JUDGMENT Abdul Ghafoor Lodhi, J.-The decision dated 14-10-1984 passed by the learned Presiding Officer, Punjab Labour Court No. 7 Gujranwala has been challenged whereby the grievance petition of the appellant was dismissed.
2. The facts are that on account of the allegation of misconduct the appellant was removed from service vide order dated 22-8-1982. The appellant preferred a departmental appeal, which was accepted op 11-5-1983. Before the appellant was removed from service he had been Sept under suspemion from 24-7-1982, to 24-9-1982, when the order of removal from service was converted into the punishment of WIP for three years. No decision was made with regard to the period of suspension and the period for which the appellant bad remained out of service. In August, 1983 the period of suspension was treated as S.U.S. And the period for discharge from service from 25-9- 1982 to 11-5-1983 was treated as leave without pay. The appellant served grievance notice on 22-8- 1983 and lodged his grievance petition on 6 10-1983. The learned lower court has held that the grievance notice and grievance petition were time-barred in as much as the order of removal from service was passed on 11-5-1983. WiSh- stgard to the order passed in August, 1983 the learned lowor court said that it was not a subsentive order but was consequential to the order dated 11-5-1983. This is wrong both the orders were separate and gave separate causes of grievance to the appellant. The grievance notice and grievance petition so far as they related to awarding of punishment of WIP were time-barred in eg such as the said order was conveyed to the appellant on 14-5-1983 whereas the grievance notice was sent on 22-8-1985 But so far as the order whereby the period of suspension was treated as SUS and period for which the appellant has remained out of service was treated as leave without pay is concerned the grievance notice is not time-barred in as much as it was sent in the same month in which the order was passed. The learned lower court, therefore, should have recorded its finding about the correctness or otherwise of the order whereby the period of suspension was treated as SUS and period for which the appellant remained out of service was considered as leave without pay. The appeal, petition therefore,jis partly accepted and holding that the petition grievance and grievance notice were within time so far as the order passed in August, 1983 with regard to the suspension period and the period for which the appellant remained out of service was concerne't, the case is remanded for decision whether order passed in August, 1983 is sustainable or not. Nemo for the parties K.L.B. 1987 Labour and Service Cases 78 (Karachi] Present < (Rtd.) Mumkan All Khan. (Chairman) and Muhammad Ibrahim Lakhiar (Dr.) A. Q. Qazi.
Member, JJ.
MUHAMMAD MAROOF versus SECRETARY, HOUSING TOWN PLAINING AND LOCAL GOVERNMENT And MUHAMMAD AFZAL versus SECRETARY HOUSING TOWN PLANNING and others Appeal No. 86/84, decided, on 2nd October, 1986.
Sind Civil Servants (Appointment, Promotion and Transfer) Roles, (1974)
"""Rule 8-Explanation to the rule-Post of grade 16 abolished and the posts placed in grade' 17-Words used notifiying the change in status- Placed in grade 17 instead of ''upgraded to grade ,17"- Difference- Held; there is no material difference between the two phrases-In effect the words" the posts in grade-16 are placed in gra^e-17", obviously ten- tamount to up-grading of the posts-Held Further : The Explanation to role 8 referred to above, provides that appellants can automatically continue in upgraded posts. Merely because the upgrading of the posts in question did not arise from revision of pay scale, the appellants cannot be deprived'Of the benefit of their continuing in the upgraded posts otherwise admissible in the ease of revision of pay scales. (Para. 4)
For the Appellants \ Naimatullah Qureshi, Advocate.
For the Respondents ; Abdul Ghafoor Mangi, Additional Advocate, General.
Date of hearing ; 25th Oetober. 1986.
JUDGMBNT (Rtd ) Munawar Ali Khan, (Chairman).-This judgment will disposes of two appeals ; one filed by Muhammad Maroof (appeal No, 86 1984) and another, filed bv Muhammad Afzal (Appeal No. 87/1984). The case of both the appellants is identical. The Appellants were appointed at Instructors, Sind Local Government Training Institute, Tandojam in grade-18 following their selection by the Sind Public Service Commission. Subsequently, by its notification No. SO (A. RD-TRAINING/4-3/S0, dated 28th October, 1V68 the Government placed the po'ts of Instructors in grade-17, abolishing the posts in grade-16, with effect from 30-6-1983, As a result of the change in the status of the post of Instructor it was decided, with the appr va1 of the Chief Secretary, that Departmental Sele? Ction Committee be constituted to consider the appointment of the appellants in the newly created posts in grade-1 ' on adhoc basis, besides sending he necessary requisition to the Public Service Commission for making regular selections for the said posts. Aggrieved by this decision the appellants api'ated against the same but with no result. They ultimately filed their appeals before this Tribunal praying for setting aside the order requiring then to seek fresh appointment to the posts of Instructor.
2. After bearing the learned counsel for the appellants and the learned A. A G, the appeals were allowed by short ordtr dated 29-9-1986 for reasons to be recorded separately. Following are the reasons in support of the said short order.
4. The stand taken by the official respondents in the written statement filed on their behalf is that the posts of Instructors in grade-16 were not upgraded but they were placed in grade-17 and in consequence of such placement the posts in grade-16 were abolished. Therefore their contention was that the appellant who were working as Instructors in the lower grade had to seek fresh appointments to the newly 'created posts in grade-17.
4. The learned counsel for the appellants has referred us to rule 8 and the Explantion following there-under of Sind Civil Servants (Appointment, Promotion and Transfer) Rules 1974 (hereinafter referred to as the said rules), it reads as under ;- "a. Persons as possess such qualifications and fulfil the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion committee or the Provincial Selection Board, as the case may be.
Explanation.-Where a class of posts, not being a fixed number, or persentage of posts in such class are upgraded as a result oj revision of pay scales the iacombents holding the posts immediately betoro the upgrading shall continue in the upgraded posts and their continuance shall not be deemed as promotion for the purpose of this part ,
5. It appears-from the above explanation that if certain cl as% of posts are upgraded, the incumbents thereof will automatically continue in the upgraded posts and their continuance in the said posts will not be regarded as promotion so as to require then to seek such promotion under the rules. Therefore the point that falls for our decision is whether the posts of Instructors held by the appellants were up graded from grade-16 to grade-17 within the meaning of the Explanation referred to above. As pointed out above the respondents' contention is that the said posts were not upgraded. The word 'upgrading' is not defined in the said rdes. However, the dictionary meaning of the word'up-grade* is : to raise to higher grade, rate of pay etc. (vide Concise Edition of Webster's Dictionary). Even otherwise it is clear that by removing the post of Instructor from lower grade-1 S and placing the same in higher grade-17, the status of the post had obviously been raised. The decision as to change of the status of the said posts was admittedly taken in the wake of upgrading the status of the Training Institute at Taniojam to that of Academy. Thus with up- grading of the status of the institute in which the appell 6. The argument of the learned AAG, was that while notifiying the change in the status of the posts of Instructors from grade-16 to grade.17 the words "upgraded to grade-17" have been avoided and instead the words "placed in grade. 1 V* have been used. Accordingly in his opinion upgrading T the posts has not taken place. We regaret we do not see any force in the argument. To us there is no material difference between the two phrases. 1a effect the words : "the posts in grade-16 are placed in grade-17", obviously tantamount to upgrading of the posts. Even the abolishment of the posts in grade-16 as a result of their placement in grade-17 would not improve the case of the respondents. It was only a logical corollary of the upgrading of posts to make such arrangement for the purpose of financial transactions.
7. In ordinary course if any post is abolished, its incumbent is rendered surplus and efforts are made to absorb him in equivalent or lower post as provided in rule 9-A of the said rules. But that is not the case here. The posts held by the appellants were not abolished in that context nor were the appellants rendered surplus due to such abolishment. In this case the abolision of their posts took place in consequence of the raising of their status. Even the Finance Department while giving advice to the Local Government Department (vide their U O. No. FP- (EXP-IV) L. G.-56/78 dated 26th November. l83). Expressed the view that the abolision of existing lower posts and creation of posts in lieu thereof in higher grade does not consititute termination of the service of the existing ihcumbents who can be appointed against the newly created posts in accordance with the recruitment rules. As pointed out above the Explanation to rule 8 referred to above, provides that appellants can automtically continue in upgrded posts. Merely because the up grading of the posts in question did not arise from revision of pay scalce, the appellants eannot be deprived of the benefit of their continuing in the upgraded posts otherwise admissible in the case of revision of pay scales. We hardly see any material differrence between the two situations. We are of the view that since the status of the posts originally held by the appellants has been raised from grade-10 to grade-1 7. They have certainly been upgraded. If the incumbents of such posts can automatically continue in upgradod posts without seeking fresh appointment in the case of the upgrading following the revision of pay scales, we see no justification to deny such benefit to the incumbents in the case of the upgrading of the posts in other circumstances. In either case the holders of the posts who were recruited for lower posts would have to work in higher posts following the process of the upgrading. We cannot subscribe to the view that the Explanation referred to above seeks to make such discrimination which will not only be arbitrary but will also be mo.t inequitable. We would suggest that in order to cover all cases of upgrading of the posts made in any circumstances, if necessary, suitable amendment be made in the said Explanation.
8. The upshot of the above discussion is that the impugned order requiring the appellants to seek fresh appointment to the upgraded posts cannot be sustained which is therefore set aside. The appeals were accordingly allowed by short order referred to above with no order as to costs.
9. Given under our hands and the seal of this Tribunal on this 2nd day of October, 1986 at Karachi.