1995 PLP 1549 (SCMR)

Shah Abdul Rashid, Advocate Supreme Court for Appellant. Sh. Riazul Haque, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents. Date of hearing: 7th June, 1995. MAMOON KAZI, J.‑‑‑The appellants are non‑graduate diploma -holder junior engineers serving with WAPDA. The appellants were first promoted as junior engineers in BPS‑17 but thereafter the appellants got stuck in the said grade as upon the interpretation of the Pakistan Engineering Council Act, 1975, only graduate engineers could be promoted as senior engineers, WAPDA formulated a policy dated 12‑4‑1982, which was subsequently modified by another policy dated 2‑6‑1985, according to which, all such junior engineers who had 10 years of service as such and had become due for promotion as senior engineers and had also passed the departmental examination and had been approved for selection by the Selection Board became eligible for up-gradation from BPS‑17 to BPS‑18.

2. Consequently, the appellants in pursuance of the said policy were promoted in BPS‑

18. However, according to the said policy decision, they were not permitted to perform duties and exercise powers of senior engineers and were also not entitled to fringe benefits which were admissible to the latter in BPS‑

18. Several junior engineers were accordingly upgraded alongwith the appellants notwithstanding the fact that they had not reached the maximum of BPS‑17.

3. Subsequently by virtue of O.M. dated 27‑2‑1986, the Federal Government's policy of move‑over was extended to the employees of all statutory bodies including WAPDA with effect from 1‑12‑1983. The WAPDA formally incorporated the said decision on 6‑7‑1986 and by virtue of this policy all such employees who had reached the maximum of a pay scale were to be allowed move‑over to the next higher pay scale on staying at the maximum of such pay‑scale for one year.

4. The two appellants in Civil Appeals Nos. 320/1993 and 386/1993 had respectively reached the maximum of BPS‑18 on 1‑12‑1989 and 1‑12‑1987 and thus they had become due for move‑over to BPS‑

19. However, their move‑over to the next higher scale was not considered by the department. Consequently, such decisions were respectively challenged by the appellants before the Service Tribunal. However, by a majority view separately taken in both the cases, the Tribunal held that the appellants were not entitled to the benefit of move‑over as their promotions to NPS‑18 were not regular promotions.

5. The learned Member 6f the Tribunal, Mr. S.M. Ishaq, while agreeing with the stand taken by the department that grant of BPS‑18 to the appellants did not tantamount to their promotion in the said grade, took the view that the words "promotion" and up-gradation" were not synonmous and the circumstances of the case also indicated that diploma‑holders did not enjoy the same financial powers as those enjoyed by regularly promoted officers in BPS 18, therefore, they could not be treated at par with the latter and thus, they were not entitled to move‑over as may be admissible to the senior engineers regularly promoted in the said grade.

6. Leave was granted by this Court to consider whether up-gradation of the post held by the appellants from BPS‑17 to BPS‑18 could be equated with their promotion and whether on reaching the maximum of BPS‑18 the appellants had become entitled to move‑over to the next higher pay‑scale.

7. Learned counsel for the ‑appellants had referred to the case, Government of Punjab v. Muhammad Awais Shahid (1991 SCMR 696), wherein it was observed that "on the strength of the definition of the word `promotion' as provided in the official documents, even this change of grade or scale of pay for the better would amount to promotion". Reference was made in this judgment to the meaning of the word `promotion' in Chapter XX (O.M. Establishment Manual, Vol. VII) according to which, "promotion" has been defined as "the advancement of an official from a lower to, a higher post or grade against a vacancy, specifically reserved for such advancement under the relevant Recruitment Rules." Reference has also been made by the learned counsel for the appellants to a judgment of the Federal Service Tribunal in Fazal Elahi v. Director‑General, Pakistan Meteorological Department and others (1993 PLC (C.S.) 411) wherein a civil servant had been promoted to Grade‑18 post but subsequently although such post had been down‑graded to Grade‑17 yet the civil servant was allowed to draw his pay in Grade‑18 to fulfil the condition laid down in O.M. dated 1‑1‑1986. It was held that the civil servant had already reached the maximum of his pay scale in Grad‑18 and all that he required after having achieved that target was to stay in that scale. However, learned counsel for the respondent has referred to a judgment of the Lahore High Court reported in Amanat Ali v. Syed Panah Ali Shah and another (PLD 1973 Lahore 332), wherein a distinction was drawn between upgrading of a particular post and promotion. It was held that when a post is upgraded, an incumbent remains the same and he is not promoted from a junior post to a higher post. However in none of the judgments the question in issue appears to be germane to the real question in controversy in the present case:

8. The policy regarding move‑over as embodied in the Office Memorandum No. F.1 (82)‑8.3/85, dated 1‑1‑986, reliance upon which has been placed both by the learned counsel for the parties, indicates that move over may be allowed to employees drawing pay from BPS‑16 to BPS‑19 from the 1st December of the year following the year in which he has reached the maximum of a pay scale. This policy is subject to various conditions but those which have been referred to as relevant in the present context by the learned counsel are that, eligibility of an employee for a move‑over to BPS‑19 would be subject to his having completed a length of service of twelve years in BPS‑

17. For such move‑over; the employee should also have earned generally good reports during the last rive years, inclusive of the year of move‑over. This has been further made subject to a condition that no employee is to be allowed two successive moveovers. However, if an employee having moved‑over to a particular scale, is subsequently promoted to a post carrying same scale, he may become eligible for further move‑over. It is also pertinent to point out that move‑over is not to be considered as a promotion to the post of higher basic pay‑scale, but the higher pay‑scale is to be treated as extension of the existing basic pay‑scale of the post held by an employee. (See ESTACODE, P. 656).

9. In the present case, it is nobody's case that up-gradation of the appellants' posts from BPS‑17 to BPS‑18 tantamounted to their move‑over. However, the question of move‑over of an employee would only depend upon his reaching the maximum of a particular pay‑scale. The conditions required to be fulfilled by an employee before he becomes eligible for a move‑over, reference to which was made earlier, do not indicate any direct nexus between his eligibility for the move‑over and the functions performed or powers exercised by him. The only object behind such policy appears to be to extend the next higher pay scale to a person on his reaching the highest scale in his existing pay‑scale. Therefore, the question whether such person was promoted on a regular basis or not or whether his upgradation was not in the regular course of things but byway of a concession allowed to him would be of little consequence. No doubt, the appellants were allowed NPS‑18 in peculiar circumstances which neither brought their status at par with that of the graduate engineers serving in the same grade nor the same can be equated with their promotion from BPS‑17 to BPS‑18, however, what cannot be overlooked is the fact that the appellants like their other colleagues were allowed to draw pay in BPS‑

18. Therefore, when the appellants reached the maximum of their pay‑scales in BPS‑18, we are unable to understand how the I question of their move‑over to the next higher scale of pay can be co‑related to their regular promotion or the nature of the functions performed by them. The policy of move‑over is related to, the pay‑scale rather than the functions performed by a person or powers exercised by him. In Secretary to Government of Pakistan v. Muhammad Nasir (1989 SCMR 295) Shafiur Rahman, J. observed: "The Rules applicable to the case do not speak of the amount but deal with the maximum of the grade or the ceiling prescribed. The respondent had in fact reached that and stayed there for the requisite period. A general revision of pay scales of every one irrespective of the move‑over would not interrupt, delay or put in hybernation the process of move‑over because the scales remain the same, the maximum of it is enjoyed without any further opening within that scale." Similar view was expressed by the Chairman, Federal Service Tribunal in F.E. Siddiqui v. Pakistan (1982 PLC (C.S.) 343) and it was further held that right to receive pay was a vested right, which once acquired, could not be taken away. Since the appellants have reached the maximum of pay in their existing pay scale, the respondents would be bound to process their case for a move‑over, provided they fulfil all other conditions as laid down in the said policy. The Tribunal was therefore, not justified in dismissing their appeal on the ground that their promotion in Grade‑18 was not on regular basis.

10. The judgment of the Tribunal further indicates that one of the grounds that weighed with the Service Tribunal was that confidential reports for five years in the case of appellant M. A Rafiq were not available but the same does not appear to have been pleaded by the respondent as one of the grounds for withholding the move‑over. However, it would only be fair that the appellants' case is considered by the department in the light of the above observations.

11. In the result, the appeals are allowed and the orders respectively passed by the Service Tribunal are set aside. A.A./M‑3087/S Appeals allowed