1988 PLP (C (PLC(CS))

IHSANUL HAQ CHAUDHRY (CHAIRMAN).‑‑The relevant facts for the disposal of the present appeal are that the appellant joined as Junior Clerk on 13‑3‑1948 and was working as Stenographer Grade II on the eve of One Unit in the office of the Deputy Chief Engineer. In the year 1959, Pay Revision Rules were introduced and the Civil Servants were asked to give their option. This way there came into existence three different scales namely prescribed time scale, existing time scale and old time scale. Therefore, the civil servants were required to give their option as to the scale in which they would like to be placed. The appellant accordingly gave his option in favour of prescribed time scale and the relevant portion of memo: reads as under:‑ I do hereby opt for: ‑ (i) Prescribed Time Scale of Pay viz. Rs.120‑10‑200/10‑250. (ii) Existing Time Scale of Pay of Ex‑Bahawalpur State viz. Rs._________________ (iii) Old Time Scale of Pay of Ex‑Bahawalpur viz. Rs._______________ Signatures (dated Sd/‑Mubashir Hussain) 24‑9‑1959. Name: Mubashir Hussain. Father's Name: Nazir Hussain. Designation: Stenographer. Office of Dy. Chief Engineer Irrigation Bahawalpur." It will be noticed that junior scale for Stenographers in the Secretariat Department and Stenographer in Non‑Sectt. Offices is one and the same i.e., Rs.120‑10‑200/10‑

250. The appellant in spite of his option for pay scale for Stenographer in the Ministerial staff‑Non‑Secretariat Offices quietly and stealthly shifted to the junior scale Sectt. Department. It is contended that throughout he was treated as such. He was promoted and all increments allowed in that scale. This scale was revised in the year 1983. The appellant has attached with the ground of appeal alongwith other documents, pages of his service book as Annexurees 'F' to 'H' to show that the appellant throughout was treated in the Secretariat group and his increment was allowed as such. The grievance of the appellant is that the Accountant‑General, Punjab, Lahore, issued memo dated 18/20th December, 1984 to Superintending Engineer wherein it was pointed out that the appellant had opted for prescribed scale of West Pakistan and did not retain the scale of his Unit of Region and as such he had lost the entitlement regarding protection of Secretariat scale in terms of letter dated 15‑4‑1969. It was further pointed out that the appellant continued to draw his pay in the Non‑Secretariat pay upto 1965. Thereafter, revised entries in the Sectt. pay scale, had been made at page 15 of Service Book Part I, which was only permissible to the official, who were serving in the former Irrigation Secretariat of former Bahawalpur Government on 13‑10‑1955 and were entitled to Secretariat scale of their unit of origin subject to the restrictions laid down in the letters of the Finance Department dated 15‑12‑1956 and 15‑6‑1963. It was observed that since the appellant did not opt to retain the existing scale of his unit of origin, therefore, he could not switch over to and have benefits of the Finance Department's letter dated 24‑12‑1965. The Chief Engineer was asked to explain these points. It seems that the appellant when came to know of this query, proceeded to make a representation for relaxation to re‑exercise the option under West Pakistan (Non‑Gazetted) Civil Services (Pay Revision) Rules, 1959. This representation was considered and the Chief Engineer Irrigation, Bahawalpur was informed as to the inability of the Finance Department to agree with his proposal for verification of the pay of the appellant in secretariat scale. The relevant portion reads as under:‑ "The matter was referred to the Finance Department who have regretted its inability to agree to your proposal. The applicant may be informed accordingly."

2. The appellant, when came to know of this decision, decided to invoke the jurisdiction of this Tribunal through this appeal under section 4 of the Punjab Service Tribunals Act, 1974. The appeal was admitted to regular hearing on 14‑7‑1986. The respondents have contested the appeal, filed the written objections and prayed for its dismissal.

3. We have heard the learned Counsel for the appellant and learned District Attorney for the Respondents and have gone through the relevant record. The learned Counsel for the appellant in support of the appeal has made following submissions:‑ (i) That the appellant was rightly placed in the Secretariat group and throughout he was treated as such, therefore, the Government has now lost right to repent. (ii) Second submission is that the conditions of 1959 are not applicable. The same being executive order which cannot be given retrospective effect. (iii) The appellant is being given discriminatory treatment. (iv) Special law to prevail instead of general law. (v) That the vested right cannot be taken away. (vi) The option though exercised but was not requirement of law and rules and was exercised under misapprehension of facts and law, therefore, of no legal consequence.

4. On the other hand, the learned District Attorney has argued that the appellant was not entitled to pay scale in the Secretariat group after he opted for the prescribed scale and the mistake or mischief when detected was rightly rectified.

5. We have considered the arguments of both the sides but we would like to point before proceeding any further that the appellant although opted for prescribed scale yet unnoticed by and stealthly shifted to the Secretariat group from 1965 and as the benefit was scanned with the active collusion of concerned officials, therefore, he continued to have the benefits of increments etc. in terms of this scale. But as ill‑luck would have some one reported to the authorities as to the misdeed of the appellant. It was on this complaint that the Finance Department addressed Annexure 'J' to the Chief Engineer, Bahawalpur. The appellant when came to know of this memo as already noted, he submitted a representation for relaxation/ verification of pay in the Secretariat scale which did not find favour with the Finance Department.

6. We are of the considered opinion that the appellant after one having opted for the prescribed scale was not entitled to protection of Secretariat pay scale and he wrongly got himself treated in the Secretariat Group right from 1965. We do not find ourselves inclined to accept justification of the appellant that it was none of his fault for the simple reason that if it came to the notice of a 3rd person that the appellant is getting undue benefits then how it escaped the notice of its beneficiary i.e. appellant and his sides. Then next comes question for relaxation or regularization. We are of the clear view that rules do not permit for the same and the Finance Department has rightly refused to regularize the illegality. Therefore, we do not find any merit in the plea of the appellant. The learned counsel for the appellant mainly tried to take shelter of illegal pleas but once we conclude that the appellant got himself shifted to a scale which he was entitled fraudulently and by under hand means, then no legal hurdle will stand in the way of Respondents to rectify its legality and set aside fraudulent entries.

7. The second submission of the learned Counsel for the appellant that conditions of 1959 are not applicable to the appellant is without any merit for the reason that the appellant exercised option in 1959 with open eyes in favour of prescribed time scale. Therefore, he is very much bound by the same. He is estopped by his conduct to take up this plea. The validity of the option has not been denied by him even in his latest representation when he asked for regularization to re‑exercise the option. Therefore, there is no force in the arguments of the learned counsel for the appellant.

8. The other ground that appellant had met with discretionary treatment is without any merit. The appellant has failed to substantiate by citing any precedent where re‑exercise of the option was allowed. On the other hand, the appellant has relied on judgment of the Lahore High Court in Writ Petition No.148‑S‑70 and judgment of this Tribunal in Appeal No.672/1165 of 1984 but both the cases are not relevant to the matter in issue. Both the cases were for grant of special pay for post of Administrative Officer whereas in the present appeal, as already noted, the appellant has sought the protection of Secretariat pay scale which is not his right. There is nothing common with the precedent cases.

9. Fourthly, it was argued that the special law to prevail instead of general law, the argument is that since the employees of the Bahawalpur State were given a special treatment, therefore, they should continue to have that protection and the general provisions and rules made applicable to whole of One Unit and later on to the Punjab Province were not applicable. The argument is misconceived. The appellant when exercised the option in favour of the prescribed scale, himself gave up the protection available to him. Now he cannot) make grievance of the same.

10. Fifthly, it was argued that vested right cannot be taken away. This argument is again misconceived and without any merit. The Government has given an option to the appellant. The prescribed pay rules have not been made applicable per force. Therefore, the appellant after exercising the option in favour of prescribed pay scale did not retain the scale of unit of his origin and last entitlement regarding his protection. The appellant is to blame himself and none else. Even otherwise the appellant once felt prescribed rules beneficial now cannot turn down and complain against the same.

11. In the end it was argued by the learned Counsel for the appellant that option was not requirement of law or rules, therefore, it was exercise in futility. The appellant is blowing hot and cold in the same breath. On the other hand, he has exercised option clearly. The appellant in the representation asked for re‑exercise of the option and now it is being claimed that the exercise of option was of no legal consequence. The argument is without any merit and fallacious. The learned Counsel for the appellant referred to rule 17 dealing with the relaxation of any rule. The same is reproduced as under:‑ "In cases where the operation of these rules involves undue hardship to a Government servant, Government may for reasons to be recorded in writing, relax any of the rules in his favour."

12. The reference to this rule is irrelevant as it is not a case of relaxation of any rules.

13. Before parting with the judgment, we would like to deal with another aspect of the matter. It is important as it renders the appeal incompetent. The Accountant‑General has sought certain clarifications from the Chief Engineer, Bahawalpur, for fixation of pay of the appellant. These clarifications still remained unanswered and the appellant proceeded to make the representation for verification of his pay in the Secretariat scale. This clearly amounts to admitting the view point canvassed, the Accountant‑General in its memo. attached as an Annexure 'J'. The Government has not so far decided the matter when the appellant proceeded to file the present appeal. This is in fact an attempt to forestall any future action from the authorities when the case is considered from this angle, then the appeal is rendered incompetent as the authorities are yet to pass the final order. We have asked to the learned Counsel for the appellant to explain how this appeal is competent. He maintained that since his representation for verification of scale for the Secretariat Group has been turned down, therefore, he can maintain the appeal. We are unable to accept the contention of the learned Counsel for the appellant. The representation was not directed against any order. This way there is no final order against which appellant can file this appeal.

13. The upshot of the discussion is that the appeal is without any merits and even incompetent, therefore, the same is dismissed with costs. A.E. /141/Sr.P Appeal dismissed.