1995 PLP (C (PLC(CS))

Naimatullah Qureshi for Appellant. Abdul Latif Ansari, A.A.G. for the Official Respondents. Date of hearing: 7th April, 1994. MUNAWAR ALI KHAN (CHAIRMAN).‑‑‑The appellant Dr. Muhammad Ali has prayed for allowing him to draw salary and other allowances of BPS‑19 to which he has been promoted with effect from 23‑9‑1989. His above prayer has arisen from the Finance Department's Letter No. SOI(H)27/83, dated 22nd October, 1992 whereby the said Department turned down the Health Department's proposal that pay of all those doctors including the appellant who have been allowed BPS‑19 in person, without upgrading their posts Le fired in BPS‑19 from the dates of their promotion as a special case. . The appellant's case, as stated in his memo of appeal, is that he had been working as Medical Officer (Grade‑17) on regular basis with effect from 1‑5‑1973 when in pursuance of the Prime Minister's Orders, 40% posts of doctors of General Cadre (i.e. Medical Officers BPS‑17) were upgraded to BPS‑18 and as many Medical Officers including the appellant were promoted against the upgraded posts with effect from 1‑10‑1974. Subsequent to his said promotion, the appellant was transferred as Demonstrator in Liaquat Medical College though he continued to be borne on the General Cadre of Medical Officers. In 1985 he applied for a post of Assistant Professor (BPS‑18) through Public Service Commission and following his selection by the Commission he was inducted in the post of Assistant Professor (BPS‑18), Bio‑Chemistry in the same college. In 1990, once again the Prime Minister issued a directive that all those Medical Officers who were promoted to BPS‑18 in 1974, be further promoted to BPS‑

19. As disclosed in the Health Department's U.O. No. SOI(H)27/83, dated 17th July, 1991, in implementation of the Prime Minister's Orders all the promotees of 1974 were promoted to BPS‑

19. However, the posts upgraded from BPS‑18 to BPS‑19 with concurrence of the Finance Department were only 288 which fell short by 19 posts of the total promotions made to the higher BPS‑

19. The shortage of the upgraded posts was due to the fact that the posts in the teaching cadre (Demonstrators Assistant Professors) held by the promotees could not be upgraded as promotion to such posts is given on the basis of eligibility (qualifications) laid down by P.M. and D.C. As such the promotees holding such posts of BPS‑18, including the appellant were allowed promotion in person. The Finance 1995 Muhammad Ali v. Province of Sindh 1125 (Munawar Ali Khan, Chairman) Department was moved to issue instructions to the A.‑G. for fixing the pay of such promotees in BPS‑19 as a special case. After the said‑Department turned down the said proposal, the appellant went in departmental appeal which however remained undecided until expiry of 90 days and hence the present appeal was filed on 28‑2‑1993. We heard the arguments of Mr. Naimatullah Qureshi for the appellant and Mr. Abdul Latif Ansari, A.A.G. on behalf of the official respondents. With the assistance of the said learned counsel we also went through all the documents relevant for disposal of the appeal. . The appellant's learned counsel invited our attention to the Health Department's Notification, dated 1st March, 1990 whereby the appellant with certain other doctors of General Specialist and Teaching cadres were promoted to BPS‑

19. Despite his promotion to the higher BPS‑19, the appellant is being denied the payment of emoluments carried by the said BPS. Although the Health Department vide its U.O. No. SOI(H)27/83, dated 17th July, 1991 moved the Finance Department for fixation of salary of appellant and several other doctors of his category in BPS‑19, yet by its U.O. NO.FD(S.RA)1(10)90, dated 5th October, 1991, the Finance Department declined to accede to the Health Department's proposal. Obviously the appellant would get the desired relief only when the Finance Department's rejection of the Health Department's proposal was set aside with direction that the appellant be allowed the salary and other allowances carried by BPS‑

19. Before making such orders, we have to satisfy ourselves if the appellant's promotion to BPS‑19 was legally in order and further the Finance Department's refusal to pay him the emoluments of the said higher BPS‑19 was unjustified. We have also to see if we possessed the jurisdiction to grant the appellant the desired relief. To recapitulate the past history of the case, the appellant's promotion which was target of discussion at the Bar was one of the promotions made in pursuance of the Prime Minister's directive. As has been made clear in the Health Department's U.O. NO. SOI(H)27/83, dated 17th July, 1991 addressed to the Finance Department, the Prime Minister's directive required that all those doctors who were awarded BPS‑18 in 1974 were to be further promoted to BPS‑

19. There is no denying of the fact that the appellant was one of the promotees of the year 1974. But it is also not denied that subsequent to his promotion in 1974, he applied for the post of Assistant Professor and after his selection by the Public Service Commission, he was inducted in the post of Assistant Professor of Bio‑Chemistry in the Liaqat Medical College. Thus. he was working in the Teaching Cadre when the aforesaid Prime Minister's directive was received for further promotion to BPS‑19 of the promotees of 1974. Technically the appellant was undoubtedly covered by the Prime Minister's directive. But if we read the directive between the lines in an attempt to discern the intention under lying the same, the directive was meant for doctors of General Cadre and rightly so,, because their prospects of advancement were not so bright in comparison to the other cadres of medical service. Therefore, once the appellant left the General Cadre, he could not expect his promotion to BPS‑19 in terms of the Prime Minister's directive. Apart from above, it is the Health Department's own case, vide its U.O. No. SOI(H)27/83, dated 17th July, 1991, that in all 288 posts were upgraded from BPS‑18 to . BPS‑19 with concurrence of the Finance Department. It is also admitted that the appellant's promotion to BPS‑19 was not against any of the above upgraded posts. It has been explained by the Health Department in the aforesaid U.O. reference that the post of Teaching Cadre in BPS‑18 could not be upgraded to BPS‑19 because promotion to such upgraded posts is given on the basis of prescribed eligibility. Admittedly the appellant did not possess the required eligibility for promotion to BPS‑19 and that was the reason that the post held by him as Assistant Professor was not upgraded. In ordinary course promotion is invariably made against a post. But as pointed out above the appellant's promotion to BPS‑19 was not made against any upgraded post. Instead higher Pay Scale (BPS‑19) was given to him in person. That is to say that he was to enjoy the benefit of higher pay scale regardless of the post in which he was required to work. Such concession is generally extended as a reward for doing something extraordinary or in recognition of meritorious service. But it is not the claim of either the appellant himself or of the Health Department that higher Pay Scale of BPS‑19 has been given to the appellant for any such reason. Moreover, according to Rules of Business which regulate the working of Government Departments every case which involves financial implications has to be referred for concurrence of the Finance Department. If the said Department's advice is not in consonance with the views of the Administrative Department, then unless Finance Department are overruled by the Chief Minister its advice would have binding effect. As mentioned above the Finance Department has refused to give its consent for allowing the benefits of BPS‑19 to the appellant as personal benefits. Despite the Finance Department's refusal, the Health Department could take up the matter with the Chief Minister, if the said Department was satisfied that the appellant was justifiably entitled to BPS‑19 and Finance Department's refusal to allow the same to him was unjustified. But instead of doing so, the appellant has been pushed to approach legal forum i.e. Service Tribunal for the desired relief. There is no justification to call for our intervention in the case. There is a chain of authorities of Superior Courts that promotion cannot be claimed as a matter of right. Allowing higher scale of pay is nothing but a sort of promotion can be allow only by the competent after due consideration of the promotees entitlement and other allied factors. In support we may cite t e Supreme Court authority reported as Government Punjab v. Muhammad Shahid 1991 SCMR 696) wherein it was held; "wherever there is a change of grade or post for the better, there is an element of selection involved that is promotion and it is not earned automatically, but under an Order of the competent Authority to be passed after due consideration on the comparative suitability and the entitlement of those incompetent." Viewing the present appeal in the light of above reported case, it appears to us that after the Finance Department declined to accede to the Healthy Department's proposal, the latter took no further steps for overruling the Finance Department's views. Instead it silently accepted the verdict of the Finance Department and did not implement the promotion order. We have already held hereinabove that the appellant's promotion to BPS‑19 was not covered by the Prime Minister's directive. Even otherwise the Prime Minister's said directive was not legally binding on the Provincial Government. Moreover, we have no power to allow the appellant higher pay scale of BPS‑19 which, as pointed out above, was in the nature of promotion. For above reasons the appeal being without merit is dismissed with no order as to costs. H.B.T./596/Sr.S Appeal dismissed.