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Case No. 257/2002 of 1982, decided on 21st December, 1983.

‑‑‑S. 16‑‑Salary‑‑Civil servant appointed to officiate in higher post in his substantive pay and grade‑‑Claim for pay of higher post for period prior to promulgation of Act rejected by department‑‑Appellant, held, entitled to minimum pay of higher post even for period prior to promulgation of Act.

Islamic Republic of Pakistan v. Qazi Abdul Karim and another 1978 S C M R 289; Iqbal Hussain v. Chairman, Railway Board 1982 PLC 484 and Abdul Majid v. Ministry of Communication, Islamabad 1983 PLC (C.S.) 1257 ref.

M. Iqbal Chaudhry for Appellant.

A.G. Humayun, District Attorney for Respondent.

‑‑Abdul Ghani, Conservator of Forest, Headquarter, Lahore has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Province of Punjab through the Secretary, Forestry and Wildlife Department, Lahore as respondent.

2. By virture of this appeal the appellant has prayed that the respondent Government be directed to pay salary and other emoluments in N.P.S.19 for the period during which the appellant worked as Conservator of Forest from 12‑7‑1973 to 15‑1‑1975 and from 1‑10‑1978 to 20‑7‑1979.

3. Brief facts of the case are that the appellant while serving as Divisional Forest Officer was appointed as Conservator of Forest from time to time, in his own pay and grade for the periods from 12‑7‑1973 to 2‑2‑1974, 18‑2‑1974 to 15‑1‑1975 (the intervening period from 3‑2‑1974 to 17‑2‑1974 spent in transit and treated as joining time) and then from 1‑10‑1978 to 20‑7‑1979, the appellant has been agitating with the Forest Department, Punjab that he be paid in N.P.S.19 (the grade of the post of Conservator of Forest) for the abovementioned period but his requests had not been met Hence this appeal.

4. We have heard the parties. The learned counsel for the appellant has argued that the appellant is entitled for the pay etc. in N.P.S.19 for the period from 12‑7‑1973 to 15‑1‑1975 and 1‑10‑1978 to 20‑7‑1979 during which the appellant has been working as Conservator of Forest (in N.P.S.19) in his own pay and grade and the respondent Department be directed to pay him in N.P.S.19 for the above given period. He has relied for the following judgments:‑

(i) Islamic Republic of Pakistan v. Qazi Abdul Karim and another 1978 S C M R 289;

(ii) Iqbal Hussain v. Chairman, Railway Board 1982 P L C 484;

(iii) Abdul Majid v. Ministry of Communcation, Islamabad 1983 P L C (C.S.) 1257.

5. On the other hand the learned District Attorney assited by the representative of the respondent has submitted that during pendency of this appeal the Government has already accepted the claim of the appellant from 4‑6‑1974 onward. The pay of the post is granted under section 16 of the Punjab Civil Servants Act, 1974 which was promulgated on 4‑6‑1974. Thus, the period from 12‑7‑1973 to 2‑2‑1974 and 18‑2‑1979 to 3‑6‑1974 does not come with the purview of the section 16 of Punjab Civil Servants Act, 1974. So, the appeal is not competent for 4hat period and the appellant could not be paid in the grade of Conservator of Forest, in N.P.S.19 as the appellant is not entitled to this pay in his own pay and grade as per section of the Act mentioned above. It has also been submitted by the learned District Attorney that while submitting his replication, dated 8‑5‑1983, it has been conceded by the appellant that the claim from 4‑6‑1974 to onward has been accepted by the Government. Thus, in view of the above submission this appeal has already borne fruit and be disposed of accordingly.

6. We have given our anxious thoughts to the arguments of the parties. It has been conceded by the appellant in his replication, dated 8‑5‑1983, para. 9, that the respondent Government had already accepted his claim w.e.f. 4‑6‑1974 onward. Thus, the pending claim of the appellant is as follows:‑

12‑7‑1973 to 2‑2‑1974

18‑2‑1974 to 3‑6‑1974 (3‑2‑1974 to 17‑2‑1974 joining time)

For the above period the stand taken by the respondent is that this period is prior to promulgation of Punjab Civil Servants Act, 1974 which was promulgated on 4‑6‑1974. Thus, the appellant is not entitled for the pay asked for in N.P.S.19 prior to 4‑6‑1974, under section 16 of the Punjab Civil Servants Act, 1974 which ‑had come in force from 4‑6‑1974 onward. We refer to the judgment of Supreme Court of Pakistan reported as 1978 S C M R 289, Islamic Republic of Pakistan v. Qazi Abdul Karim and another. In this judgment (page 290) the periods for which the respondent had worked as Deputy Accountant‑General are mentioned as follows:‑

(i) 5‑8‑1971 to 28‑9‑1973

(ii) 7‑2‑1974 to 8‑3‑1974

(iii) 1‑8‑1974 to 4‑10‑1974

(iv) 22‑1‑1975 to 8‑3‑1975

(v) 9‑5‑1975 to 20‑9‑1975

(vi) 11‑12‑1976 to 21‑4‑1976

From 22 ‑ 4 ‑ 1976 he was promoted to the said post on regular bas is. ". ...

It is clear from the above periods that in the above case some period was also prior to the promulgation of Civil Servants Act, 1973 as is clear from item No. (i) above. By above judgment, the Supreme Court of Pakistan has held as follows:‑

"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 need 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 Postmaster‑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 employee 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 conclusion that so long as the services of the respondent were utilized 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 the case in hand are on all fours with the facts of that case and so ‑the ratio of the said judgment would clinch the matter in favour of the respondent.

This petitioner, therefore, fails and is dismissed."

In view of the law settled by the Supreme Court of Pakistan, the appellant is entitled to the minimum pay of the higher post i.e. A Conservator of Forest (N.P.S.19), held by him in his own pay and scale, even for the period prior to 4‑6‑1974, the date of promulgation of the Punjab Civil Servants Act, 1974.

7. The upshot of the above analysis is that the appellant is entitled to be paid minimum pay of Conservator of Forest in N.P.S.19 for the period 12‑7‑1973 to 2‑2‑1974 and 18‑2‑1974 to 3‑6‑1974 for which the appellant had been working as such in his own pay and grade and the claim has not been accepted by the respondent department on the plea of being prior to 4‑6‑1974, the date of the promulgation of the Punjab Civil Servants Act, 1974. The appeal of the appellant is accepted to the entitlement as indicated above in this para. and the respondent department is directed to pay him accordingly.

There will be no order as ‑to costs.

M. I. Appeal accepted.

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