JUSTICE (R) ABDUL GHANI SHAIKH, CHAIRMAN- - By this single judgment we intend to dispose of the above titled eight appeals which involve common questions of facts and law and were by consent of the parties counsel heard together.
2. Briefly stated the facts of these appeals are that appellants were working as Inspectors in B-15 at Market Committee, Karachi. On introduction of Move-over policy, they were allowed Move-over from B-15 to B-16. Again on reaching at the maximum ceiling of BS-16 they vide separate orders were allowed second Move-over from B-16 to B-17 in the years 1998 and 1999, as under:-- Appellants Mukhtiar Ahmed, Ghulam Muhammad and Muhammad Hanif vide orders dated 24.12.1998, 2.4.1999 and 13.4.1999 respectively w.e.f. 1.12.1994.
Appellants Muhammad Ramzan, Mehraj Hussain and Mohtaj Baloch vide orders dated 12.4.1999 w.e.f. 1.12.1996.
Appellant Moula Bux vide order dated 12.4.1999 w.e.f. 1.12.1997 and appellant Khadim Hussain vide order dated 12.4.1999 w.e.f. 1.12.1995.
After 4/5 years thereof, on the objection raised by Local Fund Audit Department that second/successive move-over being not admissible was wrongly awarded to appellants, the respondent No. 3 vide separate orders dated 1.10.2003 withdrew the orders of granting second move-over to appellant with a direction that amount drawn in excess due to award of wrong move-over be made good from monthly salaries of the appellants by ensuring that such amount be adjusted before the date of their retirement. Feeling dissatisfied appellants individually preferred . Departmental appeal(s) which remained un responded. Hence, these appeals.
3. In support of appeals, learned counsel for the appellants vehemently argued that appellants were non- Gazetted employees of B-15 and on reaching maximum of ceiling of B-15 they were awarded move-over to B-16, which in view of settled law was not a promotion and again on reaching the maximum ceiling of B-16 they were allowed move-over to B-17 purely in accordance with the advice of the Finance Department. He contended that order of awarding move-over to B- 17 was acted upon, implemented and remained in field for about 4/5 years but suddenly without providing any opportunity of being heard to the appellants the said legal benefit was withdrawn for which no reason has been assigned in the impugned orders. While referring two advices of the Finance Department, Government of Sind, contained in U.O. Letter No. FD(SR- 1)1 (ii)/90, dated 13.5.1990 and another U.O. Letter of even number dated 17.8.1992, wherein it has clearly been mentioned that there is no restriction of 2nd move-over in cases of non-Gazetted officials from B-1 to B-15, learned counsel stated that there was no illegality or irregularity in awarding 2nd move- over to the appellants even after granting move-over to B-16, B-17 onwards the appellants status remained as non-Gazetted officials of B-15, in support of his contention he relied upon 2004 SCM R 647 and 2005 TD (Service) 1.
4. In rebuttal, learned Assistant Advocate General duly assisted by M/s. Abdullah Channa, Deputy Secretary, Law Department and Aslam Mirza, Section Officer, Finance Department, while referring the written statement filed on behalf of respondent No. 3 argued that as per move-over policy contained in Finance Department's Letter No. FD (SR)1(27)/83, dated 12.6.1986, the employees of the Sind Government in BPS-16 to BPS-19 are not entitled to two successive move-overs. Mr. Aslam Mirza, Section Officer (Legal), Finance Department has also produced a copy of letter dated 9.9.2003 of Regulation Wing of Finance Division, Government of Pakistan, wherein it has been stated that Finance Division have not issued any instructions for successive move-over from BS-16 to BS- 17 to the non- Gazetted employees. Learned Assistant A.G. Further contended that since the appellants were not entitled to 2nd move-over, therefore, no legal right was accrued or acquired by the appellants.
5. We have considered the above submissions, perused the case papers and have gone through the case- law referred to by the learned counsel for the appellants. On careful scanning of the record made available before us it is abundantly clear that appellants were non-Gazetted officials of B-15 serving as Inspectors, Market Committee, Karachi. They were firstly awarded move-over to B-16. Since move- over is not a promotion as held in the case of Tanveer Ahmed Vs. Chief Secretary, Govt, of Punjab, Lahore (2004 SCM R 647), the appellants remained in B-15 as non- Gazetted employees. Subsequently, on reaching at the maximum ceiling of B-16 they were awarded 2nd move-over to B-17 but their basic status of non-Gazetted employees remained unchanged, it is the case of the respondents that in view of the move-over policy contained in Finance Department's letter dated 12.6.1986, employees of B-16 to B-19 shall not be allowed two successive move-overs, unless an employee who was allowed move-over to a particular scale is subsequently promoted to a post carrying the same scale, he would again become eligible for a further move-over. Simple perusal of said letter reveals that it is applicable to the Gazetted officers of B-16 to B-19 and not to the non-Gazetted officers of B-1 to B-15. Subsequent to the said letter, the Finance Department, Government of Sind in its U.O. Letter dated 13.5.1990 addressed to the Secretary, Government of Sind, Communication & Works Department, Karachi, clearly stated that:- "The instructions contained in Finance Department's Letter No. FD(SR-l)1(27)/83, dated 12.6.1986 are relevant to the cases of officers in B-16 to B-19. These do not apply to Non-Gazetted officials from B-1 to B-15."
There is no restriction of 2nd move-over in case of non-Gazetted officials from B-1 to B-15."
In view of such clear advice from the Finance Department, as it appears, the appellants were awarded 2nd move-over on reaching at the maximum ceiling of B-16. The above advice of the Finance Department was once again repeated in another U.O. Letter of even number dated 17.8.1992 addressed to the Labour & Transport Department, in a very similar circumstance, one of the employee of the Judicial Department of Azad Jammu & Kashmir (in fact of the Honourable High Court of Azad Jammu & Kashmir, High Court) was granted successive move-overs to B-17 and B- 18 but his 2nd move-over to B-18 was withdrawn. He challenged the withdrawal order before the Honourable High Court of Azad Jammu & Kashmir, which allowed the petition and set aside the order of cancellation of 2nd move-over and it was observed that petitioner was basically in B-15, who was allowed selection grade B-16, on reaching maximum of B-16 was allowed move-over to B- 17 and again on reaching at the maximum of B-17 he was allowed move-over to B-18 and since the petitioner was basically in B-15, he was eligible to the successive move-over to B.18. The above case has been reported as Muhammad Sulleman Vs. A.G. A J&K Government, Muzaffarabad, etc. (2005 TD (Service) 1), and is fully applicable to the facts and circumstances of the present appeals.
6. There is no denial of the fact that appellants had not procured the order of 2nd move-over to B- 17 by playing fraud or by relying on any bogus document/letter. They were validly granted move- over on the advices of the Finance Department, which advices have not so far been either re- called or withdrawn/rescind but still hold field. The letter dated 9.9.2003 of Finance Division, Government of Pakistan, produced by the representative of Finance Department, Sind in no way suggests that successive move-over from B-16 to B-17 to non-Gazetted employees is not admissible, but it says that no such instructions were issued by the Finance Division, Government of Pakistan, it does not make any difference, the Government of Sind being a separate entity under the law has full authority to grant such facility to its provincial employees without getting instructions from the Government of Pakistan. Since the Government of Sind, Finance Department has already extended such benefit of successive move-over to its non- Gazetted employee of B-1 to B-15, as per two advices referred to above which are still in existence and in field, the respondent No. 3 had no authority to withdraw the 2nd move-over granted to the appellants, which order has been acted upon/implemented and created vested rights in favour of the appellants, the same cannot be snatched from them in such an artificial and superfluous manner.
7. The upshot of the above discussion is that the instant appeals are allowed and the impugned orders dated 1.10.2003 passed by respondent No. 3 canceling/withdrawing 2nd move-over to B-17 earlier awarded to the appellants is set aside. There shall be no order as to costs.
8. Announced in open Court.
Given under our hands and seal of the Tribunal, this 26th day of April, 2005.