' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Maj. (Retd.) Muhammad Ramzan, the appellant in this case, in response to an advertisement was selected for appointment as Assistant Administrative Officer (B-17) in the Heavy Industries, Taxila Cantt., by the Departmental Selection Board. The Departmental Selection Board keeping in view his qualification and past experience recommended five advance increments to the appellant. The appointment letter dated 1-1-1991 was issued wherein he was allowed Basic Pay of B-17. He made an application on 24-12-1991 to the Secretary, Establishment Division, the competent Authority for grant of five advance increments in view of recommendations of Departmental Selection Board. The matter remained under consideration between the Defence Production Division, the Finance Division. The Establishment Division vide its Office Memorandum, dated 10th May, 1992, informed the Defence Production Division that in terms of the Finance Division's O.M. No, F.1(5)R-12/80, dated 11-3-1991 premature increments are allowed to those candidates if recruited by direct recruitment when appointing authority is satisfied that suitable persons of requisite qualification were not available. It was further stated that since the post of Assistant Administrative Officer was of an administrative nature and before Selection Board there were as many as 21 candidates meaning thereby that there was no dearth of suitable persons, therefore, it was not a fit case for grant of advance increments. Finally the appellant filed departmental appeal to the Prime Minister of Pakistan on 22-6-1993 but the same was rejected vide O.M. Dated 15-9-1994, the appellant was informed on 3-10-1994 by respondent No,
4. He then filed this appeal on 2-11-1994.
2. Mr. Saeed Akhtar, the learned counsel for the appellant argued that the Departmental Selection Board selected the appellant for appointment as Assistant Administrative Officer keeping in view his qualification and vast experience and his case for five advance increments was rightly recommended in terms of the Finance Division O.M. No, F1(5)-R.12/80, dated 11-3-1981. It is submitted that matter was taken up with the Finance Division who agreed that the appellant may be allowed five advance increments but the Establishment Division arbitrarily ruled out the decision of the Finance Division and did not accede to the request of the appellant. He argued that on identical circumstances several retired Army Officers were allowed advance increments and it is a case of clear discrimination and decision of Establishment Division is contrary to rules and is illegal, and is liable to be set aside.
3. The objections have been filed on behalf of the respondents 1 to 4 through Assistant Director, Mr. Sardar M. Anwar, wherein legal objection has been raised that the appeal is time-barred. On merits it has been stated that the appellant has based his claim on the O.M. Dated 11-3-1981 for grant of advance increments but since appointing authority did not accept the recommendations of the Finance Division, therefore, the appellant could not succeed.
4. Mr. Zakaullah Jan, Section Officer, appearing on behalf of the Establishment Division submitted that the appellant was selected for appointment as Assistant Administrative Officer which is purely an administrative post and does not fall under any technical and specialist cadre, therefore, the appointing authority rightly did not agree with the opinion of the Finance Division and that the case of the appellant is not covered under rules.
5. Mr. Masood Iqbal, Section Officer, Ministry of Finance submitted that Finance Division being competent Authority can allow advance increments under FR-27 and Establishment Division is delegatee of Finance Division and could not reject the recommendation of Finance Division and according to him the appellant is entitled to get five advance increments.
6. The respondents have raised legal objections that appeal is time-barred, therefore, we have to determine this question first. The appellant was selected for appointment as Assistant Administrative Officer (B-17) after due process and selection made by the Departmental Selection Board, and the Board considering his qualification and experience recommended five advance increments on his initial appointment. He was issued the appointment letter, dated 1st January, 1991 which contained certain conditions inter alia, that he will draw pay in BPS-17. Although the appellant accepted those conditions and joined on 30-12-1990 in Basic Pay Scale-17, yet he made a belated representation dated 24-12-1991, addressed to the Secretary, Establishment Division, after about one year for grant of five additional increments. The matter was examined by the Establishment Division but the request of the appellant was declined vide O.M., dated 10th May, 1992 on merits. According to law, he was supposed to file appeal before the Tribunal within 30 days which he did not. Instead, he made a petition to the Prime Minister on 22-6-1993 which was time- barred and the matter was again taken up with the Establishment Division and the Finance Division. The Finance Division agreed to grant advance increments and referred the matter to Establishment Division. The Establishment Division did not agree with the views of Finance Division and rejected his claim vide O.M., dated 15th September, 1994 on the same grounds contained in earlier O.M., dated 10th May, 1992 whereafter he filed this appeal on 2-11-1994, within 30 days from the receipt of the aforesaid communication of 4-10-1994. The Service Tribunals Act, 1973 provides for specific period of limitation for filing of appeals before it, as laid down under section 4(1) of the Act. In the instant, as observed earlier, the claim of the appellant was rejected on merits by the competent Authority vide O.M., dated 10th May, 1992 and he had to file appeal before the Tribunal within 30 days. The subsequent correspondence waiting and rejection etc. Was at his own risk cost, and O.M. Dated 15-9-1994, is only a reiteration of the earlier replay and cannot enlarge the time for the purpose of limitation. The appeal is patently time-barred. The appellant being conscious of the question of limitation has, however, filed application for condonation of delay wherein it has been stated that he joined on 30-12-1990 but the matter remained under consideration right up to 3-10- 1994 and that he was preventing from filing of appeal by the circumstances that the matter remained under consideration between the Defence Production Division; Finance and the Establishment Division. This is no ground as stated above the appellant ought to have filed this appeal within 30 days of the Establishment Division's O.M. Dated 10-5-1992 and we are not inclined to condone such a long delay. The application for condonation of delay is accordingly rejected and the appeal is also liable to dismissal on this ground. However, we would like to deal this matter on merits. Too.
7. On merits also the appellant has no case to succeed. O.M. No,F.1(5)- R-12/80, dated 11-3-1981 issued by the Finance Division lays down the following conditions for grant of premature increments to the civil servants on initial appointments: "(a) In case of persons recruited through the FPSC premature increments should be granted on the recommedations of the FPSC and in consideration of the fact that suitable persons of requisite qualifications are not available on the minimum pay of the post.
(b) No premature increment should be granted in cases of ad hoc appointments in anticipation of FPSC recommendation.
(c) In posts where recruitment is not made through FPSC, premature increments should be granted only after the appointing Authority certifies that suitable persons of requisite qualifications are not available on the minimum of the sanctioned pay scale of the posts."
' Under the Recruitment Rules, the post of Assistant Administrative Officer being an administrative post falls outside the purview of FSPC and, therefore, the case of the appellant for selection was processed through the Departmental Selection Board. Under clause (a) of O.M. Dated 11-3-1981 quoted above in case of direct recruitment, FPSC has to make recomendations for grant of advance increments in consideration of the fact that suitable persons of requisite qualifications are not available and clause (a) is not applicable to the appellant's case. The appellant even is not covered under clause (c) as there is no mention of the Departmental Selection Board, but the matter squarely falls within the domain of the appointing authority who has to certify that suitable persons of requisite qualifications are not available, on the minimum of the sanctioned pay scale of the post. So far FPSC is concerned, it can recommend under clause (a). For the sake of arguments even if we take into consideration the recommendations made by the Departmental Selection Board for which there was no provision in the rules, are not worth consideration, and reconsideration even is not within the fore-corners of the rules, but in spite of that the appointment Authority still considered the same and rejected claim of the appellant. The recommendations of the Board are reproduced hereunder: ' By virtue of his qualification and experience, Maj. (R) Muhammad Ramzan is the most suitable choice for the job. The Board further recommends to grant him five advance increments to help fixation of his pay commensurate with his rank to some extent and reduce the gap between the pay last drawn and the new salary in BPS-17.
6. In case the selected candidate fails to take up the appointment the offer will be given to reserve candidate in order of merit."
' It is thus clear that the appellant was not the only person available but there were host of the persons for the post of Assistant Administrative Officer and this matter being a prerogative of the appointing Authority, the claim of the appellant was rightly declined.
8. The matter referred by the Defence Production Division to the Establishment Division who is the appointing Authority in respect of Grades-17 to 19 Officers. The matter was examined in the Establishment Division as required under clause (c) of the above-quoted O.M. Dated 11-3-1981 and the request of the appellant was not acceded to vide its O.M. Dated 10-5-1992 which reads as under: "The undersigned is directed to refer to the Defence Production Division's U.O.No, 1861/D- 6/90(1202/3-A/Recr), dated 2nd April, 1992 on the above subject and say that premature increments can be allowed in terms of Finance Division's O.M. No,F.1(5)R.12/80, dated 11-3-1981 to a person on his initial appointment as under:--
16. Fixation of initial pay by grant of premature increments, in case of first appointments under Government of persons not already in Government service.
' Powers to grant not more than six premature increments for the initial fixation of pay subject to the following conditions:
(c) In posts where recruitment is not made through the FPSC, premature increments should be granted only after the appointing authority certifies that suitable persons of requisite qualifications are not available on the minimum of the sanctioned pay scale of the posts.
2. The post being administrative one, 16 applicants, out of 21 appeared for selection. The Selection Board selected one Principal and 3 reserve candidates. It means that there was no dearth of suitable candidates. As such the competent Authority viz. The Establishment Secretary was pleased not to grant the advance increments. It is, therefore, regretted that he request of Maj. (Retd.)
Muhammad Ramzan cannot be acceded to.
3. As the above rule was framed and issued by the Finance Division any relaxation in this regard can be allowed by that Division only."
' Accordingly the matter was taken up with the Finance Division and the Regulation Wing vide O.M., dated 28-5-1994 recommended the proposal. The contents of the O.M. Reads as under:-- "The undersigned is directed to refer to the Ministry of Defence (Defence Production Division's)
Office Memorandum No, 1440/DP6/93, dated the 15th May, 1994 on the subject noted above and to say that this Division has agreed/recommended that five advance increments should have been given to Major (Retd.) Muhammad Ramzan, Assistant Administrative Officer (B-17) from the date he assumed charge of the post of Assistant Administrative Officer.
2. Since the case was that of fresh appointment Taxila Industries, B.O.G., was competent to recommend advance increments, which it did but the Establishment Division did not agree.
3. It may be pointed out that the Establishment Division have agreed to grant increments to officers appointed subsequently after Major (Retd.) Muhammad Ramzan and before him. His was the only case singled out.
4. In view of the above the sponsors are advised to resubmit the case to the Establishment Division giving full justification and also informing them that the Finance Division has agreed to the case."
' It may be observed that the Finance Division while considering the case of the appellant was bound to give plausible justification which was totally missing but only sated that the B.O.G Taxila Industries was competent to recommend advance increments and that the Establishment Division subsequently granted advance increments to other officers and the case of the appellant has only been singled out. We are of the view that it was not justified for the Finance Division to recommend increments beyond the rules and the Secretary, Establishment Division rightly did not agree.
8. The Defence Production Division in pursuance to the O.M. Dated 28-5-1994 again prepared a summary for the Secretary, Establishment Division dated 16-6-1994, and the Establishment Division vide O.M. Dated 15-9-1994 did not agree to the grant of advance increments, which reads as under:-- "The undersigned is directed to refer to the Defence Production Division's U.O.No, 1440,/DP-6(DP- 7)/94, dated 16th June, 1994, on the subject mentioned above and to say that in the absence of sufficient justification, the grant of advance increments to Maj. (Recd.) Muhammad Ramzan from the date of his appointment as Assistant Administrative Officer (BS-17) in Heavy Industries Taxila would be in violation of the rules made by the Finance Division for grant of premature increment at the time of initial appointment. It is, therfore, regretted that advance increments cannot be granted to the officer."
The premature increments could only be granted by the appointing Authority after being satisfied that suitable persons of requisite qualifications were not available but as stated earlier, there were 16 candidates, out of which the Board selected one Principal and three reserve candidates for the post of Assistant Administrative Officer, therefore, it cannot be said that the appellant was the only person but none else having the requisite qualifications for the post of Assistant Administrative Officer. Therefore, the Secretary, Establishment Division, being the appointing Authority, has rightly disagreed with the views of the Finance Division and rejected the claim of the appellant and it cannot be said that it was an arbitrary order as there is no allegation of bias or element of mala fide on his part. No doubt under FR-27, Finance Division has got the powers for grant of advance increments, but those powers are subject to approval of the Appointing Authority which he independently exercised and the order passed by him is unexceptionable. The cases relied upon by the appellant in support of his claim are distinguishable, being on different footing.
9. Upshot of the above discussions is that the appeal is not only hopelessly barred by time but is also devoid of merits and the case is not covered under the Rules. Consequently the appeal is dismissed with costs.