1. ' AJMAL MIAN, C.J.---By this common judgment, we intend to dispose of the above 52 appeals which have been filed with the leave of this Court against the judgment, dated 5-6-1998 of the Federal Service Tribunal (hereinafter referred to as the Tribunal) in Appeals Nos.1105(L) to 1156(L) of 1997, filed by the appellants, claiming one premature increment on the basis of upgradation of their posts from BPS 8 to BPS 11 with effect from 9-11-1984, dismissing the same.
2. ' The brief facts are that the appellants at the relevant time were working as Railways Guards. It seems that with effect from 9-11-1984 a number of posts in Railways were upgraded including that of guards from BPS 8 to BPS 11. It appears that five Guards, namely, Faiz Bakhsh, Abdul Khaliq, Malik Fazal Din, Shujauddin and Barkat Ali, on the basis of paragraph (H) of the Pakistan Railways Personnel Manual (hereinafter referred to as the Manual) were allowed one premature increment because of the above upgradation of the post of Guard. Prior to the filing of the Service Appeals before the Tribunal in 1997, the matter had come up before this Court in the form of five appeals, filed by the Pakistan Railways in 1992 with the leave of this Court. Two of the appeals related to the Guards, namely C.A No,793 of 1992 and C.A.No,794 of 1992 which, had arisen out of the proceedings filed by them under section 25-A of the I.R.O. Claiming that they were entitled to a premature increment on account of revision of pay scale from BPS 8 to BPS 11 which claim was upheld by the Labour Court, Labour Appellate Tribunal and the High Court in the writ petition. This Court delined to interfere with the above matters for the reasons recorded in para. 14 of the judgment which is reported under the title Pakistan Railways v. Shaukat Ali Hamdani, 1996 PLC 595. The above para. 14 reads as follows:-- "14. As regards the remaining two appeals, it is observed that no doubt above respondents Ghulam Hussain and Muhammad Yasin Shad's claim was founded on the ground that they were entitled to increments because of upgradation of their pay scale from NPS 8 to NPS 11, and thus, their case would fall within the ambit of the above unreported judgment of this Court, dated 7-12-1992 in the case of Pakistan Railways v. The Labour Appellate Tribunal and others (Civil Appeals Nos.849 and 950 of 1992) referred to hereinabove. We would have interfered with the same but the learned Judge in Chambers has declined to exercise his Constitutional jurisdiction for two reasons, namely, that the department itself had placed construction on above paragraph (H) in the manner in which the above respondents had claimed inasmuch as the increments were granted under aforesaid paragraph (H) to other employees, namely, Faiz Bakhsh, Abdul Khaliq, Malik Fazal Din, Shujauddin and Barkat Ali, who were placed in the same position as the above respondents would constitute discrimination being violative of Article 25 of the Constitution, and secondly he was of the view that it was not a fit case in which he should invoke discretionary Constitutional jurisdiction.
3. However, Ch. Fazal-eHussain has referred to the case of The United Netherlands Navigation Co. Ltd. v. The Commissioner of Income Tax, South Zone (West Pakistan), Karachi (PLD 1965 SC 412) to contend that departmental interpretation has no legal force and, therefore, the learned Judge in Chambers should not have relied upon the departmental interpretation."
4. ' After the above judgment of this Court it seems that the appellants demanded the payment of the above one premature increment which was refused by the department. Then they filed the above service appeals before the Tribunal, which were dismissed for the following reasons:-- "5. We have considered the position taken by both the parties as well as the cases quoted referred to above and finding given by the Supreme Court in Civil Appeal No,849 of 1990, dated 18-11-1992 in which it has been held that in cases of promotion from lower to a higher post, the pay is fixed after allowing a premature increment whereas in case of upgradation or revision of pay scale the salary is fixed in the next stage of the higher grade. The private respondents were not promoted and hence they were only allowed higher grade and their pay was fixed in that grade in accordance with the provisions of pay. Para. 'H' of the NPS Scheme of 1972. Which is applicable where there is a promotion from lower post to higher post. The private respondents were not carrying higher responsibilities in view of the fixation of their pay for upper grade and final conclusion arrived at was that respondents were not promoted to higher post but placed in a higher grade. Therefore, para. 'H' is inapplicable in their cases. This means that the Hon'ble Supreme Court after looking into the relevant details, rules on the subject and legal position gave their final verdict that in case of upgradation no premature increment was allowed. This is the precedent we feel like following because in the case quoted by the appellants the finding given by the Supreme Court was only on technical ground. We are of the opinion that an error once committed is not to be perpetuated. The treatment accorded to the cases of Multan Division was definitely against the rules and regulations and the department has become helpless in doing anything because of the decision of the higher Court including Honourable Supreme Court of Pakistan which was based on legal technicalities and niceties and not on the merits of the case. We have considered the implications at national level and are of the considered opinion that an error committed once cannot be made the basis for further perpetuation of this wrongful treatment against all cannons of law and justice, Rules of Business on the subject and the legal position."
5. ' Leave to appeal was granted to consider whether in view of the judgment of this Court in the cases of Pakistan Railways v. Shoukat Ali Hamdani and others, 1996 PLC 595 (Labour) and Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCM R 1185 the respondents were justified to reject the appellants' claim for one premature increment.
6. ' In support of the above appeals, Mr. Muhammad Ashraf, appellant in C.A. No,1945 of 1998 has appeared in person. He contended that since respondent No,2, Pakistan Railways, had granted one premature increment to a number of other Guards similarly placed on the basis of para.(H) of the Manual, they were not justified to decline the same to the appellants. He has relied upon the judgment of this Court in the case of Pakistan Railways v. Shoukat Ali Hamdani and others (supra).
7. He also referred to the judgment in the case of Government of the Punjab through Secretary.
8. Services Punjab, Lahore v. Muhammad Awais Shahid reported in 1991 SCM R 696.
9. ' On the other hand Mr. Muhammad Aslam Sandhu, learned counsel for the Pakistan Railways, has submitted that one premature increment is payable under para. (H) of the Manual on the promotion and not on account of upgradation of a particular post which is not a promotion. He relied upon an unreported judgment of this Court in C.A. No,849 of 1990 (Pakistan Railways v. The Labour Appellate Tribunal and others) and the connected appeal namely C.A No,850 of 1990 (Pakistan Railways v. Authority under the Payment of Wages Act, N.-W.F.P. And others) decided by a Bench of three Honourable Judges, which also had more or less identical facts except that the private respondents instead of filing applications under section 25-A of the I.R.O. Had invoked section 15(2) of the Payment of Wages Act, for claiming above premature increment, which were allowed, the appeals revision, and writ petitions filed by the Railways were dismissed. Thereupon, aforementioned appeals were filed with the leave of this Court. The relevant portion of this above judgment read as follows:-- "7. Hayat Muhammad was drawing pay B-7. He was allowed B-11. Similarly, private respondents in other appeals were allowed upgradation of the pay. The private respondent on the basis of paragraph (H) claimed a premature increment. According to the learned counsel for the respondents, as the private respondents had been promoted therefore, they were entitled to premature increment. We may also refer to Serial No,6, ESTACODE, 1979 Edition (page 326-27) Its para. 2 reads as follows:-- ' It has been decided that in cases of fixation of pay governed by the Fundamental Rules, irrespective of any provision to the contrary in those rules, where a civil servant is not transferred from one post to another but is transferred from a lower to a higher scale, initial pay in the higher scale will be fixed at the stage next above the pay admissible in the lower scale as on the eve of the transfer to the higher scale. This decision will come into force with effect from 1st March, 1972 and would not apply to cases which had been settled before that date.'
10. ' A bare perusal of paragraph (H) would make it clear that the private respondents were not promoted. They were only allowed higher grade and their pay was fixed in the grade in accordance with the revision of pay. Paragraph (H) is applicable where there is a promotion from a lower post to a higher post. The opening words 'promotion from lower post' are significant. If a civil servant is transferred from a lower to a higher scale initial pay in the higher scale will be fixed at the stage next above the pay admissible in the lower scale. Grant of pay scale by revision of pay does not mean the promotion."
11. ' Mr. Sandhu has also referred to the Annexure filed with his concise statement which, inter alia, include a copy of notice, dated 2-1-1978 indicating that certain U.D.Cs. Were appointed to officiate as Head Clerks temporarily till further orders, which include the names of the four of the five persons referred to in the quoted para. 14 of the judgments of this Court in the case of Pakistan Railways v. Shoukat Ali Hamdani and others (supra) the Ministry of Railways letter, dated 11th November, 1984 indicates, enhancement of the basic pay scales of the various posts including the Traffic Running Staff, Guard G.R.I., Guard G.R.II., and Guard G.R..III, the appellants belong to Guard G.R.II, which post was upgraded from BPS 8 to BPS 11.
12. ' He then referred to para. (H) of the Manual which reads as follows:-- "Para. (H) 336(a).---In cases of promotion from a lower to a higher post, where the stage in the National Scales of the higher post, next above the substantive in the National Scales of the lower post gives a pay increase equal to or less than, a full increment, the initial pay in the National Pay Scales pertaining to the higher post will be fixed after allowing a premature increment in the National Pay Scales of the higher post. The existing rules/ orders regarding grant of minimum pay increase on promotions shall be treated as withdrawn."
13. ' It may be observed that it is true that this Court in the aforesaid judgments in the case of Pakistan Railways v. Shoukat Ali Hamdani and others (supra) declined to interfere with the orders of the Labour Court, the Punjab Labour Appellate Tribunal and the High Court in writ petition whereby the orders of the above two Labour Courts, forums, granting one premature increment, were maintained for the reasons recorded in the above-quoted para.
14. In this behalf, it may be pointed out that there is a marked distinction between refusal to interfere with the concurrent orders or judgments passed by the three forums below and setting aside the concurrent judgments of the three Courts below. In the above case of Pakistan Railways v. Shoukat Ali Hamdani (supra) this Court declined to interfere with the order of the High Court refusing to uphold the writ petitions filed by the Pakistan Railways for the two reasons recorded by it and referred to in the above para.
14. However, in the present cases we are called upon to set aside the judgment of the Tribunal under Article 212(3) of the Constitution which lays down that an appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court is satisfied that the case involves a substantial question of law of public importance. It may be highlighted that under the quoted para. (H) of the Manual one premature increment is payable in cases of promotion from a lower to a higher post, where the stage in the National Scales of the high post, next above the substantive in the national scales of the lower post gives a pay increase equal to or less than a full increment, the initial pay in the National Pay Scales pertaining to the higher post. According to the appellants, as per judgment of this Court in the case of Government of the Punjab through the Secretary, Services Punjab, Lahore and 4 others v.
14. Muhammad Awais Shahid and 4 others reported in 1991 SCM R 696 (supra) the upgradation of the post constitutes a promotion. In the above report interpretation of the Punab Civil Servants Pay Revision Rules, 1913 and 1977 was involved. The relevant portions of the Rules read as follows:- "The higher scale for the purposes of selection post may not be a matter reserved for Selection Board but for the purposes of Rules as contained and referred to, the claim made by the respondents certainly amounts to a claim for promotion. The Government itself reversed its own points of view when in November, 1984 when it added sub-rule (3) to rule 8 in the Punjab Civil Servants Pay Revision Rules, 1977 in the following words:-- '(3) In a case where for the same or similar posts, apart from the ordinary pay scale, a higher pay scale had been provided for a percentage of the said posts, the grant of the said higher scale shall be deemed to be a promotion in the Punjab Civil Servants (Appointment and Conditions of Services) Rules, 1974 shall be followed.'
18. If it was a substantive rule, certainly it would have no retrospective application, but as we have noticed, it has always been the rule and even if this provision did not exist the interpretation would be no different."
15. ' If we were to examine the above sub-rule (3) of Rule 8 of the Punjab Civil Servants Pay Revision Rules, 1977, quoted in the above portion of the above judgment, in juxtaposition with the above- quoted para. (H) of the Manual, it becomes evident that the import and scope of the two are different inasmuch as the above sub-rule (3) of Rule 8 deals with the case in same or similar posts apart from the ordinary pay scale, a higher pay scale had been provided for a percentage of the said post, whereas above-quoted para. (H) deals with the promotion from a lower to a higher post.
16. In the instant case if up gradation of the Guards would not have been for all the incumbents but would have been reserved for certain percentage of the post, the case would have been covered by the judgment of this Court in the case of the Government of Punjab v. Muhammad Awais Shahid (supra). However, if we peruse the above documents referred to by Mr. Sandhu, learned counsel for the respondent No,2, the same indicate that the posts were upgraded for all the incumbents and, therefore, the same cannot be treated as promotion in terms of the above-quoted para. (H). The present case is squarely covered by the unreported judgment of this Court, dated 8-11-1992 in the case of Pakistan Railways v. The Labour Court Appellate Tribunal and others (C.A. No,849 of 1990 and C.A. No,850 of 1990) relevant portions of which have been quoted hereinabove. The appeals of Pakistan Railways were allowed in identical cases.
17. ' However, before concluding the above discussion, we may observe that above appellant Muhammad Ashraf has placed on record the Director-General Inspection's letter, dated 1-4-1992 addressed to Pakistan Railways Authorities in which reference to the grant of one premature increment has been made in para. 2 whereof as under:-- "2. As provided in para. 4(1) of the above-cited Finance Division O.Ms. In cases of promotion from a lower to a higher post /scale before the introduction of these scales, the pay of the senior employees in the same scale may be fixed and so enhanced that it should not be less than the pay that would have been admissible to him if his promotion to the higher post/ pay scale had taken place after the introduction of revised pay scale i,e, w,e,f, 1-6-1991. A doubt has been felt in certain quarters whether the aforesaid provision will be applicable in the selection grade cases also. The matter has been duly considered and it has been decided that the word 'promotion' used in this context will include not only promotion from a lower post to higher post but also grant of higher pay scale by whatever means it may be. All such cases submitted to the Accounts/ Audit Officers by the respective Ministries/ Divisions/ Departments/ Offices along with the statement showing that the refixation of pay under the above provisions would be beneficial may be dealt with accordingly."
18. ' According to the appellants they are also entitled to the benefit of the above interpretation given by the Ministry of Finance, Government of Pakistan. However, a perusal of the above para. 2 indicates that the same is not applicable to the appellants' case but to the cases where upgradation takes place on account of grant of selection grade as was the case in Government of Punjab v. Muhammad Awais Shahid (supra).
19. ' The upshot of the above discussion is that the above appeals have not merit, and therefore, are dismissed but with no order as to costs.