1. N. A. CHOUDHURY (MEMBER).---This appeal has been filed by Mr. Muhammad Ayub, Audit and Accounts Assistant, Office of the Command Controller of Military Accounts, Rawalpindi. The appellant was working in Grade 7 as ordinary Upper Division Clerk (U D C) of the Military Accounts Department designated as Auditor. He was promoted to the post of Audit Assistant in Grade 11 with effect from 1-7-73. The Military Accounts Depart--ment fixed his pay in Grade 11 on promotion, after allowing one premature increment in National Pay Scale 11, as indicated below :--- Pay drawn in N P S 7 as AuditorDate of promotion as Audit and Accounts AssistantPay in Grade 11 on 1-7-1973 Rs.380 1-7-1973Rs.395 being next stage in Grade 11 PLUS Rs.
2. 20 one increment=Rs. 410 This fixation was done under the normal order of fixation applicable in the case based on Ministry of Finance Office Memorandum No. 1(2)-NG/Imp/71 dated 8-3-1972, the relevant portion of which runs as follows :- "In cases of promotion from a lower to a higher post, where the stage in the National Scale of the higher post next above the substantive pay in the national scale of the lower post gives a pay increase equal to, or less than, a full increment, the initial pay in the National Pay Scale pertaining to the higher post will be fixed after allowing a premature increment in the national pay scale of the higher post. The existing rule/orders regarding grant of minimum pay increases on promotion, shall be treated as withdrawn."
3. On 29-6-1978, the Ministry of Finance, on reconsidering the interpreta--tion of the above-referred letter, have ordered that the appointment of an Auditor of the Audit Department and other Accounts Services in Grade 7 to the post of Audit Assistant in Grade 11 does not constitute a promotion within the meaning of the Government letter dated 8-3-72, quoted above. In the circumstances, one premature increment as contemplated in that letter is not admissible, because, the same is admissible in the case of promotion to higher post. As such, the pay fixed at Rs. 410 which includes an element of one premature increment is not correct, and the correct fixation should be at Rs. 395. Accordingly, the Ministry of Finance have issued instructions to the Military Accounts Department to correct the fixation of pay and to affect recoveries of overpayment made to the Audit Assistants whose pay have been fixed in the above manner. The departmental appeal did not bring any relief to the appellant. Hence this appeal dated 19-3-79 to the Service Tribunal.
4. The learned counsel for the appellant argued that the interpretation put by the Ministry of Finance on the word `promotion' occurring in their letter dated 8-3-72 is incorrect. The appointment of the Auditor working in Grade 7 to the post of Audit Assistant sanctioned in Grade 11 is promotion, because there is a jump of four grades in between the two posts. The argument of the Ministry of Finance that the appointment to the post of the Assistant does not involve duties and responsibilities of higher nature which is necessary for a promotion, is fallacious. The learned counsel made a reference to last sentence of Government decision No. 1 below F. R. 30 (which runs as follows) to prove that even in the case of acting allowance, it is not necessary that there should be change in duties :-- It has been brought to notice that some doubt has been felt as to the application of the exception under Fundamental Rule 30 (proviso under revised F. R. 30 (1), in the cases of ministerial and other establish--ments in which there are no grades in the sense in which the word is used in Civil Service Regulations. The exception (proviso) is intended to cover, where necessary, all cases of the grant of acting allowance from one fixed rate of pay to another without change of duty in other than all-Pakistan Services . . ."
5. 'The learned counsel made a further reference to Government Decision No. (2) under F. R. 22, to emphasise the point that the question of duties and responsibilities has to be finally decided by the head of the Department, under this note of the Fundamental Rules, and once the Military Accountant-- General has decided the issue under this rule, no further consideration and orders of the Ministry of Finance were necessary.
6. He further extended his arguments on the basis of Government Decision No. (3) under F, R. 22 to the effect that where the time scales are identical, the duties are also considered to be identical, otherwise if there is difference in the scale, duties and responsibilities cannot be considered to be identical and of the same importance.
7. He also invited a reference to the orders of the Auditor-General issued vide Letter No. 822/NGE.
8. 1/84-73, dated 8-9-1977, issued in consultation with the Establishment Division in which the Auditors and Audit Assistants have been considered to belong to two separate grades for which separate seniority lists have to be maintained. The contents of the letter are reproduced below :-- --- . . . It has been decided in consultation with the Establishment Division that the posts of Auditors and Audit Assistants would henceforth be treated as belonging to separate cadres and separate seniority lists for Auditors and Audit Assistants would be maintained with effect from 10-8-77.
(2) It has also been decided that the promotion to the post of Accountants against 33 %, quota would also henceforth be made from the seniority lists of Audit Assistants in supersession of para. 2 of this office circular No. 2246-C. B. III/24-73, dated 5-11-1973. . . ."
9. It was the argument of the learned counsel for the appellant that when a civil servant is promoted from one grade to another grade for which separate seniority lists have been maintained, there is no force in insisting to treat him as belonging to the same category and not brought on promotion from one grade to another. He further argued that the earlier letter of Auditor-General of Pakistan issued on 19-10-1974 under which an impression was given that the ordinary UDC and Selection Grade Clerks belong to the same category, because they perform identical duties and responsibilities, stand modified after the issue of the Auditor-General's letter dated 8-9-77. Since the ordinary UDC in grade 7 belongs to separate grade, his appointment to grade 11 is a promotion, within the meaning of the Government letter dated 8-3-1972. In the circumstances, in the opinion of the learned counsel for the appellant, one premature increment in addition to one stage above in the time scale is admissible and the pay fixation of the appellant at Rs. 410 has been correctly done. No recovery should be made from him and his pay fixation should be kept intact and payments made accordingly. He, therefore, requested that the orders of the Ministry of Finance dated 29-6-78 which are not based on any correct interpretation of the rules should be vacated.
10. The learned counsel for the appellant further pointed out that in their written comments, the Ministry of Finance have tried to explain the case with reference to provisions of F. R. 30 and F. R. 22, and other provisions of Fundamental Rules. He made a reference to F. R. 2, which clearly indicates that the provisions of the Fundamental Rules are not applicable to the civil servants belonging to the Defence Forces, including the Military Accounts Department establishments. He, therefore, argued that any interpretation based on Fundamental Rules should not be a governing element in the case of the appellant and other such cases because these rules are not applicable in their cases.
11. The learned counsel argued further that the governing provisions are those of the Civil Service Regulations (CSR), which are applicable to the appellant and other such civil servants. He made a reference to CSR 107 and CSR 158, which according to him, govern the facts of the present fixation of pay. The relevant sentences of CSR 107 which is applicable in the present case, run as follows :-- " . . An officer officiating in an appointment on a time scale draws as initial salary the stage of the time scale next above his substantive pay, if any ; provided that, if he has previously officiated in the appointment or in an appointment in the same cadre on the same time .Scale, his initial salary shall not be less than the salary which he drew when last officiating. All officiating service in any stage of the time scale. Whether continuous or not, counts for increment in that stage. If the salary drawn during any period of past officiating service was inter--mediate between two stages of time scale, that period will count for increment in the lower of the two stages. If the substantive pay of the officer at any time exceeds the salary calculated under this rule, he will draw salary equal to that substantive pay . . . ."
12. Article 158 of CSR, quoted by the learned counsel for the appellant, runs as under:-- " . The incumbent of an appointment the pay of which is changed shall be treated as if he were transferred to a new appointment on the new pay : Provided he may at his option retain his old pay until the date on which he has earned his next or any subsequent increment on the old pay, or until he vacates his appointment. The option once made is final . . . ."
13. The learned State Counsel tried to explain the case with reference to the Ministry of Finance letter dated 29-6-78, and argued that the Ministry of Finance have finally interpreted the contents of their earlier letter dated 8-3-72 and have not agreed to the appointment of an Auditor to the post of the Audit Assistant as promotion, because it does not involve the assumption of duties and responsibilities of higher nature. He also referred to note 16 below F. R. 30 wherein the above inference has been arrived at. He further argued that although provisions of Fundamental Rules are not applicable to the appellant and other such civil servants belonging to the Military Accounts Department, the basic principles laid down in these rules should be applicable in deciding the cases of pay fixation of the present nature. He also made a reference to Auditor-General's Letter No. 1172-NGE. I/25-73 K. W., dated the 29th October 1974, the relevant portion of which runs as follows :- ". . This office is of the view that mere redesignation of the post of S. G. Cs. As Audit Assistants does not have the effect of changing the cadre of U D Cs. (Auditor). The ordinary grade and selection grade of U D Cs. New designated as Auditor and Audit Assistants are two grades of one and the same post and promotion of a person from Auditor (grade 7) to Audit Assistant (Grade 11) does not mean promotion to a higher post and does not involve assumption of duties and responsibilities of greater importance. As such decision 16 below F. R. 30 would apply in such cases and the benefit of pre--mature increment as envisaged in para. (1) of Part I of Finance Division O. M. Dated 8-3-1972 would not be available to the Auditors promoted as Audit Assistant . . ."
14. He accordingly argued that since the Auditors in Grade 7 are but ordinary U D Cs. And Audit Assistants (Grade 11) are Selection Grade Clerks perform--ing the same duties and responsibilities, this appointment does not constitute a promotion to claim one premature increment under Government letter dated 8-3-1972.
15. After hearing both the parties, we are not at all convinced with the arguments of the learned State Counsel because his explanation is based on a Government letter which is itself impugned. We cannot accept the authority as interpretation contents of a letter which have been challenged before us for its interpretation in the present appeal. We are also not impressed with his argument that the interpretation contained in the Fundamental Rules should in any case be considered in deciding the cases of the civil servants to whom these rules do not apply according to the clear provision of F. R. 2 itself. Then the- rules themselves say that these are not applicable, nobody else should take away that interpretation from the text of the rules to force the application on the persons who are not governed by these rules. An argument has been given in the written comments of the Ministry of Finance that jumping of the civil servant from one scale to another does not necessarily mean a promotion, because under the National Pay Scale Scheme, if a civil servant works for one year at the maximum of his scale, he automatically jumps on to the next scale. This argument also does not impress us because the same is entirely confusing and irrelevant to the present case. In the case of reaching the maximum of a time scale, advancement to the next scale is automatic and not through any process of selection for promotion or by the approval of a Departmental Selection Committee. In the case of the Auditors and Audit Assistants, previously the promotion was ordered from an ordinary grade to a selection grade on the basis of a written test, now is being done through the approval of a regular Departmental Promotion Committee and not automatically.
16. Another argument has been advanced by the Ministry of Finance and the Auditor-General in which they have identified the Auditors in Grade 7 with ordinary U D Cs. And Audit Assistants in Grade 11 with the Selection Grade U D Cs performing the same duties. This argument is also fallacious. It was alright to discuss the ordinary U D C and Selection Grade Clerks up to 8-3-72 (before the introduction of the National Pay Scale Scheme). After the introduction of N. P. S. Scheme, the concept of Selection Grade has been abolished. It does not lie in the mouth of the Ministry of Finance now to treat these people as merely Selection Grade Clerks because there is no selection grade surviving after the introduction of the National Pay Scale Scheme.
17. Apart from a jump of four scales which is given to an Auditor on his appointment to an Audit Assistant, the Auditor-General's letter dated 8-9-1977 clearly indicates that the two categories of civil servants belong to two different cadres. Nobody is, therefore, going to believe that appointment of a civil servant from one grade to another grade with a jump of four grades, would not constitute a promotion.
18. The arguments given by the learned counsel for the appellant on the basis of a Government Decision below F. R. 22 and F. R. 30, are not necessary to be considered for the purpose of this judgment because it has earlier been argued that the provisions of Fundamental Rules are not applicable in the present case. If the respondents are not permitted to use the provisions of the Fundamental Rules for arguments in this case due to their non applicability, the same should apply to the arguments advanced by the learned counsel for the appellant.
19. We do not agree with the interpretation put by the Auditor-General and the Ministry of Finance in this case. The fixation of pay done by the Military Accounts Department in the case of the appellant in terms of Government letter dated 8-3-72, allowing one premature increment, in addition to one stage above in the time scale of Grade 11 is correct, and should be allowed to prevail. The appellant shall be continued to be paid accordingly wins future increments accruing to him on that basis.
20. Any recovery, if already made shall be restored to him.
21. Appeals Nos. 36(R)/1979 Abdul Khaliq v. M/O Finance and 37 (R)/1979 Rehmat Khan v. M/O Finance which are identical and taken up together with this appeal, are also accepted accordingly.
22. Parties to be informed.