1983 PLP (C (PLC(CS))

ABEEDULLAH JAN (MEMBER).‑The facts regarding five (5) advance increments to teaching staff of Colleges and Technical Institutes are briefly mentioned hereafter. (i) Five advance increments were granted by the Federal Government and the Government of N.‑W.F.P. to the following categories of posts in year 1975‑76 :‑ (a) The NPS‑17 posts of Engineers, the prescribed minimum qualifi cation for which is graduation in any branch of Engineering. (b) The NPS‑17 Posts for which the basic minimum qualification is a Master's degree in any of the physical/natural sciences. The later include Physics, Chemistry, Botany, Zoology, Geology, Astro nomy and Paleantology. (c) The NPS‑17 posts of Lectures in Colleges.

2. This order caused annoyance to the teaching staff of the Technical Institute. A delegation of Pakistan Teachers Federation of Technical Education called on the Federal Minister for Education on 8th March 1976 and represented that the incumbents of NPS‑17 posts in the Poly technic Institutes should also be granted five premature increments like those mentioned in para (i) (a), (b) & (c) above. Consequently a summary was prepared for P.C.C. and and it was circulated among all Provincial Governments besides Federal Ministries of Finance and Law. In para 6 of this summary, it was mentioned that Federal Ministry of Education propose that Instructors in Polytechnic Institutes/Technical Colleges/Com merce Institutes, who possess the qualifications of M.A./M. Sc./B. Sc. Engineering or equivalent should also be granted five advance increments as have been done in the case of Lecturers in Colleges. It was further mentioned that under the new Education Policy the Government wish to encourage technical education. It is a problem to recruit Engineering graduates and other technical graduates for service in teaching institutions. This dis crimination would further drive away all the available people.

3. The Secretary to the Government of N.‑W.F.P. Finance Depart ment while giving comments on paragraph 6 of the above summary stated that (a) Federal Ministry of Education have sought for the advice of Federal Finance and Law Divisions. Government of N.‑W.F.P. would be keen to know the views of the Law and Finance Divisions in this case. (b) Financial position of N.‑W.F.P. is extremely weak and it can ill afford to bear the additional expenditure of approximately Rs. 2,01,000 to be incurred in connection with the grant of five advance increments to the Instructors of Polytechnic Institutes etc. (c) So far as the views of Provincial Government are concerned, the Instructors of the Polytechnic Institutes are performing the same duties as are being performed by the Lecturers in Government Colleges and the minimum qualifications for these Instruc tors are also the same as in case of College Lecture or Engineers. (d) It would not be fair to deny the benefit of advance increments to the Instruc tors of Polytechnic Institutes,

4. The above summary together with the views of the Provincial Governments and the Federal Ministries concerned were considered in the meeting of P.C C. held on 24th April 1976 at Islamabad in which the following decision was taken :‑ "(a) Those Instructors in the Polytechnic Institutes where the basic qualification is M.A., M. Sc ; B. Sc. (Engineering) and who are in NPS‑17 should get the stipulated 5 advance increments. This will not exclude Diploma holders who are Instructors. However, this category of Instructors will get this benefit prospectively to be due from 1st September‑payable 1st October, 1976. The Law Division will however vet this interpretation before the commitment is given. (b) Decision on the point whether to designate them as Lecturers will be taken after the announcement of the award of the Pay Commission.

5. The above decision was changed by the Provincial Co‑ordination Secretariat and the following amended decision was circulated :‑ "Those Instructors in the Polytechnic Institutes/Commercial Institutes where the basic qualification is M.A.,M. Sc ; B. Sc. (Engineering) and who are in NPS‑17 should get the stipulated 5 advance increments. This decision will take effect from 1st September, 1976 (pay able on 1st October, 1976). However, this provision will not apply to those instructors who are only diploma holders. The law Division will vet this interpretation before the commitment is given."

6. In pursuance of the above decision of P.C.C. arid in the light of the summary earlier circulated by the Education Ministry, Law Division tendered the following advice. "(a) Qualification should not determine the status as lecturer or otherwise but the criterion should be the duty they are performing. (b) As regards the grant of five advance increments to the instructors (NPS‑17) in the Polytechnic Institutes-Commercial Institutes possessing basic qualification of M.A./M. Sc and B. Sc. (Engg.), it is not a matter involving interpretation of the statutory provision but it is essentially a policy issue which should be determined by the referring division."

7. The matter was again raised in the next meeting of P.C.C. held on 9th and 10th May 1977. Federal Secretary Education explained that the issue of granting five advance increments to Instructors/Senior Instructors of Polytechnics/Technical Colleges and Commercial Institutes was more or less resolved and decided in the 14th meeting of P.C.C. held pp 24‑4‑1976 subject to clearance by the Ministry of Finance and due to the objections raised by the Ministry of Finance, the decision could nor be implemented. The minimum qualifications for recruitment as Instructor Senior Instructors of a Polytechnic/Technical College is B. Se. (Engineering) or a Diploma in Technical Teachers Education and five years' experience. The qualifications .for entry into service compare favourably with those of lecturers in Colleges although they are designated as Instructors. Besides they are also placed in Grade‑17 as in case of Lecturers.

8. In the light of the above explanation of Federal Secretary of Education, P.C.C decided that :‑ "Instructors/Senior Instructors of Polytechnic/Technical Colleges/ Commercial Institutes who are employed in Grade 17 be granted five advance increments which will however be due with effect from 30th April 1977 and merged into the pay for fixation under the new scales from 1st May 1977'."

9. The Department of Finance, Government of N.‑W.F.P., accepted the recommendations of P.C.C and issued circular letter No. So (SR. 1) 1‑16/72‑dated 20‑7‑1977 which reads as under :‑ (a) Provincial Government has been pleased to decide allowing of five advance increments to Instructors/Senior Instructors of Poly technic/Technical Colleges/ Commercial Institutes in NPS‑17 (.500‑‑50 1,000/50‑1,250) w.e.f. 30‑4‑1977 subject to the condition that the pay in each case, inclusive of advance increments will not exceed the maximum of the NPS‑17 (500‑50‑1,000/50‑1,250). (b) The increments so granted will be merged into the pay for fix ation under the Revised National Pay Scales w.e.f. 1‑5‑1977. (c) This facility will be available to Instructors/Senior Instructors appointed on a regular basis in NPS‑17 in accordance with the relevant Recruitment Rules and actually holding these posts on 30‑4‑1977. New' entrants on or after 1‑5‑1977 will not be entitled to any advance increments.

10. In pursuance of the above circular letter of the Finance Depart ment, salaries of the incumbents were fixed and appellant started receiv ing emoluments at the enhanced rate with effect from 30‑4‑1977. On 19th December 1977, another letter was issued by the Finance Department, Government of N.‑W.F.P. in which it was mentioned that "certain doubts have been expressed about the application of these orders. It is clarified that the concession of five advance increments was meant for the incumbents of such posts of Senior Instructors/Instructors of Polytechnics/Technical Colleges/Commercial Institutes in Grade‑17 for which the prescribed basic minimum 'qualification is Post‑Graduate i.e. M.A., M. Sc. or a degree in Engineering and who also actually possessed the same qualification on 30‑4‑1977 subject to other conditions laid down in this Department's letter referred to above."

11. In view of the above clarification, Accountant‑General, N.‑W.F.P. issued revised salary slip wherein payment of five (5) advance incre ments to the appellant was stopped. In May 1978, Deputy Secretary (Reg) Finance, Government of N.‑W.F.P. sought advice from Law Department Government of N.‑W.F.P. as to whether the Finance Department letter dated 19‑12‑1977 withdrawing concession of five advance increments previously granted to instructors of Polytechnic Institutes was legally valid and its operation ab initio covered by the West Pakistan General Clauses Act, 1956. Deputy Secretary Law Government of N.‑W.F.P. vide his U.O. No. (Op) (33)/78‑2126. dated 16‑5‑1978 tendered the following advice. "Instantly Finance Department only alleging clarifying the original order No. SO (SR. 1) 1‑16, 72‑II dated 20‑7‑1977, this exercise is to be adjudged on the criterion as to whether or not any right accrued to the concerned has been acted upon and if the answer is in the affirmative then the clarification modification which usurps the created right by, virtue of the prior order would make the subsequent order invalid."

12. The above history of this case indicates that (i) The decision of the Provincial Co‑ordination Committee did not contemplate any distinction between the Instructors of technical and related subjects for the‑ grant of this concession (ii) Government of N.‑W.F.P. had allowed the concession of five (5) advance increments to all the Instructors of Polytechnic Institutes irrespectively of the basic minimum qualification. (iii) In view of the advice of Law Department, Government of N.‑W.F.P., it is clear that the concession once extended and having accrued cannot be withdrawn with retrospective effect through a subsequent clarification. (iv) Government of Punjab had also accepted the recommendation of P.C C, and had granted five advance increments to the instructors of Polytechnic Institutes and in spite of pressure from Federal Ministry of Finance they have not withdrawn the concession from their employees m view of the provision of West Pakistan General Clauses Act, 1956, besides other reasons. A letter from Additional Secretary Finance Government of Punjab is available on the relevant file of the Finance Department Government of N.W.F.P. at page 166/C.

13. Before I conclude and announce the judgment, let me briefly discuss the Finance Department's letter dated 19‑12‑1977 through which the concession of five advance increments was withdrawn. This order was issued in great haste as apparent from the following facts :‑‑ (i) The perusal of the relevant file of the‑ Finance Department would show that a note was put up by the Section Officer concerned on 19‑12‑1977 to Additional Secretary Finance without any reference or P. U. C. The contents of this office note are reproduced below ‑‑ "The Instructors of Polytechnic/Technical Colleges/Commercial Institutes in NPS‑17 were allowed five advance increments w.e.f. 30‑4‑1977. The intention was to allow advance increments to Instructors who are M.A., M. Sc. or B. Sc. (Engg.). It is, however, understood that advance increments in certain cases have been availed of by even those Instructors who are possessing lower than the required qualification. If approved, the position may be clarified. to Accountant‑General and others concerned. DFA. (ii) The file bad stopped at the level of Additional Secretary Finance. It was not put up to Secretary Finance although five advance incre ments were earlier granted to the instructors of Polytechnic Institutes with the concurrence of Secretary Finance. (iii) Clarifications were issued on the same day i.e. 19‑12‑1977 on which office note was put up by Section Officer concerned to Addi tional Secretary which passed through Deputy Secretary. (iv) It was mentioned in the order that certain doubts had been raised about the application of order contained in Finance Department's letter dated 20‑7‑1977. It is not clear who had expressed doubts and on what score. (v) Federal Ministry of Finance letter No. F. 23 (4)/77‑RId‑10‑RI/78 dated 2‑1‑1978 on the subject was received in the Finance Depart ment Government of N.‑W.F.P. on 4‑1‑1978 whereas the concession of five advance increments was withdrawn by the Additional Secre tary Finance Government of N.‑V‑F.‑P. on 19‑12‑1977 i.e. 15 days before the receipt of Federal Government letter on the subject:

14. For the reasons stated above I accept the appeal of Mr. Amir Shah Kazmi and grant him the relief sought for in his appeal. This would mean that I have agreed with my learned brother Mr. Hizbullah Khan full time Member.