1988 PLP (C (PLC(CS))

S.A. SAYOOD (MEMBER).‑‑The appellant, Muhammad Idress, having passed the examination of section A & B of A.M.I.E. from the Institute of Engineers (Pakistan) was appointed as Assistant Divisional Engineer (B‑17) in the T & T Department through Federal Public Service Commission and is currently serving as Divisional Engineer (B‑17) at Lahore. Based on Ministry of Finance Memo. No.532‑R. 5/75‑F No.3(4). R.1/75 dated 30‑6‑1975, he was allowed 5 premature increments. Vide Pakistan T & T Department Letter NO.PA & P.33‑7/78 dated 24‑8‑1983, the appellant was informed that it had been decided not to allow five premature increments to the A.M.I.E. Graduates. Vide Pakistan T & T Department letter No.PA&P.33‑77/78 dated 5‑2‑1984, he was also informed that recovery of earlier payments made to him could not be deferred. 2. The appellant made representations to the Ministry of Finance and his case having been rejected by the Ministry of Finance came in appeal before the Tribunal on 13‑3‑1984. 3. It has been argued on behalf of the appellant that the qualification viz. passing of examination section A & B of the A.M.I.E is equivalent to B.Sc. Engineering. In support of his contention the appellant has contended that:‑ (a) The term "Engineering Graduate" has been used in its generic sense and it does not apply to persons holding B.Sc. Engineering degree only. It is an established fact that when a person passes a particular examination, it is known as the Graduation, and the person, is known as Graduate, as such the appellant being Graduates cannot be deprived of his right. (b) A Graduate Engineer holding A.M.I.E, qualification having passed Section A & B is always and has always been considered equivalent to B.Sc. (Engineering). No distinction can validly be made by the Finance Division in this matter (c) Vide Notification No.F.3(4)/75‑PT‑D‑219/76 dated 29‑3‑1976 Government of Pakistan, Regulation Wing the A. M.I. E (Pakistan) has been treated equivalent to B.Sc. (Engineering) for the purposes of professional services in Engineering Departments/ Organisations. In the circumstances when the Government of Pakistan has particularly treated A.M.I.E, equivalent to BE/B.Sc. Engineering, the Ministry of Finance is not competent to override the aforesaid Notification, as such the appellant cannot be deprived of the five advance increments. (d) The Central Government vide Central Engineers Service Class‑I Recruitment Rules, 1951 recognised Section A & B of the A.M.I.E. equivalent to B.Sc. (Engineering) for recruitment to Class‑I posts. (e) The Pakistan Engineering Council also wrote to the Ministry of Finance vide its letter NO.PEC/43‑A dated 23‑2‑1981 that since the A.M.I.E. Graduates have been treated equivalent to B.Sc. Engineers, as such necessary orders to all the concerned Government Departments may kindly be issued, but the Ministry of Finance has refused to do so. (f) The University Grants Commission which is the competent body to decide equivalence of degrees and diplomas of Pakistan held A.M.I.E. section A & B equivalent to B.Sc. Engineering for employment in Government service and Industries." (g) The impugned orders are contrary to the rules framed by the President of Pakistan. The President has vide Notification dated 3‑5‑1957 treated the Engineers holding Section A & B of A.M.I.E. equivalent to B.Sc. Engineering. The Notification issued by the President is unambiguous and no two meanings can be attached to it. Every incumbent of the post in NPS‑17 for which the minimum prescribed qualification is Graduation is entitled to five advance increments. It is admitted fact that the appellant held posts in NPS‑17 in a substantive capacity at that time, as such he could not be deprived of the five advance increments to which he is entitled under the law. (h) The Ministry of Finance or for that matter the Accounts Officer is not competent to override any Notification, rule or Regulation issued by the President of Pakistan under the law. In the present case it is clear that the President has treated Section A & B of A.M.I.E. equivalent to B.Sc. Engineering and had also granted five advance increments to the Graduates. The act of the Ministry of Finance to override the Notification issued by the President is ultra vires and clearly without jurisdiction. The Ministry of Finance is not competent under the law to withdraw any benefit which had been granted by the President of Pakistan, under the rules. (i) The aforesaid Rules are consistent with the provisions of Section 17 of the Civil Servants Act, 1973. According to that provision of law, the appellant is entitled to pay sanctioned for such posts. The appellant is entitled to five advance increments granted to the Engineers under the said Notification. (j) That similar point came up for consideration before the Punjab Service Tribunal in the case of "Muhammad Amin v. Secretary, C & W" (Appeal No.328/325/78, decided on 11‑10‑1979) and the Punjab Service Tribunal was pleased to accept the appeal vide its judgment dated 11‑10‑1979 and allowed five advance increments to the A.M.I.E. (Engineers). The Government of Punjab filed an appeal against the said order of the Punjab Service Tribunal in Supreme Court of Pakistan and the Supreme Court was pleased to dismiss the appeal vide order dated 2‑4‑1980, The said judgment clearly establishes that the appellants cannot be deprived of the five advance increments granted to them by the President of Pakistan. (k) In view of the decision of the Supreme Court on the point it does not lie in the mouth of the Ministry of Finance to say that the appellant is not entitled to five advance increments. This tantamount to fouting the orders of the Supreme Court which cannot be allowed at any cost. (1) The impugned order is arbitrary, malicious, discriminatory and has been passed to deprive the appellants of the five advance increments to which they are entitled under the law. The impugned order, by no stretch of imagination can be sustained in law. 4. It was urged and contended on behalf of the respondent‑department that in the case of Niaz Ahmed v. Ministry of Finance and others (.Appeal N0.3(R)/82) where facts were identical, it was held by this Tribunal that the claim made by the appellant was misconceived and the appeal was not entertained. This appeal being indentical as such could not be entertained. According to the respondent‑department, the benefit of advance increments was available only to Graduate Engineers and not to those who hold A.M.I.E. degree. It was argued that the rationale behind the grant of advance increments to Graduate Engineers was that they had to spend 4‑5 years of regular studies after Intermediate to get their Graduation Degree. In the case of A.M.I.E. Engineers there is no fixed period for the course and the A & B Section Examination could be cleared even in a year's time. Thus, the A.M.I.E. Engineers could not be considered at par with Graduate Engineers for the purpose of grant of advance increments. So far the grant of advance increments already given to the appellant was concerned, it was contended that those who possessed the A.M.I.E qualification were allowed increments on the clear undertaking that if any objection was raised from any quarter they would refund the same.? The grant of five advance increments to the appellant having been objected to by the Audit and Finance Division was as such withdrawn and recovery was being made from him. It was further contended that the judgment of the learned Supreme Court in the case of Muhammad Amin v. Secretary, C & W in Appeal (No.328/325/78, dated 11‑10‑1979) could not be cited and applied in this case as the Federal Government was not a party in the said appeal. 5. We have heard the learned counsel for the appellant and respondents and perused the relevant records. As pointed by the Punjab Service Tribunal in the case of Muhammad Amin v. Secretary & W etc. "mandatory provisions have been made in the Central Engineering Services where the basic qualification required is A.M.I.E. and the B.Sc. degree has been considered equivalent for exemption purposes. The equivalence is there in the Pakistan Engineering Council Act also. In view of this factual position the grant of five advance increments to holders of A.M.I.E. (Pakistan) cannot be denied." We would like to further add that in our opinion the University Grants Commission is the competent .Authority to decide equivalence of degrees and diplomas. In their booklet "A Guide to the Equivalence of Degrees and diplomas in Pakistan, 1978", they have specifically, indicated at S1. No.18 that "A.M.I.E. (Section A & B) is equivalent to "B.Sc. Engineering for employment in Government Service and Industries." We see no reason that if this qualification is considered equivalent to B.Sc. Engineering "for employment in Government service and Industries" why it should not be relevant for the grant of five premature increments to which Graduate Engineers are entitled in terms of Government Notification No.532‑E5/75 F.No.3 (4)RI /?5 dated 30‑6‑1975. The circular dated 30‑6‑1973 sanctioned with effect from 1‑7‑1975 five advance increments to incumbents of posts "NPS‑17 posts of Engineers, the prescribed minimum qualification for which in any branch of Engineering." It is not denied that NPS‑17 post in the T & T Department to which the appellant belonged prescribed graduation as a minimum qualification. As held by the learned Supreme Court in the case of Government of Punjab and another v. Muhammad Amin "the circular granting five advance increments provided for the minimum qualification of the post, as prescribed in rules. Therefore, the incumbents to those posts were not necessarily required to be graduates if they held the post for which Graduation was the minimum qualification. The entitlement in their favour was created and given effect to by the department. The rules entitled them to this benefit and recall of the order, even if they had given an undertaking was not valid. 6. In the light of the above discussion and keeping in view the judgment of the Supreme Court in the case of Government of Punjab and another v. Muhammad Amin 1981 S C M R 675, the grant of five advance increments to the appellant cannot be denied and the appeal as a4ch, is accepted to that extent There shall be no order as to costs. 7. Parties to be informed accordingly. S.Q./397/Sr.F????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.