1989 PLP (C (PLC(CS))

"P L C 1984 (C.S.) 386, P L C 1984 (C.S.) 1319, P L C 1983 (C.S.) 1257 and 1984 S C M R 1297."

5. It was submitted tat the appellant preferred a formal representation/appeal dated 25‑7‑1984 to the competent authority through respondent No. 1, Secretary, Ministry of Finance. This departmental appeal of the appellant was rejected vide impugned order dated 12‑8‑1985. It was emphasised that from the very beginning when the pay of the appellant was fixed in Grade‑18 and was refused special pay of Rs.440 p.m., the appellant has been following his case diligently and continuously with the hope that his case would be decided favourably. But, this was not to be so. It was argued that since the appellant was a lateral entry selectee his emoluments are protected under Office Memorandum No. 3/3/75‑AR‑11, dated 24‑3‑197.1 which is reproduced below: ‑ "Deputy Commissioners will continue to be in Grade‑18 and in receipt of the present rate of special pay and rent‑free residential accommodation. Their sumptuary allowance may, however, be raised to Rs.150 per month. Where officers are specially selected as Deputy Commissioners under the lateral entry scheme and they are getting higher emoluments, they should be protected in their emoluments." In view of the above it was submitted that the appellant should be allowed his special pay of Rs.440 p.m. which he was already drawing at the eve of his induction in the District Management Group in Grade‑18.

6. It was further submitted that the impugned order is in contravention of second proviso to section 10 of the Civil Servants Act, 1973 which provides that where a civil servant is required to serve in a post outside his previous service of 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 m his previous assignment. In view of the above settled rules on fixation of pay and allowances, it was strongly contended that the impugned order dated 5‑8‑1985 may be ordered to be cancelled and the appellant he allowed to draw his emoluments including special pay of Rs.440 p.m. with retrospective effect i.e. with effect from October, 1975 with all consequential benefits.

7. It was contended by the representative of respondent No. 2, the Establishment Division assisted by the representatives of respondents Nos. 1 and 3 that the appeal is not maintainable in law and facts because basically the appellant did not avail the opportunity of preferring a departmental appeal against the order dated 6‑5‑1975 whereby his pay was fixed by the A.G.P.R. in Grade‑

18. The appellant submitted an application dated 25‑7‑1984 which was not a representation under section 22 of the Civil Servants Act, 1973. It was further submitted that the order dated 5‑8‑1985 is not an appellate order as application dated 25‑7‑1984 was against non‑existing final order (in original). Therefore, in view of the above two facts the appeal is hopelessly time‑barred and is liable to be dismissed.

8. It was argued by the representative of the respondents that the appellant was initially selected through lateral entry scheme and appointed to officiate as Deputy Secretary, vide Establishment Division Notification dated 2‑10‑1974. However, District Management Group was constituted comprising all posts of Civil Administration in the Districts and Divisions viz. Commissioner, Deputy Commissioner, etc., and such other posts as may be included in the group from time to time. The instructions to form this D.M.G. cadre were laid down vide O.M. No. 2/2/74‑ARC, dated 23‑2‑1974 as amended by O.M. of even number dated 4‑12‑1976. However, in view of the importance of the posts of Deputy Commissioners, special instructions were laid down which are reproduced below: ‑ "

4. In view of the importance of the post of Deputy Commissioner which at present is Grade‑18 post carrying special pay, it has been decided as follows: ‑ (i) The post of Deputy Commissioner would be a selection post and selection will be made from amongst officers having at least 10 years service in Police, Armed Forces, Civil Administration or Military Lands and Cantonments Departments. The selected persons shall be given training in administration and law, if necessary, before posting as Deputy Commissioner. (ii) To ensure appointments of experienced persons, the post of Deputy Commissioner in major districts will be placed in Grade‑19; a minimum service of 12 years in Grade‑17/18 shall be a condition precedent.

9. Whereas recruitment to Grade‑17 was to continue to be made through F.P.S.C., it was contended that recruitment through lateral entry scheme was also envisaged vide para. 8 of the O.M. dated 23‑2‑1974 as amended. It was argued that the recruitment of the appellant as Deputy Commissioner was effected through the procedure of nomination on the recommendations of the Provincial Government vide para. 4(1) of the O.M. dated 23‑2‑197:

1. The recruitment of the appellant was not effected through lateral entry scheme as argued by the learned counsel for the appellant because the procedure of recruitment through lateral entry scheme does not envisage nomination on the recommendation of the Provincial Governments. Also in the lateral entry scheme the selection is not restricted to only Government Departments as clearly laid down in para. 4(1) of the CI.M. dated 23‑2‑1974 but it would include the experienced members of the private sector as well. Any recruitment through lateral entry scheme would envisage much wider advertisement through National Daily Newspapers. In the absence of any such procedure the recruitment of the appellant as Deputy Commissioner cannot be called through the lateral entry scheme. It was simply a case of selection on the recommendations of the Provincial Government. If any simplified method of selection comprising of one or more written papers and an interview was evolved to ascertain merit, it would not go to convert the system of nomination to that of lateral entry scheme. It was therefore, strongly contended that the contents of memo. No. 3/3/75‑AR‑11, dated 24‑3‑1974 regarding the protection of emoluments of those who are specially selected as Deputy Commissioners under the lateral entry scheme are not applicable to the appellant.

10. The representative of the respondent‑department further, argued that the appellant did not simply seek the fixation of his pay under F.R.22 because it only protects the substantive pay which does not include `special pay'.

11. Furthermore, it was submitted that the appellant was made an offer to accept the post of Deputy Commissioner vide letter dated 9‑10‑1975. The terms and conditions particularly regarding pay and allowances were clearly laid down in para. 2 of the said letter. The appellant was asked to accept the offer in writing vide para. 4 of the above‑quoted letter, which he confirmed vide his letter dated 11‑10‑1975. If the appellant has any objection to the new terms and conditions offered to him, he could have mentioned those in his letter of acceptance. In the absence of any such indication to the contrary it is to be clearly construed that the appellant's acceptance of the offer was unconditional. There is no occasion for the appellant now to agitate this matter at this belated stage. It was, therefore, submitted that the appeal may be disallowed with costs.

12. We have perused the record produced before us by the respondents and have given our anxious thoughts to the arguments of both the parties, We are of the considered view that the selection of the appellant for the appointment as Deputy Commissioner in District Management Group of all Pakistan Unified Grades was under para. 4(i) of O.M., dated 23‑7‑1974 as amended. It was not a recruitment under the lateral entry scheme as envisaged under para. 8 of the said O.M. Since office memorandum dated 24‑3‑1974 protects the emoluments of officers specially selected as Deputy Commissioners under the lateral entry scheme, the contentions of the appellant are not considered valid. The appeal is, therefore, dismissed with no order as to costs. M.Y.H./419/Sr. F Appeal dismissed.