1. MUNAWAR ALI KHAN (CHAIRMAN).--This judgment will dispose of two appeals; one filed by Muhammad Maroof (Appeal No. 86 of 1984) and another, filed by Muhammad Afzal (Appeal No. 87 of 1984). The case of both the appellants is identical. The appellants were appointed as Instructors, Sind Local Government Training Institute, Tandojam in Grade-16 following their selection by the Sind Public Service Commission. Subsequently, by its Notification No. S.O. (A.RD-TRAINING/4-3/80, dated 28th October, 1983 the Government placed the posts 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 approval of the Chief Secretary, that Departmental Selection Committee be constituted to consider the appointment of the appellants in the newly-created posts in Grade-17 on ad hoc basis, besides sending the necessary requisition to the Public Service Commission for making regular selections for the said posts. Aggrieved by this decision the appellants agitated against the same but with no result. They ultimately filed their appeals before this Tribunal praying for setting aside the order requiring them to seek fresh appointment to the posts of Instructor.
2. After hearing the learned counsel for the appellants and the learned A.A.-G., the appeals were allowed by short order, dated 29-9-1986 for reasons to be recorded separately. Following are the reasons in support of the said short order.
3. 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 appellants 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 Explanation following thereunder of Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 (hereinafter referred to as the said rules). It reads as under:-- "8. 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.
5. Explanation.--Where a class of posts, not being a fixed number, or percentage of posts in such class are upgraded as a result of revision of pay scales the incumbents holding the posts immediately before the upgrading shall continue in the upgraded posts and their continuance shall not be deemed as promotion for the purpose of this part."
6. It appears from the above explanation that if certain class 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 them to seek such promotion under the rules.
7. Therefore, the point that falls for our decision is whether the posts of Instructors held by the appellants were upgraded 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 rules. However, the dictionary meaning of the word 'upgrade' 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-16 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 ink the were of upgrading the status of the Training Institute at Tandojam to that of Academy. Thus, with upgrading of the status of the Institute in which the appellants were serving as Instructors, the status of the posts held by them was also raised. Accordingly in our opinion the change in status of the posts of instructors was nothing but upgrading of the posts.
8. The argument of the learned A.A.-G., was that while notifying 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-17" have been used. Accordingly in his opinion upgrading of the posts has not taken place. We regret we do not see any force in the argument. To us there is no material difference between the two phrases. In 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. held by the appellants were not abolished in that context nor were the appellants rendered surplus due to such abolishment. In this case the abolition 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. F.D-(EXP-IV) L.G-56/78, dated 26th November, 1983) expressed the view that the abolition of existing lower posts and creation of posts in lieu thereof in higher grade does not constitute termination of the service of the existing incumbents 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 automatically continue in upgraded posts, merely because the upgrading of the posts in question did not arise from revision of pay scales, the appellants cannot 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 difference 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-16 to Grade-17, they have certainly been upgraded. If the incumbents of such posts can automatically continue in upgraded 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 most 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.
9. 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.
10. M.Y.H./90/Lb/S