' MUHAMMAD AZAM KHAN, A.C.J.---The instant appeal, by leave of the Court, arises out of the judgment passed by the Service Tribunal on 19th October, 2009, whereby Service Appeal No,546 has been accepted.
2. The facts necessary for the disposal of the present appeal are that ' the respondent filed Appeal No, 546 in the Service Tribunal whereby he challenged Letter No, Admin./A-1(47)/Gazetted-I/04 dated 20th September, 2004, whereby his application for grant of selection grade B-18 was rejected. He moved an application to the Secretary Services and General Administration Department on 28th August, 2004 stating therein that he was inducted in service in 1974 and was promoted as Section Officer in 1995. New pay scales have been introduced whereby the facility of selection grade has been withdrawn but the Government of Pakistan has implemented the policy whereby employees who were eligible for selection grade or move-over up to December, 2001, were declared entitled for selection grade. He is at serial No, 21 in the seniority list. A case for awarding selection grade to person at No,20 in the seniority list along with his name was referred to Selection Board. The case of person at Serial No,20 was recommended but he was not recommended. One Kh. Muhammad Ahsan has been promoted as Deputy Secretary on officiating basis on 3rd February, 2000. Now he has been promoted as Deputy Secretary on regular basis. The Finance Department has issued instructions that persons who have been sent on deputation or have obtained long leave, selection grade can be awarded to the civil servants in their place but selection grade cannot be awarded against the post of a person who has been promoted on officiating basis. This application was rejected vide letter dated 20th September, 2004, referred to above. The Service Tribunal accepted the appeal vide impugned order dated 19th October, 2009.
Hence this appeal.
3. The learned Advocate-General argued that through Circular No,Finance/9743/2002 dated 12th July, 2002, the Finance Department has issued instructions that in the light of Letter No,Finance/239/2002 dated 8th January, 2002, selection grade in the pending matters can only be granted to a person against a clear vacancy, or a post which falls vacant due to long leave of a civil servant or due to deputation of some civil servants. Senior most in the cadre can be awarded selection grade but if a post falls vacant due to officiating promotion of a civil servant, selection grade cannot be awarded to a civil servant. He contended that there was no clear vacancy till the previous pay scales were in force and no vacancy due to long leave or deputation of any civil servant was available. The department correctly refused selection grade to the respondent. The Service Tribunal failed to implement the law and the policy correctly. He requested for acceptance of appeal.
4. While controverting the arguments, the counsel for the respondent argued that the judgment of the Service Tribunal is perfectly legal. Initially the Finance Department opined that selection grade can be awarded if a person is promoted on officiating basis and the post is vacant or due to deputation of a civil servant or long leave the post falls vacant but subsequently the Finance Department changed its opinion illegally and adopted new policy declaring therein that if a post falls vacant due to officiating promotion of a civil servant, no civil servant can be granted selection grade. He argued that a person who is on deputation or on long leave can return back to his parent post, in that case the selection grade has to be withdrawn and the civil servant has to be demoted but if a person who has been promoted on officiating basis and subsequently confirmed, why the civil servant who is senior most in the seniority list may not be awarded selection. Grade. He defended the judgment of the Service Tribunal on all counts.
5. We have heard the learned counsel for the parties and perused the record. It is evident from the record that the respondent falls at Serial No,21 and one Muhammad Hanif was at Serial No,20 of the seniority list of section Officers. Muhammad Hanif was granted selection grade B-18 on 26th February, 2004 with effect from 31st November, 1999 on the post vacated by one Muhammad Ejaz Lone, Under Secretary, who was on deputation. One Kh. Muhammad Ahsan, Section Officer, was promoted on officiating basis as Deputy Secretary on 3rd February, 2000 and was confirmed on 28th June, 2003. The claim of respondent is that after the promotion of Kh. Muhammad Ahsan on officiating basis, the post of grade B-18 fell vacant. It was his entitlement to get the selection grade against that vacant post. It is also on record that Kh. Muhammad Ahsan was later on confirmed as Deputy Secretary on 28th June, 2003.
6. The moot point in the case revolves around the Government Order dated 4th December, 2001 relating to revision of Basic Pay Scales and Fringe Benefits of the civil servants of grades B-1 to B-22.
Prior to issuance of Finance Department's office Memorandum No,FDR-1(550)2001 dated 4th December, 2001, selection grade was admissible to the civil servants according to formula laid down from time to time. The concept of selection grade is that when avenues of advancement in career are non-existent or inadequate then a civil servant may be allowed a higher pay scale in the cadre for a post with the same nomenclature, status and duties. The formula for sanctioning the C selection grade has been changing from time to time. For the purpose of awarding selection grade, on 3rd November, 1988, the Finance Department issued a directive in respect of the posts and thereafter a policy Notification No,FD/R/95458-558/89 dated 22nd August, 1989 was issued for awarding selection grades for a single post. The policy Notification postulates that the incumbent of the single post cadre may be allowed selection grade after putting in 12 years' service in his basic scale subject to condition that his category was allowed selection grade under the rules.
Later on, on 15th December, 1993, a letter was issued by the Finance Department whereby the period of 12 years was reduced to 8 years with immediate effect, meaning thereby that selection grade can be awarded to a person who has completed 8 years' service in the basic scale. This policy was further changed vide Notification No,FD/R-1(31)III/89 dated 21st May, 1999, whereby sub- rule (3) of Rule 8 of the Azad Jammu and Kashmir Civil Servants Pay Revision Rules, was changed.
For resolving the controversy it appears appropriate to reproduce the said notification:-- "Where for a class of posts apart from the ordinary pay scale, a higher pay scale has been provided for a percentage of the number of said posts i,e, selection grade, the higher pay scale shall be admissible to holders of the posts in BS-1 to BS-15 after a minimum length of two years' service and a minimum length of five years' service in the cases of BS-16 and above in the ordinary pay scale of posts. The Higher Pay Scale shall be allowed on seniority-cum-fitness basis on the recommendations of the appropriate Departmental Promotion Committee or Board."
7. A perusal of Rule 8(3) of the Azad Jammu and Kashmir Civil Servants Pay Revision Rules reveals that selection grade in the higher pay scale shall be admissible to holders of posts of B-1 to B-15 who have minimum length of two years' service and for the civil servants in grade B-16 and above after 5 years' service in ordinary pay scale. The rule further provides that higher pay scale shall be allowed on seniority-unfitness basis and on the recommendations of appropriate Departmental Promotion Committee or Board. A marked change has been brought- for awarding selection grade to the civil servants as compared to previous notifications through this rule. Not only the period of 8 years has been reduced to 5 years but it has also been provided that selection grade shall be allowed on seniority-cum-fitness basis on the recommendations of appropriate Departmental Selection Committee or Board. The award or grant of selection grade is to be dealt with in accordance with this rule.
8. Later on vide notification dated 22nd October, 2001 awarding of selection grade was discontinued due to enforcement of new pay scales. For the purpose of clarification of this notification, Notification No,FDR-1 (550)2001 was issued on 4th December, 2001. It appears appropriate to reproduce the aforesaid notification:-- "I am directed to refer to Para 6 of the Department's Office Memorandum No, FD/R-1(550)/2001 dated 13-11-2001 on the subject noted above and to state is some doubts have arisen regarding date of discontinuation of selection grade and move-over.
' It is hereby clarified that the above mentioned benefits have been discontinued w,e,f, 13-11-2001. All the cases where the move-over had accrued to employees up to 1-12-2000 will be processed as usual. Similarly, the employees to whom selection grade prior to 13-11-2001 had become due would also be considered and decided in accordance with the then prevalent policy."
' The analysis of this notification leaves no doubt that fringe benefits admissible to civil servants of B-1 to B-22 have been discontinued with effect from 13th November, 2001. The notification further provides that all the cases where the move-over had accrued to an employee up to 1st December, 2000 will be processed as usual and similarly, the cases of the employees to whom selection grade prior to 13-11-2001 had become due would also be considered and decided in accordance with the then prevalent policy. The notification leaves no doubt that if selection grade had become due to a civil servant prior to 13th November, 2001, his case would be considered and decided in accordance with the then prevalent policy and the policy is laid down in Rule 8(3) of the Azad Jammu and Kashmir Civil Servants Pay Revision Rules, referred to above. Under the said rule if a civil servant has completed five years' service in his ordinary scale, higher pay scale shall be allowed to him on seniority-cum-fitness basis on the recommendations of the appropriate Departmental Selection Committee or Board.
9. It is celebrated principle of law that if an act is required to be performed according to the prescribed manner by law or rule it should be performed according to the prescribed manner alone or not at all. We are fortified in our view by the judgment of this Court titled Azizur-Rehman v.
Presiding-Officer Local Council Elections and others (1993 SCR 177), wherein it has been observed as under:- ' It is now settled law that if an act is required to be performed in a specific manner by law or rule it should be performed according to the prescribed manner alone or not at all."
10. The notification dated 4th December, 2001 clearly lays down that if a selection grade is due to a civil servant before 13th November, 2001, his case would be considered and decided in accordance with the then prevalent policy.
' Letter No, Finance/239/2002 dated 8th January, 2002, has been miss-interpreted. For resolving the matter, it appears appropriate to reproduce the notification as under:- {{URDU TEXT}} ' A query was made from the Finance Department whether where selection grade can be sanctioned when a post is vacant due to long leave of a person or is vacant when a person has gone on deputation. The Finance Department opined that selection grade can be awarded. It is not intention of the notification that when a post falls vacant due to promotion of a civil servant on officiating charge basis, then the selection grade is not admissible. The letter has been miss- interpreted in the case of respondent. Kh. Muhammad Ahsan was promoted as Deputy Secretary on officiating charge basis on 3rd February, 2000. On his promotion, the post fell vacant. The case of respondent for grant of selection grade has to be considered in the light of sub-rule (3) of Rule 8 of the Azad Jammu and Kashmir Civil Servants Pay Revision Rules, 1977.
' The result of the above discussion is that this appeal has no merits which is hereby dismissed with no order as to the costs.