1989SCMR574 (PLP)

Record for Respondents Nos. 2 to

5. Date of hearing: 7th September, 1988. USMAN ALI SHAE, J.‑‑The above‑mentioned separate appeals have arisen by leave of the Court from the judgment and order dated 22‑8‑1982 of the Sind Service Tribunal Karachi and the judgment and order dated 27‑9‑1984 of the High Court of Sind Bench at Sukkur, wherein Appeal No.54 of 1982 and Constitutional Petition No.D‑53 of 1984 of the appellant were dismissed by the impugned judgments. The facts of the above mentioned appeals are one and the same which are briefly stated in the subsequent paragraphs. On 2‑8‑1962 the appellant was appointed as Tracer in the Colonization Office, Gudu Barrage, Sukkur, a branch of the then Agricultural Development Corporation (A.D.C.) Project. The appellant was promoted as Draftsman with effect from 3‑8‑1965 against an existing post. During the year 1963 the Government of West Pakistan issued orders for re‑designation of various categories of the posts drawing establishment in ormer provinces of Sind, N.‑W.F.P. to be brought at par .with that of ex‑Punjab, whereby the incumbents of the posts were entitled to prescribed pay scales in' accordance with the Pay Revision Rules, 1959. Notifications for the above orders were issued by the respective departments of the then Government of West Pakistan viz. (i) No.l7/80‑S.O.IIl(E)/61 dated 28‑6‑63 by Irrigation and Power Department and (ii) No.ESTT.IV‑1‑117/62 dated 6‑11‑63 by Communication and Works Department. Under the above‑said orders, post of Assistant Draftsman was redesignated as Draftsman and that of Draftsman was redesignated as Head Draftsman. On dissolution of Agricultural Development Corporation (A.D.C.) vide President's Order No.5 of 1972 dated 7th February, 1972, the rights and liabilities of its employees (including the appellant) were merged in the Board of Revenue, Government of Sind. In the year 1967 the appellant came to know about this Notification dated 28‑6‑63 regarding the redesignation of the technical staff of ex- Punjab pattern. During period of service in his previous department neither the appellant preferred any claim for his post to be redesignated from Draftsman to I‑Lead Draftsman nor he claimed the higher emoluments. The appellant made a request to the Head of his Department i.e., the Project Director, Gudu Barrage, through respondent No.5 for the implementation of the said Notification dated 28‑6‑1963, copy of which was already endorsed to him. In other departments the said orders were implement by their respective heads but the Project Director had failed to implement the said orders in the Colonization Office. In 1981 when one Muhammad Yunus came on deputation in the same colonization Office, he was allowed arrears of his service benefits accrued to him in pursuance of the said order vide Revenue Board letter No.7/113/80 /Admn III/ dated 31‑5‑1981. The case of the said Muhammad Yunus was quite identical to that of the appellant. The appellant approached respondent No.3 for the implementation of the said Notification on the ex‑Punjab pattern but his request was turned down by him with the remarks that the Board has no powers to revise the period of service of the appellant in the Agricultural Development Corporation vide his letter No, 7/l';;/81‑Adnzn‑IIl elated 1‑3‑1982. In response to the above the appellant once again approached respondent No.3 with reference to paras 4(b), 5(2) and 7(b) of the President's Order No.5 of 1972 and Finance Department's Circular No.B‑IV‑8(55)/74 dated 30‑1‑1974 but the respondent No.3 did not pay any heed to the request of the appellant and rejected his claim vide letter No.7/131 /81/Admn/III, dated 2‑6‑1982. 04 The appellant being not satisfied with his correspondence with head, of different departments preferred appeal No.54 of 1982 before the Sind Service Tribunal at Karachi. The learned Chairman, and members of the Tribunal vide their finding dated 22‑8‑1982 dismissed the appellant's appeal. The appellant being aggrieved by the. said order of they learned Tribunal filed a Constitutional Petition No.53 of 1984 in the High Court of Sind, Sukkur Bench. During the pendency of his petition in the High Court, the appellant also filed appeal in this Court against the judgment of the Service Tribunal Sind. A learned Division Bench of the High Court dismissed the Constitutional Petition of the appellant in limine vide its judgment dated 27‑9‑1984. Hence the abovementioned appeals by leave of the Court. Since the parties and questions of facts involved in the abovementioned appeals are one and the same but arisen out of different judgments of the Sind High Court and that of the Sind Service Tribunal, therefore, we propose to dispose of both the appeals by a‑ single judgment. We have heard the appellant who appeared in person and the learned Assistant Advocate‑General for the respondents in both the appeals. As regards Civil Appeal No.191‑K of 1986, the appellant after dismissal of his appeal before the Sind Service Tribunal, selected a wrong forum by filing a Constitutional A Petition before the Sind High Court. The learned High Court of Sind, Bench at Sukkur, had no jurisdiction and has rightly not interfered with the matter and dismissed the Constitutional Petition in limine. Hence there is no force in Civil Appeal No.191‑K of 1986 and we dismiss the same. As far as Civil Appeal No.214‑K of 1986 is concerned, the appellant in person and the learned AA‑G. for the respondents were heard. By going through the record of the case and judgment of the learned Service Tribunal, we have observed that the learned Chairman and Members of the Tribunal were influenced by the technicality existing in the case and did not have the occasion to thoroughly examine the case. The record of the case will show that Gul Muhammad appellant was holding the post of Draftsman since 3‑8‑1965 in the pay scale of Rs.l75-10-215‑

350. According to .article NoA(b)(ii) and 5(2) and 7(b) of the then West Pakistan Agricultural Development Corporation (Dissolution) Order No.5 of 1972, all the employees and the liabilities of the Agricultural Development Corporation were transferred to the Provincial and Central Government or other authorities. In pursuance of the said Presidential Order, Government of West Pakistan Communication and Works Department and Irrigation and Power Department vide their Order No.ESTT: IV‑1‑117/62 dated 6‑11‑1963 and No.17/30‑S.O.II1 (B)/61 dated 28‑6‑1963 respectively issued instructions to their own subordinate departments regarding the implementation of the revised pay scales and redesignation of their staff including he drawing I staff. The record of the case also shows that one Muhammad Yunus Bullo whose post was redesignated from Head‑Accountant to Superintendent and was allowed improved pay scale by the Board of Revenue Sind vide letter B No.7/113/80‑Admn. III dated 31‑5‑1981., but this right was denied to the appellant by the respondents. In written statement on behalf of the respondents before the Tribunal R is admitted by the respondents that copy of the Notification No.ESTT: IV‑1‑117/62 dated 6‑11‑1963 was not received in the Office of the respondent No.4 and the respondents are unaware, if the appellant had made any application in 1967 to the then West Pakistan Agricultural Development Corporation for redesignation of his post. Furthermore, respondent No.5 vide his letter No.AB/6690 dated 15‑11‑1981 addressed to Assistant Secretary Board of Revenue, Sind for the implementation of Order No.ESTT‑IV‑1‑117/62 dated 6‑11‑1963 of defunct Government of West Pakistan pertaining to Pay Revision Rules 1959 to redesignate the post of Draftsman to that of Head‑Draftsman. An extract from the contents of the said letter is given below:‑ "The post of Draftsman was sanctioned in this Department since 1959 60, but owing to the unawareness of the Order No.Estt/IV/1/117/62 of the defunct West Pakistan, it seems that the A.D.C. authorities could not implement the same. Under the circumstances, the post requires to be j redesignated as Head‑Draftsman with effect from the date of the appointment of the incumbent i.e. 3‑8‑1965 rather than 14‑10‑1955." In the light of the above, we are of the opinion that ignorance on the part of the respondents about the specific Notification in favour of the appellant, does not mean to refuse the legal rights of the appellant. Thus the case of the appellant is quite clear on the face of the record but the learned Chairman and Members of the Service Tribunal did not have the occasion to go into this aspect of the case. The result is that we allow this appeal and set aside the impugned IC judgment of the learned Service Tribunal of Sind, with no order as to costs. , M.Y.H./G‑152/S Appeal allowed.