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Appeal No. 43 (K) of 1982, decided on 6th June, 1984.

‑‑‑S. 4‑Appeal ,before Tribunal‑ Technical objections‑Appellant a Railway employee seeking redress against refusal of War Service Bene fits admissible towards fixation of pay and pension‑Such benefits allowed to others in identical case‑‑Claim found to have been rejected unlawfully and erroneously‑Department under legal and moral objection to satisfy appellants claim‑Technical objections as to maintainability of appeal, in circumstances, rejected‑Held : in such a case of continuous wrong regarding payment of salary of a civil servant which is a part of terms and conditions of his service no weight to be given to technicalities.

Mrs. Munawar Sanni v. Director Army Education C. A. No. K‑56 of 1980 (unreported) rel.

Muhammad Ahmed Khan for Appellant.

Ch. Muhammad Latif Saghir for Respondent.

Date of hearing : 28th March, 1984..

.‑It is the case of the appellant that he is presently working as Head Clerk in Pakistan Railways. Before his absorption in the employment of Pakistan Railways he had rendered whole time enlisted military service between 22nd November, 1941. and 17th September, 1948 and joined the said department on 24th February, 1949. He had not earned any service pension under the Military Rules. According to the policy laid down by the Government of Pakistan, the appellant is entitled to the War Service Benefits and his pay was to be fixed and pension had to be granted accordingly.

2. The appellant bad been snaking repeated representations continu ously praying for the grant of the said benefits and when the respondent vide their letter, dated 6th February, 1979, refused to consider his case he filed a petition before the Authority under the Payment of Wages Act, 1936, for the recovery of the amount allegedly deducted from his salaries. The said Authority holding the appellant entitled to the War Service Benefits and fixation of his salary, allowed his claim with five times compensation. Against the said decision of the Authority the respondent‑department went in appeal before the Sind Labour Court which accepted the appeal and set aside the order of the Authority on the ground that the appellant was a civil servant and, therefore, his case before the Authority was not entertainable. The appellant, thereafter, filed the present appeal praying for fixation of his salary and payment thereof by allowing him the War Service Benefits.

3. We have heard the parties at length and perused the relevant record. The respondent‑department depended merely on a number of technical and legal objections as to the maintainability of the present appeal. However, in such a case of continuous wrong regarding the payment of salary of a civil servant which is a part of the terms and conditions of his service, we do not give any weight to the technicalities. It may be cited that the Honourable Supreme Court did not view with approval the technical objection in such a case in its pronouncement in the appeal being entitled Mrs. Munawar Sanni v. Director Army Education. C. A. No. K‑56 of 1980 In that case the appellant approached the High Court by way of a writ petition seeking a declaration that the impugned order refusing the payment of arrears of salary payable to her, was passed without lawful authority and was of no legal effect. The High Court, however, refused to accept this prayer on the ground that the relief sought by the appellant was, in fact, a money claim, for which the appropriate remedy was the civil Court. It further observed that if the appellant was of the view that any of the terms and conditions of her service had been violated, the proper venue for vindication of such a claim was either the higher appropriate authority, under the rules, or the Service Tribunal. Consequently, the approach of the appellant to the High Court in its constitutional jurisdiction was inappropriate. Her writ petition was accordingly dismissed. However, on the appeal filed by her, it was laid down by the Honourable Supreme Court as follows :‑

"After hearing learned counsel for the parties, we are of the view that in case the appellant was, indeed, entitled to receive the arrears of the salary, during the entire period that she was kept out in service an order of termination which was found to be unlawful, the authorities should honour her claim for payment of arrears of the salary, The question whether she should approach the civil Court or the Service Tribunal for this purpose was not very pertinent in the fact of the bounden obligation of the authorities to satisfy this claim theta" selves without the necessity of driving a needy litigant from pillar to post."

Respectfully following the above dicta we hold that in the face of the legal and moral obligation of the respondent to satisfy the appellant claim, the technical objections are not sustainable and are repelled.

4. On merits it was the mere stand of the respondent‑department that the appellant was not entitled for the claimed benefits because he was nit appointed against 70% quota fixed for Military Personnels. We allowed the respondent sufficiently enough opportunity, even by twice adjourning the case, to produce the relevant document in support of their stand but they utterly failed in showing anything to indicate that the appellant was not appointed against 70% quota reserved for Military Personnel. Thus, this contention also cannot be substantiated. On the other hand, it was fount that one Abdul Nabi, who was appointed on 8th April, 1947 after being released from military service on 27th June, 1946, was allowed the War Service Benefits by the respondent‑department. The case of the appellant is quite similar to the case of the said Abdul Nabi. The respondent again could not give any justification whatsoever for dealing the case of the appellant differently from the case of the said Abdul Nabi. We are thus led to an irresistible conclusion that the appellant is entitled to the War Service Benefits with fixation of his pay and grant of pension accordingly ; an that the respondent‑department acted unlawfully and erroneously in rejecting his claim. The appeal is, therefore, accepted and it is directed that the appellant shall be allowed the benefits permissible under the War Service Benefits Scheme in the matter of fixation of pay and grant of pension.

5. No order as to costs.

A. E. Appeal accepted.

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