Ch. Fjaz Yousaf, J.--These appeals by way of leave are directed against a common judgment dated 6.1.2000 passed by the NWFP Service Tribunal, Peshawar, whereby three Appeals No, 13, 14 and 15 of 1996, separately filed by the appellants, were dismissed.
2. The relevant facts, briefly stated, are that the appellants were deputed by the Khyber Medical College through the Vice Chancellor, University of Peshawar, to Jinnah Post Graduate Medical Centre, Karachi, in 1974 for doing B.Sc in Medical Technology. They did their B.Sc in Medical technology, in clinical group, whereas two persons, namely, Khushdil Khan and Abdul Shakoor did their B.Sc in Medical Technology, in Radiology group. On successful completion of training they were appointed against the existing post in BPS-16 in the Pathology Department, Khyber Teaching Hospital, Peshawar, while the other two, namely, Khushdil Khan and Abdul Shakoor, were appointed in Radiology group of the same hospital in BPS-16 on ad-hoc basis. The post of Chief Radiographer/Chief X-ray Technician in BPS-17 was advertised through the Public Service Commission and Mr. Khushdil Khan, B.Sc Medical Technology, was selected/appointed against the said post. The posts of Medical Technologist existing in the Pathology Department were advertised through the public Service Commission against which the appellants and Muhammad Anwar were selected and appointed against these posts in BPS.16. The prescribed qualification for the post of Medical Technologists (Clinical Group) was B.Sc Medical Technology from any recognized University whereas the prescribed Qualification for the post of Chief Radiographer/Chief X-ray Technician was Diploma in Radiography through organized training of not less than two years in a recognized institute. It was the case of the appellants that the prescribed qualification for the post of Chief Radiographer/Chief X-ray Technician and those prescribed for the post of Assistant Physiotherapist were definitely lower than the qualification prescribed for the post of Medical Technologist (clinical group), but despite that 20 posts were placed in higher pay scale BPS-17 from the date of creation.
3. It is the case of the appellants that in the case of Refractionist the prescribed qualification was simple B.Sc with optics with one of the subject as compared with B.Sc Medical Technology which was a professional degree. Thus the qualification for the post of Refractionist was comparatively lower than the qualification for the post of Medical Technologist in clinical group but it carried a higher pay scale BPS-17 while BPS-16 was allowed to Medical Technologist. It is further case of the appellants that in order to get resolve the controversy a representation was made as far back as in 1983 and it was supported by Respondents No, 2 and 3, as a result whereof the matter was placed before the anomaly committee in the finance department which after thorough examination recommended upgradation of the post of Medical Technologist from BPS-16 to BPS-17. Respondent No, 3, while accepting the recommendation of the Anomaly Committee, ordered for upgradation of the said post with immediate effect i.e. 1.1.1994.
4. It was grievance of the appellants that though the post of Medical Technologist had been upgraded from BPS-16 to BPS-17 with effect from 1.1.1994, yet, since the anomaly arose in the year 1978, and they were deprived of certain benefits, therefore, the posts of Medical Technologists should have been upgraded from the date when the anomaly occurred i.e. in the year 1978.
5. Learned NWFP Service Tribunal, however, having found that the anomaly having been removed and the post of Medical Technologist having been upgraded though with immediate effect i.e. 1.1.1994 and the appellants having been appointed in BPS-16 thereby accepting the terms and conditions of their appointment at that point of time, there was no justification for allowing BPS-17 to the appellants from.1978.
6. Syed Asif Shah learned counsel for the appellants has contended that though grievance of the appellants has been partially redressed and the post of Medical Technologist was upgraded by the Government of NWFP w,e,f, 1.1.1994, yet, since the anomaly arose on 1.7.1978, the appellants had made representation in the year 1983, and on 29.3.1983 when the Government of Punjab, vide Notification No,FD/PC/30-2, dated 29.3.1983, also allowed BPS-17 to the B.Sc Medical. Technologist, therefore the appellants were entitled to financial benefits from the date when the anomaly arose.
He has placed reliance, on the case reported as The Province of the Punjab v. Kamaluddin (PLD 1983 SC 126).
7. Mr. M. Bilal, learned Senior ASC, appearing on behalf of the Advocate General, NWFP, on the other hand, while controverting the contentions raised by the learned counsel for the appellants, submitted that the appeal before the Service Tribunal was incompetent as grant of relief claimed by the appellants was beyond the jurisdiction of the Tribunal, inasmuch as the Provincial Government under Section 26(1) of the NWFP Civil Servants Act, 1973, was the sole authority to frame financial rules and no exception could have been taken therefrom. He has added that it was the prerogative of the Government to prescribe or fix the terms and conditions of a particular post which could not have been challenged before the Service Tribunal being outside the ambit and scope of aforementioned rule.
8. We have thoroughly considered the contentions raised by the learned counsel for the parties and have also gone through the relevant record with their assistance, carefully.
9. In the instant case leave to appeal was granted by this Court in the following terms :-- "The learned counsel appearing for the petitioners submitted that Secretary to Government of NWFP Health Department Respondent No, 2 and Secretary, Finance Department Respondent No, 3 had supported the claim of the petitioners for upgradation of the post. Correspondence in this matter contained right from 1983 and, therefore, in the circumstances, the petitioners were entitled to upgradation from the date they were inducted in the service as has been done in the case of other employees of Health Department although they had much lesser qualification than the petitioners. It was further pointed out that the tenor of the impugned order discloses that it was apparently in favour of the petitioners but in the end without assigning any valid reason their appeals were dismissed. In this context PLD 1983 SC 128 was referred to support his view point."
10. Precisely grievance of the appellants before the Service Tribunal was that it was against law to allow lower pay scales to the incumbents of the post of having higher qualifications and greater responsibilities than the incumbents of the post for which lower qualifications were prescribed but higher pay scale was allowed. However, the fact remains that neither the notification in question whereby, according to the appellants, the anomaly was removed and the post of Medical Technologist was upgraded with effect from 1.1.1994, was challenged, nor the date of its application was disputed. It is also an admitted fact that the appellants had accepted the terms and conditions of their service in BPS-16 at the time of their induction and the other post against which the appellants lay their claim, at the time of their joining service, was in BPS-17 and it was open for them to compete against any one of the said posts, but they opted to join as Medical Technologist.
It would be pertinent to mention here that it is for the Government to place a particular post in any grade or prescribe certain terms and conditions therefor, as per its policy, and incumbents of a particular post cannot claim as of right for settlement of prescription or provision of certain terms and conditions according to his own choice. It is always open for a candidate to accept or not the terms and conditions prescribed for a particular post. It is well settled that no body has a vested right in policy decision of the Government and therefore, the Service Tribunal too is divested of the power to indirectly set-aside the public policy decision in exercise of its power under the Service Tribunal Act, 1973 and the rules framed thereunder. No doubt in the case of Province of Punjab v.
Kamaluddin and others (PLD 1983 SC 126), cited at the bar by the learned counsel for the appellants, the decision of the Tribunal ordering that Readers to Members of Board of Revenue performing less onerous duties and serving in institution lower in status than High Court, Readers of the High Court, having been placed in NPS-12, were also entitled to be placed in NPS-16, was upheld, but the upgradation order was prospective and it was never laid down that the upgradation would be from a previous date or the notification would have a retrospective effect. Likewise in the case of Ahmad Hussain v. Director of Education (2001 SCM R 955), though it was held by this Court that the petitioners who were appointed as Physical Training Instructors (PTI) in BPS-15 could not have been discriminated and were entitled to upgradation of the post from the date of general upgradation of the posts but the fact remains that the appellants in that case were all teachers and placed in similar situation whereas, in the instant case the facts are other way round.
11. It may be mentioned here that a particular status cannot be legally bestowed upon a civil servant with retrospective effect, even by the competent authority as he cannot be legally made what he had never been. It may be possible that persons discharging similar duties appointed in different departments may claim that they may be given the same status and benefits but a person, whose nature of duties is altogether different and his terms and conditions are also not alike, cannot claim as of right that he may also be allowed the same benefits and emoluments which are not part of and covered by the terms and conditions of his service. It would be pertinent to mention here that in both the above referred cases i.e. Ahmad Hussain (supra) and Kamaluddin (supra), the nature of duties of the appellants and respondents were alike; in first referred case, they were Readers and were serving as such though in different departments and in the second referred case they were teachers serving in the same department, but in the instant case nature and duties of the Medical Technologists (clinical group) and the Refractionist posts being altogether different and that too, in two different Provincial Governments i.e. Government of Punjab and NWFP, how could the petitioners be treated alike.
12. As to the contention that since the Punjab Government had placed the post of Medical Technologist in BPS-17 w,e,f, 29.3.1983, therefore the Government of NWFP should have also allowed upgradation of the said post from the said date, it may be pointed out here that it is the prerogative of the Government to determine terms and conditions of service of a particular post which cannot be challenged. In fact the appellants under the garb and clog of financial benefits want upgradation of the post from 1.7.1978 instead of 1.1.1994 which being outside the scope and ambit of the Service Tribunal Act the Tribunal has rightly refused to grant the relief.
13. Upshot of the above discussion is that these appeals being misconceived are hereby dismissed.