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--S.4-Limitation-Matter pertaining to pay- A continuing cause of grievance-Departmental representation against order of fixation of pay made after four years-Such representation decided on merits without considering question of limitation-Delay in making representation, in circumstances, held, deemed to have been condo ned-Appeal before Tribunal filed within one month of rejection of departmental appeal, in circumstances, held, within time.
And Ministry of Finance O. M. No. 1 (36) GAZ-/MP/1/73, dated 18th August, 1973, Schd. sub-pare. (G) (Regarding introduction of National Pay Scales) - Fixation of pay on promotion from Grade-17 to Grade-18-Condition of length of service of 7 years in NPS 17 for admissibility of increment in NPS; 18- Held - Not applicable for those promoted after 18th August, 1973-Such condition, further, held, inconsistent with S. 17 of Civil Servants Act, 1973-Civil servant entitled to pay of post as raised from time to time on accrual of increment-Such right cannot be restricted by any rule-Words "in accordance with rules" used in, S. 17 of Civil Servants Act, 1973--Refer to Pay Scale and-not to any restriction-F. R. 35 empowering Government to fix pay of an officiating Government servant at an amount less than that admis4ible under F. R. 31, held, inconsistent with S. 17 of Civil Servants Act, 1973 hence not effective-Civil Servants Act (LXXI of 1973), S. 17 and Fundamental Rules, rr. 9 (31) (a), 31 & 35.
Mian Ahmad Saved v. Secretary Ministry of Railways Appeal No. 96 (L) of 1980 and Abdul Majid v. Secretary, Ministry of Communications and others Appeal No. 160 (R) of 1980 (unreported) rel.
Appellant in person.
Syed Muhammad Shahudul Huque for the State.
Manzoor Hussain Malik for Respondent No. 1.
Date of hearing: 24th November, 1983.
-The appellant, Kh. Zaheer Ahmed, joined the defunct Civil Service of Pakistan on 1st November, 1971. After the introduction of National Scales of Pay (NPS), under office Memorandum No. 1(36)GAZ-IMP/173, dated the 18th August, 1973, he was placed in N. P. S. 17. He was Promoted to N. P. S. 18 with from 1st November 1976, and on his promotion, his pay was fixed at the minimum of N. P. S. 18. He was, however, not allowed yearly increments in spite of his representations being made in this behalf; and finally he has come to this Tribunal by was of appeal under section 4 of the service Tribunal Act (LXX of 1973) on the 6th November, 1982.
2 The respondents have taken a preliminary objection with regard to limitation. It was urged that initially the appellant was refused increments in 1978, and, thereafter he slept over his claim and came to Tribunal by the end of 1982, much after the or of the period of limitation.
3. We have heard the learned counsel for the respondents as well as the appellant, who argued his own case, on the question of limitation. No doubt, the appellants case was rejected initially in 1978, but it appears that thereafter he made some other departmental representations in 1982,. the final being to the Ministry of Finance, which was made on 18th September, 1982. This representation was rejected by letter, dated 11th October, 1982, on merits and the question of limita tion was not considered, meaning thereby that the delay, if any, in making the departmental representation had been condoned by the departmental authority. The present appeal having been filed on 6th November, 1982 is well within t-me, when the period is reckoned from the final reply, dated 11th October, 1982. Even otherwise, in matters of pay there is a continuing case of action and besides that the appellant has now made an application for con donation of delay, which in the circumstances of the present case, would have been allowed, had the appeal not been within time.
4. In disallowing the increment to the appellant, the Ministry of Finance has relied on the notes under clause (2) of sub-pare. (G) of Part I of the Office Memorandum, dated the 18th August, 1973, referred to above, and it has been argued that increments in N, P. S. 18 can be allowed to an officer promoted from Grade-17 only in the 7th year of service. as provided for in the central (Gazetted) Civil Services (Revision of Pay) Rules, 1951, referred to in notes (il) -and (iii) of clause (2) of sub-pare. (G) and the Schedule to the aforesaid' O Memorandum. Besides the relevant portion of sub-pare.(G), sub-paras. (IJ) and (J) too are relevant, and for facility of reference, we produce them alongwith the Schedule, as under:
(G) Initial Fixation of Pays : (l) xx xx xx
xx xx xx xx xx
(2) xx xx xx xx xx
xx xx xx xx xx
(ii) Fixation of pay in the National Scales will be subject to the length of service restrictions prescribed in the Central (Gazetted) Civil Service (Revision of Pay) Rules, 1951, as amended from time to time, and as modified in Column 4 of the Schedule annexed to this O. M.
(iii) The provisions regarding (a), the admissibility of increments i4 the case of promotion of officers from the Junior Scale (National Scale 17) to the Senior Scale (National Scale 18) and (b) the restriction as to the length of service for drawing full pay of the posts in the Junior Administrative Grade (National Scale 19) and above, which existed in the Central (Gazetted) Civil (Revision of Pay) Rules, 1951, and the New Scales of Pay, 1962, as amend. ed from time to time, shall, subject to the modification in Col. 4 of the Schedule, annexed to this O. M. continue to the National Scales.
xx xx xx
(H) Fixation of pay in National Scales on promotion.--In case of promotion from a lower gazetted post in the National Scales to a higher one, the initial pay in the higher post shall be fixed under the normal rules, or subject to the length of service restriction as mentioned in notes (ii) and (iii) under clause (1) of sub-para. (G) above, as the case may be. The existing rules/ orders regarding grant of minimum pay increases in certain cases on prornotion from a non-gazetted to a gazetted post will also continue to apply to the National Scales.
(I) Uniform Date of Increment.-The annual increment in the National Scales will accrue only on the first day of month of December following the completion of at least six months of such service at the relevant stage in that scale as counts for increment under the ordinary rules. This is subject to the rules regarding withholding of increments and crossing of efficiency bars.
xx xx xx
National National Scale Posts to which applicable Prescribed
Pay Scale of Pay length of
No. Class I
service
(l) (2) (3) (4)
16. 400-35-750/50-1,000 Posts the maximum of the NIL
new Scale of which does not
exceed Rs. 925.
17. 500-50-1,000/50-1,250 Exceeds Rs. 925 but does NIL
(Junior Class I). not exceed Rs. 1,150.
1 2. 3 4
18. 1000-75-1,750 Exceeds Rs. 1,150 but does NIL
not exceed Rs. 1,699.
19, 1,800-80-2,200. Exceeds Rs. 1,69) but does 13 years.
not exceed Rs. 2,150.
20. 2,300-100-2,600 Exceeds Rs. 2,150 but does 15
not exceed Rs. 2,(00.
21. 2,750 (Fixed) Exceeds Rs. 2,600 but does 20 "
not exceed Rs. 2,750.
22. 3,000 (Fixed). Excegds Rs. 2,750. 22 "
5. Note (ii) refers to length of service restriction for drawing pay in different scales, as shown in the Schedule. -The length of service is mentioned against N. P. S. 19 to 22, but for N. P. S. 18, the entry is "NIL". It is clear that on promotion from NPS l7 to NPS 18, irres pective of the length of service, the incumbent shall be entitled to the fixation of the pay at the minimum stage. Note (iii), however, refers to the increments as well as to the admissibility of drawing full pay. This note also refers to the modifications made in the Schedule. It is not denied that for NPS 18 previously under the 1951 Rules, as. modi fied from time to time, the increment was admissible in the 7th year of service in Class I. The appellant's case is that this restriction has been done away because in the 4th Column of Schedule, 7th year is not mentioned and instead, the entry "NIL" is made, which denotes that the increment was allowable immediately when it accrued and was not subject to the completion of years of service. The Ministry of Finance however, do not accept this interpretation and argue that length of service has been used differently from the term "year of service", the former relating to the fixation of pay in the grade and the latter to the incre ments. According to them, the Schedule has no reference with respect to the year of service formula, which is relatable to the increment and therefore, the old Rules of 1951 would continue to be applicable for drawal of increment which would be due only in the 7th year of service.
6. In our opinion, sub-para. (G) does not cover the cases in which promotion takes place after the 18th August, 1973, on which the Office Memorandum was issued, because the very heading of this sub-para. Is "Initial Fixation of Pays". It is sub-para. (H) which, from 18th August, 1973 onward, is applicable to fixation of pay on promotion and sub-para. (1) provides for uniform date of increment. Sub-para. (I), which is the relevant one, refers to the increments, but does not place any restriction on drawal of increment in any year of service. The increment under this sub-para. (I) can be withheld only subject to the rules regarding withholding of increments and crossing of efficiency bars. It also provides for a uniform date of increment and fur ther lays down that the increments would be allowed only on the first day of December, if on that date, six months length of service is completed.
7. The interpretation put forward by the Ministry of Finance too is not without substance, but when the three paras. referred to above, are read as a whole, the position can be reconciled only in this manner that whatever the method of drafting may be, sub-para. (G) could not be taken into account for determining admissibility of a increments in case of those persons who are promoted after 18th' August, 1973.
8. Even if 1we accept the interpretation of the Ministry of Finance that increments in NPS 18 can be allowed only when the incumbent enters the 7th year. of service, that interpretation would be violative of section 17 of the Civil Servants Act (LXXI of 1973). The legal position that any provision of rules or orders inconsistent with the provision of the Civil Servants Act (LXXI of 1973) shall have no effect, is not denied. Section 17 ibid specifically provides that a civil servant appointed to a post or grade shall be entitled, in accordance with the rules, to the pay sanctioned for such post or grade. The words "time-scale pay" has been defined in F. R. 9 (31) (a), which includes the periodical increments. Under section 17 ibid, therefore, a civil servant is entitled toy the pay of the post as raised from time to time on accrual of the incre ment and that right of drawing the pay cannot be restricted by any rule. On behalf of the respondent departments it was argued that section 17 ibid provides that the pay is to be fixed "in accordance with the rules", and that those words justify .the restriction made under the rules for drawing the increment in a prescribed year of service. We are unable to agree with this contention. The words "in accordance with the rules" refer to the pay scale and not to any restriction. It would be advantageous to refer to the rules on the subject, which existed prior to the coming into force of the Civil Servants Act (LXXI of 1973). F. R. 31 is analogous to section 17 and it provides that the incumbent of a' post will draw the pay of the post. However, this rule was subject to F. R. 35, which empowered the Government to fix the pay of an officiating Government servant at- an amount less than that admissible under F. R. 31. It is curious to note that whereas F. R. 31 was made subject to F. R. 35, section 17 of the Civil Servants Act (LXXI of 1973), is not subject to any other provision of the Act analogous to F. R. 35. This clearly shows that with the enforcement of the Civil-Servants Act (LXXI of 1973) F. R. 35 became inconsistent with section 17 of the Act, and, therefore, the Government has no power to restrict the pay of a civil servant at less than what he would be entitled in the time-scale. Though previously the view taken by the Tribunal was that the pay of a civil servant could be restricted in the. time-scale, yet when the precise question came up for thorough examina tion in the case of Mion Ahmad Saeed v. Secretary, Ministry of Railways Appeal No. 96 (L)/1980 and Abdul Majid v. Secretary Ministry of Communications and others Appeal No. 160 (R)/1980, two different Benches of the Tribunal held that the pay of a civil servant in a grade cannot be restricted and further that the increments too cannot be withheld by providing any restriction.
9. In view of the aforesaid discussions, we are of the opinion that in the present case, the withholding of the increments of the appellant is violative of the provisions of section 17 of the Civil Servants Act (LXXI of 1973), and is also not in accordance with the validly made or protected rules. We, therefore, accept this appeal and direct that the appellant should be allowed periodical increments without taking into consideration his length of service with effect from the date of his promotion.
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A. E. Appeal accepted.
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