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Case No. 264/1752 of 1982, decided on 28th November, 1983.

‑‑‑Rr. 2 & 6‑‑War service benefit‑‑Ex‑serviceman joined civil service as junior clerk‑‑Later appointed as supervisor and got promotions‑ Provisionally allowed war service benefit and seniority on appointment as supervisor‑‑Finance department declined approval with objection that concession could only be given on first appointment in civil service‑ Order challenged with contentions that Finance Department was not competent to refuse benefit of war service once granted and appointment as Junior Clerk was stopgap arrangement‑‑Contentions, held, mis conceived‑‑Appeal dismissed.

Masud Ahmad Riaz for Appellant.

A.G. Humayun, District Attorney for Respondents.

.‑‑ S.M.A. Shah, Assis tant Food Controller, has filed this appeal under section 4 of the Punjab Service Tribunai5 Act, 1974, in which he has impleaded the Deputy Director Food, Lahore Region, Lahore and the Director Food, Punjab, Lahore, as respondents.

2. By virtue of this appeal he has prayed that the impugned orders, dated 26‑9‑1978/9‑10‑1978, may be set aside and the original order, dated 30‑12‑1975 by restored and respondents be directed to make necessary payments of the differences of pay in the grades of Food-grains Inspector, Assistant Food Controller in accordance with the aforesaid order, dated 30‑12‑1975 and seniority as bestowed by the said orders be given effect too in the seniority list. He has also prayed for grant of benefits which are likely to flow from this concession to date.

3. Brief facts of the case are that the appellant served in the Army during the World War II w.e.f. 1‑4‑1944 to 8‑5‑1945. After his discharge from the Army, the appellant joined Food Department as a Junior Clerk on 21‑5‑1946. Later on he was promoted to the post of Food-grain Inspector on 1‑5‑1948 but was reverted as Food-grains Supervisor on 31‑10‑1950, due to general retrenchments. However, the appellant was promoted on regular basis as Food-grains Inspector on 10‑3‑1951, and later on was confirmed in his post as Food Inspector and he served in that capacity till 17‑8‑1969. The appellant also earned promotion as Assistant Food Controller against substantive vacancy on 18‑8‑1969, and has since been confirmed on the said post. The appellant applied for war service benefit and in the year 1975, the Deputy Director Food allowed his seniority w.e.f. 1‑10‑1947 with the assumed date of his appointment as Supervisor vide his order, dated 30‑12‑1975, while reserving his right to amend, alter the said assumption. The matter was referred by the Department to the Finance Department for approval. The Finance Department after due consideration, found that the appellant could only be given war service benefit on his first appointment when he joined as a Junior Clerk. In view of the rules so laid down in this behalf it regretted its approval to the assumptive dates so given to him by the Deputy Director Food. The appellant was informed accordingly. Aggrieved against this decision of the Finance Department, the appellant went before the Civil Court and his case was disposed of as non‑maintainable in view of Article 212 of the Constitution. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Depart ment and have perused the record of this case carefully with their assistance.

5. Learned counsel for the appellant has laid lot of stress on the point that once the appellant had been granted benefits of war service by the Deputy Director Food, it was not within the ambit of the Finance Department to refuse the same. It has also been submitted that factually the appellant joined service as Food Inspector and his tenure as Junior Clerk was a stopgap arrangement and therefore, for the purpose of was service benefit from appointment as Food Inspector should be considered as first appointment and not that of the Junior Clerk.

6. On the other hand learned District Attorney has submitted that the appeal is liable to be dismissed as time‑barred on the ground that the appellant had no business to go to the Civil Court and should have directly come before this Tribunal which was the only forum for the civil servants and the matter lies within its jurisdiction. It has been further submitted that even on merits the appellant has got no case, as the concession permissible to a service‑man is only once i.e. first appointment to a civil post after discharge from the Army. According to the learned District Attorney the appellant joined as Junior Clerk and not as Food Inspector. His taking over as Food Inspector was a fresh appointment and would be considered a new appointment for all purposes. In this way learned District Attorney has vehemently argued that the appellants appeal be dismissed as being without any merit.

7. We have given our anxious thought to the arguments of the parties and have also taken into consideration the advice of the Finance Department in this behalf. Undoubtedly the appellant was granted this concession which he is asking now before us, by the Deputy Director Food in the year 1975, but that concession was with a clear rider that the same would be rescinded/amended/altered if it, was found that the same was not justified. The logic of the Finance Department is very simple and clear which states that the case of the appellant is covered by rule 3(a) of Chapter II relating to concession of War service benefits to the ex‑Servicemen. According to the Finance Department, the appellant joined a positive cadre on incremental scale, which was a pensionable and regular post. In the views of the Finance Department, the second appointment was a fresh appointment and this benefit cannot be given to the appellant in the cadre different to the first which he earlier joined. In view of the above, we have no hesitation to hold that the appellant had joined as Junior Clerk, a cadre, which as regular in nature and a post which was pensionable by no stretch of imagination, it can be said that the second appointment was not a fresh appointment. To our mind the matter which has not been understood by the appellant and the interpretation which he has chosen to make of the rules is not correct, therefore, we have no hesitation to hold that the advice tendered by the Finance Department is based on good grounds supported by Rules on this behalf.

8. The result is we do not find any merit in this appeal which is dismissed on this score. There will be no order as to costs.

M.I. Appeal dismissed.

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