' SYED ALLY MADAD SHAH '(CHAIRMAN).--Both the appeals are of identical nature. They have been heard together. They are disposed of by this one judgment.
2. Both the appellants are Section Officers in the Office Management Group. The appellant Mr. Muhammad Aftab Mahmud (Appeal No, 206(R) of 1986) is posted in the Establishment Division, while the appellant Mr. Sikandar Hayat Maken (Appeal No, 220(R) of 1986) is serving in the Food and Agriculture Division. Both the appellants joined service in March 1977 after getting through the competitive examination held by the Federal Public Service Commission. By Notification No,4/3/85- 0MG.I, dated the 30th July, 1985, as many as 104 Section Officers in the Office Management Group were promoted to BPS-18 with effect from 16th May, 1985, while the appellants were excluded and were even superseded by some of their juniors. The appellants were later promoted to BPS-18 with effect from 16th May, 1985 vide Notification No, 4/3/85-0MG.I, dated the 12th February, 1986. Their promotions too were made effective from 16th May, 1985 for fixation of their pay but without the benefit of arrears for the intervening period. They preferred appeals to the Prime Minister on 10-3- 1986 and 11-3-1986 respectively for promotion to BPS-18 from the day they had completed five years' service in BPS-17 viz. 20-3-1982, with consequential benefit of arrears of pay and allowances, etc. Awaiting orders on their appeals for statutory period of 90 days, the appellant Mr. Muhammad Aftab Mahmud filed Appeal No, 206(R) of 1986 on 29-6-1986, whereas the appellant Mr. Sikandar Hayat Maken filed Appeal No, 220(R) of 1986 on 9-7-1986, praying that they may be placed in BPS- 18 from the day they had completed five years of service in BPS-17 i,e, 20-3-1982 and they may be allowed pay and allowances and seniority in BPS-18 from the same date viz. 20-3-1982.
3. The appeals were initially directed against the Federation of Pakistan through the Secretary, Establishment Division. The memos. Of appeals were amended later and as many as 129 Section Officers were added as the respondents. The amended memo. Of appeal in Appeal No, 206(R) of 1986 was filed on 25-9-1986 and that in Appeal No, 220(R) of 1986 was presented on 4-12-1986.
4. The appellants' case, briefly stated, is that in the total cadre strength of Office Management Group, 50 per cent Officers are placed in BPS-17 and 50 per cent in BPS-18. According to them, the Officers in BPS-17 switch over to BPS-18 on completing five years' service on seniority-cum-fitness basis. Their assertion is that they completed five years' service on 20-3-1982 and they are entitled to promotion to BPS-18 and consequential benefits from that date. Their grievance is that the officers in BPS-17 in other groups were promoted to BPS-18 on completing requisite service of five years, whereas discrimination was made in the Office Management Group by delaying promotions in that Group. They have made reference to several notifications which would be referred to herein bellow.
5 The appeals have been resisted by the Government, contending that completion of five years service for promotion to BPS-18 earns only eligibility for promotion but it does not create a right for promotion and the claim of the appellants for promotion on that ground is not tenable. It has been stated that the appellants were considered for promotion to BPS-18 on 15-5-1985 but their promotion was deferred and they were again considered for promotion on 10-2-1986 and were cleared for promotion and were accordingly promoted and allowed seniority alongwith their batch-mates who were promoted vide notification dated 30-7-1985, but they were not entitled to the monetary benefits. Legal pleas also have been raised that the appeals are time-barred and are also hit by section 4(1)(a) of the Service Tribunals Act, 1973, as no departmental appeal was filed within time.
6. From amongst the respondents Nos. 2 to 130, the respondents Nos. 6, 7, 9, 11, 17, 22, 27, 30, 36, 39, 44, 47, 48, 51, 53, 60, 64, 65, 68, 72, 73, 75, 80, 82, 105, 109 and 113 have filed written objections in Appeal No, 206(R) of 1986; and respondents Nos. 6, 7, 9, 17, 22, 24, 25, 27, 39, 47, 48, 51, 53, 54, 57, 60, 72, 73, 75, 105 and 113 have filed objections in Appeal No, 220(R) of 1986, while the rest have preferred to remain ex parte. Even the respondents who have .Filed written objections have not appeared at the date of hearing except Mr. Muhammad asin Khan, respondent No, 57, but he left before his turn came for bearing him.
7. As a measure of Administrative Reforms in the Government service set p, all the services and cadres were merged into a single unified graded structure known as 'All Pakistan Unified Grades'
(abbreviate known as APUG) in the ear 1973. The new service structure was later reorganized into various occupational Groups. The Office Management Group (hereinafter shortly stated OMG), the appellants belonged to was constituted under Office Memorandum o. 1/2/75-ARC, dated 27th January, 1975, published in the ESTACODE (1983 dition) at pages 744 to 749. Salient features of the constitution of this Group are:
(1) Constitution: This Group comprises:
(i) all ministerial posts in the Federal Secretariat from Grades 1 to 16;
(ii) posts of Section Officers in Grades 17 and 18; and
(iii) such other posts including the posts in Grades 19 and 20, as may be specified and included in the Group from time to time.
(2) Initial Composition: the initial composition of the Group in the Federal Secretariat was as under:--
(i) Section Officers who already stood encadred in the former CSS Cadre through notifications issued from time to time.
(ii) Section Officers who were eligible to be encadred but notifications could not be issued before the abolition of the CSS Cadre.
(iii) Section Officers directly recruited by F.P.S.C. Till the end of 1974.
(iv) Ad hoc Section Officers who-qualified in the promotional examinations of 1967 and 1969 but who could not be adjusted on regular basis due to non-availability of posts in the departmental quota.
(v) Ad hoc Section Officers who appeared in the promotional examinations of 1967 and 1969 and were cleared by revising the standard in consultation with the F.P.S.C.
(3) Working strength of the Section Officers: The working strength of the Section Officers in the Federal Secretariat initially was 750. 50% of the total strength of the posts were placed in Grade-17 and the remaining 50% in Grade-18.
(4) Future Recruitment: For future recruitment to Grade-17, 2/3rd of the vacancies of the Section Officers in Grade-17 were to be filled by direct recruitment through F.P.S.C. And the remaining 1/3rd of the vacancies by promotion of the departmental eligible candidates through a promotional examination. Provision was also made for lateral entry against 2/3rd vacancies allocated for direct recruitment to meet specific requirements in the Federal Secretariat.
(5)Grade-18 Posts: Promotion to Grade-18 posts is to be made from amongst Section Officers in Grade-17 who have rendered at least five years of service in the Grade (i,e, 17) in accordance with the provisions of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.
(6) Grades 19 and 20 Posts: Promotions to posts in Grades 19 and 20, as may be specified from time to time, are to be made by selection from amongst eligible officers of the Group in accordance with the procedure etc. Laid down in the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973. Length of service required for eligibility to Grades 19 and 20 is 12 years and 15 years respectively in Grades 17 and above.
(7)Posts in Grades 21 and 22: Selection to posts in these grades will be made from Grade-20 Government servants and professionally qualified persons in the private sector.
8) Seniority: (a) Separate Division-wise seniority lists are to be maintained for all posts in Grades 1 to 16 on the basis of continuous regular officiating in the Grade;
(b) all officers of Grade-17 are to be borne on one combined seniority list to be drawn up in accordance with the following principles: Those Section. Officers who were eligible for regular appointment as such under the former CSS Rules shall, as a class, rank senior to other Section Officers. Their inter se seniority shall be fixed in accordance with the provision of the said Rules,
(ii) The inter se seniority of Sections Officers other than those mentioned at (i) above shall be determined on the basis of the date of regular continuous officiating as Section Officers.
(c) Seniority in Grade-18 and above is to be determined in each grade from the date of regular continuous officiating in each grade.
8. The appellants' claim for promotion to Grade-18 with effect from 20-3-1982 is based on the argument that they had earned promotion, on having rendered five years' service in Grade-17. The provision for promotion to Grade-18 is contained in paragraph 9 of the aforesaid Office Memorandum dated 27-1-1975 where under the OMG was constituted. It reads as under:-- "Grade-18.--Promotion to Grade-18 will be from amongst Section Officers of Grade-17 who have rendered at least 5 years of service in this Grade, in accordance with the provisions of the Civil Servants (Promotion, Appointment and Transfer) Rules, 1973."
It would appear from the bare reading of the paragraph 9 reproduced above that the length of 5 years of service- in Grade-17 is the minimum requirement for eligibility for promotion to Grade-18, but the rendering of five years' service ' not ipso facto entitle the incumbents to enter Grade-18 by promotion. A appellants have pressed in aid various notifications issued from the Establishment Division in respect of promotions to Grade-18 in other Groups (filed as Annexures IV to XVI to the memo. Of appeal) during the period 1980 to 1982 and urged that the officers in those Groups were promoted on completion of five years' service in the Group. The Annexures VII, VIII, XII, XIII, XV and XVI are of different nature as they relate to promotions of the officers of different Groups promoted to Grade-18 with effect from specified dates and are not relevant herein. Of course, the other notifications do have relevancy to the appellants' case. The text of the notifications Annexures IV and V reads as under:- "The following officers of District Management Group are promoted to Grade-18 with effect from the date they completed five years' service in the group or from the date they assumed charge of the Grade-18 posts in that Group, whichever is later:-- xx xx xx ' The text of the notification Annexure VI is somewhat different reading as under:- "The following officers of the District Management Group are promoted to Grade-18 with effect from the date they completed five years' service in the group or from the date they assumed charge of Grade-18 posts, whichever is later:- xx xx xx ' The notifications Annexures IX and XI are of the nature of the notification Annexure VI, reproduced above, but is in respect of Assistant Superintendents of Police (Grade-17). The notification Annexure X is of the nature of the notifications Annexures IV and V, reproduced above, but is in respect of Assistant Superintendents of Police (Grade-17). There remains notification Annexure XIV and it reads as under:-- "In partial modification of Board's Notifications No, 195-ACE.I/79, dated 29-11-1979, and No, 65- ACE.I/80, dated 14-4-1980, the following officers of Customs and Excise Group are granted Grade-18 from the date indicated against each on completion of 5 years' service in Grade-17:-- xx xx )0C It would appear that none of the notifications referred to by the appellants advances their case. In the aforesaid notifications which have relevancy to the appellants' case, the officers named therein, were allowed benefit of promotion to Grade-18 on or after completing five years' service or assumption of charge in Grade-18, whichever event was later and criteria for promotion was not only the completion of five years' service but also the date of assumption of charge in Grade-18 on or subsequent to the completion of five years' service in Grade-17. The contention of the appellants that they should be allowed Grade-18 from the date of completion of five years' service in Grade-17 is obviously misconceived. However, the learned counsel for the appellants has urged that posts in Grade-18 were lying vacant and the appellants should not have been denied promotion after they had rendered five years' service in Grade-17. This argument too appears to be misconceived as filling in of the posts lay within the discretion of the concerned authorities depending upon the expediency of service and the appellants were considered for promotion at the appropriate time.
9. The learned counsel for the appellant has advanced alternate argument that the appellants have been conferred promotion with effect from 10-2-1986 with the benefit of fixation of pay with effect from 16-5-1985, but without the benefit of arrears from 16-5-1985 to 10-2-1986 as per endorsement on the impugned notification dated 12-2-1986, and they should not have been denied the benefit of at least the emoluments for the intervening period. He has placed reliance on cases reported in 1985 SCMR 1394 and PLD 1986 SC 349. The learned counsel for the respondent has stated from the record that the appellants were considered for promotion on their turn first time on 15-5-1985 but their case was deferred by the D.P.C. For want of certain record and they were reconsidered at the next meeting of the D.P.C. Held on 17-12-1985 and they were cleared for promotion and they were actually promoted on 10-2-1986 vide notification issued on 12-2-1986.
This statement of facts made by the learned counsel is not controverted. The promotion of the appellants had, therefore, to be notified from the date they were actually promoted. However, they were allowed fixation of their pay in Grade-18 with effect from 16-5-1985 which was the date when their juniors were promoted vide notification dated 30-7-1985, referred to above. Since the appellants were allowed benefit of fixation of pay with effect from 16-5-1985 and rightly so because their juniors were promoted from that day and their (i,e, the appellants') promotion was deferred for want of certain record and they were deemed to have been promoted from the date their juniors were promoted viz. 16-5-1985 for all purposes including seniority benefit etc. And moreso, since they were already discharging the functions of the Section Officers and by promotion there was no change in the nature of their duties. No justification has been shown from the respondent's side for denying them the benefit of pay and allowances for the period from 16-5-1985 to 10-2- 1986. The claim of the appellants for the monetary benefits of pay and allowances for the period from 16-5-1985 to 10-2-1986 stands strengthened by the decisions of the Supreme Court relied upon by the learned counsel for the appellants wherein it was held that monetary benefits of higher grade had to be allowed even for the period of retrospective pro forma promotion.
10. The other question arising from the aforesaid situation is that of seniority but that has not been agitated in this appeal and it has been stated that the appellants have been assigned seniority with effect from 16-5-1985. If they still entertain any grievance in respect of their seniority, they may agitate it afresh.
11. The legal objections of limitation and non-maintainability of appeals raised in the written objections were not urged at the hearing of the appeals. There does not seem any substance in those objections. The cause of action to the appellants arose first time when their juniors were promoted vide notification dated 30-7-1985 and they were kept behind. They could not agitate their claim for promotion earlier in view of the bar contained in proviso to subsection (2) of section 22 of the Civil Servants Act, 1973 that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade and they could not prefer even departmental appeal in view of the bar contained in second proviso to sub-rule (1) of Rule 4 of the Civil Servants (Appeal) Rules, 1977; and they could not invoke the jurisdiction of this Tribunal in view of the bar laid in clause (b) of subsection (1) of section 4 of the Service Tribunals Act, 1973. They found opening for agitating their case after they were promoted vide notification dated 12-2-1986 claiming promotions with retrospective effect. They preferred appeals to the Prime Minister on 10-3-1986 and 11-3-1986 respectively. Awaiting decision thereon for statutory period of 90 days, they preferred appeals before this Tribunal within the period of limitation of 120 days, inclusive of the waiting period of 90 days. Both the objections thus stand covered and explained.
12. For the reasons recorded above, the appeals are allowed to the extent that the appellants shall be allowed monetary benefits on promotion to Grade-18 with effect from 16-5-1985, i,e, the date from which they have been allowed fixation of their pay and denied the benefit of arrears. No order is made for costs.