1993 PLP (C (PLC(CS))

SEED ALLY MADAD SHAH (CHAIRMAN):--‑‑Appellant Mr. M. Sirjees Nagi entered Federal Government Secretariat by way of lateral entry as a First Secretary (Grade‑18 + Special Pay Rs.440) in the Ministry of Foreign Affairs on 7‑12‑1973. He was subsequently designated as a Deputy Secretary (Grade‑18) and posted in the Federal Secretariat as such. He was promoted as a Joint Secretary (BPS‑20) vide Establishment Division Notification No. 39/521/89‑E‑I, dated the 31st October, 1989. On his representation, he was assigned seniority as the Joint Secretary in the Secretariat Group with effect from 19‑5-1983 and consequential fixation of pay with increments in BPS‑20 from that date but was not allowed benefit of arrears of pay as per Establishment Division Memorandum dated 13‑3‑1990. He made representation dated 8‑5‑1990 to the Secretary, Establishment Division for payment of arrears in BPS‑20 with effect from 19‑5‑1983. He was informed under Establishment Division Memorandum dated 26‑9‑1990 that his pay and benefits of increments in BPS‑20 were determined under FR‑26(c) as reflected in the earlier Memorandum dated 13‑3‑1990. He then made departmental appeal to the President. He was informed under Establishment Division Memorandum dated 9‑12‑1990 that his appeal to the President had been with held as it was not addressed to the appropriate appellate authority. He then made appeal to the Prime Minister on 12‑12‑1990. Awaiting decision on his appeal for more than 90 days, he preferred this appeal on 9‑4‑1991 for getting arrears of pay and allowances in BPS‑20 for the period from 19‑5‑1983 to 4‑11‑1989.

2. The case of the appellant is that since he was allowed seniority in BPS‑20 with benefit of fixation of pay and the increments with effect from 19‑5‑1983, there was no reason for denying him the benefit of arrears of pay and increments. He has placed reliance on a judgment of this Tribunal dated 26‑11‑1988 in his earlier Appeal No. 102(R)/88, where under his claim for arrears of pay and increments for the period his seniority as Deputy Secretary was ante‑dated was upheld. He has cited the decisions of the Supreme Court and the Lahore High Court reported in 1985 SCMR 1394 and PLD 1973 Lahore 56, laying down the dictum that where a Government servant was precluded from availing benefits of higher post for no fault on his part, he was entitled to the monetary benefits of the higher post for that period.

3. The contention of the respondent is that a civil servant is entitled to the emoluments for the post actually held by him and since the appellant did not actually hold any post in BPS‑20 during the aforesaid period, he was not entitled to arrears of pay and increments for that period. Their case is that the claim of the appellant was to be regulated under the provisions of Fundamental Rules 17, 22, 26(c) and

30. According to them, the appellant was allowed fixation of his pay in BPS‑20 with increments with retrospective date as to rehabilitate his title to the post which he had not practically held and performed its duties. Reliance was also placed by the learned Standing Counsel on the provisions of FR‑52(c).

4. The question involved in the appeal may first be examined in the light of the provisions of the Fundamental Rules relied upon by the parties. FR‑17(1) provides that subject to any exceptions specifically made in the rules, an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post and shall cease to draw them as soon as he ceases to discharge those duties. FR‑26 lays down the conditions on which service counts for increments in a time scale. It is provided under clause (a) of the FR‑26 that all duty in a post or time‑scale and periods of leave other than extraordinary leave count for increments in that time scale. Its clause (b) provides that service in another post whether in substantive or officiating capacity, and service on deputation, count for increments in the time scale applicable to the post on which: the Government servant holds a lien, as well as in the time scale applicable to the post or posts, if any, on which he would hold a lien had his lien not been suspended. Clause (c) of FR‑26, relied upon by the respondents, lays down that if a Government servant while officiating in a post or holding a temporary post on a time scale of pay, is appointed to officiate in another post or to hold any other temporary post which does not carry less pay than that of the original post, his officiating or temporary service in that post shall, if he is reappointed to his original post, count for increments in the time scale applicable to the original post. Clause (d) of the same FR‑26 provides that foreign service counts for increments in the time scale in certain circumstances. FR‑20 provides that when a Government servant is treated as on duty under the provisions of Rule 9(6)(b), the Government may, at their option, authorise payment to him of the pay of his substantive appointment or on any lower rate of pay which the Government may consider suitable. FR‑30 caters for pay of officiating Government servants. It provides that subject to the provisions of Chapter VI, where a Government servant is appointed to officiate in a post he 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 the Rules or unless the officiating appointment involves the assumption of duties and responsibilities of greater importance than those attached 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. FR‑52(a) is a provision in Chapter VIII relating to dismissal, removal and suspension from service. It would thus appear that the case of the appellant does not fall within the ambit of any one of the aforesaid rules. The substantive provision in respect of pay of a civil servant is contained in section 17 of the Civil Servants Act, 1973, which is reproduced below:‑-- "

17. Pay.‑‑A civil servant appointed to a post shall be entitled, in accordance with the rules, to the pay sanctioned for such post: 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, under an order which is later set aside, been dismissed or removed from service or reduced in rank, he shall, on the setting aside of such order, be entitled to such arrears of pay as the authority setting aside such order may determine." The proviso to section 17 of the Civil Servants Act, 1973 does not expressly provide for a situation as involved in the appellant's case but on its analogy that where a civil servant prevented from drawing pay consequent to an order of dismissal or removal from service or reduction in rank, will be entitled, on setting aide of that order, to such arrears of pay as the authority setting aside such order may determine, the appellant, who was denied promotion to higher post on account of late determination of his seniority and since his seniority was restored and he was allowed benefit of fixation of pay with increments for the intervening period, should not have been denied the benefit of arrears of pay and increments for the period he would have been entitled to consideration for promotion and earned promotion as claimed by him. The appellant's case, therefore, falls under the dictum laid down by the Supreme Court of Pakistan in the case of Syed Sultan Shah v. Government of Balochistan, reported in 1985 SCMR 1394, that a civil servant, who for no fault of his own is wrongfully prevented from rendering service to State in higher post to which he is admittedly entitled, should be given salary for higher post and the civil servant was entitled to salary in spite of provision of FR‑17.

5. Adverting to the legal objections urged by the respondents, one of the grounds is that the appeal is time‑barred. It is stated in the written objections that seniority of the appellant was retored as per Memorandum dated 10‑3‑1990 and order for fixation of his pay was also made simultaneously, whereas he filed representation dated 8‑5‑1990 for grant of arrears of pay with effect from 19‑5‑1983 and he was informed vide Memorandum dated 26‑9‑1990 that the question of arrears of pay was already settled under Memorandum dated 13‑3‑1990. It is further stated that the Memorandum dated 13‑3‑1990 constituted the original order and‑ the Memorandum dated 26‑9‑1990 was supposed to be the appellate order for the purposes of section 4 of the Service Tribunals Act, 1973, but the appellant did not do that and instead he submitted an appeal to the President on 23‑10‑1990 anti that appeal was withheld and yet he submitted another appeal to the Prime Minister on 12‑12‑1990 and the time occupied in preferring those appeals did not extend the period of limitation and the appeal is, therefore, time barred. It would appear from the events mentioned above that the order regarding fixation of seniority of the appellant was made on 13‑3‑1990 and it was mentioned therein that he was allowed fixation of pay with increments with retrospective but without arrears of pay. The appellant made representation for getting arrears of pay also. His request was not acceded to and he then submitted appeal to the President which was withheld on the ground that it was not addressed to the proper authority and he then submitted an appeal to the Prime Minister on 12‑12‑1990. In the circumstances, the period occupied in preferring appeals to the President and the Prime Minister was not in-condonable. The appeal filed within 120 days of the submission of the departmental appeal to the Prime Minister, the competent authority, is within the period of limitation and it is not time‑barred. The other objection is that of non‑joinder of necessary party, i.e. the Secretary, Ministry of Finance, who had denied the appellant the payment of arrears of pay, has not been impleaded as a respondent. The appellant submitted that he was never communicated the order of the Ministry of Finance and, therefore, the Secretary, Ministry of Finance was not a necessary party. Of course, the finances of the Federal Government are controlled by the Ministry of Finance but the appellant was not communicated any order made by the Finance Division in respect of arrears of his pay and, therefore, non‑impleading of the Secretary; Ministry of Finance as a party does not make the appeal non‑maintainable.

6. For the reasons recorded above, the appeal is allowed with the direction that the appellant shall be allowed arrears of pay and increments with effect from 19‑5‑1983 consequent to the order dated 13‑3‑1990, where under he was allowed seniority in BPS‑20 and also allowed fixation of pay with increments. No order is made for costs. H.B.T./766/Sr.F Appeal allowed.