1. NASIM HASAN SHAH, J.---This is an appeal, by leave of this Court, against the judgment and order of the Punjab Service Tribunal dated 19-6-1984 passed in Appeal No.313/771 of 1984.
2. The relevant facts briefly stated are as follows: The respondent No.1 was selected as Assistant Conservator of Forests by the West Pakistan Public Service Commission and was appointed as such with effect from 7-10-1961. In the year 1973 he was selected by the Government of Nigeria to work in the Forest Department of that Government. The Government of the Punjab vide order dated 10-4-1973 allowed respondent No.1 to take up assignment of Assistant Conservator of the Forests Grade-I in the Government of Nigeria for a period of four years with effect from the date of his being relieved from duty on various terms and conditions stipulated therein. Condition No.(5) read as follows: "(5) The lien of a confirmed Government servant will remain in the parent department. He will be given substantive or officiating promotion as the authority competent to order promotion may decide in accordance with rule 10.5 of Civil Services Rules (Punjab) Vol. I, Part I."
3. Condition No.(8) is also relevant. It reads - "(8) Government will have the option to ask the official to return to duty on the expiry of four years or to quit service, if he is unwilling to return to the home country."
4. The deputation of respondent No.1 was later extended for another year with effect from 24-4-1977 on the existing terms and conditions vide order dated 21-4-1977. This period was further extended for a period of five years with effect from 24-4-1978 in relaxation of the deputation policy as a special case vide order dated 24-3-1979.
5. However, while respondent No.1 was on deputation to the Government of Nigeria M/s. Aziz Aslam Khan, respondent No.2 and Muhammad Shamim, respondent No.3, Divisional Forest Officers (Grade-18), were promoted as Conservator of Forests (Grade-19) with effect from 18-4-1982. The case of respondent No.1 for promotion as Conservator of Forests was sent to the Provincial Selection Board but according to the minutes of the Board dated 17-2-1982 duly approved by the Governor on 28-2-1982 he was not approved for such promotion. It was, however, decided that since respondent No.1 had remained on deputation for the last nine years his case be deferred till he returns to the country and earns a report as recommended by the Provincial Selection Board.
6. Mr. Javed Akhtar Ihsan, respondent No.4, Divisional Forest Officer (Grade-18) was promoted as Conservator of Forests (Grade-19). With effect from 31-3-1983 vide order dated 27-4-1983 duly approved by the Governor on 7-2-1983 the case of the respondent No.1 as Conservator of Forests was again considered but it was deferred till he resumed duty and earned a report.
7. After respondent No.1 returned to Pakistan in July 1983, by order dated 17-8-1983, the Governor was pleased to appoint him as Conservator of Forests (Grade-19) on current charge basis.
8. On 1-9-1983, respondent No.1 filed a representation against the promotion of his juniors and claimed promotion on the strength of terms of deputation. Thereafter, he filed an appeal before the Punjab Service Tribunal. The appeal was directed against the orders dated 18-4-1982 and 27-4- 1983 promoting respondents Nos.2, 3 and 4 to Grade-19 although they were junior to him in Grade- 18 only because he was abroad on deputation when they were promoted. The appeal was accepted by the learned Tribunal vide judgment and order dated 19-6-1984.
9. The Service Tribunal in accepting the appeal has held that the appellant was sent on deputation vide order dated 10-4-1974 by the Government of the Punjab and a condition in this connection contained in the said order for the lien of the Government servant (i.e. Condition No.5 of the order), and provided for promotion in accordance with Rule 10.5 of the Civil Services Rules.
10. Rule 10.5 of the Civil Services Rules lays down--'
11. "10.5. (i) A Government servant transferred to foreign service shall remain in the cadre or cadres in which he was included in a substantive or officiating capacity immediately before his transfer. He may be given such substantive or officiating promotion in those cadres as the authority competent to order promotion may decide. In giving promotion such authority shall take into account--
(a) the nature of the work performed in foreign service, and
(b) the promotion given to juniors in the cadre in which the question of promotion arises.
(ii) In any individual case the competent authority may grant a Government servant, outside his cadre or cadres but in his own line, such promotion as it considers he would have got had he not been transferred to foreign service."
12. The term "Foreign Service" is defined in Rule 2.21 of the Civil Services Rules (Punjab) as follows: "`Foreign Service' means service in which a Government servant receives his substantive pay with the sanction of Government (a) from any source other than the revenues of the Governor- General-in-Council or of ''Federation (when established) or of a Province or the Railway Fund (when established); or (b) from a company working a State Railway.
13. " The Service Tribunal further referred to Section 9 of the Punjab Civil Servants Act, 1974 which provides - "Section 9---Posting and transfer: Every civil servant shall be liable to serve anywhere within or outside the Province in any post under the Government of the Punjab or the Federal Government or any Provincial Government or a local authority or a corporation or a body set up or established by any such Government: Provided that, when a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service to his pay shall not be less favourable than those to which he would have been entitled if he had .Not been so required to serve."
14. According to the Service Tribunal, the effect of Section 9 is that the rules contained in the Civil Services Rules (Punjab) Vol I, Part I assure the civil servants posted outside the Province not to be treated less unfavorably than the civil servants serving in the country.
15. Under the Civil Services Rules, in the opinion of the Service Tribunal, respondent No.1 was entitled to the benefit of the convention usually known as the "next below rules". This is contained in Note 4 to Rule 4.13 and reads as follows:-- "Note 4.---(i) The following guiding principles are laid down for the working of the convention usually known as the "next below rules":-
(1) A Government servant out of his regular line should not suffer by forfeiting officiating promotion which he would otherwise have received, had he remained in his regular line.
(2) The fortuitous officiating promotions of some one junior to a Government servant who is out of the regular. Line does not rise to a claim under the next below rule.
(3) Before a claim is established, it is necessary that all the Government servants senior to the Government servant who is out of the regular line should have been given officiating promotion.
(4) It is also necessary that the Government servant next below him should have been given promotion, unless in any case the officiating promotion has not been given because of inefficiency, unsuitability or leave."
16. The Provincial Government did not follow the principles contained in the aforesaid Note 4 on the basis of "promotion policy" adopted by the Government of Pakistan and circulated by the Cabinet Secretariat, Establishment Division's D.O. No.10(3)/81-CP-I(Pt) dated the 31st October, 1982, which has also been adopted by the Punjab Government. This promotion policy was framed because, according to the Establishment Division, "the legal frame-work for promotion and its procedure has been provided in the Civil Servants Act, 1973 and the Civil Servants (Appointment, Promotion and Transfers) Rules, 1973. The Law and Rules by themselves, are not enough to meet the functional requirements and need to be supplemented by a comprehensive and consistent set of policy guidelines."
17. The salient features of the policy, inter alia, provided-- (1)
18. (2)
19. (3)
20. (4)
21. (5)
22. (6)
(7) A civil servant on deputation to a Foreign Government International agency or a Private Organization abroad will be considered for promotion only on his return to Pakistan. Fie will be given intimation and asked to return to Pakistan before his case comes up for consideration for promotion in accordance with his seniority position, if he fails to return he will not be considered for promotion. Such an officer will have to earn at least one CR after his return to Pakistan before he is considered for promotion. The clearance/approval already accorded in the past to promote a deputations would lapse automatically if he fails to return on expiry of the deputation period already approved by the Government."
23. The Selection Board in this case appears to have deferred the case of respondent No.1 in the light of the guidelines contained in Para 7 above. The Service Tribunal was of the opinion that the right of respondent No.1 for being considered for promotion would be governed by the principles contained in Note 4 of the Civil Services Rules (Punjab) Vol. I, Part I which could not be modified by any executive instructions such as those contained in the "promotion policy" and it accordingly, accepted the appeal of respondent No.1 and directed the Provincial Government to consider him for promotion in NPS-19 with effect from the date his next junior Mr. Aziz Aslam Khan was so promoted. This appeal is directed against the aforesaid order of the Service Tribunal.
24. The learned counsel for the parties have been heard.
25. In our opinion, the Service Tribunal fell into a fundamental error in considering that Note 4 contained in rule 4.13 was a statutory rule superior in status to any executive instructions and that non-observance of the provisions of Note 4 was justiciable. The Service Tribunal overlooked the fact. That Note 4 of Rule 4.13 itself does not possess the status of Rules but lays down certain general principles for the working of a "convention" commonly referred to as "next below rule". A "convention", it hardly needs saying, is merely a practice that is normally followed and it does not enjoy the status of law. In fact, clause (15) to Fundamental Rule 30 which deals with "pay of officiating Government servants", explains the purpose and scope of the "next below rule" quite elaborately namely - "(15) The `next below rule' was a temporary expedient designed to protect Government servants from monetary loss and in effect meant the temporary upgrading of posts. It was originally intended that the expediency should not last more than six months in individual cases. Whatever may have been the advantage in the past to leave a man undisturbed in the post held by him, if the exigencies of the public service required it, the need for such consideration does not exist at present. It is the considered opinion of this Ministry that the concession of the `next below rule' should not be permitted except in very exceptional circumstances and that too for very short periods. It has been decided, therefore, that the cases wherein the benefit of the `next below rule' has been conceded should be reviewed forthwith. The Ministries/Divisions, etc. Should take steps either to obtain the approval of the Ministry of Finance for the continuance of that benefit or to revert the Government servant concerned to his parent office."
26. (M.F.O.M.No.1196-Reg./47 dated the 7th December,1947)
27. Thus, the Service Tribunal committed an error in enhancing the status of the "convention" contained in Note 4 to Rule 4.13 of Civil Services Rules to the status of a statutory rule, which it was not. What has now been done is to supplement the guidelines contained in the said Note by further guidelines contained in the "Promotion Policy" of 1982 to deal with the situation that has arisen by frequent assignments secured by the civil servants in foreign countries in the recent past.
28. We may also point out that in rule 10.2 of the Civil Services Rules (Punjab;. Vol. I, Part I it is provided that no Government servant may be transferred to "foreign service." against his will. Consequently, in the present case, the respondent No.1 went out to serve in Nigeria of his own free will and not on account of any order passed by the Government and even if. Section 9 of the Punjab Civil Servants Act, 1974, was attracted in his case, this provision only guarantees to the civil servant (when he is required to serve in a post outside his service or cadre) that his terms and conditions of service as to his a shall not be less favourable than those to which he would have been entitled if he had not been so required to serve. Accordingly, the guarantee is confined only to the protection of his pay and not the protection of his prospects of promotion.
29. For all these reasons we are of the opinion that the order and judgment of the Service Tribunal is erroneous and is liable to be set aside. We order accordingly. This appeal is, accordingly, allowed and the judgment and order dated 19-6-1984 of the Service Tribunal set aside. Parties, however, are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.