly keeping in view the observations made in the judgment of FST dated 05.12.2008 within 15 days. Resultantly the posts were up-graded by the |Finance Division/CGA w.e.f 03.04.2010. Prompted by the decision of FST/SC and subsequent up-gradation of post in the offices under the administrative control of CGA, the Audit officers, Assistant Audit Officers, Senior Auditors and Junior Auditors of the Department of the Auditor General of Pakistan made a representation to the Auditor-General of Pakistan for up-gradation of the posts in DAGP as well. The DAGP up-graded the posts of Junior Auditors, Senior Auditors, Assistant Audit Officers and Audit Officers w.e.f 03.04.2010 vide notification No.203/EsttI/CC/266-2009 dated 18th May 2010. The up-graded employees again approached FST for directing the CGA to upgrade the post retrospectively w.e.f 12.09.2005. The FST in its decision dated 16.04.2011 directed the Ministry of Finance, CGA and AG Punjab to modify their orders and up-grade the posts w.e.f 12.09.2005, the date on which the provincial government has up-graded the posts. Resultantly the CGA and DAGP up-graded the said posts w.e.f 12.09.2005.

Grounds for appeal

1. The Honorable Supreme Court of Pakistan had directed the Ministry of Finance, in its judgment to upgrade all identical posts in the departments; the Ministry of Finance deliberately ignored and not upgraded the post of officers of Inter Departmental Cadre, who are more experienced, educated and trained as compared to the officers of Departmental cadres. The decision of the FST and SC has been implemented by the CGA and latter on by the DAGP in such a manner that it has irrationalized the administrative structure of both the departments. Further it has led to discrimination and confusion in both CGA and DAGP. The FST and Supreme Court had not directed in their decisions any where as to how this up-gradation should take place. It was the responsibility of CGA and Ministry of Finance (and lately the DAGP which also up-graded the posts on the basis of the same verdict) to work out the up-gradation plan keeping in view the administrative structure of the offices of the CGA, Accountants General and Field Audit Offices of DAGP and address any anomaly arising out of such up-gradation.

2. That in order to implement upon the Judgment of Honorable Supreme Court and Federal Service Tribunal, Controller general of accounts, has sent the summary for the up-gradation of post of AOs as well as the officers of Inter Departmental Cadre (IDC) with the observations that the posts being held by the Inter Departmental Cadre (IDC) officers BPS-17 who are senior in the same grade and are of the total BPS-17 officers, may also be up-graded to BPS 18. This up-gradation would be essential to avoid anomaly in Inter Departmental Cadre (IDC) and Departmental Cadre. However Ministry of finance has not only upgraded the post all Appellants i.e. Accounts officers but also upgraded all officers of departmental cadre (DC) including the officers of Military Accountant General (MAG) as well as the Audit Officer of same cadre. The ministry of Finance has intentionally and deliberately with malafide intentions not upgraded the post of Inter Departmental Cadre (IDC) who are the seniors officers of there juniors and are experienced and qualified, when compared with the officers of Departmental Cadre. The ministry of finance has, even, kept the superior court in dark that they have not up graded all similar posts of identical nature. This discriminatory treatment is in violation of letter and spirit of FST and Supreme Court judgment that binds CGA, Ministry of Finance and department of Auditor General of Pakistan to end anomaly and discrimination, rather the decision was implemented in a manner to further augment discrimination and anomaly in offices of identical nature working under the same roof.

3. The implementation of this decision has not only resulted in discrimination to IDC/PAAS officers but has made the entire hierarchy of department of Auditor irrational and illogical where the whole lower tier is upgraded while ignoring the up-gradation of higher tier making the supervisory officer i.e. IDC/PAAS officer in grade 17 and 18 and accounts/audit officers (BPS 18) and assistant audit officer/assistant account officer( BPS 17) in same grade , making the lower tier senior to their supervisory officer in terms of entry in same grade, thus destroying office decorum and creating severe rifts and disputes amongst the two ranks resulting in endless representations and litigations against each other. The whole flow of command, delegation of authority and official communication has reached to a stand still thus resulting in severe undermining of effective working of whole department. 4. The CGA and latter the DAGP up-graded the posts without redesignating them and without considering the up-gradation of posts falling in the higher tiers of the hierarchy. Thus serious anomalies and discrimination have risen as a result of this up-gradation. . Auditor General of Pakistan ordered the up-gradation of the posts of Junior Auditors, Senior Auditors, Assistant Audit Officers and Audit Officers, which has been made without keeping in view its effects on the administrative setup of the Department. The Ministry of Defense while up-grading the posts of Accounts Officer, Assistant Accounts Officer, Senior Auditor, Junior Auditor has clearly mentioned that the posts are being up-graded without prejudice to the nomenclature or office work/ authority of the employees. It is worth mentioning that both Government of Punjab and NWFP (now Khyber Pakhtunkhwa) upgraded the entire hierarchy of accounts setup in the provinces. 5. The distribution of work in the offices of the Auditor General of Pakistan is based on a tiered structure comprising officers at various levels. The job description of the Director General, Director, Deputy Director and Assistant Director/Audit Officer has been specified separately with clear distinction of roles, duties and responsibilities. Further the delegation of powers also clearly specifies the administrative and financial powers of holders of different posts. The incumbent of a post thus exercise the powers and perform the duties and responsibilities associated with that post. The job description of a Deputy Director includes providing continuous guidance to the field auditors (Audit Officers/Assistant Audit Officers) on the audit procedures for the effective discharge of their function; Preparation of Audit Plan, its execution, monitoring and evaluation with the approval of Director General; Supervision of Inspection Parties; Approval / Issuance of Audit Inspection Reports (AIR's); Approval / Issuance of Proposed Draft Para's (PDP) and Processing all Policy matters to Director / Director General etc. That similar situation exists in the CGA where again the distribution of work is based on a tiered structure comprising officers at various levels. In CGA too the Accounts officer and Assistant Accountant General despite having exactly the same duties and responsibilities are placed in different pay scales i.e. Accounts Officer in BPS-18 and Assistant Accountant General in BPS-17. Similarly the Deputy

Accountant General who is the supervisory officer of the Accounts Officer and performs increased tasks and duties is placed in the same pay scale as that of his subordinate i.e. Accounts Officer, which is glaring example of disparity and discrimination. Apart from CGA and DAGP, the Pakistan Military Accounts Department (PMAD) and Railway Accounts have also upgraded the said posts. The Petitioners and PAAS officers being transferable to all these departments have not been considered for up-gradation despite the fact that their counterparts in and subordinates have been up-graded retrospectively from 2005. It is worth mentioning that both Government of Punjab and NWFP (now Khyber Pakhtunkhwa) had up-graded the entire hierarchy of accounts setup in the provinces. 6. The upgraded Audit Officers and accounts officers have challenged the seniority and supervision of grade 18 IDC officers, who is the next reporting authority of audit /accounts officers, claiming an equal status with the Deputy Directors and filling at least 20 different constitutional writ petition for induction in the Inter Departmental Cadre of Pakistan Audit & Accounts Service above the IDC officers in grade 17 and 18 in various high courts and FSTs. For instance the Audit Officers of the Directorate General Audit (Federal Government), Islamabad, after up-gradation to BPS- 18 have refused to work under the Deputy Directors. The Audit Officers are not submitting the official files to Deputy Directors and the files are being submitted directly by the Audit Officers to the Directors. The Deputy Directors and Assistant Directors thus are unable to perform their duties as per the mandate/provisions of Quality Management Framework, Sectoral Audit Guidelines, Financial Audit Manual and other instructions of the Department of the Auditor General of Pakistan. This situation has practically rendered the petitioners posts as redundant and without any role and utility. The gravity of the situation can be best judged from the letter of the DAGP deliberating upon the issue .The same situation exists in the offices under the Controller General of Accounts where the Accounts Officer/ Assistant Accounts Officer after up-gradation are reluctant to work under Deputy Accountant General/Assistant Accountant General. 7. The upgraded audit officers claimed that the superior court and FST has also given them seniority over IDC officers and they are automatically deemed inducted in grade 18 since 2005. They claimed that the superior court, while up grading them, has also inducted them in IDC/PAAS since 2005 in PAAS. In one such constitutional petition CP 1187 in Islamabad high court, the up graded audit / accounts officers have demanded promotion in grade 19 and have taken a stay order on the DPC of PAAS since six months. There is a continuing cascade of litigations in different courts filed by up graded audit / accounts officers and it has made impossible both financially and humanly for PAAS officers to plead their case and become a party in all these litigations.

8. The office of Auditor general of Pakistan has miserably failed to resolve the issue. They have supported the induction of departmental officers in their reply and with mala fide didnt intimate any IDC officer of any such development and havent issued notices to IDC officers .It is a deliberate effort to keep IDC officers in dark and manipulate the courts to have a decision in the absence of affected party PAAS and to have an end to induction in PAAS by CSS or through induction of most senior audit/ accounts officers. 9. Respective sir the cadre administrator of various departmental cadres is the respective Director General of audit department and Account general of each province. There are serious irregularities in the recruitment and maintenance of the seniority of various departmental cadres. In one such case nine officers who were appointed by the then Director General (DG) Audit in 2007 were transferred to the office of Accountant General Sindh after two years with important responsibilities. Some of them were transferred to other cities of Sindh .They were appointed on fake degrees and are kith and kin of each other and three of them are real brothers. The names of those who were appointed are Asif Aftab s/o Aftab Ali Setho, Farhan Ahmad s/o Ghulam Murtaza Setho, Shiraz Ahmad s/o Madid Ali Setho, Javed Ahmad s/o Aftab Ahmad Setho, Mujeebur Rehman s/o Mumtaz Ali Setho, Shahzada Saeed Ahmad s/o Raees Aftab Ahmad Setho, Shahzada Shaukat Ali s/o Raish Ahmad Setho, Ziaur Rehman s/o Mumtaz Ali Setho and Adnan Pasha s/o Aftab Ali Setho. Six of these officers have cleared PIPFA and are regularly up graded as audit/ account officers. Clearly it shows the sanctity of departmental exams and how they can be manipulated to offer irregular and illegal appointments against merit. Sindh University has declared the degrees of these persons fake through a letter No Ex/sec/verify/163 on February 10, 2012. This remains a tip of the ice burg as in each office there are many such irregular appointments.

10. It seems that supporting these officials is on the malafides of nepotism and corruption and to end a meritorious way to induct audit/accounts mangers in PAAS .The Petitioner is not only more qualified than the up-graded AOs/AAOs, but is also adequately trained for his job. The petitioner and PAAS have been selected through a competitive examination and have acquired seven months rigorous common training at the Civil Services Academy, Lahore and one year specialized training at the Audit & Accounts Training Institute, Lahore. Many PAAS officers possess foreign degrees in the fields of accounting, finance, management and auditing etc. some of them are PHDs in relevant fields. The petitioner is playing an important role in the implementation of the World Bank funded project for improvement of financial reporting and auditing in Pakistan. By supporting and favoring departmental cadre, Ministry of finance is trying to maintain its own accounts and free it self from pre audit. It seems that ministry of finance is bent upon failing the implementation of PIFRA project. Indeed the destruction of PAAS will open the flood gates of corruption as there will be no effective pre-audit and management of accounts. 11. This whole situation has rendered massive corruption in DAGP and its subordinate offices as there is practically no accountability of these up

graded Audit officers. The whole quality of audit reports has been compromised and thus the most important task of auditing and pre audit has been severely affected. That by ignoring the up-gradation of the petitioner, the respondents have created severe hurdles in the lawful, independent, meaningful and productive functioning of the petitioner in accordance with their as specified mandate, role and job description. The important middle level supervisory tier in CGA/DAGP comprising of the post of petitioner has practically become redundant due to non-up gradation. This situation has resulted in a collapse of the Accounts and Audit departments structure under CGA and AGP at the federal and provincial levels thus leading to a failure on part of both the Controller General of Accounts and the Auditor General of Pakistan to function and to perform their responsibilities as specified and entrusted in the Constitution of Pakistan, the Controller General of Accounts Ordinance 2001 and the Auditor General of Pakistan Ordinance 2001. 12. The up-gradation of the posts of Assistant Accounts Officers/Assistant Audit Officers to BPS-17 and Accounts Officer/Audit Officers to BPS-18 along with incumbents retrospectively from 2005 in the Office of the Controller General of Accounts (CGA) and the Department of the Auditor General of Pakistan (DAGP) has seriously affected the rights, privileges and career prospects of the Petitioners. It is apt to mention here that PA &AS originally comprises most senior Audit/Accounts officers in the ratio of 50:50.The petitioner along with his colleagues performing his duties as an IDC officer (BPS: 17) and then will be regularly promoted as Deputy Director (BPS: 18) as same as the promoted/inducted IDC officers. Now, by this ante-dated up gradation the deputy directors, being the most senior officers are now junior in terms of length of service in grade 18. As

all the AOs and AAOs now have antedated seniority, what is the fate of IDC inductees who are currently AD and Deputy Directors in IDC? There are at least 107 promotional officers who are in IDC cadre in grade 17 and 18. They along with 373 direct IDC officers are deemed junior. Another blatant disregard and
ridicule to the spirit of judgment of Supreme Court and FST decision. The gravity of the matter may be ascertained from the fact that in the office of DG, Audit Sindh, where I am presently serving, Deputy Director, Mr.Syed Ahtesham Rasool Kazmi, who was inducted in IDC after promotion on account of being senior most Audit Officer in Departmental Cadre (DC) having more than 30 years service. Similarly, another deputy Director, Mr.Shabbir ahmed, having more than 35 years service in Departmental cadre (DC) have been relegated to a junior position, in grade 18, in the aftermath of up gradation of the Departmental cadre officers, who are almost 25 years junior in service to each one of the Audit officers, in most of the cases. This remains height of injustice, indeed. 13. Further the FST and the SC had ordered the up-gradation of posts only, while the CGA and the Department of the Auditor General of Pakistan up-

graded the posts along with the incumbents with out a Departmental promotion conference and prescribed procedure. The ESTACODE clearly states at Sl. No. 25 that up-gradation of a post imply the abolition of the existing post and creation of a new post in the higher grade. Up-gradation of a post does not mean automatic up-gradation of its incumbent. Appointment to upgraded post will have to be made in the manner prescribed for that post. If a post is upgraded with immediate effect, the incumbent would be left without any post (in his grade) until he is approved for appointment to higher grade. The ESTACODE also states that while sanctioning up-gradation of the existing posts, it should be clearly provided in the sanction letter that up-gradation of the post would take effect from the date the post is filled by a person in the higher grade. This would ensure that until the existing incumbent is formally appointed to higher grade, the post and the incumbent would continue in lower grade. 14. Respective sir in each department there is an illegal practice to regularly promote AAOs as AOs against posts vacated as a result of prolonged as well as illegal stay on deputations. In my department DG Audit Sindh, there are 44 AOs against the requisite strength of 25 AOs. In AGPR there are 119 AOs against sanctioned strength of 44. DAGP had thus recruited more than 1500 AOs against requisite 738 sanctioned grade 17 Audit/accounts officers. Thus, a huge financial loss is being incurred to the public exchequer by upgrading so many AOs against the limited strength of posts, in a clear violation of law, in vogue. To conceal this massive corruption, ministry of Finance and DAGP has issued a notification declaring up gradation of post as well as incumbents with out a Departmental promotion conference. This is most blatant violation of ESTA code which clearly mentions such promotion as irregular. The up graded departmental cadre officer have not only claimed arrears in pay but have also been rewarded arrears of house building advance and other advances , thus costing the exchequer billions of rupees. 15. DAGP illegally upgraded even the deputed AOs in grade 18 in clear violation of FR 7.21 and 7.23 and 7.24. All these fundamental rules clearly outlaw such promotions. The situation is even more serious in AGPR where there are 119 AOs against the requisite strength of 44 AO posts. In accordance to FRSR, DAGP could have placed AOs on their upgraded post by giving them temporary / acting charge or any other arrangement like OPS or officiating charge but clearly to illegally benefit the DC cadre all incumbents, whether they were temporarily working or some other arrangement like on a post vacated as a result of, DEPUTATION OF ANOTHER OFFICIAL, were regularly promoted. 16. Currently there are no departmental rules in accordance to rules of business in the wake of up gradations. How a file would be marked, who will look after the section dairies and other registers. All is left in limbo to seriously effect working of DAGP.

17. The implantation of said decision has made the whole hierarchy absurd. Now an audit officer can be an assistant director, deputy director as well as a director in grade 19. Similarly an assistant audit / account officer can also be an assistant director, deputy director too. While senior auditor previously grade 14/15 are send as DAO in districts Grade 18 on the pretext of sending them as deputation on IDC seats. This indeed can only be possible in the whole world in DAGP. 18. The up-graded AAOs and AOs are availing the deputation opportunities in their new scales i.e. BPS 17 and 18 respectively along with the petitioners. There are several examples in DAGP and CGA where after up-gradation, Assistant Audit Officers\ Assistant Accounts Officers and even Senior Auditors have been sent on deputation in various Ministries\Divisions\Departments as Assistant Directors. Similarly the up-graded Audit Officers/Accounts Officers are being sent on deputation as Deputy Directors, Section Officers and even Directors. This issue has further aggravated owing to the fact that there is no Deputation Training Leave (DTL) percentage fixed for the up-graded officers and thus hundreds of up-graded AOs and AAOs are being sent on deputations against BPS-17 and 18 posts without any restriction of DTL at the cost of the petitioners rights for whom the DTL has been fixed as 30 % in BPS-17 and 35% in BPS-18. For instance in the Directorate General Audit (Federal Government), Headquarters, Islamabad, twenty four (24) Audit Officers are posted against eleven (11) sanctioned posts. The excess Audit Officers are presently working on deputation. Similarly in the CGA Headquarters, fifteen (15) Audit Officers are on deputation against a sanctioned strength of seventeen (17), while in AGPR, Islamabad seventy five (75) Audit officers are on deputation against sanctioned posts of forty four (44), thus the DTL percentage is more then 200%.In DG audit Sindh there are 19 AOs deputed against sanctioned 25 posts. The up-graded officers are availing deputations in their new grades without any restriction of DTL.

19. . The Auditor Generals (Functions, Power and Terms and Conditions of Service) Ordinance No. (XXIII) Of 2001 was promulgated on first day of July 2001 and the Controller General of Accounts (Appointment, Functions and Powers) Ordinance No. (XXIV) Of 2001 was brought in to effect on July, 1 2001. Through the above Ordinances the Accounts and Audit were separated and Accounting functions were handed over to the CGA and Auditing functions were assigned to the Auditor-General of Pakistan. The ministry of Finance illegally and unconstitutionally has been maintaining its own accounts in large districts of provinces. This arrangement has made Pakistan the most unique country in the world that has an independent office of chief treasury inspector similar in nature to accountant general of province. All major districts in Punjab are pre-audited by finance or by the executive it self. Fresh recruitment to this new service has been announced by PPSC lately. It would have severe consequences to the federation of Pakistan. This model is being replicated in other provinces too. This office is under the administrative control of secretary Finance and

does fall in the ambit of office of Auditor general of Pakistan. They also don't submit their accounts to consolidated fund. In the swathe of said decision Ministry of Finance in Punjab has made a separate treasury audit and accounts setup and declared that the Superior court has legalized this arrangement by the said decision.

Prayer
It is humbly prayed that in the cover of up gradation the whole hierarchy of Department of Auditor general of Pakistan has been made most irrational and absurd thus making effective pre audit and post audit of the whole federation of Pakistan impossible. The decision of this superior court has been interpreted and implemented in a manner that has made more than 473 officers of PAAS junior to up graded Audit/accounts officers belonging to departmental cadre officers and has destroyed service structure of PAAS making the posts of IDC/PAAS in grade 17 and 18 redundant. Both ministry of finance and DAGP, in the swathe of said decisions, have acted unconstitutionally and illegally and have covered many illegal practices by the implementation of this decision. It is thus requested to Superior court to kindly define the scope of its judgment and take notice of illegalities and issue directions to end all illegal practices in DAGP.