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(a) Constitution of Pakistan (1973)-‑

‑‑ Art. 212(3)‑Civil service‑Leave to appeal granted to examine whether civil servant concerned was entitled to all emoluments of Grade‑18 post including increments when his appointment to that grade was ad hoc and continued for about three years and whether be was not necessarily entitled to be considered for promotion to that grade instead of being reverted therefrom.‑[Civil services].

‑‑‑ S. 9 ‑Promotion‑Claim ‑Elegibility‑Transfer order of Civil servant was not in fact promotion order though in substance it stay be‑Transfer was not in accordance with law relating to promotions nor against reserved seats‑Transfer was in civil servant's own grade but to a post which was in higher grade Civil servant, without observing relevant law, held, could not claim regularisation from Service Tribunal of such a transfer/promotion.

H. M. Ashrafullah v. Secretary, Ministry of Communications and others 1984 S C M R 684 distinguished.

‑‑ Increments‑Promotion‑Transfer to higher scale‑When a civil servant, otherwise, suffering from no ineligibility or deficiency is promoted or called upon to discharge full duties of higher post, he is entitled to increments in pay scale of higher post for so long as he discharges those duties and holds such a post‑Where there was no indication; suggestion or material on record to show that civil servant was in any way ineligible or deficient in qualification he was entitled not only to time scale pay at its minimum but also to increments falling due.

Estacode, 1979 Edn., p. 138 and Civil Appeals Nos. 23/1985, 138/1981, 711/1984, 787/1984 to 790/1984 and 831/1984 ref.

Munir A. Shaikh, Deputy Advocate‑General and Ch. Akhtar Ali, Advocate‑on‑Record for Appellants.

M. S. Siddiqi, Advocate‑on‑Record for Respondent.

Date of hearing : 21st December, 1985.

Leave to appeal was granted under Article 212(3) of the Constitution to both the parties in their separate appeals, to examine whether the civil servant concerned was entitled to all the emoluments of Grade‑18 post including the increments when his appointment to that A grade was ad hoc and continued for about three years and whether he was not necessarily entitled to be considered for promotion to that grade instead of being reverted therefrom.

Imdad Ali Khan, a civil servant, joined service in 1966 as Range Forest Officer. By an order dated 10‑5‑1974 he was promoted to Grade‑17 on ad hoc basis and posted to officiate as Wildlife Development Officer, Skardu. He took over as such on 20‑5‑1974 and continued in that capacity till 17‑8‑1979 when he was transferred in his own grade as D. F. O. Ghahuch (Grade‑18) against the scheme Raising of Timber and Firewood in Waste Bela Land, Ghahuch, Gilgit District'.

The appellant Imdad Ali Khan represented against his prolonged ad hoc appointment in Grade‑17 and on the promoted post in his own Grade‑17. Getting no relief, he invoked the constitutional jurisdiction. As a result thereof by an order dated 10‑8‑1982 his appointment alongwith that of another officer was regularised in Grade‑17 and he was informed by other letter dated 1‑12‑1982 that such regularisation was from 20‑5‑1974. .r another order dated 19‑6‑1984 Imdad Ali Khan was reverted to his substantive post of Sub‑Divisional Forest Officer. He represented against and finally filed an appear before the Service Tribunal challenging his reversion and sought the following reliefs‑

"The impugned order may be set aside and the respondents be directed:

(1) to regularise his appointment in Grade‑1.7 from 10‑5‑1974.

(2) to regularise his promotion to Grade‑18 from 17‑8‑1979, and

(3) to pay arrears of pay in N. P. S‑18 from 17‑8‑1979 by adjusting increments as admissible in National Pay Scale‑18 from time to time."

The claim of the civil servant was resisted by the Federation claiming that it was hit by section 4 of the Service Tribunals Act, 1973 and was barred by time.

On merits it was stated that the only post of D. F. O. against promotion quota already stood filled up by promotion of Mr. Muhammad Alam. The question of regularization of the appellant's promotion could not be considered as explained to the Commissioner, Northern Area vide Kashmir Affairs and Northern Affairs Division's Office Memoran dum No. E‑11‑2/47/78, dated 24‑7‑1982 (Annexure III).

The Service Tribunal after examining the merits of the claim held as follows :‑

" We do not find any merit in the present appeal. In fact, it is not competent in. view of section 4(1)(b) of the Service Tribunals Act, 1973. However, the appellant would be entitled to the emol uments of the Grade‑18 post of D. F. O. (with increments) so long as he performed the said duties and held the post."

In Federation's appeal a grievance has been expressed over the grant of increments over and above the emoluments of Grade‑18 post for the period of about three years during which the civil servant held that post before his reversion to substantive Grade‑17 post. The civil servant has on the other hand expressed his grievance against his reversion from Grade‑18 post, failure to regularise the promotion though he had worked to the satisfaction of every one concerned for three years and was otherwise eligible for appointment to it. The learned counsel representing the civil servant has relied upon the decision of this Court in H. M. Ashrafullah v. Secretary, Ministry of Communications and others (1984SCMR684), and also on fundamental rule 26 for claiming the increments.

So far as the claim of the appellant for regular promotion to Grade‑18 is concerned, it cannot be held maintainable for more than one reason and the decision in Ashrafullah's case is of no avail to him. Under section 9 of the Civil Servants Act a person claiming promotion has to be "eligible for promotion to a post for the time being reserved under the rule for departmental promotion in the higher grade 'of service or cadre to which he belongs". Not only the appellant civil servant has failed to show that any reserved post was available the record shows other wise. The recruitment rules of 1953 provide "20 % of the posts of (1) Divisional Forest Officers shall be filled up by promotion in accordance with Part‑II of these rules" and "the remaining 80% of the posts shall be filled up by direct recruitment in accordance with Part‑III of the rules". Part‑II applicable to the case provides for 12 years' experience and the recommendation of the Departmental Promotion Committee. The factual position contained. in the written statement filed by the respondent Additional Secretary has not been rebutted. It is stated to be as follows‑

"The only post of D. F. O. against promotion quota already stood filled up by promotion of Mr. Muhammad Alam. As such the question of regularization of the appellant could not be considered as explained to the Commissioner, Northern Areas vide Kashmir Affairs and Northern Affairs Division's Office Memorandum No. E‑II‑2/47/78 dated 24‑7‑1982 (Annexure III)."

The transfer order on which the appellant civil servant relies is not in fact a promotion order though in substance it may be. It is not in accordance with the law prescribed for such promotion. It is not against the reserved post. It is only a transfer order in his own grade but to a post which was in Grade‑18 i.e. the higher grade: Without observing the law the appellant civil servant could not claim regularization from the Service Tribunal of such a transfer/promotion.

The decision in Ashrafullah's case is not relevant because in it a discretion and a power of the Tribunal was recognized not to refer again or for the second time the case of an official to the Departmental Promo tion Committee for re‑assessment once the assessment had already taken place. That decision is not authority for the proposition that where the Departmental Promotion Committee has not exercised its powers the Tribunal can substitute itself for it. In rejecting the regularization of the appellant and in refusing to adjudge on his suitability for the promotion post the Service Tribunal has rightly held the claim to be incompetent. His appeal has no merit and is dismissed.

As regard the grant of the minimum of the pay scale of Grade‑18 for so long as the civil servant functioned on that post the order of the Tribunal has not been challenged by the Federation. It is the grant of increments which is the subject‑matter of challenge in the other appeal. When he was appointed or transferred to Grade‑18 post and required to discharge full duties thereof on 17‑8‑1979 he was holding only ad hoc Grade‑17 post. Estacode (1979 edition) contains at page 138 the following rule‑

"Serial No. 183. Bar against promotion of ad hoc appointees.‑The following further instructions are issued for regulating ad hoc appointments :‑

(i) Persons appointed on ad hoc basis should possess the required qualifications and experience prescribed for posts ;

(ii) Persons appointed on an ad hoc basis should not be promoted to higher posts.

(Authority.‑O. M. No. 3/29/70‑D., dated the 7th January, 1971.)

This defect in the promotion was removed when his appointment to Grade‑17 was regularized from 1974.

We have while deciding other eight appeals (Civil Appeals Nos. 23/ 1985, 138/1981, 711/1984,787/1984 to 790/1984 and 831/1984) held that when a civil servant, otherwise, suffering from no ineligibility or deficiency is promoted or called upon to discharge the full duties of the higher post he is entitled to the increments in the pay scale of the higher post for so long as he discharges those duties and holds such a post. As in the instant case there is no indication, suggestion or material on record to J show that the civil servant concerned was in any way ineligible or deficient in qualification , he was entitled not only to the time scale pay at its minimum but also to increments falling due.

On the view that we have taken both the appeals are liable to be dismissed and are dismissed leaving the parties to bear their own costs.

M.B.A. Appeal dismissed.

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