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Case No. 135/965 of 1981, decided on 15th March, 1982.

--S. 16 and Punjab (Gazetted) Civil Servants Pay Revision Rules, 1977, Schd. 2-Pay attached to post a vested right-15% posts of cadre strength of Civil Judges placed in Pay Scale No. 18-Grant of Pay Scale No.18 not a promotion and criteria of performance not relevant-Appellant a Civil Judge ousted from service but reinstat ed under orders of Service Tribunal with back benefits including original seniority-Grant of Pay Scale No. 18 refused on plea that it was a promotion and appellant not having acquired sufficient experience as Civil Judge and also facing a departmental enquiry could not claim its entitlement-Plea rejected-Service Tribunal. in circumstances, accepting appeal with direction that appellant be treated is Pay Scale No. 18 from date his next junior was so inducted-Punjab Service Tribunals Act (IX of 1974), S. 4.

M. A. Riaz for Appellant.

Malik Azam Rasul for Respondent.

Date of hearing :15th March, 1982.

-Mr. M. Awais Shahid, Civil Judge has filed this appeal under section 4 of the Punjab Service Tribunals Act of 1974 against the Notification No. 1-13/79-SOS (IV) dated 8th October, 1980.

2. By virtue of this appeal he has prayed that the above notification be set aside and he may be declared to be a member of Service in N.P.S. 18 since the date of his re-instatement by the Governor. The appellant has impleaded the Government of the Punjab through Secretary, Services, Punjab, as respondent.

3. Brief facts of the case are that the appellant was appointed as Civil Judge on 14th December, 1964. His services were dispensed with on 15th April, 1967 but later on be was re-instated into service as a result of the decision by this Tribunal, dated 2nd January, 1975, The appellant, according to seniority list figured at Serial No. 6, The period in which the appellant remained out of service was treated as spent on duty and the appellant had been paid all arrears of pay by the respondent. The respon dent was granted N. P. S.-18 within 15% of the regular strength of the cadre to the 10 Civil Judges named in the impugned notification who are according to the facts of the case, junior to the appellant.

4. The appellant made a representation against the impugned noti fication which has been rejected by order, dated 29th January, 1981 as under :-

"Your petition, dated 31st December, 1980 has been considered and rejected by the Government."

Hence this appeal.

5. We have heard the learned counsel for the appellant as well as Mr. S. M. Zubair, Assistant Advocate-General, assisted by Malik Azam Rasul, Advocate. The learned counsel for the appellant has submitted that the appellant's re-instatement in service bestowed upon him the origi nal seniority as well as all the back benefits to which he was entitled. It has been argued that the appellant's restoration into service would automa tically vest in him his National Pay Scale to which all his other juniors had been inducted. The learned counsel while meeting the points raised by the opposite side has submitted that assessment of his performance as a Civil Judge by his superiors in no way would stand in his way to the grant of N. P. S.-18 to which he is entitled otherwise.

6. On the other hand the learned Assistant Advocate-General has sub mitted that the grant of N.P.S.-18 to him was denied on the ground that he had not gained sufficient experience and, therefore, his claim in con sequence of his re-instatement to the grant of this scale was untenable. It has also been pointed out that the appellant is facing a departmental enquiry and that his claim for the above-mentioned grant of N.P.S.-18 failed before the Supreme Court of Pakistan, therefore, this Tribunal would not be within its jurisdiction to go contrary to the judgment of the highest Court of the realm.

7. We have given our anxious thought to all these arguments from both sides and have perused the record of this case to look into the judg ment of the Supreme Court which according to the respondents has fore closed the claim of the appellant once for all.

8. Despite our repeated directions to the Assistant Advocate-General who represents the respondent in this case no such judgment of the Supreme Court has been produced before us. The appellant vehemently challenged this assertion of the respondent and submitted that if any such judgment is produced which has been so asserted by the respondent he would with draw his appeal without any demur. In face of the fact that no judgment has been produced before us, for which this case remained pending for a petty long time before this Tribunal we have no alternative but to conclude that Supreme Court of Pakistan did not give any judgment against the appellant regarding his claim of N.P.S.-1.8 before it.

9. The perusal of the impugned notification itself has mentioned in para. 3 that grant of N.P.S. 18 to a specific number of Civil Judges in N.P.S. 17 was not a promotion and, therefore, their case would not fall within the purview of the Member Selection Board. In view of this observation in the impugned notification the argument of the learned counsel for the appellant would prevail that the grant of N.P.S.-18 from N.P.S. 17 would not be a promotion for the 15% of the regular strength of the Civil Judges as given in the Pay Revision (Gazetted) Rules, 1977. Similarly when we peruse section 16 of the Punjab Civil Service Act of 1974 we find that the appellant would be entitled to N.P.S.-18 which stands attached to his post. The post which appellant is now holding automatically confers upon him N.P.S.-18 and the criteria of the performance would be irrelevant to such grant. If his superiors are in any way dissatisfied with his work or consider him in experienced or in any manner unsuitable for the pos which he is holding the correct procedure would be to proceed against him under E and D Rules and to take action so prescribed. We are of the considered opinion that scale of N.P.S.-18 is a vested right of the appellant in accordance with the terms and conditions of the service and he cannot be deprived of the same when he is working alongwith others at the said post. In this matter our own judgment in Sardar Ali Gul Khan v. Government of the Punjab in Appeal No. 652/692 of 1980 decided on 15th February, 1981 is fully applicable to the case of the present appellant. Therefore, following our earlier judgment as cited above and keeping into consideration section 16 of the Punjab Civil Servants Act read with Schedule 2 Punjab (Gazetted) Civil Servants Pay Revision Rules, 1977 we direct the respondent to treat the appellant in N.P.S. 18 from the date his next juniors were so inducted.

10. In the light of the above analysis of the facts and the law so laid down in this case, we accept the appeal in terms as concluded above. However, the parties will bear their own costs.

A. E. Appeal accepted.

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