Find a Lawyer

Case No 280/854 of 1984, decided on 3rd December, 1984.

‑‑ S. 16‑Punjab Service Tribunals Act (IX of 1974), S. 4 Pay Civil servant of Grade 18 appointed to perform duties of higher post in Grade 19 but with rider Gin his own pay scale"‑Claiming pay of higher post ‑ Objection that such appointment not made with approval of Governor being competent authority ‑‑ Objection repelled‑Civil servant (appellant), in circumstances, held entitled to pay of higher post.

1978 S C M R 289 rel.

‑‑ S. 4‑Limitation ‑ Lathes ‑ Appellant appointed to perform duties of higher post but in his own pay scale in 1975‑Agitating for pay of higher post in 1978 though performing duties of higher post continuously since. 1975‑Objection that appellant was guilty of lathes‑No vested right, held, stood created in Government against claim of appellant‑Interpretation of limitation, in circumstances, held, to be made in broader sense‑Objection repelled.

P L D 1970 Pesh. 194 rel.

Masud Ahmad Riaz for Appellant.

A. G. Humayun, District Attorney for Respondent.

‑Dr. Muhammad Khan Babar, Professor of Pharmacology, Quaid‑i‑Azam Medical College, Bahawalpur, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Secretary to Government of Punjab, Health Department, Lahore, as respondent.

2. By virtue of this appeal it has been submitted that the original order in so far as it contained the condition of "own pay scale" as well as the final order, dated 26th November, 1983/3rd December, 1983 be set aside and respondent be directed to allow pay plus increments of the Grade/Pay scale attached to the post of Professor of Pharmacology w. e. f. 3rd September, 1975.

3. Brief facts of the case are that the appellant now Professor of Pharmacology was allowed to hold the charge of post of Professor of Pharmacology in his own grade by way of stop gap arrangement as the post of Professor was then lying vacant. The appellant was then working as a regular employee as Assistant Professor in Grade‑18, while the post of Professor carried Grade/B. P. S. 19. This arrangement was allowed to continue till 1st May, 1977 when a new post of Associate Professor was created under the amendment notified as Associate Professor w. e. f. 1st May, 1977 which post carries Grade/B. P. S. 19. The appellant was paid B. P. S. 18 upto 30th April, 1977 because his appointment was in his own pay and grade. With effect from 1st May, 1977 the post of Professor of Pharmacology was sanctioned in B. P. S. 20. However, the appellant continued to work against the post till he was promoted on regular basis in Grade/B. P. S. 20 vide notification dated 24th August, 1980. The appellant made representation for his claim which was rejected after referring the case to the Services, General Administration and Information Department, which returned the case with their approval to the competent authority. There is also on the record that the Acting Governor rejected his claim and further observed that it was not expected from the Department to keep such posts for 5 years.

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

5. Learned counsel for the appellant has submitted that section 16 of the Punjab Civil Servants Act, 1974, has clearly laid down 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. He has further relied en Islamic Republic of Pakistan through Secretary, Finance Division, Government of Pakistan. Islamabad v. Qazi Abdul Karim, Deputy Account tant‑General, N.‑W. F. P., Peshawar and another (1978 S C M R 289). In nutshell the case of the appellant is that he only wants the pay of the Grade in which he had been working all along despite that he was inducted to that post with a rider that he would world in his own pay and scale.

6. On the other hand learned District Attorney has opposed this case on the ground that the appellant was guilty of laches as he accepted the order of 1975 and did not agitate against the same till the year 1978. It has been submitted that his latter representation did not claim the way of the post to which he was working as he had been claiming all along the pro forma promotion from the year 1978, in Grade‑20. It has been further submitted that the Authority by which order he was appointed, was incompetent authority and nobody could be appointed to the post of Professor except with the approval of the Governor.

7. We have given our anxious thought to the arguments advanced by the parties and find that the claim of the appellant firstly is based on the statutory provisions of section 16 of the Punjab Civil Servants Act, 1974, as well as the judgment of the Supreme Court of Pakistan in case 1978 S C M R 289, which is the highest Court of the realm: Section 16 provides as under :‑

"Section 16‑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."

This issue came under examination in the year 1978 in the Supreme Court of Pakistan in case Islamic Republic of Pakistan v. Qazi Abdul Karim, and it was held that even if the appointments are made without the approval of the Appointing Authority, the persons would be entitled to claim the pay of the said appointment. Their Lordships of the Supreme Court of Pakistan concluded as under :‑

"We are of the view that in this conclusion the learned Service Tribunal‑seems to be right. 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 grade of the said higher office. In this respect reference may be made with advantage to a judgment of this Court in the case of The Post mater‑General Eastern Circle (E. P.) Dacca and another v. Muhammad Hasham in which a similar question had fallen for consideration. In that case also the respondent, an employer in Class II post, was promoted by the Postmaster‑General to officiate in Class I post but in his appointment order it was clearly mentioned that he would continue to draw the pay of his substantive office. Notwithstanding this rider, however, this Court, after taking into consideration the effect of rules 30 and 35 of the Fundamental Rules, recorded the con clusion that so long as the services of the respondents were utilised in the higher post, he would be entitled to draw the minimum pay admissible in that post. It would thus be seen that the facts of that case and so the ratio of the said Judgment would clinch the matter in favour of the respondent."

With this judgment of the Supreme Court of Pakistan the objection raised by the learned District Attorney that appointment was made by the incompetent authority loose all force. However, with regard to the limitation it may be observed that no vested right has been created in Government against the claim of the appellant, therefore the interpretation of limitation is to be made in broader sense, This point has been ably discussed and laid down in the judgment delivered by my Lord Justice/ Sardar Muhammad Iqbal and Justice Sher Bahadur as they then were, in case of Mst. Sardar Begum v. Shirin Tajah (P L D 1970 Pesh. 194). This being so we find lot of force in the argument of the learned counsel for the appellant that the appellant can at least be entitled to pay for the period during which he worked against a higher post both under section 16 of the Punjab Civil Servants Act, 1974, as well as held by their Lordships of the Supreme Court of Pakistan in case of Islamic Republic of Pakistan v. Kazi Abdul Karim so quoted above.

8. The result is we accept the appeal set aside the impugned orders and direct the respondent to make payment to the appellant of the prescribed Pay Scale of Professor for the period he has been working against the said post. There will be 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.