1998 PLP (C (PLC(CS))

IRSHAD HASAN KHAN, J.

This appeal, with the leave of the Court, is directed against the judgment dated 29-6-1994 passed by the N.-W.F.P. Service Tribunal, Peshawar (hereinafter referred to as the Tribunal) in Application No.20 of 1993 in Appeal No.92 of 1991 under rule 27 of the N.-W.F.P. Service Tribunal Rules, 1974, seeking directions to the appellants for making payment of the emoluments in B-17 including increments pursuant to the judgment dated 16-2-1992 passed in Appeal No.92 of 1991 by the Tribunal.

2. Brief facts are that Abdul Samin, after his graduation in 1978 with Math A & B and Statistics from the University of Peshawar in First Division, was appointed as Trade Instructor (Science) BPS-11 in the Government Vocational Institute, Nowshera (hereinafter referred to as institute) by the Director, Technical Education, N.-W.F.P., Peshawar in 1981. The Institute was upgraded to Polytechnic Institute in 1983 and six posts of Instructors in BPS-17 were created. The respondent was adjusted against one of the posts of Instructors of Related Studies vide order dated 12-1-1984. The respondent was subsequently reverted to his original post and transferred to Government Vocational Institute, Ghazi vide order dated 17-5-1990.

3. Being aggrieved with his reversion, the respondent filed an appeal before the Tribunal making a grievance that he was working against the post of Instructor BPS-17 from 12-1-1984 and was, therefore, entitled for permanent adjustment. The Tribunal vide order dated 16-2-1992 found him entitled to pecuniary benefits arising out of adjustment against the upgraded post of BPS-17 from 12-1-1984 to the date of his being relieved from the said post. The petition for leave to appeal filed by the respondent herein was dismissed by this Court by order, dated 19th May, 1992 passed in Civil Petitions Nos. 69-P of 1992 and 70-P of 1992.

4. Pursuant to the aforesaid judgment of the Tribunal the respondent moved an application to the Tribunal for making payment of the emoluments of BPS-17 including increments, etc. The Tribunal vide judgment dated 29-6-1994 accepted the application directing that the respondent shall be given the benefits of increments of the higher post as well as for the period when he held that higher post on the strength of the dictum laid down by this Court in the case of Federation of Pakistan v. Shahzada Shahpur Jan (1986 SCMR 919).

5. Leave to appeal was granted to examine whether annual increments in higher pay scale could be granted to the respondent on the basis of decisions of this Court in Post Master General, Eastern Circle (E.P.), Dacea and another v. Muhammad Hashim (PLD 1978 SC 61) and Shahzada Shahpur Jan's case (supra).

6. Mr. Fateh Muhammad Khan, learned counsel for the appellants sought to argue that the appointment of the respondent was itself bad, for he lacked the requisite qualification for appointment on the post of Instructor, Related Studies therefore, in the light of decisions of this Court the respondent was not entitled to the grant of annual increments in higher pay scale for the period in question.

7. Learned counsel for the respondent has not disputed that the respondent did not possess the qualification necessary for the appointment to the said post. It is also not disputed that on account of lack of necessary qualification the respondent could not be permanently adjusted against the said post and was reverted to his original post in the Government Vocational Institute, Ghazi. He, however, argued that the Tribunal was right in granting to the respondent the benefits of increments of the higher post for the period he held the post.

8. We have heard the learned counsel for the parties and have perused the record of the case as well as the aforesaid decisions of this Court. We are not inclined to hold that the Tribunal has misconstrued the dictum laid down in the case of Shahzada Shahpur Jan (supra).

9. In the case of Shahzada Shahpur Jan (supra), the question came up for consideration whether an incumbent who while working in the higher grade but without any formal order of promotion to the higher grade, was entitled to the pay of the higher grade in NPS-17 alongwith annual increments falling due every year. Three categories of officers were under consideration in the precedent case. It is not disputed that the case of the respondent herein relates to second category discussed in the aforementioned decision. The relevant passage whereof is at page 1005. H, which reads thus:- "As regards the cases of the second category, the legality and the effectiveness of the Auditor-General's Standing Orders, paras. 139 and 229, Chapter V has been upheld in Civil Petitions 32-P to 34-P of 1982, decided on 30-5-1983 and there is no reason to depart for not only it is a part of the terms and conditions of the service one who is not qualified for a post cannot be said to be while so disqualified fully and competently discharging the duties of the higher post with the modified designation of Clerk-in-Charge. It was within the competence of the officer to allow reduced terms than the presumptive pay admissible to those not fully qualified or otherwise ineligible." A bare perusal of the aforesaid passage would show that if a person is not qualified for a higher post for which he is performing his duties, it is within the competence of the competent Authority to allow reduced terms than the presumptive pay to such incumbent. Clearly, the entitlement of the respondent for the grant of increments is not established. The Tribunal was, therefore, not right in allowing the increments to the respondent for the service rendered by him in the higher post for which latter was admittedly not qualified. In the case of Muhammad Hashim (supra) this Court, while dealing with the case of a person promoted to officiate in higher post involving the assumption of duties and responsibilities of greater importance, held that he would ordinarily be entitled to a higher pay unless the Government, in the exercise of the power given to it under Fundamental Rule 35, has decided to give him a lesser benefit.

10. In our view, therefore, the respondent had no vested right to claim the annual increments in the facts and circumstances of the case pursuant to the earlier judgment of the Tribunal. The respondent has already been held entitled to the pay of higher post for the period he has so functioned but is not entitled to the benefits of increments of the higher post as stated above.

11. For the reasons given above, the appeal is accepted by setting aside the order of the Tribunal allowing the increments to the respondents. There shall, however, be no order as to costs.