Ejaz Afzal Khan, J.--This appeal with the leave of the Court has arisen out of the judgment dated 10.11.2009 of the Service Tribunal, Islamabad, whereby the appeal filed by the appellant was partially allowed to the extent that he will not refund the amount already paid to him since 22.07.2005.
2. Since leave to appeal was granted on the strength of order dated 23.07.2010 of this Court, it would be appropriate to refer thereto which reads as under:- "We have heard petitioner in person at some length. We find that in terms of Serial No, 46, an extract from the Esta-Code, the Government had decided to raise the posts of senior scale drivers from 20 to 50% of total posts in every Ministry/Department. Petitioner was duly granted this senior scale on 22.07.2005 by the competent authority as he was found qualified for the same. However, vide the order dated 20.01.2007, the senior scale was withdrawn on the ground that the concession of Senior Scale was not available to the drivers and consequently, the petitioner was placed from NPS-7 to NPS6. The order withdrawing the senior scale prima facie appears to be violative of principle of locus potentiae. In these circumstances, we are persuaded to direct Respondent No, 1 to file a concise statement within a week and the case shall be listed on 14.09.2010. Learned Deputy Attorney General shall assist on the next date."
3. Appellant appearing in-person contended that the expression "selection grade" is different from the expression "senior scale", therefore, they are not convertible by any attribute. If this aspect, he added, is considered discontinuance of selection grade has nothing to do with senior scale, therefore, the impugned judgment of the learned Service Tribunal being based on wrong premises cannot be maintained.
4. Learned Deputy Attorney General for Pakistan appearing on behalf of Respondent No, 1 on the strength of a judgment rendered in the case of 'Muhammad Siddique, Stenographer, FIA Headquarters, Islamabad and another Vs. Secretary, Establishment Division, Islamabad and 5 others (2001 SCM R 252)", contended that selection grade and senior scale are one and the same thing in substance, therefore, discontinuance of one would imply the discontinuance of the other.
The judgment of the learned Service Tribunal, the learned DAG submitted, being in line with the dictum laid down by this Court, in the case cited above, is not open to any interference.
5. Learned counsel appearing on behalf of Respondents No, 2 & 3 also supported the contentions of the learned DAG.
6. Mr. Abdul Rahim Bhatti, ASC, appearing as Amicus curiae contended that grant of senior scale and grant of selection grade being two different expressions are dealt with by two different provisions of Esta-Code and thus are not convertible. Even the conditions, the learned counsel added, for grant of either of them are different. Selection grade, the learned counsel explained, could be granted once whereas senior scale is granted on the rendition of service for a period prescribed in the relevant provision. Certain allowances, the learned counsel added, like selection grade, move over and cost of living were discontinued in express and unambiguous terms in the Office Memorandum No, F.1(5)Imp/2001 dated 4th September, 2001 issued by the Government of Pakistan, Finance Division (Regulation Wing), Islamabad but omission to mention senior scale therein bears ample testimony to the fact that it was left intact.
7. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties as well as learned counsel appearing as Amicus curiae.
8. Before we discuss the arguments addressed at the bar by the learned counsel for the parties as well as amicus curiae, it is worthwhile to refer to the provisions dealing with the grant of "senior scale" and "selection grade" which read as under:-- "SI.No, 49 Grant of senior scale (NPS-7) to Drivers/Dispatch Rider The question of grant of Senior Scale to Drivers/Dispatch Riders of government vehicles has been under consideration of this Division for some time past. It has now been decided to raise from 25% to [50%] of the total posts of Drivers/Dispatch Riders of government vehicles nay be placed in senior scale in every Ministry/Department.
2. The grant of senior scale will be subject to the following conditions:--
(i) NPS-7 will be granted to the Divers who have put in 15 years service as Drivers/Dispatch Riders;
(ii) if a Driver/Dispatch Rider has rendered more than 10 years but less than 15 years of such service he may be allowed pay in NPS-6, NPS-7 may be allowed on completion of 15 years of such service;
(iii) If a Driver/Dispatch Rider has completed more than 5 years but less than 10 years of such service he may be allowed pay in NPS-5, NPS-6 and NPS-7 may be allowed on completion of 10 and 15 years service in accordance with above; and
(iv) the above scale will not be allowed to a Driver/Dispatch Rider who has not completed 5 years of such service.
3. The fixation of pay in the higher scale will be allowed at a stage next above the existing basic pay in the lower scale without any premature increment, which is allowed only on promotion from'a lower to higher post.
SI. No, 50 Grant of Selection Grade to Stenographers Twenty five (25) per cent of the sanctioned posts of Stenographers were placed in senior scale (NPS-14) with effect from 1st June, 1973 vide Establishment Division's OM.No, 14/6/73-D.I, dated the 24th October, 1973, as modified vide O.M. No, 14/6/73-D.I, dated the 8th August, 1974. Similarly, 25% of the sanctioned posts in the cadre of Assistants were placed in NPS-14 with effect from 1st June, 1979 vide Establishment Division's O.M.No, 4/4/79-F.II, dated the 13th August, 1979 (Sr.No, 48).
2. A question has been raised how the number of posts in NPS11 should be worked out for placement in NPS-11. In this connection a reference is invited to the Finance Division's O.M. No, F.1(13)-P.C.I/49, dated the 3rd January, 1950 which provides that while calculating the number of posts for selection grade Stenographers, fractions of 0.5 or above should be taken as one post and fractions below 0.5 should be ignored. It is clarified that in respect of the posts of Stenographers and Assistants were 0.5 fraction appears both in respect of Grade-11 posts and Grade-14 posts, the fraction in respect of Grade-14 post should be taken as one post and the fraction in respect of Grade-11 post should be ignored. The following table will illustrate the method:-- No, of total posts NPS-11/75% NPS-1425%
1. (0.75) = 1 (0.25) = Nil
2. (1.50) = 1 (0.50) = 1
3. (2.25) = 2 (0.75) = 1
4. (3.00) = 3 (1.00) - 1 and so on
9. A look at the above quoted provisions of the Esta-Code would reveal that the framer of the code used distinct expression for each of the terms and rightly so because the rationale behind each grant is different. The rationale behind the grant of selection grade" is to compensate the employees who work against a particular post for a longer period because of delayed promotion to the next higher scale or any other exigency of service but still the prospects of their promotion are not ruled out. Whereas rationale behind the grant of "senior scale" to the employees as far as it can be gathered from the relevant provision is to keep their zest, to serve the department, alive as they have to remain what they have been from the date of their recruitment to the date of their retirement for want of prospects for their promotion. Selection grade is granted once while "senior scale" is granted on completion of service for specified period as is detailed in the rule above.
Another reason for treating "selection grade" as different from "senior scale" is the office memorandum itself. What was sought to be discontinued was mentioned in express and unambiguous terms as was pointed out by the learned counsel assisting the Court as Amicus curiae. Had the framers of the office memorandum intended the discontinuance of "senior scale" they would have mentioned it therein as they have mentioned selection grade, move-over and cost of living etc. The very omission of the term "senior scale" from office memorandum leaves no doubt that it was sought to be left intact. We, therefore, do not agree with the interpretation placed on the above mentioned provision by the departmental authority, the Service Tribunal or the learned DAG. The judgment rendered in the case of Muhammad Siddique, Stenographer (supra) no doubt held that the expression "selection grade" and "senior scale" are one and the same thing in substance but it did not upset its status as something distinct and different from selection grade.
10. When considered in this background, we have no hesitation to hold that senior scale being distinguishable from selection grade could not have been discontinued.
11. We therefore, allow this appeal, set aside the impugned order dated 20.01.2007 of the departmental authority and that of the Service Tribunal dated 10.11.2009 withdrawing the senior scale from the appellant.
12. While parting with this judgment, we appreciate the assistance rendered by the Amicus curiae in the decision of this case.