Saeed Ahmed Zaidi, Member.--Brief facts of the case are that the Appellant while working as Charge Nurse, Selection Grade (BS-16) in Federal Government Services Hospital (FGSH), Islamabad was selected for training at Agha Khan University of Health Sciences in 1995. She obtained the three year B.Sc. degree in Nursing from the said university and joined her duties in November, 1998. The said training was funded by the Canadian Government under a General Memorandum of Understanding (GMOU) signed between the Governments Pakistan and Canada in 1990 and in pursuance of which a further agreement for training women professionals was executed by the Government of Pakistan (signed by the Secretary, Ministry of Health) on 16.11.1995. The training agreement of 1995, stipulated that the Appellant shall, on completion of her degree programme shall be granted the position of Nursing Instructor (BS-17) in the School of Nursing, Federal Government Services Hospital, Islamabad. The said agreement was signed by the Appellant also in acknowledgement of her undertaking to serve as Nursing Instructor after completion of her training. The Appellant, after successful completion of the training programme and acquiring a B.Sc. degree in Nursing, returned to her post and asked for its up-gradation to BS-17 as stipulated in the said agreement. As no post of BS-17 was available in the school of Nursing, she was not given BS-17 and the matter was referred to the Finance Division for up-gradation of her post to BS-17. The Finance Division vide its O.M. No, F.2(7)R-2/2000 dated 17.8.2000 agreed to the up-gradation of the post, in pursuance of the aforementioned bilateral agreement and higher qualifications of the Appellant, as "personal to the Appellant". The Ministry of Health then approached Establishment Division for redesignation of Appellant's post as Nursing Instructor (BS-17). The Establishment Division, however, did not approve the proposal on the ground that the said agreement had been signed without their prior concurrence and that it violated its policy for up-gradation of posts circulated vide O.M. No, 8/36/2000-R.I. dated 20.1.2001. A fresh reference was made to the Finance Division which vide its O.M. No, F.2(7)R-2/2000-Dy 417 dated 18.6.2001 reaffirmed that the approval to up-gradation was given prior to the circulation of upgradation policy vide O.M. dated 20.1.2001 and, therefore, remained effective despite subsequent policy change. It was also confirmed that the earlier approval has been endorsed by Finance Secretary. This was again turned down by the Establishment Division and Appellant was informed accordingly by the Ministry of Health. The Appellant filed a departmental appeal and after its rejection vide order dated 18.10.2005, came to this Tribunal.
We have heard the learned counsel for the Appellant whose main contention was that the training agreement dated 16.11.1995 was executed in pursuance of an international agreement between the Governments of Pakistan and Canada and was, therefore, binding upon both the Governments. It was further contended that the Ministry of Finance has accepted the binding force of the agreement and agreed to the up-gradation of the post of Appellant to BS-17 as "personal to her". It was further argued that Ministry of Health as well as the Ministry of Finance have not objected to the Appellant's up-gradation in pursuance of the said agreement and it is only the Establishment Division which was opposing the same. It was further stated that the Finance Division had vide its O.M. No, F.2(7)R-2/2000-Dy 417 dated 18.6.2001 reconfirmed its earlier concurrence to up-gradation of Appellant's post irrespective of subsequent changes in Establishment Division's up-gradation policy in 2001.
3. We have heard the arguments of learned counsel for the respondents. It appears that the objections to up-gradation of Appellant's post to that of Nursing Instructor (BS-17) have been raised by the Establishment Division alone. Its first objection is that the aforementioned General Memorandum of Understanding (GMOU) was for six years and was no longer in force when the question of up-gradation of Appellant's post was referred and, therefore, effect cannot be given to it. Besides, the stipulation regarding grant of BS-17 to Appellant, infringes the right of her seniors to promotion. Its second objection is that as required by the Rules of Business Establishment Division's prior concurrence for the agreement signed in 1995 was not obtained and, therefore, the said agreement could not be implemented.
The third objection is, that in view of its up-gradation policy circulated vide Establishment Division's O.M. No, 8/36/2000-R.I. dated 20.1.2001, the Appellant's post could not be upgraded.
4. We have carefully considered Respondent No, 5 Establishment Division's objections. In fact, we had specifically asked that Division to assist us on the issue as to why the aforementioned GMOU was not equally binding upon all the executive units/Divisions of Government of Pakistan including Establishment Division. It was also asked whether any non-adherence to the Rules of Business in such a matter, could render ineffective the said GMOU (which was an international agreement between two sovereign states) and any agreement executed under its umbrella. We'are constrained to point out that the Establishment Division failed to assist us on the above mentioned issues or place before us any material or even an argument in support of their above mentioned objections against up-gradation of Appellant's post.
5. We have nevertheless considered the objections raised by the Establishment Division. As far as its objection regarding the approval of Finance Division's being in disregard of up-gradation policy circulated on 20.1.2001, is concerned, the same has been controverted by the Finance Division which has clearly stated in its O.M. No, 2(7)/R-2/2000-Dy 417 dated 18.6.2001 that their approval was issued on 17.8.2000 prior to the circulation of the said policy and therefore the policy was not applicable to the Appellant As far as the remaining two objections regarding binding force of an international agreement is concerned, we have little doubt that the GMOU and the subsequent training agreement executed under its umbrella, during the period the said GMOU was still in force, are binding on Government of Pakistan as a whole which includes Establishment Division. A mere lapse in not obtaining Establishment Division's prior concurrence on a matter which did not, in any way, concern even any particular class or group of civil servants, would not render the said agreement ineffective. We have noted that Finance Division approved up-gradation of Appellant's post as "personal to her" on the condition that the post shall revert to its original pay scale on its vacation by the Appellant. We have also observed that the said approval was based on the aforementioned agreement as well as higher academic qualifications which the Appellant acquired under the said training agreement.
7. For the reasons mentioned in Paragraphs 4 and 5, we accept the appeal and direct that the Appellant's post be upgraded to BS-17 as "personal to her" with effect from the date she joined her duties after completion of her training programme.
8. No order as to costs. Parties be informed.