Asim Akram, Member. Through the titled appeal, the appellant has challenged departmental final order dated 29.07.2019 whereby his request for promotion as Assistant Finance Advisor (AFA) (BS- 17) was rejected.
2. This is second round of litigation. Earlier an appeal No. 843(R)CS/2019 filed by the appellant was disposed of by the Tribunal vide its order dated 13.05.2019 with the direction to competent authority to decide the departmental appeal of the appellant in compliance thereof the impugned order dated 29.07.2019 was passed.
The facts narrated in the memo of appeal are that the appellant is posted as Accounts Clerk (BS- 09) at Directorate of Budget and Accounts (DBA) (respondent No. 2) with Pakistan Public Works Department (PWD) (respondent No. 3). The appellant has contended that he has passed the training by Pakistan Institute of Public Finance Accounts (PIPFA) and be considered for promotion as Assistant Finance Advisor (AFA) (BS-17) from the date he qualified PIPFA examination by adopting the same analogy on the basis of which his other colleagues namely Malik Shakeel Mehmood, Ali Irfan and Rashid Iqbal were promoted as AFA w.e.f 20.11.2008, 22.05.2009 and 07.12.2011, respectively. The appellant has further contended that Directorate of Budget and Accounts is a department of Pakistan Public Works Department, Ministry of Housing but after the promulgation of Controller General of Accounts (Appointment, Functions and Powers) Ordinance, 2001 the Directorate is being operated by the Controller General of Accounts (Respondent No. 1).
Also, the promotions in the past, 2008 and 2009 were done by respondent No. 2 (Directorate of Budget and Accounts, PWD) whereas the one in 2011 was notified by respondent No. 1 (CGA). While summing up the arguments, the learned counsel for the appellant has prayed that the appellant has qualified for the post of AFA and should be considered against the said post by following rule of consistency.
4. The respondent No. 1, Controller General of Accounts (CGA), has contended that the post of Assistant Financial Advisor belongs to Executive Side of Directorate of Budget and Accounts, PWD (respondent No. 02). Hence, the promotions to the said post is to be made by the executive side of respondent No. 2 instead of CGA. Also, these promotions are not covered under CGA Recruitment Rules, 2014; according to which Senior Auditor (BS-16) (qualified/unqualified PIPFA) is eligible for consideration for the post of Assistant Accounts Officer (BS-17).
5. The respondent No. 2 (Directorate of Budget and Accounts, PWD) has contended that in terms of serial No. 164 of Manual of Standing Order of the Auditor General of Pakistan and Guidelines/Instructions of PIPFA Examination only the employees under CGA and Auditor General of Pakistan and working as Senior Auditors BS-16 are entitled for PIPFA (Public Sector) Training. It is also contended that even the Junior Auditor (BS-11) of CGA/AGP are not entitled to take part in PIPFA training. The employees of Directorate of Budget and Accounts have to apply for PIPFA training through the concerned Directorate. The employees pursing PIPFA (Public Section) Training without being nominated by the directorate via AGP would require to submit an affidavit forfeiting their right to claim promotion on the basis of PIPFA qualification. It is further contended that the appellant has not applied for PIPFA (Public Sector) Training through proper channel neither was he qualified for taking the said training. Hence, he is not eligible for claiming the relief on basis of PIPFA (Public Sector) Training.
6. The respondent No. 3 (Director General, Pakistan Public Works Department) contended that the administrative control of Directorate of Budget and Accounts lies with the Controller General of Accounts, Pakistan. It is further contended that the post of AFA exist in the circle offices of PWD, however neither there are any specific appointment/promotion rules for the post of AFA in PWD nor in CGA. The earlier promotions were made by CGA/DBA subject to following the conditions i) qualification of PIPFA Exam (all stages) ii) No disciplinary case is pending against the Official and iii) no adverse remarks in ACRs for the last five years.
7. We have heard the arguments on the appeal at hand from both the side and perused the record.
8. The appellant is presently working Accounts Clark (BS-09) on Executive Side of the Directorate of Budget and Accounts, PWD and has prayed for consideration of his promotions against the post of Assistant Financial Advisor (BS-17) on the basis of passing the PIPFA Public Sector) Training by following the rule of consistency whereby three of his colleagues were promoted.
9. The Manual of Standing Orders of the Auditor General of Pakistan and Guidelines/Instruction for PIPFA Examination sets the candidature for the PIPFA training Relevant standing orders provides as follow: "161. Permission of the Auditor General is necessary for a candidate to appear in the PIPEA (Public Sector, SAS (new syllabus)) or SAS examination. The Auditor General requires for this purpose from Accountants General/Directors General! Directors a statement of candidates recommended by them for the SAS (new syllabus) or SAS examination in Form at Annex-F on the date prescribed by the Auditor General. Registration Forms for the PIPEA (Public Sector) Examination are required to be submitted by the Accountants General/Directors General/ Directors to the office of the Auditor General for countersignature by an authorized officer before these are sent to PIPEA."
For ready reference, the S.L No. 163 is also reproduced as under:- "163. The essential condition governing the recommendations of an Accountants General/Directors General/Director is that the candidate recommended shall, on his passing the PIPFA (Public Sector) or SAS (New Syllabus) or SAS examination, performed his duties as Assistant Accountants/Audit Officers (Bs-16) satisfactorily."
10. From the perusal of the above referred instructions given in Manual of Standing Orders it is evident that PIPFA (Public Sector) nomination recommendations shall be forwarded by the Accountants General/Directors to the office of Auditor General and no employee in private can apply to undergo the PIPFA (Public Sector) training. Also, the recommendations can be given to the persons who after qualifying PIPFA (Public Sector) could perform duties as Assistant Accountants/Audit Officers (BS- 16). Meaning thereby that only the mentioned designated officer of Assistant Accountants/Audit Officers (BS-16) can be recommended for participation in PIPFA Training. The present appellant who is working in BS-09 does not qualify the above stated criteria Also, the Respondent No. 2. being a parent department of the appellant has denied appellant's recommendation to Pakistan Institute of Public Finance Accounts (PIPFA) for his inclusion in public sector training. In such scenario the appellant cannot claim promotion on the basis of PIPFA qualification from BS-09 to BS-17 that too in presence of any specific rule. In furtherence of Manual of Standing Orders of the Auditor General of Pakistan and Guidelines/Instruction for PIPFA Examination read with CGA Recruitment Rules, 2014, only the Senior Auditors (BS-16) are eligible for consideration of promotion against the post of Assistant Accounts Officer (BS-17).
11. It is an admitted by all the sides that till date no rules for appointment against the post of AFA (BS-17) has been framed by the PWD for its Directorate of Budget and Accounts. Earlier an Assistant Auditor (BS-16) in Directorate of Budget and Accounts, PWD claimed promotion against the post of AFA (BS-17) by filling Appeal No. 1334(R)CS/2016 which was disposed of by the Tribunal vide its judgment dated 08.03.2020 with the following observations: -
6. It is crystal clear that method of appointment, qualification and other conditions applicable to the post are to be laid down by the Ministry or Division concerned in consultation with the Establishment Division. Admittedly no such rules have been framed by the official respondents. In such a situation, no appointment/promotion against the post of Assistant Financial Advisor/Financial Advisor can be made.
7. In the above circumstances, we direct the official respondents to frame rules within the meaning of Section 3(2) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 for the appointment, promotion and transfer of Assistant Financial Advisors and Financial Advisors.
After framing the rules, if the case of the appellant fall within the ambit of rules his case be considered for promotion. The exercise be completed within a period of six months. With this direction, the appeal stands disposed of accordingly.
12. The appellant is presently working as Accounts Clark (BS-09) on Executive Side of the Directorate of Budget and Accounts, PWD and in absence of prescribed rules he cannot be considered for promotion in BS-17 only in furtherance of three earlier promotion done in baffling manners. An erroneous past transaction does not validate the future wrong because a wrong done by the department cannot be made a precedent and shall not be allowed to perpetuate.
Reliance is placed on the judgment of the August Supreme Court of Pakistan dated 05.06.2017 passed in Civil Petitions No. 2246,2269,2270 and 2308 of 2016 wherein it was held that:- "6. When this being the case, we do not think the arguments addressed by the learned ASCs for the respondents has any legal or logical force and vigour. Even otherwise, we repeatedly held that a benefit which could not have been extended to any under the law. If extended to one would not constitute a precedent. For it is too settled that one or any number of wrongs cannot make a right.
We therefore, convert these petitions into appeals. Allow them and set aside the impugned orders.
However respondents who suffered because of wrong dispensation and its wrong application cannot be left high and dry. We thus direct the department to arrange an exam for them under the aegis of Federal Public Service Commission within three months enabling them to be at par with the others."
13. In the circumstances, the Respondent No. 2 & 3 are directed to frame service structure and appointment rules for its employees in executive side of Directorate of Budget & Account, PWD in consultation with the relevant authority with in a period of six months and submit a report with the office of the Registrar, Tribunal.
14. No order as to costs. Parties be informed.