Justice (R) Rooh-ul-Amin Khan, Chairman. Through this single judgment we propose to decide the instant appeal No. 22(R)CS/2024 along-with above titled fifteen appeals as identical questions of law and facts are involved therein. The appeal No. 22(R)CS/2024 filed by Dr. Masood Ahmad, is taken as lead appeal wherein he has prayed as follows: "In view of the submissions, it is, therefore, respectfully prayed that this Hon'ble Tribunal may very kindly be pleased to set aside the impugned order dated 08.12.2022 (Annex-A) and deduction order (Annex-B) being void ab initio, ultra vires, illegal and without lawful authority and by directing the Respondent No. 1:
1. To restore and extend equal treatment to the appellant by granting him premature increment on placement in higher grade along with hiring ceiling, regular and special allowances in accordance to the Finance Division O.M. dated 28.08.1991 (Annex-D) & 02.06.2008 (Annex-D/1) and 30.09.2020 (Apex-D-2) with all consequential and back benefits.
2. To restrain the Respondent No. 2 from effecting deduction/recovery of already received amount by the appellant till the final disposal of appeal.
3. To direct the Respondents No. 3, 6 & 7 to present the approval letter of impugned order of Finance Division dated 08.12.2022 (Annex A) before this Hon'ble Tribunal as the same was issued without seeking approval/consultation from the Prime Minister and Establishment Division".
2. As per averments in the memo of appeal, the appellant was appointed as Medical Officer (BS-17) on 21.02.1994 and always served the department with honesty and devotion. Subsequently, he was granted BS-18 and then BS-19 as Medical Officer on placement basis while serving in the National Institute of Rehabilitation Medicine "NIRM", under the Ministry of National Health Services Regulations and Coordination, Islamabad "M/o NHSR&C". The appellant has unblemished service record spanning over more than 31 years. The Respondent No. 1/Finance Division issued Office Memo dated 28.08.1991 with the approval of the President for improvement in service structure and to provide better career opportunities to the Health Services Personnel of the Federal Government of different cadres i.e. (1) General Cadre Medical Officer, (2) Dental Surgeon Cadre, (3) Pharmacist Cadre, (4) Specialist Cadre, (5) Nursing Cadre and Paramedical Staff from BS-16 to BS-20. The respondent-department under the Policy Office Memo dated 28.08.1991 granted next higher scales to number of Doctors and Nurses on the recommendation of the Departmental Promotion Committee, who fulfilled the eligibility criteria and they accordingly received financial benefits of higher scale. Subsequently, another Office Memo dated 11.06.2008 was issued by Respondent No. 1 for improvement of service structure by adding post of BS-21 in the earlier Office Memo dated 28.08.1991. The appellant on grant of BS-18 & BS-19 also received all perks, privileges and other allowances, at par with his senior colleagues. In December, 2022 i.e. after more than 31 years of service, the Respondent No. 1 issued a dubious letter dated 08.12.2022 without circulating the same and directed Respondent No. 2 to sanction the allowances and rental ceiling to the beneficiaries of placement, according to their original pay scales and also declared the placemat as "Honorary".
Furthermore, Respondent No. 2 on 01.11.2023 without issuing any Notification stopped premature increment granted to the appellant on placement basis and curtailed/deducted all perks and privileges including rental ceiling. Regular and special allowances according to his lower substantive grade. The Key Performance Indicator "KPI" and Non Practicing Allowance "NPA"
(Special Allowances) approved by the Prime Minister of Pakistan in September, 2020 were also discontinued/without seeking permission of the Prime Minister and Establishment Division. It was contended that correspondence between the parent department of the appellant and the AGPR continued up to September, 2023 and the appellant came to know when his allowances were curtailed in September, 2023. He preferred departmental appeal on 16.09.2023 and after waiting for statutory period of 90 days he filed the present appeal on 15.01.2024 which is within time.
3. Learned counsel for the appellant while reiterating the facts mentioned in the memo of appeal, contended that the appellant was appointed as Medical Officer (BS-17) and subsequently was granted BS-18 and BS-19 on placement basis under the Policy O.Ms dated 28.08.1991 & 11.06.2008 after recommendation of the Departmental Promotion Committee "DPC" and approval by the competent authority. She placed on record Notification dated 21.12.2016 whereby 15 Medical Officers (BS-17) were placed in BS-18, Notification dated 10.10.2019 out of which two Medical Officers (BS-18) were granted BS-19 and in pursuance of Notification dated 30.04.2024 four Medical Officers and two Staff Nurses of NIRM assumed the charge of the post of BS-18, BS-19 & BS-20 respectively. It was stated that during pendency of the appeal the appellant was also granted BS-20 on placement basis with effect from 13.03.2024 vide M/o NHSR&C Office Order dated 08.05.2024 and got retired from service on the nest day i.e. 14.03.2024 on attaining the age of superannuation vide Notification dated 19.01.2024. In the meanwhile Respondent No. 1 issued alleged clarification vide letter dated 08.12.2022 whereby allowances were curtailed according to lower substantive grade of the appellant that too without the prior approval of the Prime Minister and Establishment Division which is sine-qua-non in contemplation of Rules-11 of the Rules of Business, 1973. She went on to say that once an order is passed in favour of an employee and acted upon the same cannot be rescinded and the amount already drawn in pursuance of the said order cannot be recovered. She placed reliance on 2020 SCMR 188, PLD 1969 SC 407, 1992 SCMR 207, 1997 SCMR 15, 2003 SCMR 410, 2004 SCMR 303, 2005 SCMR 1490, 2011 SCMR 994, 2015 SCMR 1418 and the judgment dated 07.11.2014 passed by the Hon'ble Islamabad High Court, Islamabad in Writ Petition No. 3851/2014. It was averred that in the year 2015 nine Superintendents (BS-17) of different departments filed service appeals before the Federal Service Tribunal against the Finance Division's Office Memo dated 10.09.2014 whereby premature increment, entitlement/admissibility of rental ceiling, house rent allowance and medical allowance were denied to them. Their appeals were accepted vide judgment dated 30.03.2016 and they were held to be entitled to all benefits which were denied by Respondent No. 1 through O.M. dated 10.09.2014. Respondent No. 1 assailed the judgment of the Tribunal before the Hon'ble Supreme Court of Pakistan and the Hon'ble Apex Court was pleased to dismiss the Civil Appeals filed by Respondent No. 1, vide order dated 04.04.2017 and directed the Secretary Finance Division to conduct an inquiry as to how and under whose direction Office Memo dated 10.09.2014 was issued in flagrant violation of the order of the Prime Minister and take strict action against such persons. Lastly, it was argued that the impugned letter dated 08.12.2022 is illegal, unlawful and ultra-vies to Article 25 of the Constitution read with Section 17 of the Civil Servants Act, 1973 and Fundamental Rule No. 9(25). The learned counsel for the appellant prayed for acceptance of the appeal with all back benefits.
4. The respondents were put on notice, in response to which they submitted their respective objections. The main contesting respondents i.e. Respondents No. 1 & 2 refuted the claim of the appellant in their written objections on the ground that the term "Placement" is not defined in Estacode whereas the Establishment Division in its O.M. dated 09.11.2015 has clarified the matter regarding grant of increment and allowances on the basis of getting higher pay scales as under the Finance Division O.M. dated 11.06.2008, the placement of an employee in higher scale is not a regular promotion. Health personnel hold the Post of Medical Officer on regular basis but they were granted higher BOS up to BS-21 on placement basis without change of nomenclature of the post, hence the appellant is not entitled for premature increment on acquiring higher BPS allowances. It was further stated that Para-2 of Finance Division O.M dated 28.08.1991 provides that implementation of the improvements be initiated in consultation with the Finance Division, hence the Finance Division is authorized to issue clarification for such improvements. The O.Ms dated 28.08.1991 & 11.06.2008 provide distribution of posts only and do not contain eligibility criteria for filling up the posts. Implementation of policies contained in O.M. dated 28.08.1991 & 11.06.2008 were required framing of Recruitment Rules, but despite request Respondent No. 4/M/o NHSR&C has not framed the Rules till date. Since 1991 health personnel are being placed in higher grades without any rules and granted pension on last drawn pay basis. In the absence of approved eligibility criteria, any expenditure incurred on account of payment for monetary benefits of the higher grades on placement basis is irregular and required regularization from the competent forum.
Under the above mentioned policy O.Ms, Respondent No. 4 had to carry out the implementation and amendment in Recruitment Rules. The respondents also attacked maintainability of appeal on ground of beyond period of limitation.
5. We have heard the arguments of the parties and perused the record with their able assistances.
6. We would like to first meet the question of limitation, as raised by Respondent No. 2. Deduction and curtailment of allowances is a recurring cause of action having direct impact on the increase and decrease of pension/commutation of the appellant who have secured the benefits of elevation to higher scale up to BS-20 and so got retired from service on 14.03.2024, hence no limitation runs against such claim. The Hon'ble Supreme Court of Pakistan in a judgment passed in case of Syeda Tahira Begum and another vs. Syed Akram Ali and another (2003 SCMR 29) held as follows: "It has been stated time and again that the cases of the parties should be decided on merits. If a party upon evidence brought on record has established his case on merits, then he should not be knocked out on technical grounds. Rules and procedures are framed to foster the cause of justice and should sparingly come into the way for dispensation of the same on merits. Reliance in this respect is placed upon Imran Ashraf and 7 others v. The State (2001 SCMR 424), Nazir Ahmed and another v. Muhammad Din and others (2001 SCMR 440), Imtiaz Ahmed v. Ghulam and 2 others (PLD 1963 SC 382) and Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678)".
There can be no cavil with the well settled proposition of law that the question of limitation would not to deny the case of the appellant, for the matter of financial benefits which is a recurring cause of action, available to every civil servant. In this case, there can be no departure from this well established principle. In this view of the matter, the objection of limitation is hereby overruled.
8. In essence, the grievance of appellant is that Respondent No. 2 in compliance of letter dated 08.12.2022 issued by Respondent No. 1, deducted certain allowances and increments granted to appellant under the policy O.Ms dated 28.08.1991 & 11.06.2008 and directed Respondent No. 2 to sanction the allowances and rental ceiling to the beneficiaries of placement, according to their original pay scales and also declared the said placemat cannot be treated as promotion. It is not disputed that the appellant was appointed as Medical Officer (BS-17) on 21.02.1994 and subsequently granted BS-18, BS-19 and BS-20. To empathize the controversy in hand, the Office Memo dated 28.08.1991 issued by the Finance Division with the approval of the President for improvement in service structure of Federal Government Health Services Personal is reproduced as under: "Government of Pakistan Finance Division, (Regulations Wings)
No. F.2(7)R.2/91-D-1355 Islamabad, the 28th August, 1991 OFFICE MEMORANDUM Subject: IMPROVEMENT IN SERVICE STRUCTURE OF FEDERAL GOVERNMENT HEALTH SERVICES PERSONNEL The undersigned is directed to say that the President has been pleased to approve the following changes in the service structure of the Federal Government, Health Services Personnel in order to provide better career opportunities:-
(i) General Cadre Medical Officers:
(a) Total number of the existing posts of Medical Officers in BPS-17 & 18 shall be placed in the ratio of 60:40.
(b) The posts in BPS-19 shall be 10% of the posts in BPS-18.
(c) The post in BPS-20 shall be 10% of the post in BPS-19.
(ii) Dental Surgeons Castre: The same service structure as for general duty medical officers shall be adopted for Dental Surgeons.
(iii) Pharmacists Cadre: The same service structure as for general duty medial officers shall be adopted for pharmacists.
(iv) Specialists Cadre: There shall be no change in the existing service structure.
(v) NursingCadre:
(i) 25% posts of staff/charge nurse in BPS-14 shall be placed in BPS-16 as Selection Grade.
Graduate Nurses shall continue to be initially appointed in BPS-16.
(ii)In order to provide better opportunities to the Nursing Cadre:
(a) 25% posts in BPS-16 shall be placed in BPS-17.
(b) 20% posts in BPS-17 shall be placed in BPS-18.
(c) 15% posts in BPS-18 shall be placed in BPS-19.
(d) 10% post in BPS-19 shall be placed in BPS-20
(vi) Para Medical Staff 33% posts of para medical staff in each cadre blow BPS-16 shall be placed in selection grade two BPS above their existing basic pay scales and by one BPS above for those who are in BPS-16.
2. Ministry of Health and other Ministries/Divisions concerned are advised to initiate immediate action for implementation of the above improvements in consultation with Finance Division. While referring the precise calculations of the posts to be placed in higher B.P.S may be provided through their F.A's Wing. In cases where recruitment rules are not available or if available require amendment, the Establishment Division may also be consulted.
3. The above orders will be effective from the date, the actions in para 2 above are finalized.
Sd/- (Javid Ahmad Khan)
Jont Secretary (R-I)
Secretary, Ministry of Health, Secretary, Ministry of Railways, Secretary, Cabinet Division, Secretary, Interior Division".
From bare reading of the above quoted Office Memorandum it is manifest that the Finance Division with the approval of the President has taken an initiative for improvements in service structure of Federal Government Health Services Personnel particularly to provide them better career opportunities of placement in higher grades up to BS-20. Subsequently, the O.M. was modified by the Finance Division vide Office Memorandum dated 11.06.2008 with the approval of the Prime Minister to introduce and include an extra tier of BS-20 in service structure of General Cadre Medical Officer. It was also emphasized in Para-2 of the O.M that the Ministry of Health and other Ministries/Division concerned are advised to initiate immediate action for implementation of the above improvements in consultation with the Finance Division. The O.M. depicts that while referring the precise calculation of the posts to be placed in higher BPS may be provided through their F.A.s Wing in cases where Recruitment Rules are not available or if available require amendment; the Establishment Division may also be consulted. In pursuance of the above said O.M. the Respondent No. 1 persistently elevated the appellant and so many other Doctors and Nurses through conducting regular DPC and fulfillment of eligibility criteria laid down for promotions, however, the orders of elevation to the next higher scale was issued on the basis of placement. It is not denied that since placing all the employees of the department have received all perks, privileges and allowances attached to higher posts and till 2002 none has objected the sanctioning of increments and allowances coupled with the rental ceiling to the beneficiaries of placement orders. The contents of the Office Memorandum dated 08.08.1991 do not provide a single clause or suggestion that the employees placed in the higher scale shall not be entitled for the fruits and benefits of perks and privileges of higher pay scale. The clarification of Finance Division dated 08.12.2022 is mere a view point of an official whereby the approved changes in the service structure of the Federal Government Health Service Personnel by the President cannot be altered or brushed aside.
The respondent-department could not controvert about the receipt of all the perks and privileges including allowances of higher grades in pursuance of the Office Memorandums dated 28.08.1991 & 11.06.2008 coupled with the facts that the same relief has been granted to his senior colleagues for the last 31 years. It is not understandable that after partially implementing Office Memorandum dated 28.08.1991 what was the reason for necessitation of seeking the clarification from the Finance Division and how the latter unilaterally furnished the opinion that the placement in higher grade is not promotion, therefore, premature increment will not be admissible.
9. In view of the above discourse it can be safely held that the clarification offered by the Finance Division was neither in the competence of Finance Division nor such an opinion can be treated having the force of law.
10. The alleged Office Memorandum dated 28.08.1991 prima-facie shows that it has been issued unilaterally by Respondent No. 1 without consulting the Establishment Division in deviation of mandate of Rule-11 of the Rules of Business, 1973 which speaks about the duty and competence of the Finance Division for consultation with the Establishment Division. For ready reference Rule-11 of the Rules of Business, 1973 is reproduced below:- "11. Consultation with the Establishment Division.
No Division shall, without previous consultation with the Establishment Division, issue, or authorize the issue of any orders, other than orders in pursuance of any general or special delegation made by the Establishment Division, which involve-- (a)....
(b)....
(c)....
(d) a change in the terms and conditions of service of Federal civil servants;
(e) a change in the statutory rights and privileges of any Federal Government servant; Having a glance through the above quoted Rule it is abundantly clear that the authority for issuing the policy letter lies within the domain of the Establishment Division and Respondent No. 1 had no such power to issue impugned letter dated 08.12.2022. It is settled law that a thing to be done in a particular manner, it must be done in that manner only not otherwise. The law clearly provides that the Finance Division is duty bound to consult with the Establishment Division on the issue of alleged clarification in a matter where a beneficial policy and decision made by the Government was existing in favour of the employee. In such a situation the Finance Division was required to interpret liberally the policy in such a way that the employee would have been benefited.
10. So far as the stance of Respondent No. 1 is concerned that in Para-2 the Office Memorandum dated 28.08.1991 issued with the approval of the President, the Ministry of Health and other Ministries/Divisions were advised to initiate immediate action for implementation of improvements, in consultation with the Finance Division, hence the Respondent No. 1 should have issued clarification about implementation of Office Memorandum dated 28.08.1991 instead of curtailing the benefits awarded to them. In Para-2 of the said O.M dated 28.08.1991 it was further made clear that in cases where recruitment rules (sic) available or if available require amendment, the Establishment Division may also be consulted. Respondent No. 1 despite knowing well the fact that the respondent-department has no Recruitment Rules issued alleged clarification only to the extent of depriving the appellant from his allowances and other benefits attached with higher post which is not sustainable in the eye or law. We are of the considered view that the clarification made by Respondent No. 1 in the impugned letter dated 08.12.2022 is not in consonance with law and the O.M. dated 28.08.1991, as neither approval of the Prime Minister has been accorded for making such opinion nor consultation with Establishment Division appears to have been made as apparent from the impugned letter dated 08.12.2022. Another important fact is that the impugned clarification has been issued after a lapse of 31 years and during this period no endeavor has been made by the Respondents No. 1 or 2 for implementation of O.M. issued by the Finance Division. For long 31 years the Medical Officers who were granted BS-17, BS-18, BS-19, BS-20 & BS-21 on placement basis have not only served the department in respective higher scale but were receiving perks, privileges, premature increment, rental ceiling, house rent allowances and medical allowance under the policy 0.Ms dated 28.08.1991 & 11.06.2008 and it remained uninterrupted till their retirement.
Suddenly the Finance Division and AGPR awaken from deep slumber and issued the impugned anomalous letter dated 08.12.2022 in deviation from the original Office Memorandum dated 28.08.1991. The Respondent No. 1 has admitted that implementation of policies contained in O.M. dated 28.08.1991 and 11.06.2008 was required framing of Recruitment Rules, but despite requesting the Respondent No. 4/M/o NHSR&C have not framed the Rules till date. Instead of proposing or suggesting any disciplinary or penal action against the persons sitting on the helm of affairs in Wo NHSR&C an employee of the Finance Division furnished the so-called opinion for depriving those Medical Officers from allowances etc who have rendered valuable services for more than 31 years.
The Establishment Division's Office Memo dated 13.11.2023 has been placed on record wherein the Establishment Division has advised the M/o NHSR&C that instead of incorporation the service structure through placement 'method in Recruitment Rules, the method of Placement of posts in higher scales in pursuance of aforesaid Finance Division O.M. dated 28.08.1991 and 11.06.2008 may in continued".
11. The contention of worthy Deputy Attorney General that grant of higher pay scale on placement basis is not a promotion and that employees who were granted BS-18, BS-19, BS-20 & BS-21 are not entitled for allowances etc, is not supported from the record and against version of Office Memorandum dated 28.08.1991 duly approved by the President. The appellant was granted BS-18, BS-19 & BS-20 on placement basis on the recommendation of a duly constituted DPC after fulfillment of eligibility criteria of fitness and approval by the competent authority, which in fact was a process of promotion, hence the employees were entitled to all the allowances etc.
12. Yet there is another aspect of the case, that the Public Accounts Committee "PAC" in its meeting held on 30.05.2023 has thoroughly considered the issue of grant of premature increment to Medical Officers and directed the respondent-department that Doctors, Nurses and other Paramedical staff should not be deprived from their current granted placement scales and promotions be granted to them in their present scales which they got after having long service.It was further directed by the PAC that their salaries, pension, allowances and other benefits granted on placement basis will be continued and overdue service structure of promotion be framed and approved within one month and ensure the grant of regular promotion not below the present placement grade. In order to implement the PAC's directives, the M/o NHSR&C was taken on board by the Respondent No. 1 with a request that past expenditure of the employee may be calculated which was incurred as irregular payment of pay and allowances on grant of higher BPS on placement basis to health personnel and same may be submitted to PAC for regularization in accordance with Finance Division U.O dated 19.06.2023. The said Ministry was further requested that Recruitment Rules/Service Structure of Health Personnel/Medical Officers may be finalized within one month as directed by the PAC so that further irregular expenditure in the matter is not incurred but of no avail. Despite clear direction of PAC and efforts made by Finance Division the concerned Ministry had paid deaf year to the matter, for which appellant and other employees shall not be punished.
13. In view of the above discussion, the present appeal has merits hence, accepted with connected appeals No. 23 to 37(R)CS/2024. The impugned letter dated 08.12.2022 being in deviation from original Office Memorandum dated 28.08.1991 is set aide and the respondents are directed to consider the placement of the appellant as regular promotion with all back benefits. The order of deduction on the basis of letter dated 08.12.2022 is set aside and if any deduction has been made on the basis of the impugned letter, be refunded to him. The respondents are further directed to streamline the Recruitment Rules for health personnel as early as possible, but not later than two months, from the date a copy of this judgment is received in their office.
14. Since the main appeals have been decided finally, the Misc. Petitions have become infructuous and the same are disposed of accordingly. Order announced in open Court. Parties are left to bear their costs.
15. Parties shall be informed accordingly.