1984 PLP (C (PLC(CS))

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 that .......

7. F. R. 35 lays down: "A local Government may fix the pay of an officiating Go vernment servant at an amount less than that admissible under these rules." Audit Instruction (1) under the said F. R. lays down: "One class of cases falling under this rule is that in which a Govern ment servant merely holds charge of the current duties and does not perform the full duties of the post."

8. It is an admired position that the appellant did perform full responsibilities of Grade‑20 posts while being in Grade‑19 F. R. 35 read with Audit Instruction (1) therefore cannot be attracted here. By implication, therefore, the reading of F. R. 35 with Audit Instruction (1) should leave us in no doubt that pay of Government servants like the appellant who shoulder full responsibilities cannot be restricted.

9. Section 17 of the Act with its proviso and F. R. 35 with Audit Instruction (1) thereto and quoted above, make it abundantly clear that a civil servant shall, as of right, get the pay of a post or grade unless he is holding a higher post by way of current or additional charge. As stated, the appellant officiated against Grade‑20 posts while he was actually in grade‑l9 and he shouldered‑ full responsibilities of the higher posts.

10. There can be no disagreement that the expression "pay" as used in section 17 of the Act unexceptionably means PAY IN TIME‑SCALE as defined in F. R. 9(31) (a) which raises by periodical increments from minimum to a maximum and may also be known as progressive. In our present scheme of things, there is no longer any concept of "fixed pay" B while the deprivation of increments would be doing precisely i.e., turning our time‑scale pays into fixed pays in violation of section 17 of the Act as well as the rules. For us the "pay" would therefore mean the pay as defined in F. R. 9 (31) (a) which would be inconceivable without increments.

11. Although the respondents have nowhere said it in so many words, it was, nevertheless, presumed by the Tribunal in their last hearing, dated 16th March, 1983 that the pay of the appellant had been restricted under F. R.

35. The Tribunal had, therefore, directed the departmental representative with copies of orders to the Ministry of Railways and the Chairman, Railways Board: "to send us written statement specially highlighting as to whether F. R. 35 is consistent with the provisions of section 17 of the Civil Servants Act, 1973 and whether even after the enactment of section 17 ibid, pay of an officer can be restricted."

12. The Ministry of Railways (Railways Board) vide their reply, dated 23rd April, 1983 have merely reiterated that since the appellant only held the appointment during the period and had not been promoted in accordance with the rules, he had not been allowed any increments by the Ministry of Finance. They have placed reliance on the case of Qazi Abdul Karim.

13. We advert to the case of Qazi Abdul Karim wherein the honour able Supreme Court made the following observations: ‑ "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 said grade of the said higher office." While making the above observation, the learned Supreme Court had refused special leave to appeal to the Government. The above quotation was neither a decision on a question of law nor an enunciation of a principle of law. The said observation cannot, therefore, be useful to the respondents.

14. We have come to the conclusion that, in the present case. F. R. 35 is inconsistent with section 17 of the Act. We are also quite clear that the expression "pay" as defined in F. R. 9 (31) (a) would include periodical increments. The annual increments in Grade‑20 were not allowed to the appellant "because he merely held the appoint ment during the period in question and had not been promoted in accordance with the rules." We have, now, to analyse whether the respondents, notwithstanding section 17 of the Act and F. R. 35 (being clearly in favour of the appel lant), could, legally, withhold his increments as they did. Since "pay" includes "increments" and since the two cannot be treated separately under section 17 of the Act read with F. R. 9 (31) (a), the appellant shall be entitled to the increments. It is nowhere laid down that only) those promoted in accordance with the rules shall be entitled to the increments and the others denied these even when shouldering full higher responsibilities of a grade or post but being actually, in a lower grade like the appellant. In fact F. R. 35 with Audit Instruction (1) fully supports the cases of those otherwise than holding current or additional charge. If anything, section 17 of the Act entitles a civil servant, in accordance with the rules, to his pay sanctioned for a post or grade and no one can arbitrarily alter such pay to his disadvantage save in accordance with the rules. The rules in the present case are clearly in favour of the appellant because he officiated in Grade‑20 posts and shouldered full responsibilities of the said posts while actually being in Grade.19 this was not a case of current or additional charge and above all section 17 of the Act and F. R. 9 (31) (a) and F. R. 35 are in his favour.

15. In view of the foregoing analysis, we accept the appeal and order that the appellant shall be entitled to increments of pay in Grade‑20 falling due on 1st December, 1978 and 1st December, 1979 as prayed for. No order as to costs. A. E. Appeal accepted.