' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Briefly, the facts of this appeal are that the appellant was appointed as Storeman (BPS-5) in M.E.S. Department on 20-6-1964 when he was Matriculate. He is presently working as Senior Supervisor (BPS-10). In the meanwhile, new development took place and the Ministry of Defence amended the rules from time to time and finally the Rules of 1988 were published in the Gazette of Pakistan dated 28-11-1988 and the appellant has been deprived of his promotion as Stores Officer (B-16) being a non-Intermediate otherwise he was eligible having put in more than 8 years service and passing the departmental examination in 1994. The contention of the learned counsel for the appellant is that these rules are ultra vires as approval of the Finance Division as required under the Rules of Business was not obtained. The relevant provisions of Rule 12 of the Rules of Business,(as corrected upto February, 1985) are reproduced below: "12. Consultation with the Finance Division:
(1) No Division shall, without previous consultation With the Finance Division, authorise the issue of any orders, other than orders in pursuance of any general or special delegation made by the Finance Division, which will affect directly or indirectly the finances of the federation or which in particular involve--
(a) relinquishment, remission or assignment of revenue, actual or potential, or grant of a guarantee against it;
(b) expenditure for which no provision exists in the budget or for which no sanction exists;
(c) levy of taxes, duties, cesses or fees;
(d) floatation of loan;
(e) re-appropriation within budget grants; (f) alteration in the method of compilation of accounts;
(g) receipt or expenditure of foreign exchange unless already allocated;
(h) a change in the terms and conditions of service of Government servants, on their statutory rights and privileges, which have financial implication; and
(i) interpretation of rules made by the Finance Division.
2. Xx xxx xx
3. Xx xxx xx".
' It is thus clear from clause (h) of Rule 12 ibid that while framing the rules relating to terms and conditions of civil servants, approval by the Finance Division is mandatory and any rule in violation of the provision of law, cannot be retrospective but are always prospective, and as such could not be made applicable to the appellant's case, who was appointed in 1964. On the other hand, the contention of Col. K.M. Sherbaz Khan is that the matter was referred to the Finance Division by the Ministry of Defence but it was in connection with the revision of pay scales to which the Finance Division did not agree and as such approval of that Division which involves the financial implications only was required. The departmental representative of the Establishment Division adopted the arguments of Col. Sherbaz Khan but submitted that there is prescribed procedure for amendment of certain rules and in that case approval of the Finance Division is necessary. We are also of the view that in case the Ministry of Defence wanted to amend or frame certain set of rules, it was incumbent upon them to have referred the matter to Establishment Division and the Finance Division which is missing in this case A and, therefore, the rules of 1988 whereby the appellant has been deprived of promotion as Store Officer (B-16) as not being Intermediate, are not in accordance with law. In identical circumstances, Appeal No, 214(R) of 1991 filed by Abrar Hussain came up before this Tribunal for adjudication and it was held that such rules which did not have the approval of the Finance Division were ultra vires and cannot be used or made applicable to the appellant's case just to deprive him from promotion. We, therefore, direct the respondent department that the case of the appellant be considered in the light of the Rules applicable to him for considering him for promotion as he is eligible. The appeal succeeds in the above terms.