' MUHAMMAD RAZA KHAN (MEMBER)--The appellant joined service as Junior Auditor (B-5) an 7-2- 1979. He was promoted as Senior Auditor (B-11) with effect from 1-7-1983. The further line of promotion from the post of Senior Auditor was to the cadre of Divisional Accountants (B-13) with Selection Grade to the extent of 33% in B-15. However, this promotion was dependent on the qualifying of Departmental Examination consisting of two parts. The Audit Department was supposed to hold the examination every year so that those who were eligible to participate in the examination may prove their talents. However, it is an undenied fact that one examination was held in 1985 when the appellant could not participate as he had not completed the required minimum three years of service as Senior Auditor. After 1985, the examination was held in December, 1993 when the appellant appeared in Part-I Examination and he qualified the same. As a result of the said partial passing of the examination the appellant was promoted as probationer Divisional Accountant on 29-3-1994 and he was required to pass the final examination for the Divisional Accountants. Just within 5 months of the said promotion on probation the Government of Pakistan upgraded the post of the Divisional Accountant and re-designated it as Divisional Accounts Officer and the scale of pay was upgraded from B-13 to B-16 with a provision of grant of Selection Grade in B-17 for 33% of the Divisional Accounts Officer (B-16). This decision of the Auditor-General of Pakistan was adopted by the Azad Jammu and Kashmir Council (AJKC) on 22- 1-1996. The appellant was required to appear in the examination to be held in 1996 in the new syllabus and he demanded the permission for appearing in the old syllabus with the exemption already earned by, him. On refusal to get the said exemption, he filed a Constitutional Petition in the High Court of judicature Azad Jammu and Kashmir. This petition was dismissed on 12-8-1996 and the leave to appeal was also refused by the Supreme Court of Azad Jammu and Kashmir. The appellant, thereafter, filed an application with the respondent-department that he may be confirmed in the post of Divisional Accounts Officer and this request was rejected on 27-1-1997 on: the ground that the appellant has not so far qualified Divisional Accountant Part-II Examination, therefore, question of his regularisation does not arise. This rejection was conveyed to .The appellant vide endorsement dated 16-2-1997 and this appellate order has been challenged by way of present appeal filed on 18-3-1997.
2. The respondent-department contested the appeal on sevetal grounds by filing written objections. We have listened to arguments of the learned counsel for the parties in detail and perused the record with their help and assistance. Prior to the discussion on various issues involved in this case it will be appropriate if the relevant extracts are reproduced for easy reference. The basic document whereby the examination has been prescribed for the recruitment to the cadre of Divisional Accountant is para. 157 of Chapter VII of the Auditor-General Manual of Standing Orders
(MSO) whereby the examination was to consist of two parts with seven papers in all. The post of Divisional Accountant was upgraded vide O.M. Of the Auditor-General of Pakistan dated 11-8-1994 ,as "The competent Authority has been pleased to upgrade the post of Divisional Accountant (B-13) with. Selection Grade (B-15) to Divisional Accountant (B-16) with Selection Grade-17 to 33% posts with effect from 10-8-1994.
1.1. The Standard of Existing Divisional Accountant Examination has been revised. It has been decided to add four more papers to the existing set up. The syllabus for the Divisional Accountant B-16 Examination will be issued separately.
1.2. The Divisional Accountant B-16 will constitute separate Cadre with their Recruitment Rules and channel promotion.
1.3. The existing Divisional Accountant B-13/15 would to inducted to the upgraded Cadre of Divisional Accountant B-16 either on completion of 5 years service or passing additional four papers which ever occurs earlier, 1.4. Selection Grade B-17 to 33% of posts will be awarded on seniority cum fitness basis and on the recommendations of Departmental Promotion Committee.
2. The' charge assumption reports of the officers alongwith Gazette Notification may be furnished to this office for notifying in the Gazette of Pakistan.
3. This issued with the concurrence of Finance Division vide Letter No, DY 680/R.1/94, dated 10-8- 1994."
' The Azad Jammu and Kashmir Council adopted the upgradation on 22-1-1996 as:-- "I am directed to refer to the Letter No, Admin. 1/220-21/9, dated the 21st December, 1995 on the above subject and to convey the approval of the AJ&K Council to the 'Adoption' of the Auditor- General of Pakistan/AJ&K's Notification No,656-Estab:III-46-86, dated the 7th December, 1995 (copy enclosed) regarding 'Re-designation' of the posts of 'Accountants' and 'Divisional Accountants' as 'Assistant Accounts Officer' and 'Divisional Accounts Officer', respectively in the Audit and Accounts Department, AJ&K in the same manner and to the same extent as is applicable to their counterparts in Pakistan Audit Department, with immediate effect and till further orders."
3. The syllabus for the said examination was notified by the Auditor General of Pakistan office circular dated 6-5-1996, however, prior thereto the condition applicable for the old candidates has been narrated in detail vide a circular dated 11-3-1996. The relevant extract appears hereinbelow:-- "Subject: RULES AND REGULATIONS FOR APPEARANCE OF OLD CANDIDATES IN DIVISIONAL ACCOUNTS OFFICER'S EXAMINATION.
' The Auditor-General of Pakistan has been pleased to approve the following rules and regulations for appearance of old candidates in Divisional Accounts Officer's Examinations:-- ' Candidates who have already qualified Divisional Accounts Officers Part-I Examination (Previously or in 3/94), will have to appear in the additional subjects which were newly introduced in 8/94 i,e,, P.W.D. Specification/schedule of rates and their application (ii) Government Accounting (Theory, and Practical) with three (3) chances alongwith their Part-II Examination. After that they will appear as a fresh candidate.
' Candidates who have cleared two subjects of Part-I Examination in old syllabus will have to appear in the remaining old paper along with newly introduced subjects i,e, (i) Public Works Department Specification/Schedule of rates and their applications (ii) Government Accounting (Theory and Practical) in three (3) chances. After that they will appear as a fresh candidates.
' Old candidates of Part-II Examination of those who have obtained exemptions in one subject will have to appear in Part-II additional subject alongwith Part-I additional subjects alongwith Part-I additional subjects. They will be allowed to clear additional subjects of Part. I Examination in (3) three chances. After that they will appear as a fresh candidate.
' The existing Divisional Accounts Officer (B-13 and B-15) will be inducted as Divisional Accounts Officer (BPS-16) on completion of ' five years service or Passing additional papers of Part. I Examination i,e, (i) Auditing (ii) Contract, Arbitration and Limitation Acts.
(6) Those candidate who will appear after 10th August, 1994 will have to pass all papers as perscribed under the new scheme."
(N.B.).--It is to be noted that the circular was issued in March, 1996 and sub-para. (5) mentions the date as August, 1994.
' In the meanwhile, as stated earlier, the appellant had been promoted as probationary Divisional Accountant vide order dated 29-3-1994. The office order mentioning the promotion and terms and conditions is reproduced here below:-- "The Accountant-General, Azad Jammu and Kashmir has been pleased to appoint the following officials of Forest P.W.D., Electricity and Audit and Accounts Department of Azad Jummu and Kashmir as Probationary Divisional Accountant (B-13) who have passed the Divisional Accountants Part-I Examination held in December, 1993 on the following terms and conditions:--
32. Raja Liaqat Ali.
CONDITIONS:-
1. The appointment will be on probation for a period of two years during which they will get practical training of P.W.D., Forest, Electricity and Audit and Accounts Office and will continue to hold lien on their substantive appointment, Their confirmation as Divisional Accountant in BS-13 will be subject to passing Divisional Accountant's Final Examination.
' The appointees who fail to pass the prescribed Divisional Accountants Final Examination shall be liable to reversion to their parent Departments.
They are required to serve anywhere in the jurisdiction of Accountant-General, Azad Jammu and Kashmir.
They will get their own pay or minimum of BPS-13 whichever is mare and their annual increments in BPS-13 will be allowed after confirmation as Divisional Accountant as per condition No, 1.
(a) Officials/Senior Auditors BPS-13 should offer in writing their willingness to accept appointment in lower scale i,e, BPS-13 in terms of F.R-15.
(b) The officials concerned should also note in writing that they will have no protection of their existing of BPS-15 in BPS-13."
4. The . Above extracts, various notifications and orders lead to the following conclusions:- That the post of Divisional Accountant in B-13/15 was to be filled after qualifying Part-I and Part-II Examination prescribed for the said post.
The appellant was eligible from 1986 onwards to participate in the said examination but the examination was not held except in 1993 when the appellant appeared and qualified Part-I Examination.
On the basis of the said partial success, the appellant was promoted to B-13 in March, 1994 subject to qualifying the Final Examination.
The examination was again not held within the next two years.
That the Government of Pakistan upgraded post of Divisional Accountant as Divisional Accounts Officer as B-16 with effect from August, 1994 and this upgradation was adopted by the AJK Council in 1996.
With the upgradation of post, additional subjects were introduced as a pre-requisite for promotion to the post of Divisional Accounts Officers and an opportunity was provided for those candidates who had already qualified Part-I Examination to appear in Part-II Examination in the old syllabus for specified chances in addition to the additional papers, however, this is a fact that no examination was held in the old syllabus to provide an opportunity to the appellant to qualify the same within the said number of chances.
The appellant had filed a Constitutional Petition in the High Court and the same was dismissed on the ground that the orders passed by the authorities for upgradation of post and change of syllabus was not without lawful jurisdiction.
The appellant had applied for participation in the examination in 1996 but later on did not participate therein.
' However, despite all these deductions, it is the hard fact that the appellant stood promoted as Divisional Accountant on probation for a period of two years as per condition No,1 of the promotion order dated 29-3-1994 and the post was upgraded in August, 1994/January, 1996. There is another, relevant factor that during the period of March, 1994 to March, 1996 no examination was held to provide a chance to the appellant to qualify the same. From this it follows that the appellant was promoted as Divisional Accountant in March, 1994 and with the upgradation of Post to B-16, he stood upgraded as he was already occupying the post on probation basis. He was not to be promoted afresh. The post of Divisional Accounts Officer has not been created as the new post rather the existing post, of Divisional Accountant on the prescribed date, stood upgraded with the same terms and conditions applicable to him prior to such upgradation.
' Secondly it also follows that the appellant was certainly required to pass the final examination of the Divisional Accountant but subject to the condition that the examination was actually held by the Department. He cannot be penalised for the fault of the Department in not conducting the departmental examination periodically. The change of syllabus had come into force in 1996 and had the Department conducted the examination in 1994 and 1995, the appellant was duty bound to appear and to qualify the same failing which his probation period could have been terminated. But since the required examination was not held, therefore, the appellant was unable to qualify the same. He could not be penalised for fault of the department.
' Thirdly, despite the entire confusion appearing in various notifications and office orders, there is no denial of the fact that these notifications and orders are of the nature of -administrative instructions only where as the principle of probation and confirmation is contained in the statutory provisions of the Civil Servants Act, 1973. The probation period can be for a specified time as prescribed by the rules. Such prescribed period can be extended further and, in accordance with the rules contained in the instructions of the ESTACODE, the initial period of probation can be one year which can be extended upto another period of one year and after the expiry of the said extended period of the performance of the civil servant concerned is not recorded as unsatisfactory and he is not reverted to his previous position, his probation period shall be deemed to have been terminated. Looking to the situation from this view point we arrive at the conclusion that the appellant was promoted as Divisional Accountant on probation with effect from 29-3-1994 for two years and subject to passing of the departmental examination. The departmental, examination was not held and at the expiry of the said period of two years, the appellant was not reverted to his previous post of Senior Auditor B-11, therefore, he will be deemed to have been confirmed as a Divisional Accounts Officer with effect from 29-3-1996. Since the post of the Divisional Accountant B-13 has been upgraded meanwhile to B-16 as Divisional Accounts Officer, therefore, the appellant will be deemed to have been upgraded to B-16 as well.
1. Before parting with the judgment it may also be mentioned that the appellant has been admittedly performing the duty of the Division& Accountant since 7-9-1989 and he has prayed for his regularisation as the Divisional Accountant with effect from the said date. The respondent department had not denied the performance of functions by the appellant as such with effect from 7-9-1989 but, with effect from the said date till his promotion on 29-3-1994 he was acting in his own pay and scale. It has been observed by this Tribunal as well as by the Hon'ble Supreme Court that the term appointment against the higher post "in his own pay and scale" etc. Is in- consequential because under section 17 of the Civil Servants Act, 1973 a person is entitled to the pay of the post against which he performs the functions. However, since the appellant has not demanded in time the grant of pay of the post, therefore, no relief can be extended to him in this behalf. However, such appointment being of transitional nature cannot be deemed to be a promotion and, therefore, the appellant cannot be considered to be promoted with effect from 7- 9-1989.
2. Thus, we partially accept this appeal, 'set aside the impugned order dated 27-1-1997 as communicated vide letter dated 16-2-1997 and hold that the appellant stood upgraded as Divisional Accounts Officer B-16 and the probation period stood terminated on the satisfactory completion of two years on 29-3-1996 and since the departmental examination was neither held nor arranged during the said period of two years, therefore, he could not be required to appear in such examination after the termination of probation period.
3. No order as to costs. Parties be informed.