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Civil Revision Application No.277 of 1978, dated on 4th May, 1986.

---S.42--Suit for declaration regarding fixation of pay, -seniority and confirmation--Trial Court decreeing suit of applicants, Railway Guards, with regard to fixation of their pay and reaching conclusion that as the applicants-plaintiffs had not qualified by passing the required examination, they were not entitled to claim confirmation from the date they were appointed to officiate as Guards--Contention that Trial Court should have at least decreed suit that the applicants were entitled to confirmation in the grade of Guards from the date they passed required examination--Neither any prayer found to have been made in suit with regard to any declaration that applicants were in the alternative entitled to confirmation from date they passed the required qualifying examination nor there was any such controverty between applicants and respondent-Railway Authorities--Position that applicants were entitled to confirmation in the grade of Guards from the date they passed required qualifying examination admitted in written statement filed by respondents--Observation by Trial Court that the applicants were entitled to confirmation in the grade of guards from the date they qualified required examination, held, was unnecessary in circumstances of case.

Ahmad Sayeed Qureshi for Petitioner.

Respondents Nos.l and 2 (absent).

Abdul Mateen for Respondent No.3.

Date of hearing: 4th May, 1986.

By this order, I propose to dispose of Civil Revision Applications, No.277/1978 and No.278/1978. Civil Revision Application No.277/1978 is filed by one Muhammad Ilyas against the Government of Pakistan and others, while Civil Revision Application No.278/1978 is filed by one Saeed Akhtar Siddiqi against the Government of Pakistan and others. In order to avoid confusion, I will refer the applicants in the two Revision Applications by their respective names in this order. Both Muhammad Ilyas and Saeed Akhtar Siddiqi instituted Civil Suits No.170/1977 and No.171/1,977 respectively, seeking declaration regarding fixation of their pay and seniority and confirmation. The suits were contested by the respondent, and, on the basis of the controversy between the parties, the trial Court framed the following issues to both the suits:-

"(1) Whether the plaintiff is entitled to the fixation of his pay initially from 19-9-1964 in the old scale of pay of guard (grade 1) fts.72-125 and then in the Revised National Pay Scale, of Rs.180-10-3.70

(2) Whether the plaintiff is entitled to his seniority and confirmation with effect from 19-9-1964 '

(3) What should the decree be "

It is an admitted position that the parties did not lead any evidence in the suit, but relied on the pleadings. During the trial of the suit, the respondent No.3 conceded the issue with regard to the claim of the plaintiffs in the above suit regarding fixation of their pay and, as such, the suit was decreed with regard to the first part of the prayer, which related to the fixation of the pay of the two plaintiffs. On Issue No.2, which related to the relief of confirmation with effect from 19-9-1964, the trial Court reached the conclusion that, as the two plaintiffs had not qualified the required examination, therefore, they were not entitled to confirmation from 19-9-1964, when they were appointed to officiate as guards. It may be mentioned here that Muhammad Ilyas was initially appointed as a Train Clerk on 18-10-1956 and was promoted to officiate as a Guard from 19-9-1964. It is also an admitted position that Muhammad Ilyas passed the required P-10 examination in the year 1968. Similarly, Saeed Akhtar Siddiqi was also appointed as a Train Clerk on 25-10-1960, and he too was promoted to officiate as Guard from 19-9-1964. Saeed Akhtar Siddiqi passed the required P-10 examination in the year 1971. In view of this admitted position, the trial Court reached the conclusion that as the two applicants had passed the required qualifying examination in the years 1968 and 1971, they could not claim confirmation from 19-9-1964, namely, the date of their initial appointment Lo officiate as, Guards. The judgment has been upheld in appeal, and now the applicants have come in revision against the two concurrent finding of the Courts below. Mr. Ahmad Sayeed Qureshi, learned counsel for, the applicants contends that, even if the applicants were held disentitled to claim confirmation from 19-9-1964, at least they were entitled to confirmation in the grade of the Guards from the date they passed the required P-10 examination. In this regard, the learned counsel urged that, in fact, the trial Court while deciding the second issue, itself came to the conclusion that the two applicants were entitled to confirmation and seniority from the date they qualified the P-10 examination. It is accordingly urged by the learned counsel that, having reached that conclusion, the learned trial Court should have at least decreed the suit to the extent that the applicants are entitled to confirmation in. the grade of Guards from the date they passed the required P-10' examination. After hearing the learned 'counsel for the applicants, I am of the view that the observation made by the trial Court with regard to the confirmation of the two applicants in the grade of Guards was unnecessary. Firstly, there was no prayer in the suit of the applicants with regard to any declaration that they were in the alternative entitled to confirmation from the date they qualified the required P-10 examination. Secondly, no such controversy was between the plaintiffs /applicants and the respondent No.3. In fact, in the written statement filed in the suit by respondent No.3, the position that the applicants were entitled to confirmation in the grade of Guards from the date they qualified the required P-10 examination is admitted. In Suit No. 170/1970 instituted by Muhammad Ilyas, the following statement is made in paragraph 9 of the written statement by respondent No.3:-

"9. That in reply to para. 9 of the plaint, it is submitted that the mileage allowance was given to the plaintiff when he worked as guard. The pay of guard is only given after passing P-10 course. As regards seniority and confirmation, the seniority is fixed as per order of merit obtained in the qualifying examination and his seniority has already been fixed in accordance with the Supreme Court's decision."

To the same effect is the statement made by respondent N0.3 in their written statement in the other Suit No. 171/1977 instituted by Saeed Akhtar Siddiqi. In view of this admitted position, there was no necessity for the learned Civil Judge to have observed, while discussing Issue No.2, that Plaintiffs/applicants are entitled to confirmation in the grade of Guards from the date they qualified the examination. No other point is urged. There is no merit in these Revision Applications, which are accordingly dismissed, but, in the circumstances of the case, I will make no order as to costs.

S.Q./M-101/K Applications dismissed.

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