' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---These two Appeals Nos.475 and 476(R) of 1995 filed by the appellant are inter-connected and, therefore, we propose to dispose of by this single judgment.
2. The facts in the background of these appeals are that the appellant was selected by the Federal Public Service Commission through an open competition, as Administrative Officer (B-18) and in pursuance of the recommendations of the Commission, he was appointed as such with effect from 26th November, 1987. The department recommended upgradation of his post of Senior Administrative Officer (B-18) to BPS-19 as personal to him, and the Defence Production Division vide letter dated 17th September, 1988 upgraded the said post to BPS-19 as personal to the appellant.
The appellant was also allowed six advance increments by the Chief Scientist, DESTO, and since the appellant had reached the maximum of BPS-19, his case for grant of move-over in BPS-20 with effect from 1-12-1993 was placed before the Move-Over Committee. The Move-Over Committee recommended the case of the appellant for move-over in BPS-20 and the Competent Authority approved the recommendations of the Committee, and accordingly the appellant was allowed move-over in BPS-20 with effect from 1-12-1993 by the Establishment Division vide Office Memorandum dated 7th September, 1994. The Defence Production Division realising the situation that upgradation of the appellant to the post of Senior Admn. Officer (BPS-19) was not in accordance with fides and also not by the Competent Authority, made a reference to the Establishment Division giving full facts'of the case. The Establishment Division reviewed the entire case and submitted a Summary to the Prime Minister with the suggestion that the upgradation of the post of the appellant in BPS-19 was illegal. The Prime Minister approved the Summary and consequently Defence Production Division by its letter dated 22nd August, 1995, cancelled ab initio the earlier order/letter dated 17th September, 1988 whereby the post of Senior Administrative Officer was upgraded to BPS-19 as personal to the appellant. Being aggrieved, the appellant made departmental appeal on 3rd September, 1995 to the Prime Minister, which was not responded, and ultimately he filed Appeal No,475(R)/95 before the Tribunal under section 4 of the Service Tribunals Act, 1973 with the prayer that the impugned order dated 22nd August, 1995 may be set aside.
3. Appeal No, 476(R) of 1995 relates to move-over in BPS-20, which was allowed by the Establishment Division vide Office Memorandum dated 7th September, 1994, but was subsequently declined by the Defence Production Division vide Memorandum dated 8th November, 1995 cofnmunicated to the appellant on 15-11-1995. He then filed Appeal No, 476(R) of 1995.
4. The appellant has argued that he was rightly and in accordance with rules, granted BPS-19 as personal and he enjoyed this benefit since last 7 years, therefore, at such a belated stage, no adverse order could be passed against him. In support of his submissions, he relied on the cases reported in PLD 1969 SC 407; 1981 PLC (C.S.) 592 and 835; 1985 PLC (C.S.) 133; 1981 SCMR 523 and PLD 1991 SC 973. It is also argued that he was granted six advance increments by the Competent Authority while he was in Grade-18 and having reached the maximum of BPS-19 he was entitled to move-over in 13PS-20 with effect from 1-12-1993.
5. We have heard the representatives of the Defence Production Division and the Establishment Division at great length. Their arguments are of legal nature as they have not denied the factual position but their contention was that the appellant was given BPS-19 as personal by the orders of the Secretary, Defence Production Division, who was not competent to allow that benefit without consulting the Finance Division and the Establishment Division, and getting the approval of the Prime Minister. Therefore, the upgradation of the post of the appellant in BPS-19 as personal to him was illegal and without lawful authority, and that order could be recalled. It is argued that the appellant had hardly served in BPS-18 for few months when his upgradation was made during the probationary period by Secretary, Defence Production Division and is illegal. It was also argued that the Establishment Division vide its O.M. Dated 12-5-1992 asked the Ministries/Divisions and the Departments to submit cases for regularization of the upgraded posts which suffered from procedural infirmities, copy of which was also sent to DESTO, and the appellant himself vide his letter stated that he will .Resubmit his case, but in spite of that, he remained silent and no reference was made for regularization of his post with mala fide intention. It is also argued that under rule 12(2)(h) of the Rules of Business, reference had to be made to the Establishment Division for upgradation of the post, which is missing and while these points were pointed out, a regular summary was sent to the Prime Minister who rightly disapproved the upgradation of the appellant in B-19 as personal to him. It was urged that an illegal order is always open to recall and reliance was placed on PLD 1992 SC 207.
6. The post of Admn. Officer in B-18 in the DESTO was advertised and the appellant was selected by the FPSC against that post and he was appointed as A.O. (B-18) and he joined on 26-11-1987. When the appellant was still under probation, the department took up his case for upgradation of his post to B-19 and the Secretary, Defence Production Division. Who passed the order of upgradation of the appellant in B-19 as personal to him without consulting and soliciting the approval of the Finance Division, Secretary, Establishment Division and the Prime Minister and this action was in disregard of the rules. The case of the appellant is that Finance Division (Military) was consulted by the Secretary, Defence Production Division and as such his upgradation is legal. We are sorry we cannot subscribe to this view as the appointing authority in respect of B-17 to 19 Officers is the Secretary, Establishment Division and approval of the Prime Minister was also prerequisite obtained while upgrading the appellant, and his upgradation was, therefore, in contravention of the Rules of Business. The relevant provision is contained in Rule 12(1)(h) and is reproduced hereinbelow: "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--
(h) a change in the terms and conditions of service of Government servants, on their statutory rights and privileges, which have financial implications; "
' It is thus clear that the upgradation of the appellant in B-19 as personal to him was not regular and in accordance with the rules. It may also be mentioned here that there was complete ban on the upgradation of the posts but subsequently such cases were to be submitted for approval of the Prime Minister with the concurrence of the Finance Division and Establishment Division, and in cases where such requirement was lacking, the Ministries/Divisions were directed by the Establishment Division vide its O.M. No, 8/130/91-R.1, dated 12th May, 1992, to submit such cases for regularization by the Competent Authority. These instructions were communicated by the Defence Production Division to DESTO, but the appellant did not move his case. However, the Defence Production Division at a later stage floated a summary for the Prime Minister for his approval to regularize the upgradation of the appellant from BPS-18 to BPS-19, and this summary was routed through the Finance Secretary and the Establishment Secretary on 31st October, 1994 but the Competent Authority did not approve the proposal and such decision was communicated by the Establishment Division vide its U.O. Dated 12-3-1995 to the Defence Production Division and rightly so, because it was the discretion of the Competent Authority which he did exercise and did not approve the regularization of the appellant's upgradation, which was made in utter disregard of the rules. Since the upgradation was ab initio void having been made by an incompetent authority, such orders were liable to be recalled and could be withdrawn without notice, and has rightly been recalled, and cannot be taken to exception. The cases relied by the appellant are distinguishable and are not relevant. Therefore, Appeal No, 475(R) of 1995 is without merit.
7. As regards move-over in BPS-20, no doubt the Move-Over Committee had allowed the appellant move-over in B-20 and their recommendations had been accepted by the Competent Authority vide O.M. Dated 7th September, 1994 issued by the Establishment Division, nevertheless, the admitted position is that the appellant was initially appointed in B-18 through FPSC, who had declined to allow him six advance increments, but the appellant managed to get six advance increments with the approval of the Chief Scientist, DESTO, who was not competent to grant such benefit. Similarly, the appellant got his post of B-18 upgraded to B-19 without the approval of the Competent Authority. The Competent Authority is Prime Minister nor Secretary, Defence Production Division, and on the basis of such illegal orders, had reached the maximum of BPS-19 and since he had himself prepared his case for the Move-Over Committee, he succeeded in pursuading the Committee in getting move-over in B-20. As held above, since the very upgradation of the appellant in B-19 was illegal therefore, that was rightly cancelled, and the move-over in B-20 allowed on the basis of an illegal order, was also void, therefore, the appellant was not entitled to move-over in B-20. Thus Appeal No, 476(R) of 1995 also fails on merits.
8. Upshot of the above discussion is that the upgradation of the appellant in B-19 was ab initio, illegal and had rightly been withdrawn; and similarly the appellant was not entitled to move-over in B-20. Both the appeals having no merits are accordingly dismissed with 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.