Raja Saeed Akram Khan, J.--The titled appeals by leave of the Court have been preferred against the common judgment of the High Court dated 04.05.2016, whereby the writ petitions filed by the appellants, herein, (in both the appeals), have been dismissed. As both the appeals arise out of the same judgment; therefore, these are being disposed of 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 at difference times on the recommendations of the Public Service Commission. For promotion of Lecturers, Assistant Professors and Associate Professors, a promotion formula known as 4-tier formula was introduced, by the Government. Later on, time-scale policy was adapted and introduced in the Education Department. The Finance Department issued a letter on 26.09.2011, to the Secretary Education Colleges in which the condition for 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the Secretary Education Colleges issued a notification on 07.05.2012, through which 4-tier promotion formula was withdrawn and replaced by time-scale policy.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 the 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 furnished. The office of the Accountant General, in response to the queries made by the Finance Department in consequence thereof issued a 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 a proposal for amendment of the time-scale promotion notification dated 07.05.2012 and omission of the word 'promotion' occurred in the time-scale policy of the college teachers was made. 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 judgment dated 05.05.2015, dismissed both the writ petitions filed by the appellants, herein. The said judgment of the High Court was challenged before this Court. This Court vide judgment dated 13.01.2016, while accepting the appeals set aside the judgment of the High Court and remanded the case to the High Court with the direction to decide the writ petitions afresh. The learned High Court in the light of the direction issued by this Court in the earlier judgment after hearing the parties passed the impugned judgment dated 04.05.2016, through which again both the writ petitions have been dismissed. Hence, these appeals by leave of the Court.
3. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellants, in appeal No. 165 of 2016, titled Professor Malik Arshad Aziz & others v. Finance Department & others submitted that the points formulated by this Court while remanding the case to the High Court have not been attended properly by the High Court.
He contended that the learned High Court failed to examine the controversy involved in the matter as on the strength of time-scale policy the appellants were promoted on regular basis and in this way a valuable right had accrued to the appellants which cannot be denied later on by omitting the word 'promotion'from the relevant time-scale policy. He further contended that the learned High Court also fell in error of law while not taking into account that the time-scale policy provides the mechanism for the promotion with some conditions and without fulfilling the conditions attached no one can be promoted. For promotion under time-scale policy, the teachers have to go through a difficult process while showing their performance; on the basis of that the case of the appellants was placed before the Selection Board. The Selection Board duly recommended the appellants for further promotion and in pursuance of the recommendations of the Selection Board the appellants were promoted in higher grade. He drew the attention of the Court towards the time-scale policy notification dated 07.05.2012, in which the word 'promotion' has categorically been mentioned. He forcefully argued that increased budget was allocated to meet the financial requirements, i.e. payment of salaries and other emoluments arising out due to the promotion in the higher grade, therefore, there was no hurdle in the way of the respondents to treat the promotions of the appellants as regular promotions. He added that the learned High Court also failed to examine that 4-tierpromotion formula was abolished by substituting the same with time-scale policy as both are at-par with each other. He contended that promotion on the strength of 4-tier formula was affirmed by this Court in a case reported as Parveen Mushtaq, Principal, Government Girls Higher Secondary School Kahori, Muzaffarabad & others v. Kaneez Akhtar, Deputy Secretary Education Civil Secretariat, Muzaffarabad and others[PLJ 2006 SC (AJ&K) 34], but the learned High Court failed to adhere to law enunciated by this Court in the referred judgment. He maintained that 4-tier promotion formula was abolished while adapting the time-scale policy to give an incentive to the teaching staff of the colleges who have been deprived of the right of promotion on substantive basis. He added that on the demand of teacher community after a long negotiation the Government agreed to formulate the time-scale policy. He further added that the conditions in the time-scale policy to get the promotion in the higher grade are harder than the normal procedure of promotion. In this way, it cannot be given any other name except to substantive promotion. He lastly submitted that the appellants are fully eligible to get the benefit arising out of the regular promotion including premature increment etc. He has relied upon the cases reported as Government of the Punjab through Secretary Services, Punjab, Lahore and 4 others v. Muhammad Awais Shahid and 4 others [1991 SCMR 696], Mubusher-ul-Haque, S.D.O., P.W.D., Muzaffarabad v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Azad Government of the State of J&K, Muzaffarabad & 2 others [1991 PLC (C.S) 426], Abdul Matin Khan and 2 others v. N.W.F.P. through Chief Secretary and 2 others [PLD 1993 S.C 187], Parveen Mushtaq, Principal, Government Girls Higher Secondary School Kahori, Muzaffarabad & others v. Kaneez Akhtar, Deputy Secretary Education Civil Secretariat, Muzaffarabad and others [PLJ 2006 SC (AJ&K) 34], Muhammad Riaz Khan v. Inspector General of Police and 19 others [2010 SCR 131], Additional Accountant General Pakistan Revenue, Sub Office, Lahore v. M.M. Malik and others [2012 PLC (C.S.) 1370] and Kh. Abdul Hamid v. Azad Jammu and Kashmir Government through Chief Secretary and 5 others [2013 PLC (C.S.) 1264].
4. Mr. Abdul Salam Chaudhary, Advocate, the learned counsel for the appellants, in appeal No.204 of 2016, titled Professor Pervaiz Akhtar & others v. Azad Government & others, mostly adopted the arguments advanced by Raja Muhammad Hanif Khan, Advocate, however, while making addition, he submitted that after lapse of a considerable time an amendment was made in the time-scale policy through which the word 'promotion' has been omitted which is not warranted under law. Through amendment the respondents tried to deprive the appellants of a valuable right which had already been accrued in their favour after their promotion.
5. On the other hand, M/s Asghar Ali Malik, Advocate and Raza Ali Khan, Advocate-General, while supporting the judgment of the High Court submitted that the same is perfect and legal which is not open for interference by this Court. While referring to different paragraphs of the impugned judgment they contended that the points formulated by this Court at the time of remand of the case, have fully been attended and answered by the High Court in a legal manner. They further contended that the word 'incentive' mentioned in the time-scale policy itself shows that through the said policy only monetary benefits were extended to the appellants, thus, promotion made for such monetary benefits cannot be termed as regular or substantive promotion. They argued that according to the basic statute, i.e. Azad Jammu and Kashmir Civil Servants Act, 1976, the promotion can only be made against a post, whereas, admittedly no new posts were created or available, therefore, the promotions of the appellants made on the basis of time-scale policy cannot be termed as regular promotions. They relied upon the cases reported as Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and another [1999 SCR 204], Rizwan Muzaffar v. Azad Government & 8 others [2010 SCR 156], Syed Rasheed Hussain Shah v. Azad Govt. & 6 others [2014 SCR 883] and Shaista Naqvi v. Public Service Commission & 3 others [2015 SCR 996].
6. We have heard the arguments of the learned counsel for the parties and gone through the record made available along with the impugned judgment and also considered the case law referred to by the learned counsel for the parties. The perusal of the record reveals that the Government vide notification dated 07.05.2012, formulated time-scale policy for promotion of the teaching staff of the colleges while following the notification dated 03.12.2010.Later on, the Finance Department issued a proposal letter dated 27.05.2014, through which 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 policy. The appellants feeling aggrieved from the said proposal, filed writ petitions before the High Court. Keeping in view the controversy involved in the matter, we have examined the original notification dated 03.12.2010. For better appreciation, we would like to refer here the relevant portion of the said notification which reads as under:- "Notification: No. SEC (122) 29 2010, the President Azad Jammu & Kashmir is pleased to sanction the incentive of higher grades on the basis of time scale (performance based) to the college teacher of Education Department Colleges GoAJK subject to the availability of funds in the current or coming fiscal year with the following terms and conditions: a)
S.#BPS of teaching staffNos. of years service required for the next higher grade 1.for BPS-18 Nine (09) years in BPS 17 & above 2.for BPS-19 Sixteen (16) years in BPS-17 & above 3.for BPS-20 Twenty two (22) years in BPS-17 & above b) The Service rules, nomenclature/tiers of the posts and seniority of the college teachers shall remain intact. c) The benefits of time scale will be considered and allowed on the recommendations of concerned Selection Boards."
The original notification starts with the word 'incentive' and the language of the same reveals that the theme behind it was that a large number of the teaching staff of the colleges had been deprived of the right of promotion to the higher grade due to the non-availability of the posts and most of them had been retired in the same cadre in spite of the fact that they were eligible to be promoted in the next grade on regular basis. There was apprehension that most of the teachers will not succeed to get the fruit of 4-tier promotion formula due to non-availability of the posts, that is why, the Government on this heartburning issue of the teaching staff of the colleges after a long negotiation with the representatives of the teaching staff agreed to formulate the policy to provide mechanism for promotion of the teaching staff in the higher grade for the purpose of monetary benefits while keeping their lien in substantive original grade. In this regard, clause B of the notification supra is self explanatory showing that the service rules, nomenclature/tiers of the posts and seniority of the college teachers shall remain intact. It would not be out of place to mention here that when the time-scale policy was formulated the same was forwarded to the Finance Department and the Finance Department also imposed some conditions, thereafter, the policy was enforced subject to availability of the funds. In pursuance of the policy, the cases of the persons eligible to be promoted in the higher grade were forwarded to the Selection Boards and on the recommendations of the Selection Boards promotions were made. The controversy started when the appellants after getting the promotion in higher grades claimed the premature increments, entertainments and senior post allowances. The respondents refused to pay the same on the ground that the time-scale policy is an incentive to extend the monetary benefits to the appellants and the promotions made under the said policy are not regular promotions. We have examined the matter in hand in the light of the relevant law dealing with the promotions of the civil servants, i.e. section 8 of the Azad Jammu and Kashmir Civil Servants Act, 1976.
Although, the referred provision of law has already been reproduced by the learned High Court in the impugned judgment; however, for better appreciation it would be appropriate to reproduce the same again, which reads as under:- "Promotion:-(1) A Civil Servant possessing such minimum qualification as may be prescribed shall be eligible for promotion to a post, for the time being, reserved under the rules for departmental promotion in any higher grade of the service or cadre to which he belongs.
(2) ..........
(a) ..........
(b) .........."
From the perusal of the above provision of law, it appears that the same is an unambiguous terms provides that the promotion shall be made against a post. Admittedly, the learned counsel for the appellants failed to substantiate that in pursuance of the time-scale policy the posts were created and the promotions of the appellants were made in consequence thereof. The learned counsel for the appellants has only established the case before the learned High Court and this Court that the appellants have gone through the process of selection and after recommendations of the selection board the respective promotions of the appellants were made, thus, it cannot be said that the promotions of the appellants are not regular promotions. It may be observed here that the argument of the learned counsel for the appellants in this regard is not convincing in nature as no policy or rule can be given the preference over the basic statute or the policy/rules cannot be made or enacted in deviation of the relevant provisions of the basic statute. In the case in hand, section 8 of the Civil Servants Act, 1976, existing on the statute book is very much clear. As from the relevant provision of law it postulates that promotion shallonly be made against a post, therefore, we agree with the findings recorded by the learned High Court in this regard. Reliance may be placed on a case reported as Muhammad Siddique, Stenographer, FIA Headquarters, Islamabad and another v. Secretary, Establishment Division Islamabad and 5 others [2001 SCMR 252], wherein, the apex Court of Pakistan has held as under:- "6. The contentions raised by the learned counsel for the petitioners are devoid of force. No doubt the petitioners were granted selection grade (BPS-16) prior in point of time but they cannot claim seniority over the private respondents for the simple reason that they were not promoted from a lower to higher post. Grant of selection grade is not a promotion in strict sense of the word though it has overtones of promotions in view of the financial benefit involved. The expression selection grade is confined to revision of Basic Pay Scales and does not find mention in section 8 of the Civil Servants Act, 1973 and the Civil Servants (Seniority) Rules, 1993 under which seniority list of civil servants is required to be prepared with reference to a service, cadre or post and not grade."
Similarly, in another case reported as Muhammad Rafique and another v. Managing Director (WAPDA) and another [1995 SCMR 1549], it has been held that:- "However, if any employee having moved-over to a particular scale, is subsequently promoted to a post carrying same scale, he may become eligible for further move-over. It is also pertinent to point out that move-over is not to be considered as a promotion to the post of higher basic pay scale, but the higher pay-scale is to be treated as extension of the existing basic pay-scale of the post held by an employee."
The Federal Service Tribunal while dealing with the proposition in a case reported as Prof. Ghazala Mahmud v.
Secretary, Ministry of Health and 2 others [PLJ 2008 Tr.C (Services) 195], has held as under:- "11. Despite the aforementioned the nature of promotion on the basis of meritorious service has to be looked into in the light of the provisions contained in the ESTACODE. The salient features of this promotion policy are that the beneficiaries of such promotion are to be limited to 12.5% of the total number of posts in BS-20 in any particular cadre. This coupled with the requirement that upon such promotion the incumbents are not required to move from their technical posts would imply that although the benefit of the higher scale is given as a reward to a meritorious incumbent the same does not correspond to the incidence of a regular promotion which is made to fill a higher vacant post in the manner provided under section 9 of the Civil Servants Act, 1973. The basis of promotion is provided in Section 9 ibid: '9. Promotion: (1)A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to *[higher] post for the time being reserved under the rules for departmental promotion in **[ ] the service or cadre to which he belongs'
12. It is thus seen that promotion on meritorious grounds is neither made against a selection post nor indeed on the basis of seniority-cum-fitness. In the instant case there is also no provision for higher post against which a regular promotion could be made. The Selection Committee which is constituted for the award of meritorious promotions does not correspond to the Central Selection Board and is also not in accordance with the eligibility threshold provided by the ESTACODE for promotion from Bs-20 to BS-21. Particular reference is made to Serial No.74, 2(vi) page 781 of ESTACODE 2000 which provides that the grant of scale 21 or 22 to the officer is personal to him and that there would be no need to upgrade the post. However such promoted officer would carry the higher scale with him in the event of his transfer to another post.
13. It is thus necessary to indicate the distinction between the promotion to a higher post and award of a higher scale of pay after selection and by way of meritorious promotion. In the latter case, it is actually a matter of conferring a reward of a higher pay scale in acknowledgement of the high meritorious services rendered by an officer and approved/selected by the competent Selection Committee. Such a promotion might display some superficial features akin to promotion but in reality cannot be equated to a regular promotion in the strict sense of the word."
In another case reported as Muhammad Suleman, Personal Assistant (R), Mirpur Azad Kashmir v. Advocate General, (AJ&K) Government, Muzaffarabad and 6 others [2005 PLC (C.S) 1260], while referring section 8(1) of the Azad Jammu and Kashmir Civil Servants Act, 1976, it has been held that: "8. The aforesaid provision clearly conveys that promotion means 'promotion to a post of higher grade of the service'. Now in the instant case, the petitioner was not promoted to the post of higher grade. He remained on the same post but selection Grade B-16 was awarded to him which does not come within the ambit of 'promotion'."
It may also be observed here that the right of promotion of the appellants on the regular basis has not been curtailed as under section 8 of the Civil Servants Act, 1976, on the availability of the posts the eligible persons shall have a right to be promoted on regular basis. The promotion which has been made in pursuance of the time-scale policy was not a promotion in strict sense of the word rather it is only an incentive for extending the monetary benefits.
7. The other point agitated by the learned counsel for the appellants on the strength of judgment of this Court reported as Parveen Mushtaq, Principal, Government Girls Higher Secondary School Kahori, Muzaffarabad & others v. Kaneez Akhtar, Deputy Secretary Education Civil Secretariat, Muzaffarabad and others [PLJ 2006 SC (AJ&K) 34],was that this Court declared in the referred judgment that the promotion arising out of the 4-tier formula is regular promotion. As time-scale policy is substituted the 4-tier formula, therefore, the judgment supra is fully applicable in the case in hand, but the learned High Court failed to adhere to the same. We have also examined the said case law referred to by the learned counsel for the appellants. It may be observed here that in the judgment supra 4-tier promotion formula was under consideration and the policy on the basis of which the appellants have been promoted in the higher grades was not holding the field at that time, therefore, that judgment cannot be made precedent. Moreover, there is lot of difference between 4-tier promotion formula and the time-scale policy as in the 4-tier formula the posts in different cadres for promotion were reserved and it was specifically mentioned that the process of promotion in each cadre shall be governed by such and such recruitment rules as framed/shall be framed from time to time for filling up the posts by promotion or recruitment as prescribed in the said rules; whereas, in the time-scale policy the scope has been widen for the promotion in the higher grade only for monetary benefits. In the said judgment this Court while referring to 4-tier formula which was under consideration, has specifically mentioned that it postulates that the promotion against the upgraded posts would be made strictly in accordance with the service rules. The promotions made under the said formula were not in contravention of the relevant rules; whereas, the promotions claimed by the appellants as regular promotions on the basis of time-scale policy, are totally in conflict with the relevant provision of the law, i.e. section 8 of the Civil Servants Act, 1976,as well as the relevant rules which is not permissible under law. It may also be stated that the word 'promotion' means taking of a further step on a ranking or change of grade to higher pay scale, however, the regular promotion means promotion against a post as has been defined in section 8 of the Civil Servants Act, 1976. Thus, mere mentioning of word 'promotion' in the time-scale policy notification does not mean the regular promotion and only that promotion shall be treated as regular promotion which has been made against the available post in the light of section 8 of the Civil Servants Act, 1976. In this regard, we are not convinced that the supra judgment is relevant for the purpose. We have also examined the other case law referred to by the learned counsel for the appellants. In a case reported as Mubusher-ul-Haque, S.D.O. P.W.D., Muzaffarabad v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Azad Government of the State of J& K, Muzaffarabad and 2 others [1991 PLC (C.S) 426], referred to by the learned counsel for the appellants this Court interpreted the regular promotion in the following terms:- "Section 8 reproduced above clearly demonstrates that by 'promotion' a person is elevated to a post carrying a higher grade. 'Promotion' is basically not to a higher grade but to a higher post. That is why there are many cadres in which civil servants keep on working against the same posts but are given higher grades by way of selection grade or by move-over. In such cases the concerned civil servants are not said to have been promoted although they move in the higher grade".
The referred judgment supports the version of the respondents as this Court has held that the promotion is basically not to a higher grade but to a higher post. The examination of the other case law referred to by the learned counsel for the appellants transpires that the controversy involved in the said reports was altogether different, therefore, it can safely be said that the same are not applicable in the case in hand.
8. The argument of the learned counsel for the appellants regarding the premature increment is also not convincing in nature. As we have observed earlier that the promotions made on the strength of time-scale policy are not regular or substantive promotions, therefore, the question of premature increment does not arise. Even otherwise, the time-scale policy is silent about the matter of increment; therefore at this stage no such benefits which do not come within the purview of that policy can be extended to the appellants. It may be observed here that time-scale policy was formulated after negotiation with the representatives of the appellants and if they ever raised plea for entitlement of premature increment and other benefits then such benefits might have been the part of the time-scale policy. Thus, now the appellants cannot be allowed to claim premature increment and other benefits which relates to the regular promotion as at the time of formation of the policy all such claimed benefits were opened to be demanded. We would also like to observe here that the learned High Court has taken the pain while differentiating a lot of promotions, i.e. officiating promotion, proforma promotion etc. and after discussing the same has rightly observed that the promotion is not only a regular promotion rather there are also some other mode of promotions which cannot come within the definition of regular promotion, however, that can be made only for the welfare of the employees including the financial benefits. As the learned High Court attended and answered all the points formulated by this Court in a comprehensive manner, according to law, therefore, we are of the considered view that no case of interference by this Court is made out.
In view of the above, these appeals being devoid of any force, are hereby dismissed with no order as to costs.