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Case No. 29/44 of 1983, decided on 30th November, 1983.

‑‑‑S.16‑‑Appellant adjusted against higher post in his own pay and grade‑‑Subsequently given regular promotion‑‑Claiming promotion and higher grade from date of taking over charge‑‑Held, civil servant entitled to minimum pay of higher post to which he was posted to work in his pay and scale‑‑Appellant's substantive pay being more than minimum pay of higher grade, he was entitled to annual increments in higher grade for total period he worked against that post.

Islamic Republic of Pakistan v. Qazi Abdul Karim and another j 978 S C M R 289; Case No. 409/1963 of 1982; Case No. 410/1964 of 1982 and Abdul Majid v. Secretary, Ministry of Communications, Islamabad 1983 P L C (C.S.) 1257 rel.

.‑‑Sh. Amar Maftoon, Subject Specialist, Government Elementary Teachers Training College, Sargodha has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the Government of the Punjab through Secretary, Education, Punjab, Lahore and the Director, Public Instructions (Schools), Punjab, Lahore as respondents.

2. By virtue of this appeal he has prayed that the Department be advised to regularise his promotion w.e.f. 13‑5‑1981, as Subject Specialist (N.P.S.‑17 post). He has also prayed that he be paid pay and allowances attached to this post from the date of assumption of his duty i.e. with effect from 13‑5‑1981, with increments falling due as if he had been promoted from 13‑5‑1981.

3. The appellant Sh. Amar Maftoon has been posted/adjusted in his own pay and grade, as Subject Specialist, Government College for Fiementary Teachers, Sargodha vide Director Public Instructions Punjab, Lahore Order No. 1/5‑81/12896/Admn‑I, dated 10‑5‑1981. He took over he charge of this post as Subject Specialist, on 13‑5‑1981. The appellant, has been working against this post in his own pay and grade, since then. He has, however, lately been promoted regularly against this post in N.P.S‑17 w.e.f. 20‑9‑1983, vide Order No. S.O.(SE)‑1‑47/82,

dated 22‑9‑1983.

4. The appellant has argued his case himself and has submitted that he was posted in his own pay and grade as Subject Specialist (a N.P.S.‑17 post) on 13‑5‑1981. He has been continuously working on this post till he was regularly promoted against this post by the Education Department from 20‑9‑1983, vide Order No. S.O. (SE)‑1‑47/82, dated 22‑9‑1983. He has contended that he is entitled to be regularly promoted from 13‑5‑1981, the date from which he had been working in his own pay and grade against the post of Subject Specialist (a N.P.S.‑17 post) and not from the date 20‑9‑‑1983, the date from which he has been so regularly promoted. The appellant has prayed that the Education Department be directed to regularise his promotion from 13‑5‑1981; instead of 20‑9‑1983, and he be paid the pay and allowances of the post in N.P.S.‑17 as Subject Specialist accordingly. The appellant has also pointed out that he was drawing Rs.1,225 per month as substantive pay in his pay and grade while he was posted as Subject Specialist on 13‑5‑1981 which was much higher than the minimum pay of Rs.900 per month of the Subject Specialist post in N.P.S.‑17.

5. On the other hand the learned District Attorney has submitted that the appellant was posted in his own pay and grade and he has been paid the pay and allowances due to him accordingly, as per rules. Hence no injustice has been done with the appellant and there is no weight in the arguments of the appellant.

6. We have given our anxious thought to the arguments of the parties and have also consulted the record in this case. The posting order, dated 10‑5‑1981, issued by the Directorate of Public Instructions, Punjab, Lahore shows that the appellant was posted as Subject Speciliast, Government College for Elementary Teachers, Sargodha in his own pay and grade and the appellant took over the charge, on 13‑5‑1981 as such. Relying upon the judgment of the Supreme Court of Pakistan reported as Islamic Republic of Pakistan v. ‑ Qazi Abdul Karim and another 1978 S C M R 189, we have already held in our earlier judgment (Case No. 409/1963 of 1982 and Case No. 410/1964 of 1982) that a Civil Servant is entitled to the minimum pay of the higher post to which he was posted to work in his pay and scale. The last para. of the Supreme Court's judgment is reproduced below with advantage:‑‑

'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 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 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 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 petition, therefore, fails and is dismissed."

7. We would also like to refer the judgment of Federal Service Tribunal reported as Abdul Majid v. Secretary, Ministry of Communications, Islamabad and 2 others 1983 P L C (C S) 1257, wherein the above judgment of the Supreme Court of Pakistan, Islamic Republic of Pakistan v. Qazi Abdul Karim and another 1978 S C M R 289 was further elaborated and the learned Tribunal held as follows:‑‑

4. It has, with respect, to be pointed out that the above observation was made by the Honourable Supreme Court in its judgment whereby the petition of the Government for leave to appeal in the said case was rejected. I would venture to state that the observations made by the Honourable Supreme Court in an order refusing leave to appeal, though are entitled to very highest respect, are neither a decision on a question of law nor an enunciation of a principle of law. Such incidental observations, not being the law enunciated, have no binding effect in other cases. Indeed, it is a cardinal principle of interpretation of judicial decisions that a judgment of a Court is meant to apply to the facts of a particular case in which it was given and can have but little weight in a case of which the facts are different. And let me add that the Supreme Court in the case of Hamida Bano v. Ashiq Hussain have pointedly warned that everything said by the Supreme Court in a judgment must be understood with great particularity as having been said with reference to the facts of that particular case. It thus seems to us to be clear that indiscriminate use of a general observation from a judgment isolated from the facts of the case may well‑result in miscarriage of justice. The said observation is, therefore, of not much help to the respondents and their reliance thereon is misconceived and untenable."

After making the above observations the learned Tribunal examined whether the order of the Federal Government to deny increments of the time scale to the appellant Abdul Majid in that case was consistent with the provisions of section 17 of the Civil Servants Act, 1973 (which corresponds to section 16 of the Punjab Civil Servants Act, 1974). The relevant portions of the judgment are contained in paragraphs 5 and 6 of the judgment. As a result of thorough examination, the learned Federal Service Tribunal held in paras. 7 of the judgment as follows:‑‑

"For the foregoing reasons, we hold that the appellant was entitled to the annual increments also for the period from 9‑7‑1974 to 24‑6‑1977 and the decision contained in para 2 of the sanction letter, dated 16‑6‑1980 that during the aforesaid period the appellant will not be entitled to annual increments in N.P.S. 17 was incompetent, unjustifiable and bad in law which is accordingly set aside.'

8. As the provisions of section 17 of Civil Servants Act, 1973 and section 16 of the Punjab Civil Servants Act, 1974 are identical, we respectively accept the interpretation made by the learned Federal Tribunal of the above provisions and hold that the appellant would be entitled to annual increments in N.P.S‑17, as permissible under the rules, as the appellant was drawing more pay in his own pay and grade in N.P.S.‑16 than the minimum pay of the Subject Specialist (N.P.S.‑17 post) on 13‑5‑1981, when he took over the charge of this post in his own pay and grade. The appellant was drawing Rs.1,225 per month as substantive pay on 13‑5‑1981 in his own pay and grade) (N.P.S.‑16), whereas the minimum pay scale of N.P.S.‑17 was Rs.900 per month. The appeal is thus accepted to the extent as indicated F above that the appellant shall be entitled to annual increments in N.P.S.‑17, for the period he has been working as Subject Specialist (N.P.S.‑17 post) in his own pay and grade i.e. from 13‑5‑1981 to 19‑9‑1983.

There will be no order as to costs.

M.I. Appeal partly accepted.

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