Justice (R) Tanvir Bashir Ansari, Chairman.--This judgment shall decide the aforementioned appeals as common questions of law and facts are involved in the same.
Anneal No, 1665(R)CS/2005:- The appeal is directed against the order dated 25.07.2005 whereby Dr. Wajahatullah Bangish (Respondent No, 3) an officer in BS-20 has been notified to act as Dean of the Quaid-e-Azam Post Graduate Medical College (QPGMC) PIMS, Islamabad ignoring the appellant who was in BS-21. The appellant preferred departmental appeal on 23.08.2005 which was rejected vide final appellate order dated 31.08.2005. The appeal was filed before the Tribunal on 24.09.2005.
Appeal No, 1666(R)CS/2005:- The appeal is directed against the tentative seniority list of BS-20 officers of the Health Division dated 09.07.2003 wherein the appellant is shown junior to private Respondents No, 3 to 12 despite the fact that the appellant is in BS-21. The appeal filed by the appellant was dismissed vide order dated 31.08.2005. The appellant prays for a direction to the department to prepare a list of BS-21 officers of the Health Division wherein the appellant is placed at appropriate seniority.
2. Briefly the facts are that the appellant was appointed as Professor/Head of Obs./Gynae Department, MCH Centre PIMS, Islamabad in BS-20 on 03.08.1996. The appellant and the private respondents were considered for promotion on meritorious basis. The criteria for such promotion on account of meritorious service was fulfilled by the appellant and was accordingly granted BS-21 vide Ministry of Health Notification dated 29.01.2003. The private respondents in both the appeals were also considered but not approved for award of BS-21.
3. Based upon the grant of BS-21 on meritorious grounds, the appellant claims appointment as Dean (QPGMC) PIMS, Islamabad instead of Dr. Wajahatullah Bangish (Respondent No, 3) in Appeal No, 1665(R)CS/2005 and also claims to be placed in a separate seniority list of BS-21 officers at the appropriate position in seniority rather than the seniority list of BS-20 officers where she is shown junior to the private respondents of Appeal No, 1666(R)CS/2005.
4. It is contended on behalf of the appellant that having been granted promotion to BS-21 with the approval 'of the competent authority on meritorious basis she stands on a higher footing as compared to the private respondents who are still in BS-20.
5. It is further submitted that the criteria of meritorious service is higher than the eligibility threshold of a normal promotion from the BS-20 to BS-21 and that the appellant deserves preferential treatment amongst officers of BS-21 what to talk of the private respondents who are still in BS-20.
6. It is urged by Dr. Aleem Mahmud, next friend of the appellant that the grant of BS-21 has been acted upon and that the appellant has been continuously in receipt of salary as per BS-21 besides the other perks and privileges of the post of BS-21 as admissible under the rules. It is contended that the name of the appellant has been placed in the seniority list of BS-20 with a malicious intent and in order to cause prejudice to the service prospects of the appellant. Further, the case of Dr. Abdul Majeed Rajput, Chief, Ministry of Health (BS-21 meritorious) has been cited to show that the said official was appointed as Director General, Health BS-21, Ministry of Health vide Notification dated 18.09.2004 and that this amounted to discrimination against the appellant. Case of Mr. Munir Ahmed, Director General (Gas) Ministry of Petroleum and Energy Resources was also referred to. He was granted BS-21 on meritorious basis and was appointed as Chairman, Natural Gas Regulatory Authority and granted benefits of BS-21. It is further averred that the appellant was also granted a premature increment which is only allowed on regular promotion.
7. It is finally argued that promotion on the basis of meritorious service is equivalent to and amounts to regular promotion. Reliance has been placed upon 2005 SCM R 1742, 1991 SCM R 696 and 1994 SCM R 1626. It is prayed that in view of this the order dated 21.06.2003 wherein the Establishment Division found that despite the promotion on meritorious grounds, .the officer remained holder of BS-20 post and remained in seniority list of BS-20 posts is illegal.
8. On the other hand it is contended by the respondents that the grant of BS-21 on the basis of meritorious service is not regular promotion but is personal to the incumbent. It is submitted that under Section 9 of the Civil Servants Act 1973, regular promotion-is made to a higher post for the time being reserved under the rules for departmental promotions in the service or cadre to which the civil servant belongs. Such a post may either be a selection post or a non-selection post.
According to the learned counsel for the respondents the grant of BS-21 to the appellant on meritorious basis is not a regular promotion as it has no incidence of such promotion. Reliance is placed on Part-1 Para 7 page 701 ESTACODE 2000 Edition to contend that in meritorious cases basic scale BS-21 or BS-22 alongwith allowances and fringe benefits may be allowed to technical and professional officers without requiring them to move from their technical posts where their expertise is particularly needed. The number of such beneficiaries will not exceed 12.5% of the total number of posts in BS-20 in any particular cadre. Reliance is also placed on Serial No, 74, 2(vi) page 781 to urge that grant of scale 21 or 22 to the officer will be personal to There would be no need to upgrade the post. Such officer however, shall carry this higher scale in the event of his transfer to another post.
9. We have heard the parties and perused the record.
10. The criteria for promotion on meritorious basis is as under:--
(i) 80% of the ACRs in BS-20 should be very good;
(ii) Minimum 3 years active service in BS-20;
(iii) No adverse or an average report in BS-19 and above; and
(iv) The officer should have some significant contributions to his field of specialization.
Appellant was considered for promotion on meritorious basis to BS-21 and was awarded BS-21 vide Ministry of Health Notification dated 29.01.2003. It is not denied by the respondents that the private respondents were also considered but were not approved for award of BS-21. It is also established from the record that ever since the award of BS-21 to the appellant she has been in receipt of salary, perks and benefits in accordance with the said higher scale. Although the grant of premature increment upon her promotion to BS-21 was not allowed by the AGPR yet upon a departmental representation premature increment was granted with the approval of the Finance Division vide O.M dated 20.08.2003. The said O.M reads as under: "The undersigned is directed to refer to office of the Controller General Accounts Letter No, 558- CGA/REG/1-10/2002, dated 09.08.2003 on the above subject and to advise that in order to ensure uniform policy for fixation of pay on promotion on meritorious service basis, the premature increment may be allowed in all cases including Professor Dr. Ghazala Mehmood (appellant herein)".
11.Despite the aforementioned the nature of promotion on the basis of meritorious service has to be looked into in the light of the provisions contained in the ESTACODE. The salient features of this promotion policy are that the beneficiaries of such promotion are to be limited to 12.5% of the total number of posts in BS-20 in any particular cadre. This coupled with the requirement that upon such promotion the incumbents are not required to move from their technical posts would imply that although the benefit of the higher scale is given as a reward to a meritorious incumbent the same does not correspond to the incidence of a regular promotion which is made to fill a higher vacant post in the manner provided under Section 9 of the Civil Servants Act, 1973. The basis of promotion is provided in Section 9 ibid: "9. Promotion: (1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a * [higher] post for the time being reserved under the rules for departmental promotion in **[. ] the service or cadre to which he belongs".
12.It is thus seen that promotion on meritorious grounds is neither made against a selection post nor indeed on the basis of seniority-cum-fitness. In the instant case there is also no provision for higher post against which a regular promotion could be made. The Selection Committee which is constituted for the award of meritorious promotions does not correspond to the- Central Selection Board and is also not in accordance with the eligibility threshold provided by the ESTACODE for promotion from BS-20 to BS-21. Particular reference is made to Serial No, 74, 2(vi) page 781 of ESTACODE 2000 which provides that the grant of scale 21 or 22 to the officer is personal to him and that there would be no need to upgrade the post. However such promoted officer would carry the higher scale with him in the event of his transfer to another post.
13.It is thus necessary to indicate the distinction between the promotion to a higher post and award of a higher scale of pay after selection and by way of meritorious promotion. In the latter case, it is actually a matter of conferring a reward of a higher pay scale in acknowledgement of the high meritorious services rendered by an officer and approved/selected by the competent Selection Committee. Such a promotion might display some superficial features akin to promotion but in reality cannot be equated to a regular promotion in the strict sense of the word.
14.Having come to this conclusion we find no difficulty in holding that despite such grant and receipt of salary, perks and benefits in the higher scale of pay, the beneficiary continues to hold his substantive post in the lower grade. It was for this reason that the Establishment Division vide its U.0 dated 21.06.2003 specifically provided that according to the Finance Division's instructions of 1987, the grant of BS-21 on meritorious grounds would not require up-gradation of the post and such officers shall remain holders of BS-20 posts and remain in seniority list of the said lower grade. It was in these circumstances that the impugned seniority list of BS-20 officers was issued on 09.07.2003 wherein the appellant was shown at Serial No, 24 beneath the private respondents according to the seniority in BS-20. In view of the nature of promotion on meritorious grounds we find that such a seniority list is un-exceptionable despite the grant of BS-21 to the appellant. We are also mindful of the fact that the Appeal No, 1666(R)CS/2005 has been filed against a provisional seniority list only.
15.The reliance placed by the appellant upon 2005 SCM R 1742, 1991 SCM R 696 and 1994 SCM R 1626 shall be of no avail to the appellant as the specific question of promotion on meritorious basis was not a subject-matter in the said case. Although the grant of selection grade might display some elements of promotion, it has always been regarded by the Superior Courts as an extension of the existing grade of an incumbent. The grant of selection grade is made according to the quota prescribed therefor upon the basis of seniority in the substantive grade. The movement of an incumbent in the award of selection grade is regarded as horizontal rather than vertical. Same is the case with the grant of move-over to an eligible incumbent. In either case an incumbent stands rooted to his substantive grade unless and until he is actually promoted to a higher post or grade through the prescribed promotion process. The case of promotion on meritorious basis is no different. It is thus idle for the appellant to contend that her promotion on this basis in BS-21 was regular.
In fact the use of the term promotion in the instant case would be a misnomer and it would be more appropriate to identify the grant of a higher scale on the basis of meritorious services as a reward for performance of outstanding duties rather than a case of regular promotion to a higher grade.
16.When viewed in the above context the basis of the claim of the appellant to be considered for appointment as Dean (QPGMC) PIMS, Islamabad instead of private Respondent No, 3 is also devoid of force. Admittedly the Respondent No, 3 in Appeal No, 1665(R)CS/2005 is senior to the appellant in the impugned provisional seniority list. Even otherwise the Tribunal shall not interfere in a matter determining the fitness to hold a particular post. For the same reason no benefit can be derived from the cases of Dr. Abdul Majeed Rajput or Mr. Munir Ahmad mentioned in Para 6 supra.
17.In view of the foregoing we find no merit in the appeals which are dismissed.
18.No order as to costs.
19.Parties be informed.