JUDGMENT: Raja Saeed Akram Khan, J.- The captioned appeals by leave of the Court have been directed against the judgment passed by the High Court on 05.05.2015, whereby the writ petitions filed by the appellants, herein, have been dismissed. Both the appeals arise out of the same judgment; therefore, these are being decided through this single judgment.
2. The facts necessary for disposal of these appeals are that the appellants, herein, filed separate writ petitions before the High Court, alleging therein, that they were appointed as Lecturers, B-17, on recommendations of the Public Service Commission, at different times. For promotion of Lecturers, Assistant Professors and Associate Professors, 4-tier formula was introduced. Later on, the process for adaptation of time-scale policy was initiated. The Finance Department issued a letter on 26.09.2011, to the Secretary Education Colleges in which condition of withdrawal of 4-tier promotion structure was imposed for adaptation of time-scale policy. In compliance of the said letter, the Secretary Education Colleges issued a notification on 07.05.2012, through which 4-tier formula was withdrawn and replaced by time-scale policy. Now, the Lecturers, Assistant and Associate Professors are being promoted according to the time-scale promotion structure notified on 07.05.2012, followed by notification dated 03.12.2010. The criteria for promotion in higher grade was fixed in the notification dated 07.05.2012 and the Lecturers, Assistant and Associate Professors including appellants had been promoted through different notifications on the recommendations of relevant Selection Boards. It was further averred that the office of the Accountant General issued a letter on 31.12.2013, to the Finance Department as well as to the Secretariat Higher Education, regarding assistance for fixation of pay on time-scale promotions. In response to the said letter, the Secretary Higher Education issued a letter dated 06.03.2014, whereby detailed answer of the above letter was given. The office of the Accountant General, in response of queries, which were being put by the Finance Department, issued letter on 11.04.2014. After obtaining all the required assistance, the Finance Department in contradiction of all the above mentioned correspondence, issued the proposal on 27.05.2014, to the Secretary Higher Education, Secretary Services & General Administration and Accountant General, whereby it was proposed to amend the time-scale promotion structure notification dated 07.05.2012 and also proposed to omit the word "promotion", occurred in the time-scale promotion notifications of college teachers. The appellants, herein, challenged the vires of the memorandum of Accountant General dated 05.12.2013 and proposal of Finance Department dated 27.05.2014 before the High Court. The learned High Court vide impugned judgment dated 05.05.2015, dismissed both the writ petitions filed by the appellants, herein. Hence, these appeals by leave of the Court.
3. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellants in appeal titled Professor Malik Arshad Aziz & others v. Finance Department & others submitted that the impugned judgment is against law and the facts of the case which is not sustainable in the eye of law. He contended that the learned High Court while passing the impugned judgment has relied upon different rules which have no bearing upon the case in hand. He added that the learned High Court fell in error while not taking into account that time-scale policy was formulated after concurrence of the Finance Department. The Finance Department remained associated in all the process/proceedings conducted in this regard, therefore, the Finance Department cannot be allowed to take U-turn after giving the consent. He further submitted that the learned High Court has not taken into account the written statement submitted by the respondents wherein they categorically admitted that the promotions of the appellants were made on the basis of time- scale promotion policy. Thus, after admitting the factual position there was no occasion to make proposal for deletion of the word "promotion" in the time-scale policy. He forcefully submitted that 4-tier formula through which the promotions of the Lecturers, Assistant or Associate Professors were made, has already been withdrawn on the recommendations of the Finance Department, therefore, if the word "Promotion" is deleted in the time-scale policy then there is no other mode available to the appellants for promotion, but the learned High Court has not considered this important aspect of the case. He added that the findings recorded by the learned High Court on the strength of rule 10 of Pay Revision Rules, 1977, has no nexus with the case in hand. No doubt until framing of Revision of Pay Scale (Gazetted) Rules, 1991, the fixation of pay was made in a case when a civil servant was promoted from lower to a higher post, but concept of fixation of pay from lower to higher post was totally altered by framing of Rule 4 of Revision of Pay Scale (Gazetted)
Rules, 1991, but the said rule has not taken into account by the High Court while passing the impugned judgment. He lastly submitted that although the learned High Court reproduced section 8 of the Civil Servants Act, 1976 in the impugned judgment but has not appreciated the same according to its spirit. He has relied upon the cases reported as Muhammad Riaz Khan v. Inspector General of Police and 19 others [2010 SCR 131], Secretary to the Government of the Punjab, Irrigation and Power Department, Irrigation Secretariat, Lahore v. Abdul Hamid Arif and others [1991 SCM R 628], Abdul Matin Khan and 2 others v. N.W.F.P through Chief Secretary and 2 others [PLD 1993 S.C 187], Imdad Khan v. Pakistan and another [PLD 1986 S.C 349], Government of the Punjab through Secretary Services, Punjab, Lahore and 4 others v. Muhammad Awais Shahid and 4 others [1991 SCM R 696] and Parveen Mushtaq, Principal, Government Girls Higher Secondary School Kohori, Muzaffarabad and others v. Kaneez Akhtar, Deputy Secretary Education Civil Secretariat, Muzaffarabad and others [PLJ 2006 S.C (AJ&K) 34].
4. Raja Khalid Mehmood Khan, Advocate, the learned counsel for the appellants in appeal titled Pervaiz Akhtar & others v. Azad Govt. & others has although adopted the arguments advanced by Raja Muhammad Hanif Khan, Advocate, however, while making addition, he submitted that earlier the 4-tier formula was holding the field which provided the mechanism for promotion of the teaching staff of the colleges. The 4-tier formula was withdrawn upon the demand of the Finance Department and the same was replaced by time-scale policy. The appellants along with others have been promoted on the basis of time-scale policy, thus, it is fundamental principle that once a benefit has given to a civil servant that cannot be revoked later on by any authority. He added that all the points involved in the matter have been agitated before the High Court in the memo of writ petition as well as during the course of arguments but the learned High Court has not considered the same. He submitted that after obtaining all the requisite assistance the Finance Department vide letter dated 26.09.2011, has given its consent for adaptation of time-scale policy with the condition of withdrawal of 4-tier formula. Thus, the proposal of the Finance Department dated 27.05.2014, for deletion of the word "promotion" is against its own correspondence as well as fundamental rights of the appellants. He also submitted that the learned High while passing the impugned judgment has heavily relied upon rule 10 of the Pay Revision Rules, 1977 which is no more on the statute book as the same is replaced by framing rule 4 of Revised Pay Scale (Gazetted)
Rules, 1991.
5. On the other hand, Mr. Asghar Ali Malik, Advocate, the learned counsel for the respondents strongly opposed the arguments 21 advanced by the learned counsel for the appellants. He submitted that the impugned judgment is perfect and legal which does not warrant any interference by this Court. He added that as per rule 10 of Azad Jammu and Kashmir Pay Revision Rules, 1977, premature increment of higher post can be allowed when a civil servant is promoted from a lower to higher post and under section 8 of the civil Servants Act, 1976, the promotion can be made in higher grade against the available post, thus, it is evident that regular promotion can be made only against available higher post, whereas, for regular promotions of the appellants no posts are available. He added that time-scale policy is incentive for benefiting the college teachers having their long service and on the basis of performance. For regular promotion of the appellants, the departmental promotion rules dated 18.01.2001 are available, therefore, in contravention of these rules no regular promotion can be made by following any policy. He contended that the learned High Court on application filed by the appellants passed order on 29.10.2014, through which the respondents were directed for fixation of the salary of the appellants subject to the condition that if the case is finally decided against the appellants they shall reimburse the amount in Government treasury. The said order was challenged by the respondents before this Court, however, at the time of hearing the case the present appellants submitted that they did not seek the implementation of said order. Thus, now when the writ petitions of the appellants have been dismissed they are not entitled to twist their earlier stand. He lastly submitted that all the points involved in the matter have been attended and resolved by the division bench of the High Court in accordance with law, therefore, the appeals of the appellants are liable to be dismissed.
6. We have heard the arguments of the learned counsel for the parties and gone through the record along with the impugned judgment. It is an admitted fact that prior to the enforcement of the time-scale policy, 4-tier formula was adopted since 1991, for promotion of Lecturers, Assistant Professors and Associate Professors. It is spelt out from the record that from the year 2008, different meetings were conducted by the Government regarding the adaptation of time-scale policy and the Finance Department also participated in the same. On 03.12.2010, the Secretariat Education Colleges issued notification No.(122)29 regarding enforcement of time-scale policy. The Finance Department vide letter dated 26.09.2011, informed the concerned authorities that the Finance Department can give the consent for enforcement of time-scale policy, if 4-tier formula is withdrawn. For better appreciation it will be useful to reproduce here the letter supra which reads as under:- {{URDU TEXT}} It is also spelt out from the record that in response to the aforesaid letter, through notification dated 05.07.2012, 4-tier formula was withdrawn and with full concurrence of the Finance Department the time-scale policy was adopted. Thereafter, many Lecturers, Assistant and Associate Professors were promoted according to the new time-scale policy. On 31.12.2013, the office of the Accountant General issued a letter to the Finance Department for providing assistance regarding the fixation of pay according to the time-scale policy. The Finance Department in this regard vide letter dated 25.03.2014, made some queries to the office of the Accountant General.
The office of the Accountant General issued the letter on 11.04.2014. Thereafter, the Finance Department issued the proposal letter dated 27.05.2014, to the Secretary Higher Education, Secretary Services and General Administration Department and Accountant General through which it was proposed to omit the word "promotion" from the time-scale policy.
7. After going through the aforementioned proceedings/facts of the case, it is crystal clear that prior to the enforcement of the time-scale policy the Lecturer, Assistant and Associate Professors were promoted according to 4-tier formula. The 4-tier formula was withdrawn on the demand of the Finance Department and the same was replaced by the time-scale policy. Many Lecturers, Assistant and Associate Professors including appellants have been promoted through time-scale policy vide notification bearing No. Add.E-1 (61) 2014 dated 01.01.2014, notification bearing No. Add./E-1 (61) 2013 dated 20.11.2013, notification bearing No. Add./E-1 (61) 2014 dated 13.02.2014, notification bearing No. Add./E-1 (61) 2013 dated 20.11.2013, notification bearing No. S&GAD/E-1 (61)
2014 (Gazetted-1) dated 13.02.2014, notification bearing No. Add./E-1 (29)/2014 dated 13.02.2014, notification bearing No. Add./A-1 (61) 2013 dated 20.11.2013, notification bearing No. SHEIII/330- 40/2014 dated 14.03.2014. Now the Finance Department vide letter dated 27.05.2014, proposed to omit the word "promotion" from the time-scale policy. Keeping in view the circumstances of the case, in our estimation, the main points which require consideration are that: (i) the 4-tier formula which provided mechanism for promotion of the teaching staff of the colleges has been abolished on the recommendations of the Finance Department, if the word "promotion" is omitted from the time-scale policy then whether any other mode of promotion is left with the teaching staff of the colleges? (ii) whether the Finance Department was justified to issue the proposal letter dated 27.05.2014, when the whole process of formulation/adaptation of time-scale policy was made with the full concurrence of the Finance Department? And (iii) after getting the promotion in the light of the time-scale policy valuable right has been accrued in favour of the appellants and other promotees; whether a right once accrued to a party subsequently can be taken away?
8. The perusal of impugned judgment shows that the aforementioned points have not been attended by the learned High Court while passing the impugned judgment, perhaps the proper assistance was not rendered at the time of hearing the writ petitions. It is also spelt out from the impugned judgment that the learned High Court while recording the findings that "promotion can be recommended and approved by the competent authority against a post and not against a grade, therefore, according to our considered view no any illegality was committed by the Finance Department through the impugned supra proposal dated 27.05.2014" has mainly based upon section 8 of the Civil Servants Act, 1976 as well as rule 9 of the Civil Servants (Appointment & Conditions of Service) Rules, 1977, but has not taken into consideration the method of promotion provided in the 4-tier formula which was replaced by the time-scale policy. In this regard, the letter written by the Finance Department for assistance and letter of the office of the Accountant General dated 11.04.2014 in reply also need consideration. Moreover, the copies of the budget placed on record by the learned counsel for the appellants also require consideration that what was the object to enhance the budget amount. In such state of affairs, when the main points have not been attended and resolved by the High Court, in the interest of justice, it will be appropriate to remand the case to get the wisdom of the High Court at first. The other point forcefully agitated by the learned counsel for the appellants that the learned High Court mainly relied upon rule 10 of Pay Revision Rules, 1977, whereas, the said rule is no more on the statute book as the same has been altered while framing Rule 4 of Revision of Pay Scale (Gazetted) Rules, 1991, is also left open for decision by the High Court at first.
Resultantly, the appeals are accepted and the cases are remanded to the High Court with the direction to decide the writ petitions afresh while taking into account the points discussed in the preceding paragraph after providing fair opportunity of hearing to the parties. No order as to costs.