Amir Hani Muslim, J.--This petition for leave to appeal is directed against judgment dated 5.6.2012 whereby the writ petition filed by the Respondent before the Islamabad High Court was disposed of in the following terms:-- "Since, it is an admitted fact that last pay drawn by petitioner in BS-20 and officials appeared on behalf of respondents made a categorical statement that had there been no audit objection with regard to move over/ acting charge, the official would have been given benefit of pension on the basis of last pay drawn i.e BS-20, however, they stated that audit objection has not been finalized as yet. Since the pension has to be calculated on the basis of the last pay drawn, therefore, respondents are directed to treat the petitioner in accordance with law subject to undertaking from the respondents that in case, audit objections are decided against petitioner and final determination by the Court of competent jurisdiction after holding the audit objection or declaring the petitioner for entitlement, petitioner shall refund the amount received access than his entitlement. Needful must be done within 15 days after receipt of the order of this Court.
' Disposed of."
2. Facts necessary for adjudication of the present proceedings are that the respondent while working as Principal Research Officer (BS-19) in National Institute of Electronics was appointed on Current Charge basis against the Post of Director Development (BS-20), vide Office Order dated 1.12.2004, initially for a period of three months or till the appointment of incumbent of the post 'whichever was earlier. On 21.2.2005 another letter was addressed by the Section Officer of the Petitioner No, 1 to the Petitioner No, 2 conveying him that the Federal Minister for Science and Technology has approved the appointment of the respondent on Acting Charge basis to the post of Director Development (PS-20) till further orders. Consequently, on 25.2.2005 Office Order was issued by the petitioner No, 2 to the effect. The respondent served the department till 31.12.2009 on Acting Charge basis on the said post in BS-20, when he retired on attaining the age of superannuation. The appointment of the respondent on Acting Charge basis in BS-20, however, was subjected to audit para.
3. Upon his retirement, on 20.1.2010, the respondent was issued the Last Pay Certificate in BS-19, which was his original basic pay scale, however, it is alleged that on 2.2.2010, respondent by using undue influence succeeded in getting revised Last Pay Certificate, in which, he was shown to have retired in BS-20. The respondent filed successive representations for calculating his pensionary benefits in BS-20 on the basis of the revised Last Pay Certificate. The department refused to grant him pensionary benefits of BS-20, which resulted in filing of writ petition before the learned Islamabad High Court and the said Petition was disposed of by the impugned judgment reproduced hereinbefore.
4. It is pleaded in the Petition that the impugned judgment of the learned High Court is contrary to the service law and Rules framed there-under, which provide that pensionary benefits would be calculated on the basis of last pay drawn in regular Pay Scale. It was further pleaded that the respondent was never appointed in BS-20 on regular basis and was appointed on Acting Charge basis in violation of Rule 8(B) of the Civil Servants (Appointment, Transfer and Promotion) Rules, 1973 (hereinafter referred to as the Rules). It was pleaded that the respondent was issued Last Pay Certificate on 20.1.2010 in BS-19 of his regular Pay Scale. However, on 2.2.2010 by using undue influence, the respondent managed to procure revised Last Pay Certificate, which reflected that he retired in BS-20.
5. The learned Counsel for the respondent, on the other hand, has contended that the respondent since 25.11.2004 till his retirement was discharging his duties in BS-20 whereas Rule (8)B provides that a person can only be appointed on Acting Charge basis to a higher post for a period of six months only. He submits that since the respondent continued in service on Acting Charge basis in BS-20 for several years till he attained the age of superannuation, therefore, his appointment in BS- 20 stood regularized by lapse of time.
6. Before adverting to the issue raised in the proceedings, we may observe that the respondent was an employee of National Institute of Electronics and his terms and conditions of service were regulated by the National Institute of Electronics Service Rules 1998. Rule 8 (1) of the Rules of 1998 deals with the mode of promotion to posts in BS-20 in the National Institute of Electronics. The said Rule, for the sake of convenience, is reproduced here in below:-- "8. Procedure for Promotion.--(1) Promotion to posts in Basic Scale 20 shall be made by the appointing authority on the recommendations of the Selection Board."
The Rules of 1998 are silent on the issue of appointment on Acting Charge basis. However, under Rules 27 and 46 of the said Rules, which are reproduced here-under, it is provided that in case where an issue relating to terms and conditions of service of employee of National Institute of Electronics is not provided in the said Rules, the Rules regulating the pay scales, allowances and other terms and conditions of service of the Federal Government Servants would be applicable:-- "27. (1) In the matter of pay scales, allowances and other terms and conditions of service, the employees shall be regulated by such instructions as may be issued by the Federal Government from time to time
46. In matters not specifically provided for in these Rules and procedures applicable to Federal Government Servants shall apply to the employees as may be directed by the Federal Government provided, that no financial benefits shall thereby become admissible unless specifically sanctioned by the Federal Government (Finance Division) "
In other words, the procedure laid down under Rule 8B (4), (5), (6) and (7) of the Civil Servants (Appointment, Transfer and Promotion) Rules, 1973 would be applicable to the employees of National Institute of Electronics for the purpose of appointment on Acting Charge basis.
7. In the aforesaid background, to appreciate the contentions of the learned Counsel for the respondent and for the sake of convenience, the Rule 8B (4), (5), (6) and (7) are reproduced herein below:--
(4) Acting charge appointment shall be made against posts which are likely to fall vacant for a period of six months or more. Against vacancies occurring for less than six months, current charge appointment may be made according to the orders issued from time to time.
(5) Appointment on acting charge basis shall be made on the recommendations of the Departmental Promotion Committee or the Central Selection Board, as the case may be, save in the case of [post in basic pay scale 22 and equivalent].
(6) Acting charge appointment shall not amount to appointment by promotion on regular basis for any purpose including seniority.
(7) Acting Charge appointment shall not confer any vested right or regular promotion to the post held on acting charge basis.
8. On perusal of the aforesaid Rules read with Rules of 1998, we are of the considered view that the respondent was not validly appointed on Acting Charge basis in BS-20, which appointment is subject to conditions precedent laid down in the aforesaid Rules. In the first place, there has to be a vacancy and the person appointed on such vacancy on Acting Charge basis must be the senior most Officer in his pay scale/cadre and is otherwise eligible for promotion, which eligibility should also qualify tenural limitations. The material placed before us does not reveal that the respondent was the senior most officer in BS-19, besides he was not recommended by the Selection Board as provided in Rule 8(1) of National Institute of Electronics Service Rules 1998 for appointment on Acting Charge Basis in BS-20, The Federal Minister concerned did not have the competence to appoint the respondent in BS-20 on Acting Charge basis without the recommendations of the Selection Board. In absence of these conditions, the appointment of the respondent in BS-20 on Acting Charge basis was unwarranted in law being invalid nor could he claim pensioanry benefits of BS-20 on the basis of Revised Last Pay Certificate dated 2.2.2010, which certificate ex-facie was against the language of the aforesaid Rules.
9. The learned High Court has overlooked the relevant Rules referred to here in above besides the original Last Pay Certificate dated 20.1.2010, while passing the impugned judgment, which is not sustainable at law.
10. The status of a 'Civil Servant' working on Acting Charge basis has been inter by this Court in the case reported as Province of Sindh and others vs. Ghulam Farid (2014 SCM R 1189), wherein it was held as under:-- "12. At times officers possessing requisite experience to qualify for regular appointment may not be available in a department. However, all such exigencies are taken care of and regulated by statutory rules. In this respect, Rule 8-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, empowers the Competent Authority to appoint a Civil Servant on acting charge and current charge, basis. It provides that if a post is required to be filled through promotion and the most senior Civil Servant eligible for promotion does not possess the specific length of service, appointment of eligible officer may be made on acting charge basis after obtaining approval of the appropriate Departmental Promotion Committee/Selection Board. Sub- rule (4) of the afore-referred Rule 8 further provides that appointment on acting charge basis shall be made for vacancies losing of more than 6 months and for vacancies likely to last for less than six months, Appointment of an officer of a lower scale on higher post on current charge basis is made as a stop-gap arrangement and should not, under any circumstances, last for more than 6 months. This acting charge appointment can neither be construed to be an appointment by promotion on regular basis for any purposes including seniority, not it confers any vested right for regular appointment. In other words, appointment on current charge basis is purely temporary in nature or stop-gap arrangement, which remains operative for short duration until regular appointment is made against the post. Looking at the scheme of the Sindh Civil Servants Act and Rules framed there-under, it is crystal clear that there is no scope of appointment of a Civil Servant to a higher grade on OPS basis except resorting to the provisions of Rule 8-A, which provides that in exigencies appointment on acting charge basis can be made, subject to conditions contained in the Rules.
11. We are conscious of the fact that the judgment of this Court in the case of Province of Sindh (supra) relates to the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, but the language of the said Rules is similar to the Rules of 1973 reproduced here in above. Therefore, the principles laid down in the aforesaid judgment will be fully attracted to the facts of the case in hand.
12. We, for the aforesaid reasons, convert this petition into appeal and allow the same. The impugned judgment is set aside. The parties are left to bear their own costs.