CH. HASAN NAWAZ (MEMBER).-- Material facts in the background of this appeal under section 4 of the Service Tribunals Act, 1973 are not in dispute. The appellant has been serving the Department as Store Officer ever since October, 1987. The post, which used to carry BPS-16 was upgraded to BPS-17 by means of Notification No. SRO-15(KE)88, dated 10-2-1988. Subsequently, in terms of the aforementioned notification, the appellant was "placed from BPS-16 to 17 with effect from 18th February, 19M" by Notification No. 2349/88, dated 2-11-1988. At the relevant time he was under the financial control of Controller of Accounts, Air Force, Lahore, who accordingly fixed his pay in BPS-17 on of this Notification. In May, 1989 he was transferred to Army Wing and remained in payment of his emoluments in BPS-17 by the Controller of Accounts, Rawalpindi Cantt. Till June, 1990 when he was transferred to the financial control of Controller of Military Accounts (Lahore Cantt., Lahore). On this transfer, his last pay certificate was issued by the CMA, Rawalpindi with letter, dated 22-6-1992 which showed that he had been paid salary uptill 30-6-1990 in BPS-17. The record shows that he remained in payment of his salary in BPS-17 uptill October, 1992.
2. In February, 1992 during the course of inspection of the accounts of Controller, Military, Lahore Cantt. By the Military Accountant Inspection Team, an objection was raised to the payment of emoluments to the appellant in BPS-17 on the authority of Notification dated 10-2-1988. On this objection having been raised, the Controller of Military Accounts (Rawalpindi Cantt.) issued revised last pay certificate in BPS-16 showing an overpayment of pay and allowances -amounting to Rs.15,341.42 for the period from 18-2-1988 to 30-6-1990. This was done through letter dated 3-11- 1992.
3. It may also be mentioned as a relevant fact that a reference was made by the ENC's Branch (GHQ, Rawalpindi) on the advice of Military Accountant Office to the concerned Authority to obtain the Finance Division's approval for upgradation of the post. This was by letter, dated 16-4-1989. It appears from the respondents' pleadings that the reference remained under consideration of the Regulation Wing of the Finance Division (Military) for approval till June 1993. Eventually by letter dated 14-6-1993 the Finance Division (Regulation Wing) intimated that they had declined to upgrade the post from BPS-16 to BPS-17. Thereafter, the Establishment Division informed the Ministry of Defence with their U.O. No. 1/41/93-Lit-II, dated 3-7-1993 that the case was taken up again with the Finance Division for reconsideration and approval.
4. Any way, the appellant's departmental appeal dated 28-6-1992 for issuing a revised last pay slip was rejected by the competent authority. The Controller, Military Accounts (Lahore Cantt., Lahore) informed him through Letter No. Pay/850/VIO, dated 3-2-1993 that his pay cannot be restored to BPS-17 without approval of the competent authority.
5. There is hardly any doubt about the correct legal position. Rule 12 of the Rules of Business provides that no Division shall without previous consultation with the Finance Division, be authorised to issue any order, other than orders in pursuance of any general or special declaration made by the Finance Division which will affect directly or indirectly the finances of the Federation, or which in particular will involve a change in the terms and conditions of service of a Government servant, or his statutory rights and privileges which have financial implications. Since the upgradation of the post of Store Officer from BPS-16 to BPS-17 has admittedly been done in this case without prior approval of the Finance Division, we are of the view that it is in violation of the rules made under the authority of the Constitution. This being so, the notification of upgradation dated 10-2-1988 is not legally sustainable. The mere fact that the appellant has been in receipt of his emoluments in BPS-17 does not create any justification for something, which basically involves a violation of the rules. The Authority on the subject of animus revertendi is not attracted to the facts of this case for the simple reason that the original order of upgradation of the post was incompetent.
6. This aspect of the matter aside, certain other considerations are important. One, that a reference has already been made to obtain the Finance Division's approval for upgradation of the post which is suggestive of the fact that even the competent authority feels that the post should be upgraded.
Second, the appellant has been in receipt of the emoluments of Grade-17 post ever since 18-2- 1988. The third is that he is likely to retire in December, 1993. The last becomes available from the fact that under similar circumstances, emoluments of BPS-17 have been given to one Ibrar Hussain in consequence of the Tribunal's judgment dated 22-8-1992.
7. These considerations in view, the appeal is disposed of with a direction that the respondents shall expedite the disposal of case regarding upgradation of the post and they shall get the needful done by the 15th December, 1993. We also feel like making an observation that while deciding the reference, the Ministry of Finance may take the observations made by us into consideration. There will be no order as to costs.