' Amjad Ali, Junior Clerk, in the Zakat and Ushr Department, Government of the Punjab, has brought the instant appeal, bringing in challenge order dated 31-12-2003 passed by the Addl. Chief Secretary, Government of the Punjab, Services and General Administration Department, Lahore, rejecting the claim of the appellant for absorption A at equivalent stage falling in BS-9 w.e.f. 24-6- 1999 when after his parent department, the defunct Directorate of Manpower and Training, Punjab was abolished and he was absorbed in Services and General Administration Department.
2. Appellant on the recommendations of the departmental promotion committee was appointed on 1-10-1983 against a vacant post of Junior Clerk at .Staff Training Institute, under the Directorate of Manpower and Training Punjab in NPS-5. He was promoted as Senior Clerk w.e.f. 26-10-1985 and posted at Technical Training Centre, Kasur against a vacant post. Once again in pursuance of the decision taken by the Departmental Promotion Committee in its meeting held on 16-10-1988, appellant was given the selection grade in BS-9 w.e.f. 1-4-1988. On the merger of the staff of Training Institute with Headquarters Staff on 2-9-1991, the appellant was termed as Junior Clerk in BPS-7, however, he was allowed to draw his pay in BPS-9 as personal to him. On 4-10-1998, 93 posts in BS-1 to 16 of the Directorate .Of Manpower and Training, Punjab were declared surplus. Appellant, being one of them, was asked to report to the Surplus Pool of the Services and General Administration Department. The services of the appellant were thereafter absorbed vide Notification dated 18-3-1999 as Junior Clerk in PBS-5 in the office of Director, Food, Punjab, Lahore.
One of the stipulation in the notification was as under:-- "The services rendered by these employees in their parent department will be counted towards pension. However, they will be placed at the bottom of the seniority list in the Absorbing Department. Their pay shall be fixed on the basis of Basic Pay last drawn in the previous Departments in corresponding Basic Scales of the post against which they are being absorbed at an equivalent stage in the corresponding Basic Scale and if there is no such stage then at the stage next below with the difference to be allowed as personal pay to be adjusted in future increment(s)".
' The notification mentioned the scale of the appellant as BPS-5 without taking into consideration that in his parent department he was enjoying the selection grade in BPS-9 with his basic pay scale in BPS-7, however, it seems that the Services and General Administration Department absorbed the appellant as Junior Clerk in BPS-5 through order/notification dated 18-3-1999. Vide another order dated 24-6-1999, respondent No.1 re-absorbed the appellant as Junior Clerk in PBS- 5 in the Services and General Administration Department, Lahore. The assertion of the appellant that he made verbal representation to respondent No.1 to inquire from his parent department i.e. The then Director, Labour and Manpower Department, Lahore, about his actual basic pay scale seems to be correct as the Services & General Administration Department vide letter dated 19-2- 2000 addressed to the Director Labour and Manpower Department inquired about the basic pay scale when the appellant was rendered surplus from his parent department. The Labour and Manpower Department having been taken over by the Technical Education and Vocational Training Authority Directorate of Manpower and Training replied on 20-3-2000 as under:-- "The factual position regarding Basic Pay Scale of Mr. Amjad Ali, Junior Clerk is given below:-- i. Mr. Amjad Ali was appointed as Junior Clerk in BS-5 on 1-10-1983. ii. He was promoted as Senior Clerk in BS-6 on 31-10-1985 and after that on the revision of Pay Scales in 1987, he was allowed BS-7 as Senior Clerk. iii He was working in BS-7 at Staff Training Institute, Lahore and the staff of the said Institute was merged with the Hqrs. Staff and Mr. Amjad Ali was adjusted as Junior Clerk whereas he was drawing pay in BS-9 due to Selection Grade. iv. During Departmental Promotion-cum-Selection Committee's meeting held on 2-9-1991, he was allowed Selection Grade in BS-7 with the approval that he will draw his pay in BS-9 as personal to him. v. On 4-11-1998, he was declared surplus and at the time, he was drawing pay in BS-9, as personal as per entries made in his Service Book."
' Since nothing concrete turned up in favour of the appellant despite his verbal representation having been acceded to, he made a written representation on 26-8-2003 addressed to respondent No.1, invoking the stipulation in the order of his absorption dated 18-3-1999 to claim equivalent pay in BPS-9 w.e.f. 24-4-1999, the date of absorption in Services and General Administration Department. The matter was referred to the Finance Department, who tendered the following advice:-- "Finance Department observes that since the mode of appointment through absorption is an accepted practice and it . Cannot be challenged by the absorbed employees after their absorptions, therefore, inability to accede to the request of Mr. Amjad Ali for grant of S.G. BS-9 as personal to him w.e.f. 24-6-1999 is regretted."
' On the basis of this advice, the impugned order dated 31-12-2003 was transmitted to the appellant by respondent No.1.
3. Learned counsel for the appellant invoked the stipulation at the time of absorption of the appellant to state that the appellant's pay had to be fixed on the basis of basic pay last drawn in the previous department in corresponding basic pay scales of the post against which he was absorbed at an equivalent stage in the corresponding basic pay scale and the basic scale at the time of absorption of the appellant being BS-9, any scale lower to BS-9 was violation of the stipulation causing irreparable loss to the appellant, which required reversal. It was further stated with vehemence that the reduction of basic scale being disadvantageous to the appellant could not be resorted to without due process of law. Point of discrimination was also mooted by referring to the case of "Muhammad Shabbir v. ASC" whereby the Punjab Service Tribunal held that pay of civil servant cannot be reduced without having recoursed to the due process of law. In the quoted case, it was held that appellant could not be demoted merely on the ground of absorption/re- absorption. The order passed by respondent No.1 was also attacked on the ground that it was a non-speaking order without affording opportunity of personal hearing to the appellant. Learned District Attorney, on the other hand, took the objection that the appeal was barred by time as the absorption took place on 24-6-1999 but the representation was made by the appellant on 26-8- 2003. On merit too order of the respondents was supported.
4. I have heard the arguments at length and also perused the record.
5. The impugned order, as observed, is based on the .Following advice of the Finance Department:- "Finance Department observes that since the mode of appointment through absorption is an accepted practice and it cannot be challenged by the absorbed employees after their absorption therefore, inability to accede to the request of Mr. Amjad Ali for grant of selection grade BS-9 as personal to him w.e.f. 24-6-1999 is regretted."
' This advice, of the Finance Department, amounts to abdication of the real question in controversy.
The point mooted and canvassed by the appellant was that the terms and conditions of absorption guaranteed to him on 18-3-1999 under sub-rule (1) of rule 3 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 that the pay fixed in the absorbed department would not be less advantageous to what he was immediately drawing in his parent department before the post became surplus and subsequently he was absorbed. The Finance department instead of addressing itself to the mooted question took off tangentially and disallowed the relief on a totally desultory premises. Once the Administrative Department where the appellant was absorbed at the behest of the appellant inquired from his parent department about his pay scale in which he was drawing his salary,.The answer given about his pay scale should have been considered in the light of the terms and conditions originating from the rules. Paras-iv and v of the reply of the parent department dated 20-3-2000 to the Services and General Administration Department where the appellant was absorbed is pertinent and is once again reproduced even at the risk of repetition:-- "During departmental promotion-cum-selection committee's meeting held on 2-9-1991 he (appellant) was allowed selection grade in BPS-7 with approval that he will draw his pay in BPS-9 as personal to him." rightly refused BS-9 after his absorption in the Services and General Administration Department or was it the contravention of the terms and conditions settled with him. My views which shall be un-folded in the ensuing paragraphs of this judgment is supported by the decision, on all fours with the facts of the present appeal, propounded by the apex Court in the case of Government of the Punjab through Secretary Services, Punjab, Lahore and four others v.
Muhammad Awais Shahid and four others, reported in 1991 SCM R 696. The precedent case related to the pay scales of Civil Judges and District and Sessions Judges. The Punjab Service Tribunal granted relief to some of the judicial officers of enhanced scale of pay in the basic scales of pay who had fixed percentage of posts of the same category in the higher scale of pay while disallowing it to other Civil Judges as well as District and Sessions Judges. Rule 12 of the Punjab (Gazetted) Civil Services (Pay Revision) Rules, 1973 allowed 15% of a regular strength of Civil Judges to be placed in NPS-18. The post of Civil Judges ordinarily is in BPS-17. Similarly, for the District and Sessions Judges, the selection grade post was abolished and certain percentage of the posts of the District and Sessions Judges was placed in the higher. NPS i.e. NPS-20, the post of District and Sessions Judges being ordinarily in NPS-19. The Government of the Punjab issued a notification on 8-10-1980 by refusing this relief to certain Civil Judges by giving an explanation that grant of NPS-18 to a specified number of Civil Judges in NPS-17 is not promotion and the case does not fall within the purview of Provincial Selection Board. The Honourable Supreme Court in Para. 14 of the judgment quoting the case of Muhammad Siddique, Additional Deputy Commission (General)
Dera Ghazi Khan in Civil Appeal No.11 of 1978 decided on 9-8-1982, the concept of promotion .Vis-a- vis selection grade was examined in the following words:-- "In precise official terminology, promotion is defined as the advancement of an official from a lower to a higher post or grade against a vacancy specifically reserved for such advancement under the relevant Recruitment Rules."
' In Para. 16 of the judgment, Honourable Supreme Court observed as under:-- "It is an admitted fact that the higher scale NPS-18 in the case of Civil Judges, and the higher scale NPS-20 in the case of District and Sessions Judges, is enjoyed by the same post holder of the respective category. In other words, there is no higher post to which their appointment takes place on such improvement i.e. The status. Nevertheless, there is an improvement in the Grade, as the Civil Judge from. NPS-17 goes to NPS-18 and the District and Sessions Judge from NPS-19 to NPS-20.
On the strength of definition of the word "promotion" as provided in the official documents, even this change of grade or scale of pay for the better would amount to promotion."
' In the final paragraph of the judgment which clinched the issue, it was observed as under:-- "Wherever there is a change of grade or post for the better, there is an element of selection involved that is promotion and it is not earned automatically, but under an order of the competent authority to be passed after due consideration on the comparative suitability and the entitlement of those incompetent."
6. In yet another case decided by the Punjab Service Tribunal in Appeal No.707 of 2001 on 16-8-2001, Muhammad Shabbir was appointed Stenographer in the office of Chief Engineer (Coordination)
Irrigatio and Power Department in BS-12 on 8-9-1983 on regular basis. Later he was allowed selection grade in BS-15 w.e.f. 28-5-1990 and was thereafter promoted as Senior Scale Stenographer in BS-15 w.e.f 18-12-1990. He continued working in that office till 31-5-1996 when he was rendered surplus as Senior Scale Stenographer due to the closing of the Office of Chief Engineer (Coordination) Irrigation and Power Department, Lahore. The then Chief Minister vide his order dated 1-9-1996 approved his absorption in BS-15 in surplus pool of Services and General Administration and Information Department. The absorption committee, first absorbed the appellant as Stenographer in B-12 in the office of Director General, Public Relation, Punjab and later absorbed him again as Stenographer. In BS-12 in Services and General Administration and Information Department. Appellant felt unhappy not treating him at equivalent stage falling in BS- 15, as such came to the Tribunal. The plea of the appellant was that he was enjoying the financial benefit in BS-15 when he was absorbed, therefore, the same should be given to him after absorption. In the written objections, the respondents raised the issue. That absorption being a mode of appointment he could only be absorbed against a post meant for fresh recruitment and as the post of Senior Scale Stenographer in BS-15 was a promotion post, the appellant could not be adjusted against the said post. It was held by the Tribunal that the appellant could not be demoted as a result of absorption/reabsorption without recourse to the due process of law. The appeal was allowed and the impugned order was set aside by giving direction to the respondents to allow the appellant BS-15 as personal to him w.e.f. The date of his absorption.
7. The two judgments quoted would clearly manifest that the view of the Tribunal is firm that the surplus staff absorbed should be endowed the same scale and grade which he was getting in the department dissolved before his absorption. This is exactly the terms and conditions of absorption envisaged. The apex Court has also enunciated the following principle:-- "We may observe that if the Tribunal or this Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of civil servant who litigated, but also of other civil servant, who may have not taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum."
8. Dealing with the preliminary objection raised by the learned District Attorney that the appeal was barred by time as the absorption took place on 26-4-1999, however, the representation was made by the appellant on 26-8-2003, therefore, on this ground alone he should not non-suited, the response given by the appellant is that immediately after his absorption, he requested the Services and General Administration Department, where he was absorbed, to inquire about his basic pay scale from his parent department and accordingly the information was sought as well as given by the parent department on 20-3-2000. No progress was made to address to the supplications of the appellant. Resultantly, no option was left for him but to make a written representation on 26-8- 2003, addressed to respondent No.1 which was ultimately turned down vide the impugned order.
Even otherwise, in the matter of pay, salary, pension and all related financial benefits, the cause of action is continuing. The prayer to dismiss the appeal on the ground of limitation has not impressed me and is accordingly repelled.
9. For the reasons given in the preceding paragraphs of the judgment, the appeal is accepted.
Order dated 31-12-2003 by respondent No.1 is set aside and the claim by the appellant to allow him absorption at the proper equivalent stage falling in BS-9 w.e.f. 26-6-1999, the date of actual absorption is granted. There shall be no order a to costs.