MAKHDOOM H. CHAUDHRI Versus PRIME MINISTER OF PAKISTAN, ISLAMABAD

1. SYED ALLY MADAD SHAH (CHAIRMAN).‑‑‑ Appellant Mr. Makhdoom H. Chaudhri, while serving as Director Accounts, Economic Affairs Division, was appointed to officiate as Deputy Secretary to the Federal Government in the same Division vide Notification dated 27‑6‑1974. In December, 1982, promotions were made to the posts of Joint Secretaries and equivalent (BPS‑20). Several officers junior to the appellant were promoted to BPS‑20 with effect from 25‑2‑1983, whereas the promotion of the appellant was deferred on the ground that he had not put in requisite service of 12 years in B‑17 and above posts for earning promotion to BPS‑20. He made representation that the formula of length of service adopted by the Central Selection Board, while ignoring him, was not applicable to him as he had entered the service in the APUG (Secretariat Group) by way of lateral entry examination. He was promoted as Joint Secretary in the same Division vide Notification dated 2‑11‑1983. His claim for promotion with effect from 25‑2‑1983 when his next junior was promoted, was not conceded. However, he was allowed to reckon seniority from the date his next junior was promoted on the basis of his seniority vis‑a‑vis his juniors in the lower post. This decision was conveyed vide Office Memorandum dated 13‑8‑1986. He went on making representations for giving him promotion with effect from 25‑2‑1983. Vide Establishment Division Memorandum dated 5‑11‑1990, he was allowed benefit of fixation of his pay and increment in BPS‑20 with effect from 25‑2‑1983, the date on which one of his juniors was promoted to BPS‑20, but he was not allowed arrears. He made representation on 6‑11‑1990 for arrears of pay. Failing to find response to his representation, he preferred appeal to the Prime Minister on 5‑1‑1991. Awaiting decision on his appeal for more than 90 days, he filed this appeal on 11‑2‑1991 for payment of arrears of pay and allowances of BPS‑20 post for the period from 25‑2‑1983 to 1‑11‑1983.

2. The appellant has contended that the formula of length of service adopted by the Central Selection Board in deferring his promotion was not applicable to his case and that proposition stood conceded by the subsequent order of his promotion made on 2‑11‑1983 and another order dated 5‑11‑1990, whereby he was allowed benefit of fixation of pay and increments in BPS‑20 with effect from 25‑2‑1983 when one of his juniors was promoted to BPS‑20.

3. The respondents have resisted the appeal ‑contending that the promotion of the appellant with effect from 25‑2‑1983 was rightly deferred as he had not completed the requisite length of service for getting promotion and his case was reviewed after the revised policy was introduced in 1983 and he was consequently allowed benefit of seniority and fixation of pay from the date his next junior was promoted, but he was not allowed benefit of arrears as he had not discharged duties of the post of Joint Secretary until he was actually promoted with effect from 2‑11‑1983.

4. The respective contentions of the parties, mentioned above, bear out that the dispute rests on the provisions of length of service required for getting entry in the next above stage in service. The requirement of the length of service for promotions on regular basis in Grade‑18 to 21 was introduced by inserting Rule 8‑A in the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 vide Establishment Division Notification No. SRO.41(1)/81, dated 12‑1‑1981. The minimum length of service for eligibility for various cadres and acting charge appointments was prescribed in Office Memorandum dated 12‑1‑1981, which is reproduced below:‑‑

"ESTABLISHMENT DIVISION

2. No. 1/9/80‑R.II(a) Rawalpindi, the 12th January, 1981

OFFICE MEMORANDUM

3. Subject: MINIMUM LENGTH OF SERVICE FOR ELIGIBILITY FOR VARIOUS CADRES AND ACTING CHARGE APPOINTMENTS.

4. The undersigned is directed to refer to the Establishment Division O.M. No. 3/7/74‑AR.II, dated 27th May, 1974, 27th August, 1974 and 6th February, 1975, and to say that in supersession of the instructions laid down in the aforementioned O.M., the President is pleased to decide that the minimum length of service for promotion to various grades shall be as follows:‑‑

5. For Grade‑18 .... 5 years in Grade‑17.

6. For Grade‑19 ....12 years in Grade‑17 and above.

7. For Grade‑20 ....17 years in Grade‑17 and above.

8. For Grade‑21 . ....22 years in Grade‑17 and above:

9. Provided that where initial appointment takes place in Grades‑18, 19 and 20, the length of service for promotion to higher Grades shall be as follows, namely

10. For Grade‑19 ....7 years in Grade‑18.

11. For Grade‑20 ...12,years in Grade‑18 and above.

12. OR

13. 5 years in Grade‑19.

14. For Grade‑21 ... 17 years in Grade‑18 and above.

15. 5 years in Grade‑20.

16. (Sd.)

17. MASHKOOR AHMAD KHAN,

18. JOINT SECRETARY."

19. The aforesaid Office Memorandum of 1981 was superseded by Office Memorandum dated 2‑6-1983 which too is reproduced below:‑‑

"GOVERNMENT OF PAIGSTAN

CABINET SECRETARIAT

ESTABLISHMENT DIVISION

20. No.1/9/80‑R2 Rawalpindi, the 2nd June, 1983.

OFFICE MRMORANDUM

21. Subject: MINIMUM LENGTH OF SERVICE FOR ELIGIBILITY AND PROMOTION OF OFFICERS.

22. In pursuance of rule 8‑A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and in supersession of the instructions laid down in the Establishment Division's Office Memorandum No. 1/9/80‑R.II(A), dated the 12th January, 1981, the President is pleased to decide that the minimum length of service for promotion to various grades shall be as follows:‑

23. For Grade‑18 .... 5 years in Grade‑17.

24. For Grade‑19 .... 12 years in Grade‑17 and above.

25. For Grade‑20 .... 17 years in Grade‑17 and above.

26. For Grade‑21. 22 years in Grade‑17 and above.

27. Provided that:‑

(i) Where initial appointment of a person not being a person in Government service takes place in a post in Grade‑18, 19 or 20, the length of service specified in this office memorandum shall be reduced by the following periods:‑

28. First appointment in: Reduced by

29. Grade‑18 .... 5 years

30. Grade‑19 .... 12 years

31. Grade‑20 .... 17 years

(ii) Where initial appointment of a person already in Government service takes place, on recommendations of the Federal Public Service Commission, in a post in Grade‑18, 19 or 20, the length of service specified in this office memorandum shall be reduced by the periods specified in proviso (i);

(iii) Where first appointment of a person other than a person covered by proviso (ii) was made to Government service in Grade‑16 or below, one‑half of the service in Grade‑16 and one‑fourth in Grade‑15 and below may be counted as service in Grade‑17 for computing length of service for the purpose of promotion only.

32. (Sd.)

33. MASHKOOR AHMAD KHAN,

34. Joint Secretary to the

35. Government of Pakistan."

5. The case of the appellant for promotion was considered in December, 1982 and, therefore, the requirement of his length of service was to be considered and determined in accordance with the provisions of Office Memorandum of 1981. Before examining the question in the perspective of O.M. of 1981, it would be worthwhile first to deal with another question: whether the appellant's entry in the APUG (Secretariat Group) was as a promotee or by initial appointment. The case of the appellant is that he was appointed to the APUG (Secretariat Group) by way of lateral entry examination and his appointment was deemed to be 'initial appointment' and that averment has not been refuted. Now, considering the case of the appellant in that perspective, applying the length of service formula prescribed in Office Memorandum of 1981, the appellant was seeking promotion from Grade‑19 to 20 and it required only five years service in Grade-19. He was appointed as Deputy Secretary to the Federal Government vide Notification dated 27‑6‑1974 and thus he had completed the requisite service of five years much before his promotion was considered in December, 1982 and there was no justification for deferring his promotion on the ground that he had not completed the requisite length of service. It has been indicated in the written objections that the length of service of the appellant was calculated treating it as a case falling in the first part of the O.M. dated 12‑1‑1981 but that was a misconceived approach as the appellant was appointed as the Deputy Secretary as a direct appointee and not as a promotee and his case was covered by the proviso contained in the same Office Memorandum. This position stands impliedly conceded to by allowing fixation of pay of the appellant with effect from 25‑2‑1983 when his next junior was promoted, otherwise the monetary benefits of his promotion made subsequently could not be given with retrospective effect. The criteria for calculation of length of service laid down in Office Memorandum dated 2‑6‑1983 was not applicable when the appellant's case was considered for promotion in December, 1982. It follows that the promotion of the appellant was wrongly deferred and his promotion as Joint Secretary (BPS‑20) is to be reckoned from 25‑2‑1983 for all purposes viz. the monetary benefit and even‑ seniority and other benefits which he was prevented to avail of by wrong decision of deferring his promotion.

6. The respondents have resisted the appeal also on the ground that it is time‑barred. The appellant has based his claim for arrears of pay and allowances with effect from 25‑2‑1983 on the basis of Establishment Division memo dated 5‑11‑1990, whereunder he was allowed benefit of fixation of pay in BPS‑20 with effect from 25‑2‑1983 i.e the date on which one of his juniors was promoted to BPS‑20 (on 12‑6‑1983, the date on which he was actually promoted to BPS‑201 but without arrears. He made representation to the Secretary, Establishment Division on 6‑11‑1990 for ante‑dating his promotion to 25‑2‑1983. He has filed a photostat copy of the representation as Annexure V. Failing to find any response, he preferred appeal to the Prime Minister on 5‑1‑1991. He did not get any orders on his appeal as well. He then preferred this appeal on 11‑2‑1991. As per his averment, the departmental representation to the Secretary, Establishment Division was submitted within the requisite period of thirty days and this appeal was filed within 120 days of that representation, and the appeal is within the period of limitation if calculation is made that way. Of course, the appeal submitted to the Prime Minister was belated one, but appeal did not lie against the order dated 5‑11‑1990 and that a was an exercise by him in futility. The respondents have contended that the promotion of the appellant was deferred on 26‑12‑1982 and his promotion was recommended on 12‑6‑1983 and he was promoted as Joint Secretary with effect from 2‑11‑1983 but he made representation on 12‑6‑1986 for ante‑dation of his promotion i.e. after 2 and half years, although his representation was considered and his request for ante‑dation of his promotion with effect from 19‑5‑1983 was not acceded to. Of course, the representation of the appellant was made on 12‑6‑1986 (as mentioned in O.M. dated 13‑8‑1986 Annexure IV) but it was entertained, considered and orders were passed. The appellant continued making representations and the final decision on the ante‑dation of his promotion was taken vide memo dated 5‑11‑1990. He made representation dated 6‑11‑1990 and then preferred this appeal within time as stipulated under subsection (1) of section 4 of the Service Tribunals Act, 1973. However, the appellant has submitted condonation application also. The appeal is, therefore, held to be well within the period of limitation and is not time‑barred.

7. For the reasons recorded above, the appeal is allowed and the order dated 6‑11‑1990 is set aside and it is held that the appellant was deemed to have been promoted as Joint Secretary (BPS‑20) with effect from 25‑2‑1983 when his next junior was promoted, with all financial benefits etc. from that day and entitled to draw arrears as well. No order is made for costs.

36. A.A./754/Sr.F Appeal accepted.