GHULAM RABBANI Versus SECRETARY, ESTABLISHMENT DIVISION
CH. A. RAHMAN KHAN (MEMBER). ‑‑‑Qazi Ghulam Rabbani, Headmaster (BPS‑18), Federal Government Model School for Boys, F‑8/3, Islamabad, the appellant, has challenged the order dated 2‑9‑1989 whereby the Ministry's letter of even number dated the 8th August, 1989 under which he was granted move‑over to B‑19 was withdrawn. His departmental appeal dated 17‑9‑1989 addressed to the Secretary, Ministry of Education, respondent No. 2, has remained un-responded so far. However, the Accountant‑General, Pakistan Revenues, filed their comments vide their letter dated 31‑7‑1990 on behalf of Ministry of Finance, respondent No. 3.
2. Briefly, the facts of the case are that the appellant while serving as Headmaster, was awarded Selection Grade (B‑18) since 20‑9‑1983 vide Ministry of Education's Notification dated 13‑8‑1985. He reached the maximum of the grade on 1‑12‑1985. Under the existing rules he was, therefore, entitled to move‑over to B‑19 after full one year i.e. with effect from 1‑12‑1986.
3. It was strongly contended by the learned counsel for the appellant that after due approval by the Move‑over Committee the competent authority approved the move‑over to the appellant with effect from 1‑12‑1986. However, despite the approval, for reasons best known to respondent No. 2, a notification dated 6‑8‑1989 was published granting move‑over to the appellant with effect from 1‑12‑1988. This notification, it was submitted, was later amended so that the move‑over to the appellant was once again granted with effect from 1‑12‑1986 instead of 1‑12‑1988. This amendment was notified vide letter dated 8‑8‑1989 which is reproduced below:‑
"Subject: MOVE‑OVER OF PRINCIPALS/PROFESSORS/ASSISTANT
PROFESSORS FROM BPS‑19 TO BPS‑20 AND BPS 18 TO BPS‑19
Sir,
I am directed to refer to this Ministry's letter No. F.2‑11/85‑CTI, dated 6‑8‑1989 on the subject mentioned above and to say that the date of move‑over in respect of Serial No. 26 ‑‑ Qazi Ghulam Rabbani, Principal may please be read as "1‑12‑1986 instead of 1‑12‑1988."
It was submitted by the learned counsel for the appellant that in spite of the very clear instructions regarding the grant of move‑over to the appellant to B‑19 vide letter dated 8‑8‑1989 another amendment was issued vide letter No.F.2‑11/85‑CTI, dated 8‑8‑1989 whereby the date of grant of move‑over to the appellant was changed to be with effect from 1‑12‑1987. This letter was addressed only to the Accountant‑General, Pakistan Revenues, Islamabad. The appellant had no knowledge about it. And, finally respondent No. 2 vide their impugned order dated 2‑9‑1989 withdrew the grant of move‑over to the appellant by withdrawing their letter dated 8‑8‑1989.
4. The learned counsel for the appellant submitted that in these circumstances the principle of locus poenitentiae is duly attracted in his case especially when no notice was given to the appellant as the impugned letter dated 8/89 had since taken legal effect. The rights once having been vested in the appellant could not be taken away without a proper show‑cause notice. It was further submitted that respondent No. .2 vide Notification dated 15‑5‑1975 has laid down that Selection Grade Headmaster (B‑18) was a promotion post and not a case of grant of move‑over from B‑17 to B‑18. Under this policy a good number of Headmasters who were working in Selection Grade (B‑18), were granted move‑over to B‑19 vide the Ministry of Education's letter dated 13‑8‑1985 onwards on different occasions. It was, therefore, urged that it is a case of discrimination which is violative of the Constitution of Islamic Republic of Pakistan. Furthermore, in reply to the Government of Punjab's letter dated 21‑5‑1986 respondent No. 3 clarified the doubt in this regard vide their letter dated 16‑6‑1986 which is reproduced below:‑‑
"Subject: EXTENSION OF THE PRINCIPLE OF MOVE‑OVER TO
ALL EMPLOYEES OF THE FEDERAL GOVERNMENT
Sir,
I am directed to refer to your letter No. FD‑PC‑8/1/83(P), dated 21‑5‑1986 on the above subject and to say that the provision that two successive move‑over will not be allowed means that the employee who has been allowed to move‑over after the reaching the maximum of the scale of pay will not be considered for another move‑over after reaching the maximum of that scale. The grant of Selection Grade does not constitute move‑over. As such these employees are regular members of their cadre and can be considered for move‑over after reaching the maximum of the Selection Grade B‑18 to B‑19."
Also, in reply to the Ministry of Education's letter dated 2‑9‑1989 respondent No. 3 reaffirmed their views on the subject of grant of move‑over to Selection Grade employees which is reproduced below:‑‑
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"III. A civil servant who has been allowed selection grade on any post is eligible for grant of move‑over to the next higher scale:"
5. In view of the above it was prayed that the impugned order dated 2‑9‑1989 may be set aside and the appellant be granted move‑over from B‑18 to B‑19 with effect from 1‑12‑1986 with consequential benefits.
6. Mr. Muhammad Farooq, Section Officer, Finance Division, and Mr. Muhammad Riaz, Accountant, AGPR, Islamabad, represented respondent No.3 in spite of the fact that the Justice Division did not favour contesting the appeal. The Establishment Division, respondent No. 1, was represented by Mr. Zakaullah, Section Officer, but they have not even submitted any objections in this appeal.
7. The representatives of respondent No. 3 submitted their half‑hearted contentions that Selection Grade was considered as move‑over by them and, therefore, the appellant could not be granted two move‑overs under the existing policy. It was, therefore, requested that the impugned order dated 2‑9‑1989 withdrawing the grant of move‑over to the appellant vide letter dated 8‑8‑1989 be upheld.
8. We have heard the arguments from both the sides and perused the record presented to us carefully. We have observed that the grant of Selection Grade (B‑18) to a Headmaster who is serving in BPS‑17 is not subject to any condition like the move‑over which falls due only a year after one reaches the maximum of B‑17 under the existing rules. The Selection Grade (B‑18) on the other hand is granted as a promotion within the specified percentage of the total strength of Headmasters irrespective of the stage of pay in BPS‑17 only when he is duly recommended by the Selection Committee to be constituted in terms of the Finance Division's O.M. No. 1(82)R‑3/85, dated 1‑1‑1986. We are, therefore, of the firm view that the grant of Selection Grade (B‑18) to the appellant who was previously serving in BPS‑17 is not a case of move‑over in any way. The rulings given in this respect by respondent No. 3 in‑ their letters dated 16‑6‑1986 and 21‑6‑1989 are still in the field. Respondent No. 3 has neither placed any document on record nor has cited any authority whereby the Selection Grade was to be treated as a move‑over. The contradictory attitude on the part of respondent No. 3 in contesting this appeal is rather un explainable. In the absence of any better explanation or legal lacuna, we are constrained to observe that the impugned letter dated 2‑9‑1989 whereby the grant of move‑over to the appellant vide letter dated 8‑8‑1989 was withdrawn; is devoid of any legal force and, therefore, ceases to exist.
9. As a result, the appeal before us succeeds. The impugned letter dated 2‑9‑1989 is set aside and the appellant is entitled to the grant of move‑over from BPS‑18 to BPS‑19 with effect from 1‑12‑1986 with all consequential benefits. Ordered accordingly.
10. No order as to costs.
11. Parties be informed accordingly.
A.A./690/Sr.F Appeal accepted.