1995 PLP (C (PLC(CS))

QAZI HAMID‑UD‑DIN (CHAIRMAN).‑‑‑This appeal has been filed by Muhammad Riaz, SET, Teacher, Government Higher Secondary School, Jamrud, Khyber Agency, against the order dated 15‑11‑1993, whereby the departmental appeal of the appellant regarding regularization of service from the date of appointment and grant of three advance increments with back benefits, has been rejected. The prayer of the appellant in the present appeal is that the impugned order be set aside, that the services of the appellant be regularized from the date of appointment by awarding graded/running pay in BPS‑16 and that he may also be granted three advance increments on acquiring higher qualification with all back benefits.

2. The facts averred in the memo of appeal are that the appellant was initially appointed against the vacant post of SET in BPS‑15 on fixed pay at Government High School, Landi Kotal, Khyber Agency on 9‑9‑1989. Later on the scale of SET was changed from BPS‑15 to BPS‑16 and now the appellant is working in BPS‑16 (fixed) as SET. The appellant has improved his educational qualifications by acquiring MA. (International Relations) Degree in 1986 and has also passed B.Ed. Examination in 2nd Division from Peshawar University, the result, of which has been declared on 15‑4‑1993, as is evident from Annexure `A' on the file. The appellant then filed a departmental appeal (Annexure `B' on the file) on 4‑11‑1993, which appeal was rejected on 15‑11‑1993 vide Annexure `C' on the file, hence the present appeal for the redress of his grievance. The appellant claims to have improved his educational qualification and has acquired B.Ed. Degree on 15‑4‑1993 and has also passed MA. (International Relations) in 1986 and prays that his services be regularized and his pay be fixed in time scale of BPS‑16 and also prays for three advance increments for higher qualifications.

3. The respondents have filed their reply in which the preliminary objections have been raised to the effect that the appeal is not competent, as the appellant did not qualify for the claim asked for, that the appeal is barred by limitation and that the appellant is estopped by his own conduct to ask for the claim. On factual side the claim of the appellant has been denied and it has been stated that the order of respondent 111,0.2 as referred to by the appellant is bona fide and is according to the rules in force and that he has rightly been informed/advised to apply to the Public Service Commission for his appointment/regularization. The appellant has passed B.Ed. Examination on 15‑4‑1993 but even then he is not entitled to running scale of SET because the post of SET now carries BPS‑16 and the initial appointment of the N.‑W.F.P. Public Service Commission. Moreover, advance increments are awarded only to the trained personnel, and according to terms and conditions of his first appointment order, the appellant is entitled to the fixed pay of SET post. Arguments heard and record perused.

4. The preliminary objections have not been pressed. The appellant has been allowed BPS‑16 according to Finance Department letter, dated 7th August, 1991 but his pay was fixed in the minimum of the scale of SET post and was not allowed increments for the reason that he was qualified to hold the post of SET. The appellant has not been made to work against a higher post but has discharged the duties of the post for which post he holds prescribed qualification with effect from 15‑4‑1993, therefore, he will be entitled to pay of the post in time scale (BPS‑16) from the date of acquiring the prescribed qualification. This relief is granted to the appellant to the extent that the respondent department shall fix pay of the appellant in time scale from the date of acquiring B.Ed. Degree and shall pay the arrears, if any, from that date.

5. As regards second prayer of the appellant in this case, the incumbent -appellant has improved his educational qualification to enable him to claim three advance increments from the date of having improved his educational qualification. The objection of the respondent department and learned counsel for the respondents is that since the appellant is not a regular Government Servant and the scheme of advance increments is intended to benefit and to encourage acquiring of higher qualification by the regular incumbents, therefore, the scheme as such would not be applicable to the temporary Government servants whose services are not‑ regularized. This argument prevails with the Tribunal and the Tribunal while rejecting the claim for advance increments holds that the entitlement of the appellant to the advance increments can be considered by the Tribunal when claimed by the appellant after having been regularized in service. Therefore, for the present the claim for advance increments is not allowed.

6. The next prayer of the appellant is regarding regularization of service. The service of the appellant cannot be regularized because the incumbent has to pass through proper selection and after having so selected the service can be regularized. Presently the incumbent is given only the graded pay of the post against which he has been working from the date of acquiring B.Ed. Degree. Therefore, in the light of the above discussion, the appeal is partially accepted. This order shall also dispose of the following connected appeals because in all the appeals similar question of law is involved:‑ (1) Appeal No. 61 of 1994 (Husnul Wahab v. Secretary, Education, N.W.F.P. and others" (2) Appeal No.93 of 1994 "Naeem Khan v. Secretary, Education and others" (3) Appeal No.280 of 93 "Muhammad Mehdi v. Secretary, Education and others" (4) Appeal No.342 of 1993 "Saeed Anwar v. Secretary, Education and others" (5) Appeal No.91 of 1994, "Khalil Anwar v. Secretary, Education and others" (6) Appeal No. 91 of 1994, "Habib Gul v. Secretary, Education and others." Parties are left to bear their own costs and file be consigned to the record. AA./1706/Sr.N Appeal partly accepted.