SHAFIUR RAHMAN; J: --Leave to appeal was granted in order to examine the correctness of the view taken by the Punjab Service Tribunal with regard to the grant of enhanced Scale of Pay in the Basic Scales of Pay to Officers who had the fixed percentage of posts of the same category in the higher scale of pay. This entails interpretation of Pay Revision Rules of 1973 and of 1977. All these Appeals have been filed by the Government of the Punjab, and the appellants before the Service Tribunal in these appeals were either Civil Judges or District & Sessions Judges.
2. In Civil Appeal No.779/84,the respondent Mr. Muhammad Awais Shahid joined as Civil Judge on 14-12-1964. His services were dispensed with on 15-4-1967. He was reinstated in service in February, 1975 as a result of the decision by the Service Tribunal dated 2-1-1975, with back benefits. In the seniority list of Civil Judges he appears at serial No.6.
3. In Civil Appeal No.782/1984, the respondent Mr. Mumtaz Hussain Malik was recruited as a Civil Judge on 1-9-1961. His services were dispensed with on 18-8-1964. He was reinstated in service on 4-1-1978 vide Supreme Court's order. By a notification dated 27-1-1983 he was granted NPS-18 which was reserved for fifteen per cent-of the cadre strength of Civil Judges in NPS-17 from 1-2- 1980. He claimed it from 1-3-1972, the date from which the Pay Revision Rules of 1973 took effect.
4. In Civil Appeal No.358/1990, the respondent Sagheer Muhammad Khan, Joined as Civil Judge on 22-6-1970. He was suspended and adverse remarks were recorded against him. Subsequently, he was reinstated in service. In the notification dated 27-1-1983, allowing NPS-18 to certain Civil Judges, he was excluded though his juniors in seniority were given that scale. He felt aggrieved over it.
5. In Civil Appeal No.780/1984. the respondent Sh. Saeed Ahmad was recruited as Civil Judge on 24-3-1953 and promoted as Additional District & Sessions Judge on 1-1-1967 and further promoted as District Judge on 2-1-1970. A notification was issued by the Governor on 22-2-1983 whereby certain District Judges who were junior to the respondent in service were given NPS-20 to the exclusion of the respondent. He felt aggrieved over it.
6. In Civil Appeal No.781 1984.the respondent Mr. Masud Ahmad Ansari joined as Civil Judge on 25- 5-1954, became Additional District & Sessions Judge on 16-9-1967 and District & Sessions Judge on 1-7-1970. The same order dated 22-2-1983 affected him as he was excluded from the conferment of NPS-20 reserved for a fixed percentage of post of District and Sessions Judges.
7. Prior to 1972, there existed a selection grade for the Civil Judges as well as for the District and Sessions Judges. When the Punjab (Gazetted) Civil Services (Pay Revision) Rules of 1973 were enforced, they by Rule 12 abolished the selection grade in the words that follow:--
12. Selection Grades.--(1) There shall be no Selection Grade in the National Pay Scales: Provided that the existing Government servants, who were drawing pay in the existing selection grades on the 22nd October, 1973, shall be allowed the appropriate National Pay Scales, on the basis of the maximum of the selection grade, in accordance with the scheme of replacement of the consolidated pay scales with the National Pay Scales prescribed in Annexure-`A'.
(2) Subject to the provisions of sub-rule (3), the existing Government servants who opt for the existing pay scales shall be entitled to the existing selection grades.
(3) The number of selection grade posts available for the existing Government servants opting for the existing pay scales shall be worked out in accordance with the percentage in force immediately before the coming into force of these rules, on the basis of the total number of existing Government servants opting for the existing pay scales."
8. In its place a provision was made that 15% of a regular strength of Civil Judges will be in NPS-18.
The post of Civil Judges is ordinarily in BPS-17. Similarly, for the District and Sessions Judges, the Selection Grade post was abolished and a certain percentage of the posts of the District & Sessions Judges was placed in the higher NPS--i.e., NPS-20, the post of the District & Sessions Judge being ordinarily in NPS-19. This percentage was subsequently varied but the variation is not material. A question arose whether the higher National Pay Scales were available automatically to the senior- most or any element of selection was involved. The first notification of the Government of the Punjab dated 8th of October, 1980, which issued in respect of the Civil Judges in its paragraph 2 recited as hereunder:-- "The cases of the following Civil Judges were also considered with the result as under:--
(1) Mr. Ali Gul Khan.His case has been deferred till he earns a few clear cut good reports.
(2) Mr. Muhammad Akmal Qureshi.He is ignored for NPS-18 due to unsatisfactory record.
It is certified that grant of NPS-18 to a specified number of Civil Judges in NPS-17 is not promotion and the case does not fall within the purview of Provincial Selection Board."
The other impugned notification of 27-1-1983 in respect of Civil Judges also in its paragraphs 2, 3 and 4, recited as hereunder:-- "2. The cases of Mr. Muhammad Siddique Javed Ch., Mr. Muhammad Awais Shahid and Mr. Yaqoob Ali Khan were deferred and vacancies respectively w.e.f. 1-12-1980, 1-12-1980 and 1-7-1981 have been reserved for them.
3. The cases of the following Civil Judges were also considered and they have been ignored for grant of NPS-18:--
(1) Mr. Razi Abbas Bokhari.
(2) Mr. Saeed Ifzaal Malik.
(3) Mr. Muhammad Akmal Qureshi.
(4) Mr. Sagheer Muhammad Khan.
4. It is certified that grant of NPS-18 to a specified number of Civil Judges in Grade-17 is not promotion and the case does not fall within the purview of Provincial Selection Board."
9. The notification in respect of District Judges which is of 22-2-1983 made no such reservation or remark as has been reproduced from the other two notifications.
10. The Tribunal in one of its earlier judgments dated 18-3-1982 dealing with the case of Mr. Muhammad Awais Shahid, Civil Judge, allowed the claim of automatic grant of the higher National Pay Scale against the percentage quota on the following reasoning:-- "The perusal of the impugned notification itself as mentioned in para 3 that grant of NPS-18 to a specific number of Civil Judges, in NPS-18 was not a promotion and therefore, their case would not fall within the purview of the Member Selection Board. In view of this observation in the impugned notification the argument of the learned counsel for the appellant would prevail that the grant of NPS-18 from NPS-17 would not be a promotion for the 15% of the regular strength of the Civil Judges as given in the Pay Revision (Gazetted) Rules 1977. Similarly when we peruse section 16 of the Punjab Civil Service Act of 1974 we find that the appellant would be entitled to NPS-18 which stands attached to his post. The post which appellant is now holding automatically confers upon him NPS-18 and the criteria of the performance would be irrelevant to such grant. If his superiors are m any way dissatisfied with his work or consider him inexperienced or in any manner unsuitable for the post which he is holding the correct procedure would be to proceed against him under E&D Rules and to take action so prescribed. We are of the considered opinion that scale of NPS-18 is a vested right of the appellant in accordance with the terms and conditions of the service and he cannot deprived of the same when he is working along with others at the said post. In this matter our own judgment in Sardar Ali Gul Khan v. Government of the Punjab in Appeal No. 652/692 of 1980 decided on 15-2-1981 is fully applicable to the case of the present appellant. Therefore--- following our earlier judgment as cited above and keeping into consideration section 16 of the Punjab Civil Servants Act read with the Schedule 2 Punjab (Gazetted) Civil Servants Pay Revision Rules, 1977 we direct the respondent to treat the appellant in NPS-18 from the date his next juniors were so inducted:' '''
In the light of it, the claim of the respondents for automatic grant of Selection Grade on the strength of seniority was allowed. Hence, this appeal.
11. Mr. Muhammad Nawaz Abbasi, the learned Assistant Advocate-General has drawn our attention to the fact that higher scales of pay to these senior judicial Officers were being granted on the recommendation of the High Court and the nature of service rendered was one of the criteria for the grant of such a higher scale as was claimed by the respondents.
12. Ch. Muhammad Farooq, Advocate, the learned counsel representing one of the respondents has relied more on the statement of the Government itself that the grant of the higher National Pay Scale does not involve promotion. The specific legal questions raised in the case. Have not been attended to in arguments addressed at the Bar.
13. Mr. Mumtaz Hussain Malik (respondent in Civil Appeal No.782/84) has claimed the retrospective operation as from 1-3-1972 of the notification dated 10-6-1976 whereby "15% of the regular strength of Civil Judges" was placed in NPS-18. This would be the effect on the express words of the Notification dated 10-6-1976 because it is an addition to the Schedule and the last remark provides "this will take effect from 1-3-1972". To that extent the claim of Mr. Mumtaz Hussain Malik is tenable in light of our decision in West Pakistan Government through Chief Secretary and another v. S. Abdul Khaliq, Accountant (PLD 1970 SC 247).
14. In Province of the Punjab through Collector Dera Ghazi Khan versus Muhammad Siddiq, Addl.
Deputy Commissioner (General), Dera Ghazi Khan (Civil Appeal No.11 of 1978 decided on 9-8-1982), in an opinion recorded, the concept of promotion vis-a-vis Selection Grade was examined in the following words:-- "The word promotion has fixed meaning.
It has been defined in Chapter XX (O & M Establishment Manual Vo1.II) as hereunder:-- In precise official terminology, promotion is defined as the advancement of an official from a lower to a higher post or grade against a vacancy specifically reserved for such advancement under the relevant Recuritment Rules"."
15. `Grade' has been defined in Rule 2(1)(i) of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, as hereunder:-- "Grade' has the same meaning as in the Punjab Civil Servants (Change in Nomenclature of Services and Abolition of Classes) Rules, 1974."
In Rule 2(c) of the Punjab Civil Servants (Change in Nomenclature of Services and Abolition of Classes) Rules, 1974, `Grade' has been defined as hereunder:-- "`Grade' means `national scale of pay' in which a number of posts, in a functional unit, carrying same duties and responsibilities is placed: Provided that in the case of a person who does not opt for the national scales of pay or the post which has not been placed in the national scales of pay, `National Scale of Pay' means the presumptive national scale of pay corresponding to the existing scale of pay in which such person, or as the case may be, the post would have been placed but for the aforesaid reasons: Provided further that in case of a person whose pay has been fixed in the national scale of pay corresponding to the pre-national scales selection grades or who moves over to the next higher national scale of pay without change in the nature of duty and assumption of higher responsibilities or under prescribed conditions after reaching the maximum of the lower national scale of pay, `national scale of pay' means the lowest national scale of pay admissible for his post."
16. It is an admitted fact that the higher scale NPS-18 in the case of Civil Judges, and the higher scale NPS-20 in the case of District & Sessions Judges, is enjoyed by the same post holder of the respective category. In other words, there is no higher post to which their appointment takes place on such improvement in the status. Nevertheless, there is an improvement in the Grade, as the Civil Judge from NPS-17 goes to NPS-18 and the District & Sessions Judge from NPS-19 to NPS-20. On the strength of definition of the word `promotion' as provided in the official documents, even this change of grade or scale of pay for the better would amount to promotion.
17. This fact that this change of scale is promotion, is also clear from the Pay Revision Rules of 1973 (Rule 9) which places such category of improvement under the head `Promotion' and deals with it in the following words:-- "9.Fixation of pay on promotion. (1). Subject to the provisions of Rule 10, in the case of promotion from a lower to a higher post, where the stage in the National Pay Scale of the higher post, next above the substantive pay of the Government servant concerned in the National Pay Scale of the lower post, gives a pay increase equal to, or less than a full increment in the pay scale of the higher post, the initial pay in the National Pay Scale of the higher post will be fixed after allowing a premature increment in the National Pay Scale of the higher post: Provided that a Government servant who is promoted from National Pay Scale No.17 to National Pay Scale No.18 after the expiry of a period of three years from the date of reaching the maximum of National Pap Scale No.17, shall be allowed a minimum benefit equal to two increments y-- ~' in National Pay Scale No.18.
Provided further that when a Government servant in National Pay Scale No.17 is allowed National Pay Scale No.18 on account of his corning within the orbit of a minimum benefit equal to one full increment in National Pay Scale No.18.
(2) If, by virtue of the benefit admissible under Rule 8, a Government servant is already drawing pay in the National Pay Scale of the higher post at the time of his promotion, he will be allowed one advance increment in that scale with effect from the date of promotion: Provided that if the promotion is from a post carrying National Pay Scale No.17 to a post carrying National Pay Scale No.18, the Government servant shall be allowed two advance increments in the higher scale.
(3) All existing rules, or orders allowing minimum benefit to the Government servants on promotion from a lower to a higher post shall cease to be applicable to the Government servants drawing pay in the National Pay Scales with effect from the date he starts drawing pay in the National Pay Scales:'
The higher scale for the purposes of selection post may not be a matter reserved for Selection Board but for the purposes of Rules as contained and referred to above, the claim made by the respondent certainly amounts to a claim for promotion. The Government itself reversed its own point of view when in November, 1.984 when it added sub-rule (3) to rule 8 in the Punjab Civil Servants Pay Revision Rules, 1977, in the following words:-- "(3) In a case where for the same or similar posts, apart from the ordinary pay scale, a higher pay scale had been provided for a percentage of the said posts, the grant of the said higher pay scale shall be deemed to be a promotion in the Punjab Civil Servants (Appointment and Conditions of Services) Rule, 1974 shall be followed.",
18. If it was a substantive rule, certainly it would have no retrospective of application, but as we have noticed, it has always been the rule and even if this provision did not exist, the interpretation would be no different.
19. In the circumstances, all the appeals are allowed. The decision of the Service Tribunal is set aside and it is held under the existing rules consistently practised that wherever there is a change of grade or post for the better, there is an element of selection involved that is promotion and it is not earned automatically, but under an Order of the competent authority to be passed after due consideration on the comparative suitability and the entitilment of those incompetent. Hence, the service appeals filed by the respondents before the Service Tribunal are dismissed with no order as to costs.