1991 PLP 634 (SCMR)

(a) the nature of the work performed in foreign service, and (b) the promotion given to juniors in the cadre in which the question of promotion arises. (ii) In any individual case the competent authority may grant a Government servant, outside his cadre or cadres but in his own line, such promotion as it considers he would have got had he not been transferred to foreign service." The term "Foreign Service" is defined in Rule 2.21 of the Civil Services Rules (Punjab) as follows: "`Foreign Service' means service in which a Government servant receives his substantive pay with the sanction of Government (a) from any source other than the revenues of the Governor‑General‑in‑Council or of ''Federation (when established) or of a Province or the Railway Fund (when established); or (b) from a company working a State Railway. " The Service Tribunal further referred to Section 9 of the Punjab Civil Servants Act, 1974 which provides ‑ "Section 9‑‑‑Posting and transfer: Every civil servant shall be liable to serve anywhere within or outside the Province in any post under the Government of the Punjab or the Federal Government or any Provincial Government or a local authority or a corporation or a body set up or established by any such Government: Provided that, when a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service to his pay shall not be less favourable than those to which he would have been entitled if he had .not been so required to serve." According to the Service Tribunal, the effect of Section 9 is that the rules contained in the Civil Services Rules (Punjab) Vol I, Part I assure the civil servants posted outside the Province not to be treated less unfavorably than the civil servants serving in the country. Under the Civil Services Rules, in the opinion of the Service Tribunal, respondent No.l was entitled to the benefit of the convention usually known as the "next below rules". This is contained in Note 4 to Rule 4.13 and reads as follows:‑‑ "Note 4.‑‑‑(i) The following guiding principles are laid down for the working of the convention usually known as the "next below rules":‑ (1) A Government servant out of his regular line should not suffer by forfeiting officiating promotion which he would otherwise have received, had he remained in his regular line. (2) The fortuitous officiating promotions of some one junior to a Government servant who is out of the regular. line does not rise to a claim under the next below rule. (3) Before a claim is established, it is necessary that all the Government servants senior to the Government servant who is out of the regular line should have been given officiating promotion. (4) It is also necessary that the Government servant next below him should have been given promotion, unless in any case the officiating promotion has not been given because of inefficiency, unsuitability or leave." The Provincial Government did not follow the principles contained in the aforesaid Note 4 on the basis of "promotion policy" adopted by the Government of Pakistan and circulated by the Cabinet Secretariat, Establishment Division's D.O. No.10(3)/81‑CP‑I(Pt) dated the 31st October, 1982, which has also been adopted by the Punjab Government. This promotion policy was framed because, according to the Establishment Division, "the legal frame‑work for promotion and its procedure has been provided in the Civil Servants Act, 1973 and the Civil Servants (Appointment, Promotion and Transfers) Rules, 1973. The Law and Rules by themselves, are not enough to meet the functional requirements and need to be supplemented by a comprehensive and consistent set of policy guidelines." The salient features of the policy, inter alia, provided‑‑ (1) ‑‑‑‑‑‑‑‑‑‑‑‑‑ (2)

‑‑‑‑‑‑‑ (3) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (4) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (5) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (6)

(7) A civil servant on deputation to a Foreign Government International agency or a Private Organization abroad will be considered for promotion only on his return to Pakistan. Fie will be given intimation and asked to return to Pakistan before his case comes up for consideration for promotion in accordance with his seniority position, if he fails to return he will not be considered for promotion. Such an officer will have to earn at least one CR after his return to Pakistan before he is considered for promotion. The clearance/approval already accorded in the past to promote a deputations would lapse automatically if he fails to return on expiry of the deputation period already approved by the Government." The Selection Board in this case appears to have deferred the case of respondent No.l in the light of the guidelines contained in Para 7 above. The Service Tribunal was of the opinion that the right of respondent No.l for being considered for promotion would be governed by the principles contained in Note 4 of the Civil Services Rules (Punjab) Vol. I, Part I which could not be modified by any executive instructions such as those contained in the "promotion policy" and it accordingly, accepted the appeal of respondent No.l and directed the Provincial Government to consider him for promotion in NPS‑19 with effect from the date his next junior Mr. Aziz Aslam Khan was so promoted. This appeal is directed against the aforesaid order of the Service Tribunal. The learned counsel for the parties have been heard. In our opinion, the Service Tribunal fell into a fundamental error in considering that Note 4 contained in rule 4.13 was a statutory rule superior in status to any executive instructions and that non‑observance of the provisions of Note 4 was justiciable. The Service Tribunal overlooked the fact. that Note 4 of Rule 4.13 itself does not possess the status of Rules but lays down certain general principles for the working of a "convention" commonly referred to as "next below rule". A "convention", it hardly needs saying, is merely a practice that is normally followed and it does not enjoy the status of law. In fact, clause (15) to Fundamental Rule 30 which deals with "pay of officiating Government servants", explains the purpose and scope of the "next below rule" quite elaborately namely ‑ . "(15) The `next below rule' was a temporary expedient designed to protect Government servants from monetary loss and in effect meant the temporary upgrading of posts. It was originally intended that the expediency should not last more than six months in individual cases. Whatever may have been the advantage in the past to leave a man undisturbed in the post held by him, if the exigencies of the public service required it, the need for such consideration does not exist at present. It is the considered opinion of this Ministry that the concession of the `next below rule' should not be permitted except in very exceptional circumstances and that too for very short periods. It has been decided, therefore, that the cases wherein the benefit of the `next below rule' has been conceded should be reviewed forthwith. The Ministries/Divisions, etc. should take steps either to obtain the approval of the Ministry of Finance for the continuance of that benefit or to revert the Government servant concerned to his parent office." (M.F.O.M.No.1196‑Reg./47 dated the 7th December,1947) Thus, the Service Tribunal committed an error in enhancing the status of the "convention" contained in Note 4 to Rule 4.13 of Civil Services Rules to the status of a statutory rule, which it was not. What has now been done is to supplement the guidelines contained in the said Note by further guidelines contained in the "Promotion Policy" of 1982 to deal with the situation that has arisen by frequent assignments secured by the civil servants in foreign countries in the recent past. We may also point out that in rule 10.2 of the Civil Services Rules (Punjab;. Vol. I, Part I it is provided that no Government servant may be transferred to "foreign service." against his will. Consequently, in the present case, the respondent No.l went out to serve in Nigeria of his own free will and not on account of any order passed by the Government and even if. Section 9 of the Punjab Civil Servants Act, 1974, was attracted in his case, this provision only guarantees to the civil servant (when he is required to serve in a post outside his service or cadre) that his terms and conditions of service as to his a shall not be less favourable than those to which he would have been entitled if he had not been so required to serve. Accordingly, the guarantee is confined only to the protection of his pay and not the protection of his prospects of promotion. For all these reasons we are of the opinion that the order and judgment of the Service Tribunal is erroneous and is liable to be set aside. We order accordingly. This appeal is, accordingly, allowed and the judgment and order dated 19‑6‑1984 of the Service Tribunal set aside. Parties, however, are left to bear their own costs. M.BA./G‑321/5 Appeal allowed.