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Civil Appeal No. 3 of 1984, decided on 7th January, 1985.

(On appeal from the judgment of the Service Tribunal, dated 26-11-1983, in Appeal No. 134 of 1980).

---S. 7--Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, R. 8--Civil servant--Transfer from one department to another department in the same grade and on same emoluments could not be termed as reversion.

---S. 16--Word " --Meaning, scope and import of--Civil servant appointed on "current charge basis"--Effect--Word " " means to appoint, to depute, to send on duty--Civil servant"s appointment on "current charge basis" could not be termed as "permanent appointment"--Pay of civil servant has to be fixed in the prescribed manner, in case of appointment on such "current charge basis".

Complied by Dr. Tanzeel-ur-Rehman; Postmaster General, Eastern Circle (E.P.), Dacca v. Muhammad Hashim P L D 1978 S C 61 and Islamic Republic of Pakistan v. Qazi Abdul Karim, Deputy Accountant-General, N.-W.F.P. Peshawar and another 1983 S C M R 883 rel.

---R. 3--Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 47--Civil service--Mode of appointment--Appointment to a post could be made by promotion, transfer or initial recruitment, according to the Rules prescribed by the Government--Such appointments could be made on the recommendations of appropriate Committee or Board--No such direction for upgradation of civil servant could be given by the Court--Supreme Court, however, deemed it fair if the question of promotion of appellant to next higher grade was reconsidered in the light of relevant Rules--Appeal being devoid of merit was dismissed in circumstances.

Bhim Singh and others v. State of Haryana and others 1983 P S C 42 ref.

Syed Manzoor-ul-Hassan Gillani for Appellant.

Sardar Rafique Mahmood, A.-G. for Respondents.

This appeal by leave has been directed against the judgment of the Service Tribunal dated 26-11-1983, whereby the appeal filed by the present appellant was partly accepted.

The brief facts giving rise to the present appeal are that the appellant was first employed in the Judicial Department of Azad Jammu and Kashmir State as Sub-Judge in the year 1960 and subsequently he served on various posts from time to time. In the year 1975, the appellant was posted as Secretary Animal Husbandry and Tourism and afterwards he also served as Secretary in some other departments, in National Pay Scale No. 19. According to the case of the appellant, as the post of Secretary to the Government was categorised as post of National Pay Scale No. 20, the appellant made representation for the allocation of Grade-20 of National Pay Scale instead of Grade-19 in which he had been serving before his appointment as Secretary to the Government. It is further the case of the appellant that the matter with regard to the allocation of higher scale to him was under consideration of the Government when he was transferred and posted as O.S.D. in Civil Secretariat. This, according to the appellant, was a reversion because the post of Secretary from which he was transferred as O.S.D., had a better status. The appellant filed review petition and also made other representations against his posting as O.S.D. but his grievance was not redressed. Subsequently, the appellant was transferred and posted as Registrar of the Supreme Court on the understanding that he would be given National Pay Scale No. 20 on the upgradation of said post. Consequently, the post of Registrar, Supreme Court was upgraded from National Pay Scales Nos. 19 to 20, but when the appellant"s case was processed for the allocation of the higher grade, the same was turned down on the ground that the appellant was not entitled to promotion to National Pay Scale No. 20 because he was awarded punishment as a result of disciplinary action in a case known as Jheeng case", whereby his promotion was stopped for two years. Now, the appellant claims that as he holds the post of the Registrar of the Supreme Court which stands upgraded to National Pay Scale No. 20, he is entitled to the said grade not only because he is serving in a higher post but also because he was transferred and posted as Registrar, Supreme Court on the understanding that he would be given the aforesaid pay scale.

We have heard the arguments and gone through the record. It may be observed that when the appellant was serving as Secretary to the Government, he was drawing the pay of National Pay Scale No. 19; he was paid the same emoluments when he was transferred and appointed as O.S.D. in Civil Secretariat. Therefore, the contention of the appellant that his appointment as O.S.D. in Civil Secretariat was a reversion because this affected his status adversely is without any substance. It needs hardly any authority that in view of the provisions contained in the Azad Jammu and Kashmir Civil Servants Act, 1976, and the rules framed thereunder, the transfer and appointment of the appellant from the post of Secretary to the Government to that of O.S.D. cannot be termed as reversion. He enjoyed the same emoluments and merely the change in the nature of his duty cannot be said to be a reversion" within the meaning of relevant provisions contained in the Civil Servants Act or Rules framed thereunder.

The next point, which needs determination is as to whether the case of the appellant is covered by section 9 or 16 of the Civil Servants Act. For the sake of convenience, the aforesaid provisions are reproduced as under:

"Section 9.--Postings and Transfers.--Every Civil servant shall be liable to serve anywhere within or outside Azad Jammu and Kashmir in any post under the Government or the Council or the Federal Government of Pakistan or any Provincial Government of Pakistan, or a local authority or a Corporation or a body set up or established by any such Government:

Provided that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had been so required to serve."

"Section 16: Pay--A civil servant appointed to a post or grade shall be entitled in accordance with the rules, to the pay sanctioned for such post or grade:

Provided that, when the appointment is made on a current charge basis or by way of additional charge, his pay shall be fixed in the prescribed manner:

Provided further that where a civil servant has been dismissed or removed from service or reduced in rank, he shall, in the event of the order of dismissal, removal from service or reduction in rank being set aside, be entitled to such arrears or pay as the authority setting aside the order may determine."

Mr. Manzoor-ul-Hassan Gillani, the learned counsel for the appellant, has argued that the caste of the appellant falls within the ambit of section 16, because, according to him, the appellant was appointed to a post which was subsequently upgraded as post of Grade-20 as such he is entitled to receive pay sanctioned for the said post.

In reply, the learned Advocate-General contended that the appellant was never appointed" as Registrar of the Supreme Court, but he was merely transferred and posted" as Registrar of the Supreme Court on temporary basis and as such he is not entitled to claim the pay and privileges attached to the aforesaid post.

For resolving the controversy as to whether the case of the appellant is covered by section 9 or 16 of the Civil Servants Act, it would be expedient to reproduce the order of appointment of the appellant as Registrar of the Supreme Court:

It is evident from the above mentioned order that before his transfer and appointment as Registrar of the Supreme Court, the appellant was reverted to his parent department and his lien was protected as District and Sessions Judge. It hardly needs any argument that in view of the phraseology used in the above mentioned order, the posting of the appellant was merely that of a temporary nature and it cannot be said that he was permanently appointed as Registrar of the Supreme Court. At the most his case comes within the purview of proviso to section 16, which stipulates that in case the appointment is made on a current charge basis, the pay of an appointee is to be fixed in the prescribed manner

The word according to the Concise Law Dictionary, by D. Prasad, means: to appoint, to depute, to send on duty". According to Law Dictionary, known as compiled by Dr. Tanzeel-ur-Rehman, the word appoint" has been translated as. It is evident that in Urdu vernacular, the expression can be used both as conveying the meaning of to appoint" or to post". Therefore, the argument advanced by the learned Advocate-General that as the word has been used in the order of appointment of the appellant, he cannot be said to have been appointed as Registrar of the Supreme Court rather he was posted as such does not contain whole truth. The correct position, in our view, is that he was, transferred and appointed on the current charge basis". His appointment cannot be termed as a permanent appointment" to the said post in view of the clear terms of his appointment order. It is an appointment within the meanings of proviso to section 16, which says that when the appointment is made on the current charge basis or by way of additional charge, the pay of the appointee shall be fixed in the prescribed manner. We are fortified in our view by the fact that similar appointments by transfer to posts of higher grades in Pakistan have been held as officiating appointments or m other words appointments on current charge basis". It may be observed here that section 17 of the Civil Servants Act, 1973, which was in force in Pakistan, is exactly the same as section 16 of the Civil Servants Act, 1976, which is in force in Azad Kashmir. In view of the phraseology used in section 17 of the aforesaid Act, which was in force in Pakistan, the judicial opinion has been that such a temporary appointment by transfer from one post to another is an appointment on the current charge basis" and a civil servant would be entitled to the pay as prescribed under the rules. In Pakistan they have framed Rules to meet an eventuality, which may arise as a result of an appointment by transfer on temporary basis, as in the instant case. The said Rules, which are in force in Pakistan, are contained in Volume entitled as Fundamental Rules" of Civil Service. There are no corresponding Rules in force in Azad Kashmir.

An identical question came up for consideration before the Supreme Court of Pakistan in case reported as "Postmaster-General, Eastern Circle (E.P.), Dacca v. Muhammad Hashim" P L D 1978 S C 61 and in case "Islamic Republic of Pakistan v. Qazi Abdul Karim, Deputy Accountant-General, N.-W.F.P., Peshawar and another" 1983 S C M R 883, wherein, in view of the phraseology used in section 17 of the Civil Servants Act, 1973, which was in force m Pakistan, and on the interpretation of the Fundamental Rules 30 and 35, it was held that if a civil servant is promoted to officiate in a higher post, he is entitled to minimum pay of grade of higher office. For the sake of convenience the relevant portion of Rule 30 is reproduced as under: -

"Subject to the provisions of Chapter VI, a Government servant who is appointed to officiate in a post shall not draw pay higher than his substantive pay in respect of a permanent post, other than a tenure post, unless the post in which he is appointed to officiate is one of those enumerated in the schedule to this rule or unless the officiating appointment involves the assumption of duties and responsibilities of greater importance than those attaching to the post, other than a tenure post, on which he holds a lien or would hold a lien had his lien not been suspended."

In the above-referred cases the Supreme Court of Pakistan while interpreting the scope of Fundamental Rules 30 and 35 held that if a person is promoted to officiate in a higher post involving assumption of duties of a greater importance, he is ordinarily entitled under the Fundamental Rule 30 to a higher pay unless the Government in exercise of its power under Fundamental Rule 35 decides to give him lesser benefits. The controversy in the aforesaid cases was as to whether the Government had absolute discretion to give lesser benefit to a civil servant than to which he is entitled by holding an officiating appointment, i.e., appointment on the current charge bass", and in view of the phraseology used in Fundamental Right 35 read with Article 212(3) of the Constitution of Pakistan, it was held that discretion was not absolute, As said earlier, in Azad Kashmir there are no corresponding rules to the aforesaid Fundamental Rules of Pakistan. Therefore, the aforesaid authorities are not helpful to the case of the appellant. Proviso to section 16 stipulates that in case of appointment on current charge basis, the pay of the concerned civil servant is to be fixed in the prescribed manner. In other words the aforesaid provision stipulates that there must be some rules to cover the eventuality as has arisen in the instant case. However, in Azad Kashmir there are only few instructions which are incorporated in a Government Notification, dated 12th November, 1979, according to which in cases where deputation posts carry pay scales higher than those of the posts held by deputationists, an allowance may be allowed upto a maximum of 20% of pay in the parent department, subject" to certain conditions. The Tribunal in view of the aforesaid instructions has already given relief to the appellant to that extent.

The learned counsel for the appellant has also argued that the Government had given understanding to the appellant that he would be given National Pay Scale No. 20 on the upgradation of the post of the Registrar of the Supreme Court. The learned counsel has maintained that the post has admittedly been upgraded, but the Government has gone back on its commitment and has declined to promote the appellant to the National Pay Scale No. 20. He has referred to a note of Secretary Services dated 14-11-1977, recorded in the relevant file of the Services and General Administration, which shows that in fact the Government had agreed to grant National Pay Scale No. 20 to the appellant at the time of his transfer as Registrar of the Supreme Court. As has already been pointed out, the Government declined to promote the appellant to the higher grade on the ground that he was awarded a penalty of stoppage of his promotion for two years in Jheeng case". The appellant challenged the aforesaid order of his punishment in the High Court by way of a writ petition. The High Court, in exercise of writ jurisdiction, has held that the said order of punishment was illegal and without lawful authority, vide its judgment dated 4-7-1983, a copy of which has been placed on record by the appellant. The learned counsel for the appellant has argued that a direction may be issued to the Government to promote the appellant to National Pay Scale No. 20, because the appellant accepted his transfer as Registrar of the Supreme Court on the assurance of the Government that he would be awarded National Pay Scale No. 20 after the upgradation of the post. He has maintained that in view of the fact that after the judgment of the High Court, given in writ petition filed by the appellant, there remains no valid ground for the Government to refuse the promotion to the appellant. The learned counsel has relied on a case from Indian jurisdiction reported as "Bhim Singh and others v. State of Haryana and others" 1983 P S C 42. It is not clear from the aforesaid judgment that as to what were the Rules of Service of the concerned civil servant on the basis of which the direction in that case was issued to the Government to award higher grade to the appellant in that case. It is recorded in the aforesaid judgment that the legal points were resolved in some other case, which was decided earlier. In absence of the relevant Rules or Law governing the case of the appellant in that case, it cannot be said with certainty that the principle laid down in said authority can be applied to the instant case. The learned counsel for the appellant could not show us any provision either in Civil Servants Act or Rules framed thereunder or in any other law governing the terms and conditions of service of the appellant, justifying his contention that such a direction can be issued to respondent in exercise of appellate jurisdiction against the judgment of the Service Tribunal. As the Governments invariably honour their commitments, we expect that now when the ground on which the higher grade was refused has also vanished in view of the High Court"s judgment, the Government may take up the appellant"s case for his upgradation for consideration afresh.

Under Rule 3 of the Rules called The Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, an appointment to a post can be made by promotion, transfer or initial recruitment, according to the Rules prescribed by the Government in that regard. Under sub-rule (2) of rule 3, appointments by promotion or transfer are to be made in accordance with Part 11 of the said rules. Part 11 of the said rules, which deals with the appointments by promotion, transfer or deputation, stipulates that such appointments are to be made on the recommendations of the appropriate Committee or Board. In view of the aforesaid state of law, we are of the view that no such direction as prayed for on behalf of the appellant can be given to the respondent. However, in view of the fact that when the appellant was transferred as Registrar of the Supreme Court, the Government agreed to grant him National Pay Scale No. 20, on the upgradation of the said post and subsequently the ground on which the higher grade was refused also vanished in view of the judgment of the High Court, it is fair that question of promotion of the appellant to Grade-20 is reconsidered in the light of the relevant Rules.

With these observations, finding no force in this appeal, it is hereby dismissed. In the circumstances of the case we make no order as to the costs.

AA./236/SC (AJ&K)

Appeal dismissed.

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