Find a Lawyer

‑‑‑S. 17 read with Fundamental Rules, rr. 9 (31) (a) & 35 and Audit Instruction (1)‑Expression "pay" used in S. 17 of Civil Servants Act, 1973‑‑Means "pay" in time‑scale as defined in F. R. 9 (31) (a) which raises by periodical increments from minimum to maximum‑Civil servant of Grade‑19 appointed to officiate against Grade‑20 post and shouldering full responsibilities thereof‑Allowed pay in Grade 20 at minimum stage or at stage to be fixed with reference to substantive pay in Grade‑19 but without benefit of increment‑Such action supported on ground that pro motion to Grade‑20 not yet made an .l pay could be restricted under F. R. 35 ‑Contentions rejected ‑F. R. 35, in circumstances of case, held, inconsistent with S. 17‑.Civil servant, in circum stances, held, entitled to pay including periodical increments in Grade‑

Appellant in person.

Date of hearing : 16th March, 1983.

. The appellant, while officiating as Deputy Chief Operating Superintendent H. Q. Office, Lahore in Grade‑19, was transferred and posted to officiate against a Grade‑20 post of the Divisional Superintendent (D. S.), Rawalpindi in his own grade viz. 19, vide Order dated 26th November, 1976. The appellant assumed charge of the post of Divisional Superintendent on 6th December, 1976 and continued holding the said post till 1st May, 1978. Vide Notice, dated 2nd May, 1978 the appellant was transferred and posted against a Grade‑20 post as officiating Divisional Superintendent, Lahore, but in his own grade, viz. 19. The appellant remained so posted upto 22nd July, 1979. Vide Notice, dated 23rd July, 1979, he was transferred and posted to officiate against a Grade‑20 post of Divisional Superintendent (Workshops), Moghalpura, but he was to remain in Grade‑19. The appellant, as mentioned, remained in Grade‑19 while actually shouldering the higher responsibilities of Grade‑20 posts and officiating against them from 6th December; 1976 to 3rd September, 1980 (whereafter he was regularly promoted to Grade‑20, w. e. f. 4th September, 1980).

2. On 2nd April, 1980 he preferred an appeal through proper channel to the President of Pakistan on the ground that even though he had been working against Grade‑20 posts and shouldering full responsibilities, he was being denied the emoluments and other benefits which had accrued to him vide letter, dated 17th February, 1972, according to which any officer appointed to a higher post without his formal promotion to that post was entitled to draw the emoluments and other benefits of the post against, which he was ordered to work.

3. Getting no reply to his appeal and after waiting for 90 days, he filed his present appeal before us on 16th July, 1980 under section 4 of the Service Tribunals Act on the ground that his pay be fixed in Grade‑20 together with increments during the period he continued officiat ing against Grade‑20 posts while actually holding a Grade‑19 post and that the arrears so due be paid to him.

4. While the appeal was pending before us, the respondent No. 2 vide their reply, dated 30th November, 1980, filed Ministry of Railways letter, dated 25th October, 1980 as well us the one from the Ministry of Railways (Railway Board), dated 29th October, 1980. We reproduce letter, dated 29th October, 1980 being more relevant for our purpose: ‑

"Sub: ‑Grant of pay of the post to the officers who hold charge of the higher post without their formal promotion.

Sanction of the President of Pakistan is hereby communicated to Mr. M. A. Saeed, Divisional Superintendent, Workshops, Pakistan Railways, Moghalpura, being granted pay in Grade‑20 during the period from 6th December, 1976 to 3rd September, 1980, when he worked as Divisional Superintendent, Rawalpindi, Lahore and Workshops, in his own grade viz. Grade‑19, without having been selected for regular appointment to these posts. He will, however, be entitled to draw pay at the minimum of N. P. S./R. N. S‑20 unless his substantive pay in the lower grade, was more than the minimum of Grade‑20 in which case his pay will be fixed in accord ance with the rules extent, subject to the length of service restrictions for fixation of pay in N. P. S‑20. The officer concerned may also be allowed the allowances admissible under the rules, such as Senior Post Allowance, Local Compensatory Allowance, Dearness Allowance, etc. attached to these posts. He shall however, not be entitled to draw annual increments in Grade‑20, because he merely held the appointment and had not been 1.r4 moted in accordance with the rules."

5. The first and foremost observation we would like to make is that the above‑quoted letter of the respondent department nullifies paras.1 and 2 of the preliminary objections tiled on 30th November, 1980 wherepy they consider the present appeal to be time‑barred and non‑main tainable. These objections are frivolous and we would have repelled them anyway. Their objection in pars. 3 of their statement may perhaps be taken into consideration and that is that since in his appeal to the President of Pakistan the appellant did not pray for increments on 1st December, 1978 and 1st December, 1979 in Grade‑20, whereas he is doing so in his appeal before the Tribunal, be has no right to approach us for this purpose. In his appeal, dated 2nd April, 1980 to the President, the appellant had referred to the case of one Majeed Akhtar who was allowed the pay of the higher post for holding such a post without formal promotion. A careful reading of the appellant's appeal to the President would or should leave no one in any doubt that he (appellant) is praying for the 'payment of emoluments and other benefits for discharging full responsibilities of the Grade‑20 posts. This prayer does include incre ments even when be does not say it in a cut and dried manner. The issue, which has resultantly crystallised, is that the appellant's pay was, to be fixed either at the minimum of N. P. S‑20 or if his pay in Grade‑19 was more than the minimum of grade‑20 then his pay was to be fixed in accordance with the existing rules. He was, however, not allowed any increments in Grade‑20. In other words, the pay of the appellant stood restricted b5 the respondent‑department. The respondent‑Department vide para 4 of their written statement, dated 30th November,' 1980 have stated that the appellant has since been allowed pay and allowances in Grade‑20 for the period during which he worked against such posts. The appellant's demand for increments on 1st December, 1978 and 1st December, 1979 according to the said department was not allowed because, he had not been promoted to Grade‑20 as per rules. He merely held the appointment.

Section 17 of the Civil Servants Act, 1973 (Act No. LXXI of 1973) hereinafter referred to as the Act lays down

"7. Pay.‑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

Provided that when the appointment is made on a current charge basis or by way of additional charge, his pay shall be fixed in the prescribed manner :

Provided that .......

7. F. R. 35 lays down:

"A local Government may fix the pay of an officiating Go vernment servant at an amount less than that admissible under these rules."

Audit Instruction (1) under the said F. R. lays down:

"One class of cases falling under this rule is that in which a Govern ment servant merely holds charge of the current duties and does not perform the full duties of the post."

8. It is an admired position that the appellant did perform full responsibilities of Grade‑20 posts while being in Grade‑19 F. R. 35 read with Audit Instruction (1) therefore cannot be attracted here. By implication, therefore, the reading of F. R. 35 with Audit Instruction (1) should leave us in no doubt that pay of Government servants like the appellant who shoulder full responsibilities cannot be restricted.

9. Section 17 of the Act with its proviso and F. R. 35 with Audit Instruction (1) thereto and quoted above, make it abundantly clear that a civil servant shall, as of right, get the pay of a post or grade unless he is holding a higher post by way of current or additional charge. As stated, the appellant officiated against Grade‑20 posts while he was actually in grade‑l9 and he shouldered‑ full responsibilities of the higher posts.

10. There can be no disagreement that the expression "pay" as used in section 17 of the Act unexceptionably means PAY IN TIME‑SCALE as defined in F. R. 9(31) (a) which raises by periodical increments from minimum to a maximum and may also be known as progressive. In our present scheme of things, there is no longer any concept of "fixed pay" B while the deprivation of increments would be doing precisely i.e., turning our time‑scale pays into fixed pays in violation of section 17 of the Act as well as the rules. For us the "pay" would therefore mean the pay as defined in F. R. 9 (31) (a) which would be inconceivable without increments.

11. Although the respondents have nowhere said it in so many words, it was, nevertheless, presumed by the Tribunal in their last hearing, dated 16th March, 1983 that the pay of the appellant had been restricted under F. R. 35. The Tribunal had, therefore, directed the departmental representative with copies of orders to the Ministry of Railways and the Chairman, Railways Board:

"to send us written statement specially highlighting as to whether F. R. 35 is consistent with the provisions of section 17 of the Civil Servants Act, 1973 and whether even after the enactment of section 17 ibid, pay of an officer can be restricted."

12. The Ministry of Railways (Railways Board) vide their reply, dated 23rd April, 1983 have merely reiterated that since the appellant only held the appointment during the period and had not been promoted in accordance with the rules, he had not been allowed any increments by the Ministry of Finance. They have placed reliance on the case of Qazi Abdul Karim.

13. We advert to the case of Qazi Abdul Karim wherein the honour able Supreme Court made the following observations: ‑

"After all if an employee is promoted to officiate in a higher post, involving higher responsibility he must be held to be entitled to the minimum pay of the said grade of the said higher office."

While making the above observation, the learned Supreme Court had refused special leave to appeal to the Government. The above quotation was neither a decision on a question of law nor an enunciation of a principle of law. The said observation cannot, therefore, be useful to the respondents.

14. We have come to the conclusion that, in the present case. F. R. 35 is inconsistent with section 17 of the Act. We are also quite clear that the expression "pay" as defined in F. R. 9 (31) (a) would include periodical increments. The annual increments in Grade‑20 were not allowed to the appellant "because he merely held the appoint ment during the period in question and had not been promoted in accordance with the rules."

We have, now, to analyse whether the respondents, notwithstanding section 17 of the Act and F. R. 35 (being clearly in favour of the appel lant), could, legally, withhold his increments as they did. Since "pay" includes "increments" and since the two cannot be treated separately under section 17 of the Act read with F. R. 9 (31) (a), the appellant shall be entitled to the increments. It is nowhere laid down that only) those promoted in accordance with the rules shall be entitled to the increments and the others denied these even when shouldering full higher responsibilities of a grade or post but being actually, in a lower grade like the appellant. In fact F. R. 35 with Audit Instruction (1) fully supports the cases of those otherwise than holding current or additional charge. If anything, section 17 of the Act entitles a civil servant, in accordance with the rules, to his pay sanctioned for a post or grade and no one can arbitrarily alter such pay to his disadvantage save in accordance with the rules. The rules in the present case are clearly in favour of the appellant because he officiated in Grade‑20 posts and shouldered full responsibilities of the said posts while actually being in Grade.19 this was not a case of current or additional charge and above all section 17 of the Act and F. R. 9 (31) (a) and F. R. 35 are in his favour.

15. In view of the foregoing analysis, we accept the appeal and order that the appellant shall be entitled to increments of pay in Grade‑20 falling due on 1st December, 1978 and 1st December, 1979 as prayed for.

No order as to costs.

A. E.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.