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Case No. 194/75 of 1985, decided on 9th July, 1985.

‑‑‑S. 4‑‑Limitation‑‑Appeal filed without exhausting departmental remedy‑‑No objection as to appeal being time‑barred raised by respondent department‑‑Tribunal directing appellant to first of all exhaust depart mental remedy‑‑Appellant accordingly making departmental representation and after waiting for 90 days filing fresh appeal before Tribunal‑ Objection by respondent that impugned order being 9 years old appeal was time‑barred‑‑Held, (i) having not raised point of limitation against first appeal and in e‑joinder to that appeal only raising question of exhausting departmental remedy, respondent department conceded that grievance of appellant was genuine (ii) present stand of respondent department was against the principle of approbation and reprobation which cannot be allowed‑‑Appellant's case further based upon verdict of Supreme Court‑‑Tribunal, in circumstances, repelling objection as to appeal being time‑barred.

‑‑‑ Pay‑‑Posting against higher post in own pay and grade‑‑Civil servant performing duties of higher post, held, entitled to pay of higher post.

Muhammad Khan Babar v. Secretary to Government of the Punjab 1985 P L C (C.S.) 648 ref.

1978 S C M R 289 rel.

Appellant in person.

A.G. Humayun, District Attorney for Respondents.

.‑‑Ch. Muhammad Iqbal, ex‑Divisional Forest Officer has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, claiming pay of higher post against which he was asked to work with the Government. He had impleaded the Secretary Forestry Department, Government of the Punjab, Lahore, and the Secretary Finance Department, Government of the Punjab, Lahore, as respondents.

21. By virtue of this appeal, he has prayed that he may be allowed additional /higher pay of Grade‑18 for the period from 12‑4‑1975 to 30‑6‑1978 with consequential benefits in pension and gratuity.

3. Brief facts of the case are that the appellant vide office order No. 124/G/COF Punjab, dated 8‑4‑1976, Annexure 'A', was allowed to hold additional charge of the post of Divisional Forest Officer, Nurseries (Grade‑18 post) from 13‑4‑1976 to 30‑6‑1976 and thereafter, he remained independently posted against the post of Divisional Forest Officer from 1‑7‑1976 to 30‑6‑1978. However, it was laid down in the said order that the additional charge would be held by the appellant in his own pay and grade. In this manner lie was paid the salary of Divisional Forest Officer in NPS‑17. He made a departmental representation on 11‑7‑1984 and after waiting for a period of 90 days, the appellant preferred appeal No. 822 of 1984 on 20‑10‑1984, before this Tribunal. When the appeal was fixed for regular hearing, this Tribunal was pleased to direct the appellant to first of all exhaust departmental remedy as requested by the Finance Department. Accordingly the appellant made a representation addressed to the Secretary Finance as well as Secretary Forestry, under a registered post vide postal receipt No. 671 and 62, dated 23‑12‑1984. After filing such representation and waiting for 90 days the appellant has came before this Tribunal. Hence this appeal.

4. We have heard the appellant in person as well as learned District Attorney and have perused the record of this case carefully with their assistance.

5. The appellant who is an Advocate has relied on the judgment of this Tribunal reported as 1985 P L C (C.S.) 648, Dr. Muhammad Khan Babar v. Secretary to Government of the Punjab, Health Department, Lahore. He has also placed reliance on appeal No. 44/556 of 1984 titled Ch. Altaf Hussain v. Secretary Forestry Department etc. decided on 18‑7‑1984, in which this Tribunal allowed additional pay for the period from 12‑9‑1976 to 9‑11‑1976, to the said appellant. It has been pointed out that the respondent Department had accepted the claim of the said appellant for higher pay for period from 15‑12‑1976 to 16‑2‑1978 and additional pay for the period from 12‑1‑1976 to 9‑11‑1976. It was also further argued that the respondent Department did not agree to grant additional pay beyond a period of eight months according to the instructions of the Finance Department vide No. FD‑SR‑2 (38) 70, dated 19‑4‑1977, but the Tribunal overruled the instructions and held that the appellant was entitled for additional pay for the entire period from 12‑1‑1976 to 9‑11‑1976.

6. On the other hand learned District Attorney has submitted that the appeal is barred by limitation as the appeal was against order, dated 8‑4‑1976, which was disposed of by the Tribunal with the observation that the appellant should exhaust the departmental remedy so available to him, which he has now exhausted but the fact remains that the order which is appealed against is order of 1976, therefore, there is delay of 9 years in this respect. It has been further submitted that the cause of Ch. Altaf Hussain is distinguishable with the case of the appellant. The case of Ch. Altaf Hussain was for grant of additional pay for holding charge of two posts beyond the period of 8 months but in the present appeal question involves grant of pay of the post for almost for the entire period from 14‑4‑1976 to 30‑6‑1978.

7. We have given our anxious thought to the arguments advanced by the parties and would first of all advert to the point of limitation. The fact of the matter is that when the appellant filed his original appeal No. 822 of 1984, the point of limitation was not taken up in his case and only a rejoinder was made in the form of Annexure 'B', dated 4‑12‑1984, in which it was only said that this officer (appellant) had never made any claim before the Department, therefore, no refusal has been made in his case and he was advised to move the Finance Department through his parent Department and in this manner it was conceded that the appellant grievance was genuine. The present stand of the Department is against the principle of approbation and reprobation which cannot be allowed in this case. Moreover, the case of the appellant is based on the verdict of the Supreme Court of Pakistan which is highest forum of the realm of this country in which they have positively held that a person once allowed to work against a higher post he would be entitled to all the benefits of the said higher post to which he was so posted. Reliance is placed on 1978 S C M R 289 in case of Qazi Abdul Karim etc. In view of this legal position as well as earlier stand of the Department, we are not impressed by the arguments advanced by the learned District Attorney that the appeal is grossly time barred.

8. With regard to the second contention that the case of Ch. Altaf Hussain is distinguishable from the case of the appellant, as we have perused Annexure 'A' placed on record which is an order of the same authority namely Mr. Muhammad Nawaz, Chief Conservator of Forests Punjab, at the relevant time, who had accepted his claim without the interference of the Tribunal and without adverting to the present objection.

9. In view of the above, we have to follow meticulously the judgment of the Supreme Court of Pakistan and held that the appellant would bell entitled to the benefits of pay of the higher post with all benefits upto date. Resultantly the appeal is accepted and impugned order is set aside.

A. E.

Appeal accepted.

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