Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
(Against the judgments of the Service Tribunal, dated 31‑10‑1984, 29‑10‑1980 and 3‑9‑1983 in Appeals Nos. 18(P)/1983, 9(L)/1980 and in Miscellaneous Application No. 116(P)/1983 in Appeal No. 16(P)/1978).
(Against the judgment of Federal Service Tribunal, dated 26‑12‑1983 in Appeals Nos. 174(L)/1981, 182(L)/1981, 886(L)/1981 and 176(L)/1981).
(Against the judgment of Federal Service Tribunal, dated 2‑5‑1984 in Appeal No 94(L)/1981).
‑‑‑Art.212(3)‑‑Civil Servants Act (LXXI of 1973), S. 17‑‑Leave to appeal granted to examine question of law viz. entitlement of a civil servant to draw increments in pay scale of higher post, duties of which he was required to perform without being formally or regularly promoted to it .
‑‑‑Art. 212(3)‑‑Civil Servants Act (LXXI of 1973). S. ‑‑Fundamental Rules, r. 35‑‑‑Service Tribunals Act (LXX of 1973), S. 3‑‑Leave to appeal granted to consider question whether Fundamental Rule 35 would not, on strength of S. 17 of Civil Servants. Act, squarely govern case.
‑‑‑Art. 212(3)‑‑Service Tribunals Act (LXX of 1973), S. 3‑‑Civil Servants Act (LXXI of 1973), S. 17‑‑Fundamental Rules, 4.35‑‑Leave to appeal granted to consider question whether Service Tribunal itself has not given conflicting decisions on point that Fundamental Rule 35 would not, on strength of S. 17 of Civil Servants Act, squarely govern case.
‑‑‑Art. 212(3)‑‑Service Tribunal Act (LXX of 1973), S. 3‑‑Civil Servants Act (LXXI of 1973), S. 17‑‑Leave to appeal granted to examine question of law whether officer, who while working in higher grade but without any formal order of promotion to higher grade, was entitled to pay of higher grade from date he was promoted to higher post with said higher grade, onwards alongwith increments falling due every year.
‑‑‑S. 17‑‑Civil Servants (Appointment, Promotion and Transfer) Rules 1973, rr. 8, 8‑A a 8‑B‑‑Fundamental Rules, rr.24, 26, 31 a 35‑‑Officers, qualified in every respect to be appointed to higher posts, called upon to discharge full duties and responsibility of higher post, serving their connections with lower posts on their own pay in lower scale‑‑Officers were denied benefit of even minimum of higher scale as well as increments in that scale although there existed no orders by competent authority denying them benefit of even minimum of higher scale and increments‑ Respondent officers were not shown to be officiating in lower posts or holding them temporarily when they were asked to officiate in another post or to hold any temporary post nor were they brought down or re‑appointed to their original posts‑‑Assumption of duties of higher posts did involve assumption of higher responsibilities of greater importance than those attaching to posts from which they received such an appointment‑‑Entitlement to presumptive pay included also entitlement to increments, unless it was denied by a specific order of any competent authority, Officers, held, were entitled to draw presumptive pay inclusive of increments‑‑Order of Tribunal allowing respondent officers pay of post as raised from time to time by award of increments upheld.
1973 S C M R 304; Postmaster General, Eastern Circle v. Muhammad Hashim P L D 1978 3 C 61 and Islamic Republic of Pakistan v. Qazi Abdul Karim 1983 S C M R 883 ref.
Government of West Pakistan v . Nasir M . Khan P L D 1965 S C 106 rel.
‑‑‑S. 17‑‑Service Tribunals Act (LXX of 1973), S. 3‑‑Auditor‑General's Standing Orders, paras. 139, 229, Chap. V‑‑Officer claiming grade 16 pay scale and all service benefits such as seniority, confirmation, etc. holding post of Assistant Superintendent, had not passed qualifying examination of Accountant for regular promotion to higher post of Accountant (Grade 16) but nevertheless put incharge of that post and required to p6rform duties of that post, being designated as Clerk‑incharge and paid a fixed Special Pay per month in terms of Auditor General's Standing Order No. 139‑‑Officer having not been qualified for a post, held, could not be said to be, while so disqualified, fully and competently discharging duties of higher post with modified designation of Clerk‑in‑Charge and it was within competence of Officers to allow them reduced terms than presumptive pay, admissible to those not fully qualified or otherwise ineligible‑‑Order of Service Tribunal allowing increments for service rendered as Clerk Incharge, set aside.
‑‑‑S. 17‑‑Service Tribunals Act (LXX of 1973), S. 3‑‑Disciplinary proceedings against officer declared illegal by Service Tribunal who gave him full benefits which included restoration to office which he was holding with all benefits of that office from which he was removed‑ Order in respect of said officer was competently passed by Service Tribunal, hence his entitlement too to presumptive pay as well as increments, were established‑‑Order of Service Tribunal to the same effect maintained.
Munir A. Shaikh, Deputy Attorney‑General and Ch. Akhtar Ali, Advocate‑on‑Record for Appellants.
Respondents in person.
For Respondent (in C . A . No. 138 of 1981) (absent).
Date of hearing: 21st December, 1985.
‑These eight appeals by Federation under Article 212(3) of the Constitution raise a common question of law, viz. the entitlement of a civil servant to draw increments in the pay scale of the higher post the duties of which he is required to perform without being formally or regularly promoted to it.
The necessary facts providing the background of each of these appeals are as hereunder:‑
(arising out of Service Appeal No. 174(L) of 1981).
Shaikh Saeeduddin was at the relevant time Assistant Controller of Stores in Grade 16. On 7‑12‑1976 Chief Officer Personnel notified the following order:‑
Headquarters Office, Lahore.
NOTICE:
The following postings and transfers are ordered temporarily till further orders:‑
(1) ..............................................................
(2) ..............................................................
(3) ..............................................................
(4) ..............................................................
(5) ..............................................................
(6) Mr. Saeed‑ud‑Din, ACOS/CP is transferred and posted as DCP/CF in NSP 16 a vacant post. He will exercise full powers of DCP/CP. This cancels the transfer orders of Mr. M. Rafique officiating DCP I issued, vide this office letter of even No., dated 20‑11‑1976."
(7) ..............................................................
(8)..............................................................
(9) ..............................................................
(10).............................................................. "
It is admitted that post of DCP/CF was higher promotional post in Grade 18.
This order was acted upon and followed by another order, dated 14‑3‑1978 in following terms:‑
Headquarters Office,
Lahore.
The following Grade 16 officers of Stores/Purchase Department who are at present working against Grade 18 posts having been cleared by the competent authority on the recommendations of the departmental promotion committee are promoted, with effect from 6‑3‑1978 to officiate in grade 18 in the said department temporarily till further orders:
(1) Mr. Ghulam Qadir Mirza.
(2) Mr. Vakeel Ahmed.
(3) Mr. Saeeduddin.
(4) Mr. Asghar Ali.
These orders have the approval of Railway Board."
On 29‑1‑1979 Mr. Saeeduddin represented against denial of pay in Grade 18 from 7‑12‑1976 to 7‑3‑1978 and cited two decisions of this Court (Civil Appeal No. 35‑R/1977 and 1973 S C M R 304) in support of his claim.
Mr. Saeeduddin retired from service in the normal course on 9‑5‑1979 and again represented but on 9‑6‑1981 received the following reply:‑
"The decisions taken by the Supreme Court in the case of Qazi Abdul Karim, Dy. Accountant‑General, N.‑W.F.P., and by the Service Tribunal in the case of Mr. Iqbal Hussain, copies received with your letters No. 728‑K/465, dated 12‑3‑1981 and No. 940‑E/1221(JPO‑V), dated 9‑6‑1981, respectively, being in favour of the individuals, have no general application. The request made by the Officers, therefore, cannot be acceded to."
Mr. Saeeduddin took up his grievance to the Service 'tribunal which held as follows:‑
"The learned counsel for respondent‑department has contended that Article 2029 of the Railway Servants Establishment Code, Volume II, which is analogous to F.R. 35 permits curtailment of the salary of an officiating railway servant, and that it was under the authority of that Article that the appellant was allowed pay in NPS 16 in spite of the fact that he was serving against a higher post. We have held in so many cases the latest case being that of Kh. Zaheer Ahmad v. District Accounts Officer and others (Appeal No. 188(R)/1982), that after the enforcement of the Civil Servants Act (LXXI of 1973), the pay of a government servant, in view of section 17 thereof, cannot be curtailed and that F.R. 35 is not consistent with that section and as such is not saved under the Civil Servants Act (LXXI of 1973) The appellant, in these circumstances, is entitled to pay in N1'S 18 right from 8‑12‑1976 up to the date of his retirement and shall also be entitled to earn increments as they fell due every fear. This appeal is accepted, and it is directed that the appellant be paid the arrears of salary accordingly."
In Civil Appeals 788/84, 789/84 and 790/84 the material facts are identical except for the facts that the individual officers were different, and the dates of their promotion were different. They were also granted pay and increments in the higher grade.
Leave to appeal was granted in these four appeals in terms of the leave granting order of the appeal mentioned hereunder:‑
"Civil Appeal 138 Of 1981:
Mr. Mahfuz Ali Khan was transferred and posted on 6‑12‑1975 as Assistant Auditor‑General (Grade 18 post). He was earlier to that holding the post of Assistant Accounts Officer (Grade 17). The aforesaid order of transfer/ posting expressly mentioned that "he will draw pay in his own Grade". A notification to the following effect appeared in the Gazette on lst March, 1978:‑
"Mr. Mahfuz Ali Khan, Assistant Accounts Officer (Grade 17), (Inter‑departmental Cadre) assumed charge as Assistant Auditor General (Accounts) in the office of the Auditor‑General of Pakistan in the forenoon of 6th December, 1975 with pay in Grade 17."
On 26‑12‑1979 the following order was passed:
"Mr. Mahfuz Ali Khan, a Grade‑17 Officer of Inter‑departmental Cadre of the Accounts Group is promoted to Grade 18, with effect from 14‑11‑1979 and posted until further orders as Assistant Auditor‑General (Accounts), Lahore."
He was allowed pay in Grade 18, w.e.f. 14‑11‑1979. His claim to grade 18 pay, w.e.f. 6‑12‑1975 was denied to him. He, therefore, filed service appeal and succeeded in obtaining relief.
Leave to appeal was granted to examine whether annual increments in the higher pay scale could be claimed by such civil servants on the basis of decision of this Court in Qazi Abdul Karim's case 1978 SCMR Civil Appeal No. 711 of 1984:
(arising out of Miscellaneous Application No. 116(P)/83 in Service Appeal No. 16(P) of 1978)
Mr. Muhammad Yousaf was holding post in Grade 17 in Auditor General's Department when on 28‑5‑1973 he was appointed to hold charge of the post of Deputy Accountant‑General (Grade 18 post) in his own pay in Grade 17. Mr. Muhammad Yousaf represented to the Prime Minister in following terms:‑
"With due respect I beg to submit that I am a permanent Assistant Accounts Officer of Pakistan Audit Department drawing pay in Grade‑17 of National Pay Scales. A post of Deputy Accountant General, N.‑W.F.P. being the senior most available Grade 17 officer, I was appointed to the said post on ad hoc basis on my own pay, with effect from 28‑5‑1973 (vide copy of Notification attached as App.A). I am continuing to hold the said post without any break and discharging full duties and responsibilities of the higher post. Before my appointment as aforesaid, I was required to sign an undertaking to the effect I was willing to be appointed as Deputy Accountant‑General on my existing pay. I am not being allowed any additional emoluments for the whole time discharge of higher duties and responsibilities of the post of Deputy Accountant‑General. I represented for allowing pay of the higher on ad hoc basis (vide copy of representation attached as App.B) but my representation was rejected by the Auditor General of Pakistan (copy of orders intimated to me enclosed App.C)."
The claim was rejected by an order, dated 25‑1‑1978 in the following words:‑
"The claim of Mr. Muhammad Yousuf, Assistant Accounts Officer, working as Deputy Accountant‑General in his own grade in your office, for pay of the post held by him in his own grade has not been considered tenable by the Finance/ Establishment Divisions, because his appointment to the higher post was made as a stopgap arrangement locally and without the approval of the appointing authority. He may please be informed accordingly."
Before this order, dated 25‑1‑1978 was passed Muhammad Yousuf filed a service appeal (53/P of 1977) which was not then entertained as no final order was till then passed. When the order, dated 25‑1‑1978 was passed he instituted another service appeal (16/P of 1978) expressing these facts in the following words:‑
"The appellant submitted an interim cause appeal before the learned Tribunal (Appeal No. 53(P)/1977) which was not entertained at that stage. The appellant was advised to file another petition when final order is passed in the departmental appeal. The final order has now been passed by respondent No. 1, vide his letter, dated 25‑1‑1978 addressed to the Accountant General, N.W.F.P. (Annexure 'H') and communicated to the appellant on 4‑2‑1978 (Annexure 'E') hence this appeal."
His service appeal succeeded on 28‑12‑1978 in the following words:‑
"We hold that the appellant is entitled to pay of the post held for various periods and direct that he be paid accordingly."
Muhammad Yousuf then submitted his claim to the Accountant General and failing to obtain redress approached the Service Tribunal by a Miscellaneous Application (No. 116/P of 1983) expressing himself as follows:‑
"That the petitioner approached this Service Tribunal through an application, dated 13‑8‑1981. President of Pakistan through an application, dated 10‑3‑1982 and the respondent No. 1 through an application, dated 12‑12‑1982 but the petitioner could not get redress of his grievance."
Before the Tribunal the department took up the plea that it was to him the minimum of the pay of Grade 18 but not that Grade for the period of service rendered The Service Tribunal disposed of this question in following words;-
"The question of deciding this issue at the present stage does not arise, as the Tribunal's order is clear enough to indicate that the appellant would be entitled to the pay of the post, which means 'pay' as raised from time to time by earning increments. The Tribunal did not make any restriction for payment scale, and, therefore, the department should not read that condition in the order. In spite‑ of this legal position, the petitioner offered that he would be satisfied if, in respect of payment of salary, the same treatment is given to him which was given to Qazi Abdul Karim, whose case went up to the Supreme Court. We, however, in view of the clear legal position and there being no special restriction, direct that the appellant shall be entitled to the pay of the post as raised time to time by award of increments."
Leave to appeal was granted in this case on 27‑6‑1984 to examine the following question of law:‑
(i) Whether Fundamental Rule 35 does not on the strength of section 17 of the Civil Servants Act squarely govern the case
(ii) Whether the Service Tribunal itself has not given conflicting decisions on this point "
(arising out of Service Appeal No. 94(L)/81).
Mr. Muhammad Rafique was appointed and held the promotional post of Engineering Supervisor Telephones (N.P.S.‑11) on 15‑4‑1976. The order is reproduced hereunder:‑
"The following promotion transfer and posting orders are hereby issued in the interest of service, with immediate effect and until further orders:‑
The following Telecom. Techs. are hereby promoted as Offg.
E.Ss. in stop‑gap arrangements on purely temporary basis at their own pay and scales in the Division mentioned against each:‑
‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑----------------------
Sr. Name of Present Particular Division
No. Official Division of post in which
attached
‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑‑‑‑------------------------
XX XX XX
XX XX
7. Mr. Muhammad GULBERG Against Development."
Rafique vacant
Tech. post.
‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑--------------------------
He was removed from service, w.e.f 1‑12‑1976. This order was successfully challenged by him before Service Tribunal. On re‑instatement he was fixed in NPS‑11 from 1‑12‑1976. Then an order was passed on 25‑4‑1981 to the following effect:‑
"In compliance with the General Manager, L.T.R., Lahore Memo No. SA/EQ‑688/231, dated 15‑4‑1981, Mr. Muhammad Rafique E.S. is hereby granted annual increments and his pay fixed and raised from time to time as under:‑
This is provisional and subject to verification by Audit Office.
Date Pay in NPS Pay in RNPS Remarks
No. 8. No. 8
________
___________ _________
30‑11‑1976 Rs.248 ‑
1‑12‑1976 Rs.260 ‑ ‑
1‑5‑1977 ‑ Rs.418 Pay fixed in
RNPS No. 8
1‑12‑1977 ‑ Rs.434 ‑
1‑12‑1978 ‑ Rs.450 ‑
1‑12‑1979 ‑ Rs.466 ‑
1‑12‑1980 ‑ Rs.482 ‑"
After unsuccessful attempts to obtain relief from the department filed a Service appeal claiming NPS 11 from 15‑4‑1976 and all the annual increments accruing therein. He was granted by the Service Tribunal both the reliefs claimed by him.
Leave to appeal was granted to examine the following question of law:‑
"Whether the respondent who while working in the higher grade but without any formal order of promotion to the higher grade was entitled to the pay of the higher grade in NPS 11 from 15th of April, 1976 onwards alongwith increments falling due every year "
(arising out of Service Appeal No. 18(P)/1983).
Shahzada Shahpur Jan held the post of Assistant Superintendent.
He had not passed the qualifying examination of Accountants for regular promotion to the higher post of Accountant Grade (16). He was nevertheless put in charge of that post, w.e.f. 6‑4‑1977 and required to perform the duties of that post, being designated as Clerk‑in‑Charge and paid a Special Pay of Rs.60 p.m. in terms of Auditor‑General's Standing Order No. 139. Shahpur Jan claimed Grade 16 pay scale and "all the service benefits such as seniority, confirmation, etc."
The Service Tribunal noted the stand of the department in the following words:‑ '
"The stand taken by the respondent‑Department is that in the Audit Department, Auditors/Audit Assistants who have not passed the Accountants Grade‑16 Promotion Examination, are temporarily posted to hold charge, of sections in place of Accountants (Grade‑16) when qualified hands are not available to man such post, and while so holding charge of a section an Auditor/ Audit Assistant is designated as Clerk Incharge and in addition to the pay in his own grade, he is allowed special pay of Rs.60 (recently raised to Rs.70). The appellant has not yet been promoted as Accountant but was temporarily posted to hold charge of the post of Accountant and, therefore, being rightly paid his own substantive pay plus special pay".
and dealt with it as follows:‑
"We have carefully considered the case. It is correct that the appellant has not yet been formally promoted in a regular manner as Accountant. It, however, remains admitted that without such formal promotion, the appellant was appointed to discharge the duties and perform the functions of the post of the Accountant. We have persistently held in a number of cases that if an employee even without formal promotion, is appointed to discharge the duties and performs the function of a higher post he shall be entitled to the pay of higher post for the period he has so functioned. In this case it is quite clear that the respondent Department has changed the name of the post with a view to avoid the payment of the pay of Accountant to the incumbent. We cannot help disapproving such clear circumvention of law and violation of right of a civil servant. The Government Department is always expected to respect the law and safeguard rights of its employees. This being the position there is no option but to hold that the appellant is entitled to the pay, as raised by the increments, of the post of the Accountant for such time as he had discharged the duties and performed the functions thereof."
The relief was granted in the following words:‑
"In the result the appeal is accepted and it is directed that the appellant shall be allowed the pay of the post of the Superintendent for such time as he discharges the duties of that post."
The learned Deputy Attorney‑General representing the Federation of Pakistan has restricted his challenge to the judgments of the Service Tribunal only to the grant of annual increments in the pay scale of the higher grade. He is no longer questioning the grant of the minimum of such a grade. He relies on section 17 of the Civil Servants Act, rules.
8, 8‑A and 8‑B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Fundamental Rules 31 and 35 corresponding to rules 2027 and 2029 of the Pakistan Railway Establishment Code and the judgments of this Court in Postmaster General, Eastern Circle v. Muhammad Hashim P L D 1978 S C 61 and Islamic Republic of Pakistan v. Qazi Abdul Karim 1983 S C M R 883. The sum and substance of his contention is that what section 17 guarantees is entitlement "in accordance with the rules, to the pay sanctioned for such post or grade" so those eligible for promotion, actually called upon to perform the full duties of the post, had to be granted the full pay of the post but its actual fixation was a matter of rules already existing on the subject and that not more than the minimum of the higher scale could be claimed by them and if their own pay in the lower grade exceeded such minimum then they could opt for their own pay scale, whichever happened to be more beneficial. For this reliance is placed on Abdul Karim's case.
The narration of facts of each appeal will show the officers concerned fall into two categories. The first is of those officers who were qualified in every respect to be appointed to the higher post, and were called upon to discharge the full responsibility of the higher post severing their connections with the lower posts. In the other category (Civil Appeal No. 23 of 1985) the officer was lacking the eligibility on account of the absence of qualification prescribed for being promoted and appointed to the post the full duties of which he was called upon to perform. In his case it was his failure to pass the prescribed promotional examination from which he was not exempted either. In other cases not before us it may be for want of required length of servige or combination of charges like current duty or additional duty. The two categories have to be treated differently and separately for the purposes of entitlement not under examination. A third possible category would be of those rare cases where severance from duty has taken place as a sequel to disciplinary proceedings which are subsequently set aside and restoration to office takes place. In the appeals before us there is also one such case (Civil Appeal No. 831 of 1984).
The law on the subject finds place in section 17 of the Civil Servants Act which is reproduced hereunder:‑‑
"17. 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 further that where a civil servant has, under an order which is later set aside, been dismissed or removed from service or reduced in rank, he shall, on the setting aside of such order, be entitled to such arrears of pay as the authority setting aside such order may determine."
In the same Act ad hoc appointment has been defined in the following words:‑‑
"(a) 'ad hoc appointment' means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method.
The promotion of the officers falling in the first category having not taken place in the prescribed manner through the Departmental Promotion Committee would fall into the category of ad hoc appointment. Pay has been defined in F.R. 9(21) as the amount drawn monthly by a Government servant as pay inclusive of certain other additions not in issue. Presumptive pay has been defined in F.R.9(22) as pay to which a Government servant would be entitled if he held the post substantively and was performing its duties.
F.R. 26 which is identical with para. 2022 of the Pakistan Railway Establishment Code, Volume II and para. 4.9 of the Civil Services Rules (Punjab), Vol. I prescribes that all duty in a post on a time‑scale and periods of leave other than extraordinary leave shall be counted for increments in that scale. Another condition contained in clause (c) of F.R. 26 which has been the subject‑matter of arguments before us is reproduced in extenso hereunder:‑‑
"(c) If a Government servant, while officiating in a post or holding a temporary post on a time‑scale of pay, is appointed to officiate in another post or to hold another temporary post which does not carry less pay than the pay of his original post, his officiating or temporary service in that post shall, if he is reappointed to his original post, count for increments in the time‑scale applicable to the original post. The period of officiating service in the other post to which the Government servant is appointed in an officiating or temporary capacity which counts for increment in the original post, is, however, restricted to the period during which the Government servant would have officiated in the original post but for his appointment to the other post. This clause applies also to a Government servant who was not actually officiating in the original post at the time of his appointment to the other post, but who would have so officiated had he not been appointed to the other post."
has its equivalent in Railway Code, para. 2027 and in C.S. Rules (Pb.) (para. 4.13. It provides as follows:‑‑
‑Subject to the provisions of rules 26(c), 30 and 35 a Government servant officiating in a post will draw the presumptive pay of that post provided that, except in the case of a Government servant whose appointment to the post in which he is officiating was made on his own request under rule 15(a), if the presumptive pay of the permanent post on which he holds a lien or would hold a lien had his lien not been suspended, should at any time be greater than the presumptive pay of the post in which he officiates, he will draw the presumptive pay of the permanent post."
having its equivalent para. 2029 in the Railway Code and 4.16 in the Punjab Civil Services Rules confers a wide discretion on the Government in the following words:‑‑
‑A local Government may fix the pay of an officiating Government servant at an amount less than that admissible under these rules."
It is necessary to reproduce hereunder the Government decision and the audit instructions in extenso with regard to the operation and effect of F.R. 35 from the compilation of the Fundamental Rules by the Government itself. It is hereunder:‑‑
In a case in which a local Government issued orders of a general nature under F.R. 35, restricting the officiating pay of Government servants to an increase equal only to a certain percentage of the minimum pay of the higher post, it was pointed out that reading this rule with the rules substantively regulating the rate of officiating pay and in particular with F.R. 31 it is clear that the power conferred by F . R . 35 is not exercise-able save by a special order passed in an individual case and on a consideration of the facts of that case. A general order purporting to oust universally the operation of F . R . 31 would be ultra vires of F . R . 35 . It was also held that although the practice of passing ostensibly special orders on every individual case would not be ultra vires of F.R. 35, it would constitute the grossest possible fraud thereon.
(G.I.R. F.D. Letter No. F.9(5)‑R/1‑33,
dated the 28th March, 1933.)
(1) One class of cases falling under this rule is that in which a Government servant merely holds charge of the current duties and does not perform the full duties of the post"
[Para. 12(i) Chapter IV, S. 1 of Manual of Audit Instructions (Reprint) ].
The learned Deputy Attorney‑General has mainly relied on F.R. 35 just reproduced and challenged not the denial of the minimum of the higher post but the grant of increments therein. In the first place, there is no order in any of these appeals by the competent authority denying to the promotees the benefit of the increments as such. They were denied the benefit of even the minimum of the higher scale. They were asked to perform full duties of the higher post on their own pay in the lower scale. This evidently is neither the Deputy Attorney‑Genera supporting nor has been found supportable by the Tribunal. If that order goes and it has already gone, the Deputy Attorney‑General cannot, on the basis of operation of any rule in the absence of order of the competent authority deny to them the benefit of the increment.
The Audit note and the Government decision with regard to the exercise of the power conferred by F.R. 35 itself shows that it has been considered an abuse of power and such reduction can take place as visualised in the Audit Instructions where the Government servant merely holds charge of the current duty and does not perform the full duties.
F.R. 31 is the other rule on which the learned Deputy Attorney‑ General has placed reliance. Entitlement to presumptive pay would include also the entitlement to increment unless it is liable to be denied on the strength of any other rule. One such rule pressed into service is clause (c) of F.R. 26 reproduced above. A closer scrutiny of this clause clearly shows that it is applicable to none of the officers involves in these appeals. They were not shown to be officiating in the lower posts or holding them temporarily when they were asked to officiate in another post or to hold any temporary post nor were they brought down or reappointed to their original posts. It is not disputed that the assumption of the duties of the higher posts did involve assumption of higher responsibilities of greater importance than those attaching to the posts from which they received such an appointment. F.R. 24 prescribes that an increment shall ordinarily be drawn as a matter of course unless it is withheld. In ordering the withholding of an increment the withholding authority is required to state the period for which it is withheld and whether the postponement shall have the effect of postponing future increments.
The first case on the question of increment which came to this Court was that of Government of West Pakistan v. Nasir M. Khan PLD 1965 S C 106. It concerned the Provincial Service of Engineers of the Buildings and Roads Branch. There was a regular constituted service governed by the P.S.E. (Buildings and Roads Branch) Rules, 1942. It was a class I service having posts of Assistant Executive Engineers and Executive Engineers. Rule 8 prescribed that Senior Class I was normally to be admissible in the eighth year of service. If an officer in the junior scale was appointed to the senior scale before he entered the 8th year of service in which the senior scale was normally admissible he was to draw the minimum of the senior scale but the next increment in the scale was not to accrue to him until he entered the year of service next following the year in which the senior scale was normally admissible. The officers of the regular constituted service were fully controlled by this rule in the matter of grant of increments. When it was sought to be applied to another category of engineers, namely, temporary Engineers absorbed as Class II Engineers and increment was sought to be denied to them they challenged it. The decision was given in their favour observing as follows:‑
"In the absence of any specific rules governing the conditions of service of the respondents, they pressed in aid rules 4.7 and 4.9 of the Civil Service Rules, Punjab, Vol. 1, Part I. The first of these rules provides to the effect that an increment shall ordinarily be drawn as a matter of course unless it is withheld. The second of these rules lays down, inter alia, that all duty in a post on a time‑scale counts for increment in that time‑scale. The inference was, therefore, legitimately drawn that in the absence of any specific rules to the contrary, the respondents who were appointed as officiating Executive Engineers in the scale of Class I service, would be entitled to draw the increment of that scale, as a matter of course, unless it was withheld for good reason. It is not the case of the appellants that anyone of the respondents' conduct justified the withholding of increment. These rules, therefore, could be invoked by them to support their demand for increment in the scale applying to Executive Engineers and the circular letters to which we were referred, could not successfully invade that right in view of the constitutional rights that had accrued to the respondents."
As the identity of the three rules, namely, the Fundamental Rules, the Railway Establishment Code and the Punjab Civil Services Rules has already been demonstrated, the law laid down in the case will also govern the cases before us.
In the case Muhammad Hashim, the matter again came to this Court where F.R. 35 was interpreted and the powers conferred there under were restricted. The entitlement of the officers to receive presumptive pay was recognised subject to F. Rs. 30 and 26(c). It has already been shown that F.R. 26(c) has no application and F.R. 3 does not come into play because it is not the contention that assumption of greater responsibility was not involved.
The officers falling in the first category were entitled to draw the presumptive pay inclusive of the increments and as there is no specific order of any competent authority denying them the increments such denial cannot be inferred or implied from the facts of the case or rules applicable. The Government's appeal in respect of the officers of the first category must fail.
As regards the cases of the second category, the legality and the effectiveness of the Auditor‑General's Standing Orders, paras. 139 and 229, Chapter V has been upheld in Civil Petitions 32‑P to 34‑P of 1982, decided on 30‑5‑1983 and there is no reason to depart for not only it is a part of the terms and conditions of the service one who is not qualified for a post cannot be said to be while so disqualified fully and competently discharging the duties of the higher post with the modified designation of Clerk‑in‑Charge. It was within the competence of the officer to allow reduced terms than the presumptive pay admissible to those not fully qualified or otherwise ineligible.
As regards the possible third category mentioned earlier, it is found that the disciplinary proceedings against the officer was held to be illegal and was effaced giving him the full benefits which would include restoration to the office which he was holding with all the benefits of that office from which he was removed unless an order varying it is competently passed. Hence his entitlement too to the presumptive pay as well as the increments is established.
For the reasons given above, all the appeals except one i.e. Civil Appeal No. 23 of 1985 fail and are dismissed with no order as to costs. Civil Appeal No. 23 of 1985 is allowed, the order of the Tribunal allowing the increments for the service rendered as Clerk‑in‑Charge is set aside. There shall be no order as to costs in this appeal also.
M.Y.H. Order accordingly.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer