2006 PLP (C (PLC(CS))

ABDUL KARIM QASURIA (MEMBER)

This appeal has been filed by Mr. Muhammad Israil, Senior Scale Stenographer (BS-15) N.-.W.F.P. Service Tribunal Peshawar, against the order dated 12-4-2004, whereby his case for Move-over from BS-15 to BS-16 has been refused and instead directions were issued for the withdrawal of 2 advance increments already granted to him on the basis of acquiring higher qualification of B.A. and his departmental appeal dated 11-5-2004 has not been decided within the statutory period of 90 days with the prayer that the impugned order may be set aside and the appellant be granted Move-over to BS-16 w.e.f. 1-12-1999 with all back-benefits.

2. The facts of the case as narrated in the memo. of appeal are briefly that the appellant was appointed as Junior Clerk in the N.-W.F.P. Service Tribunal, vide order dated 21-9-1981. He was promoted to the post of Steno-typist/Junior Scale Stenographer (BS-12) vide order dated 8-12-1982 w.e.f. 12-12-1982 and later on promoted as Senior Scale Stenographer (BS-15) vide order dated 11-6-1987. He has been confirmed against the posts of Junior as well as S.S. Stenographer vide orders dated 10-12-1985 and 22-10-1991 respectively. During service the appellant improved his qualification first to F.A. and then to B.A. and availed the benefit of advance increments on acquiring higher qualification. On 26-12-1998, the appellant had passed his, B.A. Examination and on the basis of this higher qualification, he was granted 2 advance increments. The pay of the appellant was reached-to the maximum of BS-15, so he applied for the grant of Move-over w.e.f. 1-12-1999. His case was forwarded to the E&A Department but instead of granting Move-over, the respondent-department vide the impugned order dated 12-4-2004 conveyed to respondent No.3, observed that the qualification for appointment to the post of Stenographer (BS-15) has been raised to B.A. vide Notification dated 10-4-1996 and it was directed to withdraw the 2 advance increments already granted to the appellant instead of allowing him Move-over to BS-16. Aggrieved from the said order, the appellant preferred a departmental appeal to respondent No.1 but the same has not been decided within the statutory period of 90 days. Hence the present appeal.

3. The respondents were summoned. They appeared through their respective representatives/counsel, submitted written reply, contested the appeal and denied the claim of the appellant. In rebuttal the appellant has also submitted his replication. Arguments of the learned counsel for the appellant and learned Government Pleader for the respondents have been heard and record perused.

4. The learned counsel for the appellant argued that the appellant was validly granted 2 advance increments on the basis of acquiring higher qualification of B.A. by the competent authority, i.e. Chairman N.-W.F.P. Service Tribunal vide order dated 15-3-1999, modified vide order dated 22-1-2001, w.e.f. 26-12-1998 according to Service Rules and policy of the Government regarding grant of advance increments, dated 11-8-1991. The appellant is in receipt of the said increments for the last 6/7 years and no objection was raised from any quarter. The appellant is a confirmed stenographer in BS-15. He was promoted as Stenographer (BS-15) on 11-6-1987 after having served for about 5 years as Steno-typist (BS-12), was under the prevailing rules required to possess only a Matriculation Certificate as his Educational qualification. The appellant having improved his qualification first to F.A. and then to B.A. during his service as Stenographer, was therefore, entitled to four advance increments in terms of Finance Department letter dated 11-8-1991. In this connection the learned counsel for the appellant referred to the authority of Hon'ble Supreme Court of Pakistan reported (1997 SCMR 1755), titled Muhammad Asghar v. Federal Service Tribunal etc. The plea of the respondent-department that the qualification for the post of Stenographer (BS-15) has been raised to B.A. and the appellant is not entitled to the grant of advance increments, is not tenable according to the Service Rules, policy of the Government and the above referred judgment of the Hon'ble Supreme Court of Pakistan. There are many stenographers - possessing only Matric qualification but no notice/warning has been issued to them to improve their qualification/acquire F.A./B.A. which means that the said policy letter regarding enhancement of qualification to B.A. is not applicable in the case of appellant being a promotee but the same is applicable only to the fresh candidates to be appointed after the issuance of this policy letter. The learned counsel for the appellant contended that according to various judgments of the superior Courts as well as judgments of this Tribunal, the increments allowed to a number of Government servants by the competent authority in good faith, were not be recovered from them. The learned counsel for the appellant also claimed that the policy letter regarding enhancement of qualification will have no retrospective effect and will be effective from the date of issuance and that too in the case of fresh candidates to he appointed, as the basic qualification in the Service Rules for the post of Stenographer is Matric, which rules have not been amended so far, nor there is any mention/direction to the departments to amend the Service Rules, enhancing the qualification to F.A./B.A., so the previous service rules are intact and are still in the field. The respondents were bound to comply with the decision of the Hon'ble Supreme Court of Pakistan reported 1996-SCMR 1185, wherein it has been stated that "if the Service Tribunal or Supreme Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings, in such a case, the dictates and rule of good governance demand that the benefit of such judgment by Service Tribunal/Supreme Court be extended to other Civil Servants, who may not be parties to the litigation instead of compelling them to approach the Service Tribunal or any other forum". The said judgment of the Hon'ble Supreme Court, being relevant to the case, was sent with the departmental appeal, by the appellant but the same was not considered/decided within the prescribed period due to mala fide intention. The impugned order is discriminatory as the respondent-department has allowed advance increments to certain employees even after the issuance of the policy letter of enhancement of qualification dated 14-6-1996. The service record of the appellant is spotless and there is no adverse remarks against him.

5. The Government Pleader contended that the appellant was not entitled to the grant of advance increments on acquiring higher qualification, as the basic qualification for the post of stenographer BS-15 has been enhanced to B.A. by the respondent-department vide letter dated 10-4-1996 and the appellant had acquired B.A. Degree after the issue of the said letter hence there is no merit in the appeal which may be dismissed.

6. The Tribunal agrees with the arguments advanced by the learned counsel for the appellant and observes that the appellant was appointed as Junior Scale Stenographer (BPS-12) in the year 1982 and later-on promoted as Senior Scale Stenographer (BPS-15) in the year 1987. The Government of N.-W.F.P. Finance Department allowed the benefit of Advance Increments to the officials, possessing/acquiring higher qualifications vide policy letter dated 11-8-1991. The minimum qualification prescribed for appointment/promotion to the post of Senior Scale Stenographer in the Recruitment Rules prior to 1991 was Matric as such the Senior Scale Stenographers having F.A. qualification were entitled for the grant of 2 advance increments and those Senior Scale Stenographers having B.A. qualifications were entitled for the grant of 4 advance increments in accordance with the said policy letter. The appellant has been given 2 advance increments for F.A. and 2 advance increments for B.A. in accordance with the said policy.

7. The Tribunal observes that the contention of the respondents that the appellant is not entitled for the grant of 2 advance increments for B.A. is not correct as the Government of N.-W.F.P. admittedly amended the Recruitment Rules for the post of Senior Scale Stenographer and raised the qualification to B.A. but the minimum qualification has been raised to B.A. for the fresh appointments/ for the persons to be appointed by direct recruitment while the qualification prescribed for promotion to the post of Senior Scale Stenographer in the Recruitment Rules are the same and it has not been revised vide the revised rules dated 14-4-1996. Had the appellant not attained the higher qualification of F.A./B.A. even then he would have been promoted to the post of Senior Scale Stenographer. As the appellant has been appointed as Senior Scale Stenographer by promotion on the basis of his Matric and he has acquired the higher qualification of B.A. over and above the minimum prescribed qualification for his appointment as Senior Scale Stenographer, he was entitled for the benefit of 2 advance increments as already decided by the Hon'ble Supreme Court of Pakistan in a similar case vide SCMR 1997 1755, he has rightly been given 2 advance increments for B.A. by the. competent authority. Furthermore, a number of Senior Scale Stenographers who were junior to appellant and have been given the benefit of advance increments for having B.A. Degree and the appellant who is senior to them cannot be denied similar benefit. In the above exposition of the case, the impugned orders appears to be against the Rules and are untenable and unsustainable under the law.

8. In view of the above discussion, the appeal of the appellant is accepted. The impugned order is set aside and the appellant is held entitled to the grant of 2 advance increments from the date of acquiring higher qualification i.e. 26-12-1998. The respondent-department is directed to consider the Move-over case of the appellant from the due date i.e. 1-12-1.999 with all back-benefits within one month. No order as to costs. File be consigned to the record. H.B.T./6/N.-W.F.P. Appeal accepted.