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Case No. 59/519 of 1983, decided on 29th March, 1984.

---Rr. 5(1)(3)(a) & (4)--Notification, dated 13-1-1975--Refixation of pay of Chief Conservator/ Additional Chief Conservator of Forests in N . P . S . 20--Notification , dated 13-1-1975 , held, would be effective from 1-3-1972 entitling incumbents to pay revision from such date--Pay fixed on erroneous assumption that notification, dated 13-1-1975 was effective from 1-1-1975, would not be in accordance with Rules.

---S. 4--Appellate jurisdiction--Appeal against illegal and void order- Limitation for--Limitation for filing appeal against illegal and void order, held, would not run out--Appeal filed in 1983 against original void order passed in 1980, would be maintainable--Service Tribunal while accepting appeal directing refixation of pay with effect from 1-3-1972 with observation regarding desirability of amendment of Rules to make same effective from 1-3-1972.

Appellant in person.

A.G. Humayun, District attorney for Respondents.

--Muhammad Rafi (Retd.) O.S.D. (Enquiries), Government of Punjab Services, General Admn. and Information Department has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against order, dated 10-9-1980 of respondent No. 2 contained in memo. No. F.D./S.R.1-1-7/74(PR) and 9-1-1983. received on 11-1-1983. He has impleaded & the Chief Secretary Government of the Punjab, Lahore, the Secretary, Government of the Punjab, Finance Department, Lahore and the Budget and Accounts Officer (Ft). Government of the Punjab, Forestry and Wildlife Department, Lahore, as respondents.

2. By virtue of this appeal, he has prayed that the Government of the Punjab in the Finance Department be directed to allow their Notification No. FD-PR-3-1/74-A, dated 13-1-1975 to take effect from 1-3-1972, so far as it relates to the posts if Chief Conservator of Forests/ Additional Chief Conservator of Forests held by the appeal from 1-3-1972 to 1-1-1975, as well as to direct the budget and Accounts Officer (Forests), Forestry and Wildlife Department to refix the pay of the appellant as Chief Conservator of Forests /Additional Chief Conservator of Forests in N.P.S.-20 w.e.f. 1-3-1972, under the said Punjab (Gazetted) Civil Services (Pay Revision) Rules, 1973.

3. Brief facts of the case are that the appellant was appointed to the former Punjab Forests Service Class I in the pay scale of 83.350-1200 on 1-4-1946, and was confirmed on 1-4-1948. He was promoted on 27-5-1958, as Conservator of Forests, in the existing pay scale of Rs.1,600-100-2,000 and confirmed w.e.f. 7-6-1962. He was promoted on 7-6-1962 as Officiating Chief Conservator of Forests and had been allowed the existing pay scale of Rs.a,250-50-2,500 w.e.f. 1-4-1963. On 12-7-1973 Government ordered the reorganization of the Department whereby the appellant was adjusted as Additional Chief Conservator of Forests but his pay and status as C.C.F. were protected till his incumbency as Additional Chief Conservator of Forests and the same post was to be down graded to that of Conservator of Forest after it was vacated by him. On 17-12-1973, the Government notified the Punjab (Gazetted), Civil Services (Pay Revision) Rules, 1973, whereby general enhancement of emoluments was provided for. The rules were made effective from 1-3-1972 but no arrears were to be paid in respect of the period prior to 1-8-1973. In part II of the Schedule of the 1973 Pay Revision Rules, the post of Conservator of Forests (1,600-50-1,700) was allowed N.P.S.19 (Rs.1,800-80-2,200) while the post of Chief Conservator of Forests (Rs.1 800-50-2,000) with selection grade of Rs.2,000-100-2.300 was also allowed N.P.S.19 (1,800-80-2,200) the same "hat of Conservator of Forests and it was abolished w.e.f. 13-7-1973. rested a post of Additional Chief Conservator of Forests was created w.e.f. 13-7-1973 arid was allowed N.P.S.-19 (1,800-80-2,200), against the same N.P.S. as that of Conservator of Forest. The Administrative Department referred the issue regarding the post of Additional C.C.F. to the Anomaly Committee and recommended that the post of Additional C.C.F. be allocated N.P.S.-20 because it was held by persons on promotion from that of Conservator of Forests. The Anomaly Committee accepted the recommendations of the Administrative Department and the post of A. C. C. F was redesignated as C. C.F. and was allocated N. P. S.-20 (Rs.2,300-100-2,600) but the amendment to the effect was made effective from 1-1-1975. In the meantime, the appellant submitted a conditional option on 5-8-1974 before the extended, dated of 15-8-1974. The Budget and Accounts Officer (Forests) referred the matter to the Finance Department who on 19-9-1974, decided that the appellant may be deemed to have opted for the National Pay Scales. on 28-2-1980, the appellant's representations of 1959 and 1968 for the grant of existing pay scale of 1945/Pay Revision Rules was accepted by the Government . and he was allowed existing pay scales of Rs.1,600-100-2.000 as Conservator of Forests and Rs.2,250-50-2,500 as Chief Conservator of Forests. On 24-7-1980, the Budget and Accounts Officer (Forests) refixed appellant's salary from 3-8-1965 to 1-1-1975, whereby he allowed him Rs.2,340 p.m. from 3-8-1965 to 31-3-1966, Rs.2,400 p.m. from 1-4-1966 to 31-3-1967, Rs.2,450 p.m. from 1-4-1967 to 31-3-1968 Rs.2,500 p.m. from 1-4-1968 to 31-7-1973 Rs.2 200 officiating pay plus Rs.300 as personal pay plus Rs.150 as special D.A. from 8-6-1974 to 31-12-1974 and Rs.2,500 officiating pay plus Rs.150 as Special Pay D.A. plus Rs.f00 as Senior Post Allowance from 1-1-1975 only. On 24-7-1980, the Administrative Department addressed the Finance Department requesting them to amend their Notification No. FD-PR-3-1-/74-A, dated 13-1-1975 to make it effect from 1-3-1972, instead of 1-1-1975. On 27--7-1980, the appellant submitted a representation to the Finance Department wherein he requested - them to provide for the protection afforded by the Government to his, pay and status of Chief Conservator of Forests during his incumbency of the post of Additional Chief Conservator of Forests. On 10-8-1970 SGASI Department requested the Finance Department to resolve the discrepant pointed out by the appellant in his representation, dated 27-7-1980. On 26-8-1980 the appellant submitted another representation to Finance Department, which on 10-9-1980, did not accept the recommendations, dated 24-7-1980 of the Administrative Department with the plea that the post of Additional Chief Conservator of Forests had been upgraded w.e.f. 1-1-1975, on the recommendations of the Anomalies Committee and that the date of 1-1-1975 had been followed on the precedent of Federal Government. On 26-11-1980, the appellant submitted a representation to the Governor of the Punjab, wherein it was requested that advice, dated 10-9-1980 given by the Finance Department be reviewed. On 6-12-1982, the appellant submitted a reminder to the Secretary, Finance Department. The appellant proceeded on retirement from service w.e.f. 30-12-1982, at his own request. On 9-1-1983 Finance Department rejected the representation, dated 6-12-1982. Hence this appeal.

4. We have heard the appellant in person as well as learned District Attorney assisted by the representative of the Department and have perused the record of the case carefully..

5. The appellant personally appeared in this case and pleaded that during reorganization of the Department ordered, on 12-7-1973, the appellant was holding one of the two substantive posts of Chief Conservators of Forests, was absorbed as Additional Chief Conservator of Forests and his pay and status of Chief Conservator of Forests were protected during his incumbancy of the post of A.C.C.F. (14-7-1973 to 1-1-1975) because that post was to be downgraded to that of Conservator of Forests after its vacation by the appellant on 2-1-1975. It has been vehemently argued that the Anomalies Committee to whom the matter was referred, gave a favourable: recommendations whereby the posts of A.C.C.F. was redesignated as C.C.F. in N.P.S. -20 but instead of taking its effect as and from the date prescribed in the said Pay Revision Rules, 1973, it was arbitrarily ordered by the Finance Department to take effect from 1-1-1975. It was urged that the Finance Department had earlier advised the Budget and Accounts Officers (Forests) that the appellant may be deemed to have opted for the N.P.S. under the said Pay Revision Rules, 197%. A grievance was made that the pay of the appellant during his tenure as Additional Chief Conservator of Forests from 1-8-1973 to 31-12-1974 was again fixed by the Budget and Accounts Officer (Forests) in N.P.S.-19, the pay scale allowed to the next junior rank of Conservator of Forests and thereby caused unwarranted adverse effect on his pay and status. He has also relied on the advice of the S&GAI Department in response to the representation, dated 27-7-1980 to the Finance Department in which it was stated that the discrepancies pointed out by the appellant in his representation, be resolved. According to the appellant the impugned order, dated 10-9-1980 and 9-1-1983, are absolutely void and liable to be declared as such by this Tribunal as these were passed by the authorities without any powers, vesting in them or they acted without jurisdiction while passing the said orders, as order void ab initio, therefore, limitation would not start/run/against the appellant and the appeal of the appellant was within time. However, it was submitted that the appellant had filed an application under section 5 of the Limitation Act for condonation of delay, if any.

6. On the other hand the Finance Department while admitting many of the facts stated by the appellant has denied that the appellant did not submit any option as required under rule 4 of the Gazetted Pay Revision Rules, 1973, and contended that the 'appellant has not suffered financial (loss) in the matter. The respondent Finance Department has also agitated the point of limitation against the appellant by submitting that ultimate decision of the Finance Department was communicated on 10-9-1980, and as per provisions of Punjab Service Tribunals Act, the appeals against the decision of the Departmental Authority can be filed within a period of 30 days, but the same has been filed after a lapse of 21 years, therefore, the same was time-barred. With regard to the advice of the Anomalies Committee, it was submitted that the same was not relevant because discrepancies pointed by the SAGAI Department had already been resolved by the Anomalies Committee in favour of the appellant and a notification to that effect was issued on 13-1-1975, giving it effect from 1-1-1975, It wary vehemently argued that having considered the representation of the appellant, it was informed to him on 10-9-1980, that the post of Additional Chief Conservator of Forests was upgraded w.e.f. 1-1-1975, on the recommendations of the Anomalies Committee, therefore, no exception could be made in respect of the post of Chief Conservator of Forests. It has been further submitted that the appellant has suffered no loss in the matter of pay even when the post of Chief Conservator of Forests was abolished w.e.f. 12-7-1973 and the post of Additional Chief Conservator of Forests was created in N.P.S.-19 w.e.f. 13-7-1973. as in the order of reorganization of Agriculture Department, the protection of status and 'pay was given to the holder of the post of Chief Conservator of Forests, and during the period from the date of reorganization to the date, the post was upgraded in N.P.S.-20, the appellant has been drawing pay at the maximum of N.P.S.-19 (Rs.1,800-80-2,200) plus Rs.300 as Personal Pay. In the end it was argued that if the claim of the appellant was accepted it will open flood gate to others claiming the same involving lacs of rupees, therefore, even on this ground the appeal may not be accepted.

7. We have given our anxious thought to the arguments advanced by the parties and find that the appellant's salary in N.P.S. 19 under the 1973 Pay Revision Rules could only be fixed under Rule 5(1), and Rule 5(3)(a) and Rule 5(4) read with Rules 6 and 8 ibid. Thus, his salary was required to be fixed w.e.f. 1-3-1972 in N.P.S. at the stage next above his existing pay of Rs.2,500 but no arrears were payable for the period prior to 1-8-1973. Therefore, his effective salary should have been a stage higher than Rs.2,500 which did not exist in N.P.S.-19 with pay scale of Rs.1,800-80-2,200. Moreover the Audit Officer on his own fixed the salary of the appellant w.e.f. 1-1-1975 in N.P.S.-20 with (out) any promotion orders of the competent authority although Rule 8 Ibid allowed him to do so only upto N.P.S.-18. Therefore, it is obvious that the salary slip, dated 24-7-1980 is not supported by the 1973 Pay Revision Rules. Thus, the said Rules would not be applicable to the case of the appellant. In. view of the above it is clear that the Rule making authority neither visualized nor it provided for the fixation of pay of a Government servant with the existing pay at Rs.2,500 in the pay scale of Rs.2,250-50-2,500 in N.P.S.-19 with the pay scale of Rs.1,800-80-2,200. The relevant extract of Annexure 'A' to the 1973 Pay Revision Rules for S. Nos.19 and 20 is reproduced below:-

The perusal of annexure as above, clearly indicates that the post with a pay scale of Ra.2,250-50-2,500 can only be allocated to N.P.S.-20 with pay scale of Rs.2,300-100-2,600. The argument of the Finance Department that the appellant personal pay scale could not be converted to N.P.S.-20, because in the scheme of National Pay Scales, the Consolidated Pay Scale of the posts (and not the personal pay scales) were converted into National Pay Scales under the Standard Conversion Formula, is not acceptable as they have confessed this point on the basis that the existing pay scale of the post of C.C.F. was Ra.1,800-2,000 and have conveniently ignored the Selection Grade of Rs.2,000-2,300 included therein, which apparently on their own basis could not be converted to N.P.S.-19. Moreover the Finance Department has failed to justify the fixation of pay of the appellant vide salary slip, dated 24-7-1980, in accordance with the specific provisions of Rule 5(3)(a) and Rule 8 ibid. We also find that Finance Department failed to refute the argument of the appellant that the 1957 Pay Revision Rules had to be amended at least twice, firstly, on 31-5-1962 by ordering addition of Rule 20-A and Schedule III and again on 25-1-1965 to enable the Audit Department to fix the pay of those Government servants who were permanent incumbents of a Gazetted post on 31-12-1949 but on promotion as Conservator of Forest or Chief Conservator of Forest could not receive any increase in their pay.

8. With regard to the Finance Department's plea that by allowing this appeal it will open flood-gate for all the incumbents of the posts since included in the Notification, dated 13-1-1975, we find the same is not convincing as they have failed to show that specific protection afforded by the Government to the appellant regarding his pay and status vide their reorganization order, dated 12-7-1978, was applicable to any other post nor they were able to show any similarity with this case with regard to the difficulties met within fixing pay in accordance with the existing provisions of Rules 5, 6 and 8 of the said Rules.

9. As regards the contention of the Finance Department that there -was no anomaly in the matter and the same had already been resolved, it- would be sufficient to say that the Anomalies Committee did find anomaly and accepted the recommendation of the Administrative Department. We also find that although, it was intended to remove the anomaly caused by the issuance of 1973 Pay Revision Rules in the present case but actually it was not removed by making amendment, dated 13-1-1975, effective from 1-1-1975, instead of 1-3-1972, the date from which the said Pay Revision Rules came into effect. The matter could have been easily resolved if the Budget and Accounts Officer (Forests) acted properly and instead of fixing the appellant's pay arbitrarily, had shown his inability to fix his pay in accordance with the existing provisions of the rules.

10. In the light of the above detailed discussion, we are of the considered opinion that the existing provisions of (Gazetted) Civil Services (Pay Revision) Rules, 1973, should be amended w.e.f. 1-3-1972, on the same lines the Pay Revision Rules, 1957 were amended on 31-5-1962 and 25-1-1965 and the existing pay scale of Rs.2,250-50-2 500 of the post of Additional C . C . F . which had been duly protected by the Government at the time of re-organization, should be converted into National Pay Scale No. 20 in accordance with Annexure 'A' of the said rules and his pay be refixed w.e.f. 1-3-1972 in accordance with the amended Rules.

11. Before parting with this case, we will like to make it very clear that the appeal of the appellant has been accepted as a special case with special circumstances and the verdict given in his ease would only be applicable to his case and to none else.

12. We have also considered the application for condonation of delay, filed by the appellant in this case that as the original order, dated 10-9-1980 was illegal and void, therefore, no limitation would run against the same the appellant has been pursuing the matter factually and diligently before the respondents and thus, it would be fair to consider the same as the part of the list particularly when the respondent's order dated 9-1-1983, has been agitated, the same is within time.

13. Resultantly the appeal succeeds in the light of observation given in para. 10 above. However, there will be no order as to costs.

A.A. Appeal accepted.

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