The appellant, Mrs. Iffat Nazir, Principal, Government Girls Higher Secondary School, Awan Town, Lahore has submitted that she joined Government service as S.E.T. in the Education Department on 1-10-1968, and was appointed as Headmistress (BS. 17) on 2-12-1979 after having been selected by the Punjab Public Service Commission. She again contested for the post in BS. 18 and after having been selected by the Punjab Public Service Commission, joined as Principal, Government Girls Higher Secondary School, Awan Town, 'Lahore on 9-10-1990. Government issued a Notification on 2- 12-1990, re-organising the School Teachers cadre 4 tier structure, organizing the posts in various grades as follows:------ BS.20BS. 19BS. 18BS. 17Total 851277289542588515 Consequently, further up gradation of posts in various scales was made as follows:- BS.20BS. 19BS. 18BS. 17Total 8412662357
2. The case for promotion to these posts was taken up much later. The appellant was considered for promotion to the post in BS. 19 under the Punjab Education Department (School Education Recruitment) Rules, 1987 as amended vide Notification, dated 5-4-1989. The post of Directors of Education (Schools)/Additional Director Public Instructions etc. were placed in BS.
19. The relevant part of the Schedule annexed with the said rules (hereinafter called Schedule-1) laying down the method of recruitment to the posts in BS. 19 is reproduced below: "By promotion on selection on merits basis from amongst the holders of post of Deputy .Director/Deputy Directress, District Education Officer (Male) and (Female)/Principals In-- service/preservice Teachers Training Colleges (Male) and (Female), Principal and Subject Specialists Elementary College.(Male) and (Female)/Principal Comprehensive Schools Principals Higher Secondary Schools (Male) and (Female)/Headmaster/Headmistresses of High School (BS- 18) with at least 12 years service in BS.17 or above provided that to case of incumbent initially appointed in BS. 18, the length of service for promotion shall be 7 years."
3. The post of Principal held by the appellant by virtue of her direct appointment in BS.18 appears in the list of posts that serves as feeding list for promotion to the posts in BS.19, as shown to Schedule-
1. The appellant was accordingly considered for promotion by the Provincial Selection Board of whose recommendations she was promoted to the post in BS.19 vide Notification, dated 17-4-1994.
Simultaneously, the post held by the appellant (Principal Government Girls Higher Secondary School, Awan Town, Lahore) was upgraded to BS. 19 and she was allowed to continue to hold the said post on promotion. However, it was stipulated in the said Notification of promotion that the promotion of the appellant would be on acting charge basis. The reasons for introducing this condition is that the rules mentioned above provide for the minimum service of 12 years in BS.17 or above provided that in case of the incumbent initially appointed in BS.18, the length of service. for promotion would be 7 years, and the appellant was assumed not to possess the requisite service of 12 years in BS. 17 and above, and was found short of a service of 7 years in BS. 18 as she had entered in BS. 18 through initial appointment only on 9-10-1990, thus only having done less than 4 years after she was appointed in BS. 18 through initial recruitment. The appointment on acting- charge basis was, therefore, made in terms of rule 10-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, .1974 which provides that a person otherwise eligible for promotion but not possessing the specified length of service, could be appointed on acting charge basis.
4 The appellant represented against the condition of acting charge basis incorporated in the Notification, dated 17-4-1994 (of her promotion), to the responding department requesting for her regular promotion to BS. 19, instead of promotion on acting charge basis, on the ground that she had already completed more than 17 years of her service in BS. 17 and above when the notification of her promotion, dated 17-4-1994 was issued, which includes mote than 3 years of service in BS. 18.
No action was taken on her representation, dated 15-5-1994. Meanwhile, Government amended the Punjab Education Department (School Education Recruitment) Rules, 1987, vide Notification, dated 23-12-1996 whereby the following amendment in Schedule-I was made:-- AMENDMENT "In the Schedule in column 7, against Serial No.2 of column, the full stop at the end of existing entry shall be substituted by a coma and thereafter the following proviso shall be added:-- 'provided further that in case the person directly inducted in BS. 18 had previous service in line in BS.
17 or below, the minimum length of service shall be counted as prescribed in the Schedule annexed to the Punjab Civil Servants (Minimum Length of Service for Promotion) Rules, 1989'."
The schedule attached with the Punjab Civil Servants (Minimum Length of Service for Promotion)
Rules, 1989 (hereinafter called Schedule-II) is reproduced below:- "SCHEDULE"
For posts in Basic Scale.185 years against post in Basic Scale 17..
For posts in Basic Scale1912 years against posts in Basic Scale 17 and above.
For posts in Basic Scale2017 years against posts in Basic Scale 17 and above.
For posts in Basic Scale2122 years against post in Basic Scale 17 and above.
Provided that:-- Where initial recruitment of a person has taken place in Basic Scales 18, 19 or 20, the length of service specified above shall be reduced to the following extent:-- Minimum, length of service required In case of First appointmentfor promotion to the post in the next against posts in:higher Basic Scale to be reduced by: Basic Scale185 years Basic Scale1912 years Basic Scale2017 years; and
(ii) Where initial appointment of a person was made to posts in Basic Pay Scale 16 or below, one- half of the service in Basic Pay Scale 16 and one-fourth in Basic Pay Scale 15 and below shall be counted as service in Basic Pay Scale 17 for computing length of service for the purpose of promotion only to Basic Pay Scales 18, 19 and 20."
5. After the above amendment, contained in Schedule-II, was notified on 23-12-1996, the appellant submitted another representation, dated 6-1-1997, repeating her earlier request and asking for issuing revised orders declaring her promotion as having been made on regular basis. No decision was taken on the said representation and the instant appeal was .filed on 14-4-1997, after expiry on 90 days. -
7. The appellant has contended that the proviso contained in the Schedule-I has been misinterpreted by the Education Department inasmuch as the appellant had already completed the requisite length of service in BS. 17 and above, and she could not be treated to have entered in service in BS. 18, ignoring her past service in BS. 17, so as to require her to complete 7 years of service in BS.
18. It is further contended that the position has been clarified by the department itself by amending the provisions which might have created the ambiguity, and by issuing amendment of Schedule-I through, notification, dated 23-12-1996 which clarifies that service rendered by the appellant in BS. 17 could not be excluded for the purpose of promotion to BS.
19. The appellant has further contended that she is entitled to be promoted from 12-12-1990, the date when 1266 posts in BS. 19 were created under 4 tier structure, whereas the date of promotion actually allowed in the case of appellant (17-4-1994), is the result of delay that has occurred due to: late processing of the case of the appellant for promotion.
8. The case has not been really contested by the responding department. It is stated that the relevant rules of length of service for promotion in a particular grade are very much clear. It is also stated that the department had correctly interpreted the rules in the case of the appellant. It is, however, admitted that a rectification was issued vide Notification, dated 23-12-1996-. It is further contended that the appellant has not mentioned any specific ground to justify her claim; that her case was processed in accordance with the rules and she has not been subjected to any financial loss, and that the appellant could always, claim the benefits as per her entitlement as and when a decision is made to this effect.
9. Arguments heard and record perused. The written objections filed by the department are sketchy and suffer from contradictions about the rules as well as the case of the appellant. On the one hand, the department has admitted that the ambiguity in the rules, with regard to the promotion of the appellant on acting charge basis, has been removed through notification, dated 23-12-1996 and that the appellant can always claim benefit, and on the other hand, it is contended that the promotion of the appellant on acting been done correctly in accordance with the Rules.
The 1 t notification, dated 23-12-1996 entitles the appellant to have her service in BS.17 and BS.18 counted for promotion in BS. 19 as provided in Punjab, Civil Servants (Minimum Length of Service for Promotion) Rules, 1989 and if the appellant can admittedly claim a benefit, it is a matter of surprise why no decision on her departmental representation ' was taken accordingly, and why the department is insisting that the decision with regard to the promotion of the appellant on acting charge basis was taken correct. There is in fact nothing in the written objection to contradict any of the contentions of the appellant.
9-A. The Education Department while treating the promotion of the appellant as appointment on acting charge basis misinterpreted the provisions of Schedule-I. The requirement of 7 years service in BS. 18 is applicable to those persons who enter service in BS.18 through initial recruitment, and is not applicable to persons of the category of the appellant who were already serving the department in line and had rendered service in BS.17. A comparative reading of Schedule I and Schedule II appended with the PCS (Minimum Length of Service for Promotion) Rules, 1989 shows that there is no difference in the provisions of the two rules. If at all any interpretation of the Schedule-I was required, a reference could be made to the said Schedule-II which clearly lays down that a person has to have a length of 12 years service in BS. 17 and above for promotion to a post in BS.
19. Instead of interpretation the provisions of Schedule-I by reference to the provisions of Schedule-II contained in PCS (Minimum Length of Service for Promotion) Rules, 1989, the department amended Schedule-I to incorporate the provisions of Schedule-II. This amendment was really unnecessary as provisions of Schedule-I could not be interpreted otherwise than that the conditions of having 7 years of service in BS.18 is applicable only to those who entered service through initial recruitment in BS. 18 and is not applicable to those, like the appellant, who were already serving in the department and had to their credit the requisite length of service in BS.17.
Thus, while determining the length of service of the appellant, the department wrongly assumed that she entered in service in BS.I8 whereas she had already rendered more than 10 years service in BS. 17 alone and more than 17 years in BS. 17 by conversion in accordance with the formula contained in Schedule-II and PCS (Minimum Length of Service for Promotion) Rules, 1989 ----- in addition to more than 3 years of service in BS.
18. Once a wrong assumption was made about the appellant, the conclusion drawn from it was also wrong. The appellant, therefore, could not be treated to have, been appointed on acting charge basis as she was already eligible for regular promotion to BS.19 because she already fulfilled the condition of having a service of more than 12 years in BS. 17 and above as provided in Schedule-I as well as Schedule-II attached with PCS (Minimum Length of Service for Promotion) Rules, 1989. Both these rules are complementary to each other and independently valid. Amendment of Schedule-I to incorporate Schedule-II was, therefore, unnecessary. Comparing with the appellant, persons including those who are junior to the appellant, who did not compete for the post in BS. 1-8 before the Punjab Public Service Commission, or even those who appeared but failed to be selected, were promoted to BS.19 after calculating their total service in BS. 17 and above, but the appellant has been deprived of her past, service in BS. 17 only because she was sharp enough to win higher post through direct recruitment.
This could not be the intention of the rules.
10. The learned counsel for the appellant also argued that the appellant is entitled to regular promotion in BS.19 w.e.f. 12-12-1990, the date of availability of the post. He relies on this Tribunal's judgment, dated 19-2-1995 in Appeal No.494 of 1995, upheld by the Supreme Court in its order, dated 20-12-1995 in C.P.L.A. No.611-L of 1995. The appellant in the said case appealed: for promotion to BS.19 w.e.f. 1-9-1990, the date of notification of up gradation of posts under 4 tier structure of the general cadre of College Teachers. The Education Department took up the plea that the promotion could not be claimed as of right and that the department had to take time to sort out matters with the result that the promotions of the appellants were made w.e.f., the dates subsequent to the date of up gradation of posts. The Tribunal allowed the appeal and the promotion of the appellants w.e.f. the date of creation of the posts through re-organization of 4 tier structure with the following observations:----- "The entire controversy seems to be settled by the notification, dated 1-9-1990 (Annexure C at page 31). It allocated 1298 posts to BS.19. The appellant's version was that they squarely fell within those posts and as such were entitled to BS. 19 from the date of this notification, namely, 1-9-1990. It was not shown if the appellants did not fall within the upgraded posts of BS. 19 numbering 1298. On the other hand, the contention that the department took time in sorting out such a laborious matter till 11-3-1992, could not be accepted as a reason to deny the appellants furition of upgrading their posts w.e.f. 1-9-1990. The aforesaid notification was a legal instrument. The up gradation was approved with immediate effect and thus, there was no reason left behind to refuse them emoluments etc., flowing out of up gradation of their posts taking effect from i-9-1990. The fact that the problem was quite complicated or involved having an elaborate exercise to make allocation of different officers of different tier may have not been a substantial reason to dilute or delay the effect of the notification, dated 1-9-1990 which by its phraseology became effective instantaneously. Consequently, the objection raised against the appellant on that score has no merit.
(4) The appeal is allowed. The appellants are allowed BS. 19 from 1-9-1990. Parties shall bear their own costs."
The Education Department filed petition against the judgment of this Tribunal, and the leave was refused by the learned Supreme Court through the aforementioned order, dated 20-12-1995 with the following observations:-- "On behalf of the Government it is contended that no civil servant has right to claim that he should be promoted from a back date even though a vacancy may be existing on the date from which the promotion is being claimed. This is no doubt true but here there are no orders by the Government that the respondent's promotion should be held up for sometime. The delay in making the promotion occurred entirely due to the reason that the officials of the Education Department could not carry out of fairly simple exercise within a reasonable period. In the circumstances, it will not be appropriate for this Court to interfere with the orders of the learned Tribunal. Leave is refused."
11. The above judgment .of the Tribunal and the order of learned Supreme Court were ultimately implemented vide Education Department's notification, dated 5-8-1997.
12. The above discussion shows that the appellant has been wrongly deprived of the benefit of her service in BS. 17 when she was considered for promotion to the post in BS.
19. The length of service of the appellant for the purpose of promotion to BS. 19 should have been calculated on the basis of formula given in PCS - (Minimum Length of Service for Promotion) Rules, 1989 according to which 12 years of service against posts in BS. 17 and above is the requisite length of service for promotion to the post in BS. 19, and since the appellant has also served in pay scale lower than BS. 17, the total length of service at her disposal in BS. 17 and above by conversion came to more than 17 years on 17-4-1994, and more than 13 years on 12-12-1990 when the post in BS. 19 became available through re-organization under 4 tier structure. There is no contradiction between the length of Service Rules, 1989 and the Schedule-I referred to above relating to the promotion in the school cadre of Education Department. The provision in the said Schedule-I cannot be interpreted otherwise than in terms of PCS (Minimum Length of Service for Promotion) Rules, 1989 and any other interpretation to the contrary would be ultra vires of the said rules. As for the date of promotion of the appellant to the post in BS. 19, there is no reason to hold otherwise in the instant case than was done in the aforementioned case decided by this Tribunal in Appeal No.494 of 1995 and. upheld by the learned Supreme Court. It is, thus clear that the appellant has been deprived of her right to have been promoted on regular basis from the due date. No argument was offered to compel a conclusion to the contrary.
13. In the light of the foregoing, the appeal is allowed and the appellant is entitled to promotion on regular basis. The responding department accordingly shall issue a notification correcting the notification, dated 17-4-1994. The appellant is also declared entitled to be promoted to BS. 19 on regular basis w.e.f. 12-12-1990, the date of availability of vacancy under the re-organized set up of 4-tier structure introduced through notification, dated 12-12-1990.
14. Appeal is allowed as above.