1995 PLP (C (PLC(CS))

MUHAMMAD ISMAIL (MEMBER).‑‑‑The appellant, Muhammad Rashid, Librarian, F.G. Sir Syed College, Rawalpindi, is aggrieved by the order of the respondents contained in Notification dated 5‑1‑1993 whereby he was promoted as Librarian in (BPS‑17) with effect from 19‑12‑1992. After exhausting the departmental remedy, he has filed the present appeal before this Tribunal under section 4 of the Service Tribunals Act, 1973, with the following prayer.‑‑‑ "(a) Accept the appeal and promote the appellant with effect from 12‑1‑1983 in BPS‑17 on regular basis and all benefits including move -over according to the Gazette Notification dated 31‑1‑1983 issued by Competent Authority i.e. respondent No. 2 with consultation of respondent No. 1. (b) Declare the Gazette Notification dated 5‑1‑1993 as null and void having no legal force."

2. The facts of the case are that the appellant joined Federal Government Sir Syed College, Rawalpindi, as Librarian (BPS‑16) on 29‑9‑1970. During the service he passed M.A. in Library Science in the, year 1976 and was consequently granted NPS‑17 with effect from 10‑9‑1977 vide Notification dated 30‑9‑1978. Subsequently, on the advice of the Audit Authority the case of the appellant was taken up in the Ministry of Education in August, 1979, and, after examination, it recommended that the appellant may be placed in BPS‑17 with effect from 18‑6‑1976 i.e. the date of his passing the Master's Degree in Library Science. The appellant .was, however, appointed as Librarian (BPS‑17) with effect from 12‑1‑1983 vide Ministry of Education's Notification dated 31‑1‑1983. Later on, the above notification was amended by the Ministry of Education vide their Notification dated 27‑6‑1984 whereby the appointment of the appellant was approved as Librarian (BPS‑17) on Acting Charge Basis with effect from 12‑1‑1983. The appellant continued to serve on Acting Charge Basis till he was finally promoted as Librarian (BPS‑17) vide the impugned Notification dated 5‑1‑1993 with effect from 19‑12‑1992. The appellant being aggrieved made a departmental representation on l‑2‑1993 and failing to get any response he filed an Appeal No. 162(R) of 1993 on 31‑5‑1993 before this Tribunal. However, during the course of hearing, it was brought to the notice of the Tribunal that the representation of the appellant was under consideration of the Competent Authority and thus the appellant withdrew his appeal on 19‑9‑1993. His departmental appeal was subsequently turned down and the appellant was informed accordingly vide letter dated 26‑3‑1994, communicated to him on 9‑4‑1994. Having failed to get he requisite relief from the respondents, the appellant again approached this Tribunal with the present appeal filed on '7‑5‑1994.

3. The learned counsel for the appellant argued that withdrawal of Notification dated 30‑9‑1978 whereby the appellant was originally granted PS‑17 with effect from 10‑9‑1977, was unlawful specially in view of the fact hat he possessed requisite qualification or, the said date. He contended that he appellant was appointed as Librarian (BPS‑17) with effect from 12‑1‑1983 y the Ministry of Education vide their Notification dated 31‑1‑1983 but the e was amended by a subsequent Notification dated 27‑6.1984 whereby he was appointed in BPS‑17 on Acting Charge Basis with effect from the same ate and this action on the part of the respondents was illegal and mala fide he learned counsel submitted that the orders of the Competent Authority issued vide Notification dated 31‑1‑1983 had already taken effect and certain legal rights had been created in favour of the: appellant which could not be withdrawn or rescinded by a subsequent Notification of the Ministry of Education dated 27‑6‑1984. It was also argued that the post of Librarian had been upgraded to BPS‑17 for the incumbents from the date of obtaining Master's Degree in Library Science by respondent No. 4 vide his letter dated 14‑6‑1988 and the name of the appellant was also included therein but in spite of that he was not allowed the benefit of that post. The learned counsel finally submitted that the appellant was at least entitled to the antedation of promotion with effect from 12‑1‑1983 when he was regularly appointed as Librarian (BPS‑17) by the Competent Authority vide the Ministry of Education's Notification dated 31‑1‑1983.

4. On the other hand, the respondents have opposed the appeal on the ground that it is hit by proviso (b) to section 4 of the Service Tribunals Act, 1973, which lays down that "no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade." The learned Standing Counsel for the respondents argued that Notification dated 5‑1‑1993 regarding promotion of the appellant on regular basis with effect from 19‑12‑1992 was issued after making necessary amendment in the Recruitment Rules notified in 1976. He contended that the Notification dated 31‑1‑1983 regarding appointment of the appellant as Librarian (BPS‑17) was converted by a subsequent Notification of 27‑6‑1984 putting him on Acting Charge Basis till necessary amendment was made in the Recruitment Rules and this exercise was completed in 1992 where after he was promoted to BPS‑17 on regular basis. Elaborating his contention the learned counsel argued that the Competent Authority had a right to rectify/amend any order which it deems necessary and, therefore there was nothing illegal or unlawful about the amended Notification of 27‑6‑1984 whereby the appellant was appointed on Acting Charge Basis with effect from 12‑1‑1983. He finally submitted that the prayer of the appellant for promotion with effect from 12‑1‑1983 was not covered under the Rules because there was no such provision in the Recruitment Rules of 1976.

5. We have heard the learned counsel for the parties and have also gone through the record of the case. The letter dated 14‑6‑1988 regarding up-gradation of the post of Librarian from BPS‑16 to BPS‑17 clearly shows that the appellant along-with six others was placed in BPS‑17 with effect from the date of passing the Master's Degree in library Science. A perusal of the Notification dated 30‑9‑1978 issued by the respondents also reveals that, on passing MA. Library in Science, the appellant was granted BPS‑17 with effect from 10‑9‑1977. Since there was an objection from the Audit Authorities he matter was referred to the Ministry of Education which issued Notification dated 31‑1‑1983 appointing the appellant as Librarian (BPS‑17) with effect from 12‑1‑1983 with the approval of the Establishment Division. His notification was subsequently amended and the Competent Authority was pleased to approve the appointment of the appellant as Librarian (BPS‑17) on Acting Charge Basis which he continued to hold as such till he was finally promoted by Notification dated 5‑1‑1993 on regular basis with effect fir m 19‑12‑1992. It is an admitted fact that the appellant is holding Master's Degree in Library Science since 1976 and in view of the respondent No. 4's letter dated 14‑6‑1988 he is entitled to up-gradation of his post to BPS‑17 with effect from the date he obtained the said Degree. As against this the appellant claims his promotion with effect from 12‑1‑1983 when by order dated 31‑1‑1983 of the Competent Authority he was appointed as Librarian (BPS‑17) and later on his appointment was treated as on Acting Charge Basis by a subsequent Notification of 27‑6‑1984. The appellant continued to hold the charge of the post of Librarian (BPS‑17) on Acting Charge Basis with effect from 12‑1‑1983. We are of the view that no formal order of promotion of the appellant was required in case of up-gradation of the post of the incumbents who held Master's Degree in Library Science. The up-gradation was specifically linked with the posts occupied by the existing incumbents and the date of their passing the Master's Degree in Library Science clearly meant that an incumbent of the post of a Librarian holding the said Degree was to be placed in BPS‑17 from the date of obtaining the Degree. This Tribunal has also held in several cases that upon raising the status of a post, an incumbent becomes entitled to that post provided he fulfils all the requisite conditions. In these circumstances, we are of the firm view that the appellant is entitled to all the consequential benefits of BPS‑17 post at least with effect from 12‑1‑1983 when he was appointed by the Competent Authority as Librarian (BPS‑17) vide Notification I dated 31‑1‑1983.

6. In the result the appeal is accepted to the extent and in the manner indicated above with no order as to costs.

7. Parties to be informed accordingly. H.B.T./1000/Sr.F Appeal accepted.