MUSHIR ALAM, J.--- Petitioner, Federal Public Service Commission (FPSC), has challenged the decision dated 8.2.2016 passed by the Federal Service Tribunal (FST) Islamabad, whereby setting aside the order dated 8.01.2013, passed by the competent authority, declining representation of the respondent seeking grant of BPS-19. The petitioner was directed to grant BPS-19 and re-designate respondent No,1 as Senior Private Secretary from the date he completed 12 years of service in BPS- 17.
2. Facts in brief appear to be that the respondent No,1 was originally appointed on 2.12.1978 in Finance Division, as LDC, he was then promoted as Steno typist on 19.02.1980. He was then appointed in the office of Wafaqi Mohtasib as Stenographer in (BPS-15) on 19.02.1980, in which post he was confirmed on 08.12.1985. Later he was appointed in FPSC, in selection grade BPS-16 on 21.5.1998 with effect from 6.2.1997. However, his substantive post remained as that of Stenographer (BPS-15.). He earned promotion as Private Secretary (BPS-17) on 12.8.2011.
Pursuant to Office Memorandum (OM) dated 23.12.2011 (@ page 35) with the concurrence of competent authority post of Private Secretary was upgraded, to BPS 18.
3. On 05.6.2012 respondent No,1, made a request (@ page 26) for the grant of BPS-19 on the ground inter alia that pursuant to OM dated 2nd June, 1983 his total length of service comes to 12 years, 03 months and 26 days, thus entitled him for the grant of BPS-19, which request was declined vide order dated January 8th 2013 on the ground that he does "not hold the required length of 12 years service in BS-17 and above as per clarification from Establishment Division vide their U.O.
No,4/1/98-R-6 (Pt-11) dated 30.11.2012," which order of the competent authority was successfully challenged before the FST, and vide its impugned decision dated 08.2.2016 the petitioner was directed to grant BPS- 19 to the respondent and re-designate him as Private Secretary from the date of his completing 12 years of service in BPS-17 on the strength of formula laid down in Establishment Division O.M dated 02.6.1983, with back benefit.
4. Mr. Abdul Rasheed Awan learned DAG, with vehemence urged that the respondent did not possess 12 years qualifying length of service in substantive post of BPS-17 and above. According to learned DAG, respondent was holding substantive post of Stenographer in BPS-15, when he was appointed in Federal Public Service Commission (in BPS-16 selection grade) he was promoted to BPS-17 on 12.8.2011, pursuant to O.M. dated 23.12.2011 his post was upgraded to BPS-18 (@ page 35), it was urged that up-gradation of post of Private Secretary from BPS-17 to 18 is not a promotion in terms of section 9(1) of the Civil Servants Act, 1973. It was urged that the learned FST misdirected itself while treating respondent on substantive post, which is factually not correct. It was urged that O.M. dated 2nd June, 1983; was not correctly appreciated in proper perspective resulting into flawed judgment, which cannot be sustained and is liable to be set aside. He prayed accordingly.
5. Mr. Ghulam Fareed, learned ASC for the respondent No,1 supports the impugned decision of the FST. He has placed heavy reliance upon Finance Division O.M dated 23.12.2011 to claim up-gradation to BPS-19 on the strength of his length of service in lower grade, in accordance with O.M dated 02.06.1983, referred to in first mention O.M. He emphasized his service in lower grade is to be computed in accordance with formula given by the Establishment Division as per O.M. dated 02.06.1983. For the purpose of computing length of service in different grade to earn eligibility for BPS-19 he has placed heavy reliance on part (iii) to the O.M dated 2nd June, 1983, to urge that the impugned decision of FST is based on correct appreciation of facts and law does not call for interference.
6. Exercising right of rebuttal learned DAG has drawn our attention to proviso (ii) and (iii) of O.M dated 2nd June, 1983 to urge that up-gradation to BPS-19 or otherwise cannot be claimed as a matter of right. It was urged that the minimum length of service in a particular substantive grade is considered for consideration of promotion in next higher substantive grade and not for the purposes of merely up-gradation of the post. It was stated that the post of the respondent was being upgraded from time to time. He cannot claim up-gradation as a matter of right.
7. We have heard the arguments and perused the record. In order to appreciate the contentions of both the learned counsel it would be beneficial to glance through Office Memorandum dated 23.12.2011 and 02.06.1983 respectively, relied upon by both the learned counsel in support of their respective contentions subject O.M dated 23.12.2011 reads as follow:- "Government of Pakistan Finance Division (Regulation Wing)
OFFICE MEMORANDUM F.No,19(55)Legal-II/2010-1055Islamabad, the 23rd December, 2011 Subject:- UPGRADATION OF THE POSTS OF STENOTYPIST, STENOGRAPHER AND PRIVATE SECRETARY The undersigned is directed to say that consequent upon approval of the Prime Minister of Pakistan, the posts of Private Secretaries, Stenographers and Steno typist have been upgraded with immediate effect subject to fulfillment of the conditions mentioned against each: Sr. # Name of the PostExisting BSUpgraded BSConditions
1. Private Secretary17 --- Will continue to remain in BS-17 and will be granted BS-18 after putting in 5 years satisfactory service Instead of 7 years. The Private Secretaries in BS-18 will further be granted BS-19 after putting in 12 years service in BS-17 and above taking benefit of Establishment Division's O.M.
No,1/9/80-R-II, dated 2.6.1983.
However, on grant of BS-19 nomenclature of the post will be enior Private Secretary.
The existing Private Secretaries in BS-17 will be granted BS-18 on one time basis irrespective of their length of service in BS-17.
2. Stenographer 15 16 With enhancement of qualification for initial appointment from Intermediate to Graduation.
3. Stenotypist 12 14 With enhancement of qualification for initial appointment from Matriculation to Intermediate.
The incumbents of the upgraded posts will also stand upgraded and their pay will be fixed at the stage next above their basic pay in their lower pay scales.
2. The Establishment Division will amend the recruitment rules of the above said posts, accordingly.
All Ministries/Divisions/Departments Sd/xxx (Muhammad Azam Awan)
Section Officer (R-I)"
8. It is admitted position that the respondent No,1 was serving in BPS-16 in Selection Grade (his substantive grade remained BS-15) before he was promoted to BPS-17 on 12.8.2012. Post of Private Secretary (BPS-17) was upgraded to BPS-18 subject to five years qualifying length of service instead of seven years. In terms of O.M dated 23.12.2011 which inter alia provided that all the Private Secretaries "will continue to remain in BS-17 and will be granted BS-18 after putting in 5 years satisfactory service instead of 7 years". However one time exception was created in subject O.M as reproduced above, which provided that "existing Private Secretaries in BS-17 will be granted BS-18 on one time basis, irrespective of their length of service in BS-17".
9. Up-gradation is not a promotion, as generally misunderstood. Up-gradation is carried out without necessarily to create posts in the relevant scales of pay it is carried out under a policy and specified scheme as done in the instant case through subject O.M dated 23.12.2011. It is resorted only for the incumbents of isolated posts, which have no avenues or channel of promotion at all.
Up-gradation under the scheme is personal to the incumbents of the isolated posts, to address stagnation and frustration of incumbent on a particular post for sufficient length of service on particular post without any progression or avenue of promotion. Post of Stenographers/Private Secretaries is one of such kind of post, which has no avenues or channel of promotion to higher grades as may be available to other incumbents in civil service. Up-gradation is carried out under a scheme and or a policy to incentivize and to encourage and to give financial benefits without creating additional vacancies of higher grade, B up-gradation by no standards could be treated and or considered as promotion to higher grade. Incumbent occupying ungraded post retain their substantive grade.
10.Now examining the case of the respondent No,1 he was serving as Private Secretary in substantive grade BPS-17 when, O.M dated 23rd December, 2011 was issued, which inter alia provided that all those serving in BPS-17 having put in 5 years would be entitled to be upgraded to BPS-18 on satisfactory service in BPS-17 for a period of 5 years instead of 7-1/2 years as earlier required per O.M dated 2.6.1983. However, in view of one time exception, all the Private Secretaries including the respondent No,1 working in BPS-17 on the date of issuance of O.M dated 23rd December, 2011 was upgraded to PBS-18, irrespective of length of service in BPS-17, respondent No,1 falling in such exception was accordingly promoted with merely little over 4 months service in BPS 17, as noted above, it is merely a financial benefit attached to up-gradation, as and when such upgraded incumbent leaves or transfers or vacancy occurs for any reasons than the vacancy is of substantive post and not that of upgraded post and is accordingly filled up either by transfer, promotion or direct appointment as the case may be.
11. Claim of the respondent that he has put in 12 years of service in BPS-17 as per formula made applicable in terms of O.M. dated 2.6.1983. To appreciate such contention it would be beneficial to examine such said Office Memorandum which reads as follows:- "GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION No,1/9/80-R.2Rawalpindi, the 2nd June 1983 OFFICE MEMORANDUM Subject: MINIMUM LENGTH OF SERVICE FOR ELIGIBILITY IN PROMOTION OF OFFICERS In pursuance of rule 8-A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and in supersession of the instructions laid down in the Establishment Division's Office Memorandum No,1/9/80-R.II(A), dated the 12th January, 1981, the President is pleased to decide that the minimum length of service for promotion to various grades shall be as follows:- For Grade-18 5 years in grade 17 For Grade-19 12 years in grade 17 and above For Grade-2017 years in grade 17 and above For Grade-2122 years in grade 17 and above Provided That i) Where initial appointment of a person not being a person in government service takes placed in a post in grade 18, 19 or 20, the length of service specified in this office memorandum shall be reduced by the following periods: First appointment inReduced by Grade-18 5 years Grade-19 12 years Grade-20 17 years ii) Where initial appointment of a person already in government .service takes place, on recommendations of the Federal Public Service Commission in a post in grade 18, 19 or 20 the length of service specified in this office memorandum shall be reduced by the periods specified in proviso (i), iii) Where first appointment of a person other than a person covered by proviso (ii) was made to government service in grade 16 or below, one-half of the service in grade 16 and one fourth in grade 15 and below may be counted as service in grade 17 for computing length of service for the purpose of promotion only.
Sd/xxx (Mashkoor Ahmad Khan)
All Ministries/Divisions Joint Secretary To the Government of Pakistan"
12.From bare perusal of above criteria, it could be seen that same is applicable "for the purposes of promotion only". Admittedly, case of the respondent No,1 is of up-gradation and not that of promotion. As noted above up-gradation is often misconstrued as promotion, what respondent No,1 requested through his application is promotion to grade BPS-19, for which a selection process, in terms of section 9(1) of the Civil Servants Act, 1973, read with Civil Servant (Appointment, Promotion and Transfer Rules), 1973 is to be followed, which cannot be bypassed under any circumstance. Civil servants are appointed and or promoted to the post and not to the grades. This Court in the case of All Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCM R 456) in paragraph 138 @ page 514, has dealt with implication and purport of up-gradation, as retreated in the case of Regional Commissioner Income Tax, Northern Region; Islamabad and another v. Syed Munawar Ali and others (2016 SCM R 859), held in para No,7 @ page 862 it was further held that "issue relating to up-gradation of civil servants can be decided by a High Court in exercise of its constitutional jurisdiction and bar contained under Article 212(3) of the Constitution would not be attracted. The policy of up-gradation, notified by the Government, in no way, amends the terms and conditions of service of the civil servant or the Civil Servants Act and or the rules framed there under. The Service Tribunals have no jurisdiction to entertain any appeal involving the issue of up-gradation, as it does not form part of the terms and conditions of service of the civil servants."
13.In order to appreciate contentions of respondent his tenure of service in grade below PBS-16 given in paragraph 6 of his appeal before FST; is reproduced as follows:- "That the appellant fulfills/meet the requisite length of service as enunciated in O.M dated 23.12.2011. The detail of the same is reproduced below for kind perusal of this learned Tribunal:- Sr. No.Post Period Length of serviceTo be counted in the light of O.M.
23.12.11 and 02.06.83
1. LDC 2.12.1978 to 18.2.19801 year, 2 months, 16 days3 months, 19 days
2. Stenotypist 19.2.1980 to 07.12.19855 years, 9 months, 19 days1 year, 05 months, 07 days
3. Stengrapher (BPS-15)08.12.1985 to 05.2.199711 years, 1 month, 25 days2 years, 9 months, 06 days
4. Stenographer Slection Grade (BPS-16)06.2.1997 to 11.8.201114 years, 6 months, 5 days7 years, 3 months, 2 days
5. Private Secretary (BPS- 17)12.8.2011 to 22.12.20114 months, 10 days04 months, 10 days
6. Private Secretary (BPS- 18)23.12.2011 to 31.01.20131 year, 01 month, 8 days1 year, 1 month, 8 days
7. Total 13 years, 02 months 02 days"
14. Even if request of the respondent No,1 is considered for up-gradation to BPS-19, then also he has no case. Respondent No,1 was promoted in BPS-17 on 12.8.2011, merely after 4 months and 10 days pursuant to 0.M dated 23.12.2011, his post of Private Secretary was upgraded to BPS-18. To claim benefit to 0.M dated 2.6.1983, as reproduced above he counted 1/2 of his earlier 14 years service in BPS-16 (Selection Grade) from 6.2.1997 to 11.8.2011 as 7 years. From the calculation made by the respondent No,1, it is manifest that he made error in counting his service in BPS-16 (Selection Grade) as that of BPS-16 in substantive grade. As noted in the narrative above; he was serving in his substantive grade BPS-15 when he was appointed in Federal Public Service Commission in BPS- 16 (selection grade), merely serving in BPS-16 in selection grade, could not be counted as service in substantive grade BPS-16 but in BPS-15, therefore, such tenure of service could not be calculated 1/2 of 14 years but in fact 1/4 of total service being below substantive grade BPS-16, i,e, from 2.12.1978 to 11.8.2011 which comes to approximately 22 years calculating 1/4th of said period it comes to 5.5 years adding 4 months 10 day in BS-17 and 1 year 01 month and 8 days in BS-18 comes 6 years 6 months approximately in terms of formula (per proviso (iii) to 0.M dated 2.6.1983) even if rounded up to 8 years that it does not meet the criteria of 12 years of length of service in BPS-17 and above required to be upgraded to BPS-19. In view of the discussion made above, impugned decision of the FST, cannot be sustained both on merits as well as for lack of jurisdiction, which is accordingly, set aside, instant leave petition is converted into appeal and is allowed accordingly.