1998 PLP (C (PLC(CS))

SAIDUZZAMAN SIDDIQUI, J.

The abovementioned 15 civil appeals with the leave of this Court are directed against the two separate judgments of learned N.-W.F.P. Service Tribunal, Peshawar, dated 31-5-1994 and 24-7-1994 respectively. As the questions of law arising in these appeals are identical we propose to dispose of these appeals, by a common judgment.

2. Civil Appeals Nos. 18 of 1995 and 128 of 1995 are directed against the judgment of learned Service Tribunal dated 31-5-1994, Civil Appeal No. 18 of 1995 is filed by a civil servant Abdul Hamid, while Civil Appeal No.128 of 1995 is filed by Chief Secretary, Government of N.-W.F.P. Appeals Nos.539 to 551 of 1995 are filed against the judgment of learned Service Tribunal dated 24-7-1994, by aggrieved civil servants.

3. The relevant facts for decision of these appeals are that appellants in Civil Appeals Nos. 18 of 1995 and 539 to 551 of 1995 were adjusted/appointed on temporary basis on different dates against the post of Subject Specialist which was a post in BPS-17. Prior to their appointments as Subject Specialists, the appellants were serving as teachers against the posts which were in BPS-15. The appellants were not regularized against the post of Subject Specialist and were also not paid the salary in BPS-17 by the department on the ground that they were not qualified to hold the post of Subject Specialist which was a post in BPS-17. After exhausting departmental remedies, the appellants approached the learned N.-W.F.P. Service Tribunal through service appeals wherein they prayed for a direction to the department to regularize their services as Subject Specialist in BPS-17 and that they may be paid the minimum salary payable against the post of BPS-17 from the date of their respective appointments. The learned Service Tribunal through the two separate judgments mentioned above though held that the appellants were entitled to minimum pay of BPS-17 for the period the appellants actually worked against the post of Subject Specialist but allowed the claim for arrears of pay only for a period of three years from the date the respective appeals were filed before the Service Tribunal by the appellants. The claim for arrears of pay beyond the period of three years was disallowed by the learned Tribunal. In so far the claim for regularization was concerned, the learned Tribunal left the question to be decided by the department in accordance with the law. Leave was granted in Civil Appeal No. 18 of 1995 and 539 to 551 of 1995 to consider, whether the observation of learned Tribunal that the appellants were only entitled to three years arrears of pay from the date they filed their respective appeals before the Tribunal, was justified and whether the claim of the appellants beyond the period of three years as mentioned above could not be recovered as it had become time-barred. Leave was also granted in Civil Appeal No. 128 of 1995 filed by the Government of N.-W.E.P. to consider the contention of the department whether the appellants could not claim the salary against the post of Subject Specialist (B-17) as they were not qualified to be appointed as Subject Specialist as they had not obtained the degree of B.Ed. and M.Ed., which was the required qualification for the said post. We have heard the learned counsel for the appellants as well as learned counsel for the Government of N.-W.F.P. in the above appeals.

4. We will first of all take Civil Appeal No. 128 of 1995 filed by the Government of N.-W.F.P. against the judgment of Service Tribunal dated 31-5-1994. We may mention here that in so far the judgment of Service Tribunal dated 24-7-1994 in the remaining appeals is concerned, that has not been impugned by the Government: of N.-W.F.P. The respondent in Civil Appeal No.128 of 1995 was appointed as S.E.T. in B-15 and adjusted against the post of Subject Specialist vide order dated 26-4-1988 with effect from 19-4-1988. The respondent was denied regularisation against the post of Subject Specialist B-17 as well as pay in B-17 on the ground that his appointment as S.E.T. in B-15 was temporary appointment, and therefore, he was not entitled to draw salary against the post of Subject Specialist which was a post in B-17. The learned Tribunal upheld the claim of the respondent in Civil Appeal No. 128 of 1995 with regard to payment of minimum pay of B-17 as he was holding the post of Subject Specialist continuously from the date of his appointment. However, the learned Tribunal did not allow the claim of the respondent beyond the period of three years from the date he filed writ petition in the High Court on the ground that the pay for the period j beyond that period was time-barred. The learned counsel for the appellants in Civil Appeal No. 128 of 1995 contended that the respondent was not entitled to draw the salary against the post of Subject Specialist which was a post in 1B-17 as he did not possess the required qualification namely B.Ed. or M.Ed. This contention of the appellants in Civil Appeal No.128 of 1995 was rejected by the Tribunal and rightly so in view of the decision in the case of Islamic Republic of Pakistan v. Abdul Karim (1978 SCMR 289) and Federation of Pakistan v. Shahzada Shahpur Jan (1986 SCMR 991). We, accordingly, find no substance in the contention of the appellants in Civil Appeal No. 128 of 1995 which is, accordingly, dismissed.

5. We now take up Civil Appeals Nos. 18 of 1995 and 539 to 551/95. In all these appeals, the appellants had claimed arrears of pay from the date they were appointed as Subject Specialists in B-17. The learned Tribunal though accepted their contention that having worked in the higher post in B-17, they were entitled to get minimum pay of B-17 from the date of their respective appointments but this claim for arrears of salary was allowed only for a period of three years in the Civil Appeal No. 18 of 1995 from the date of filing of writ petition in High Court and in all other cases from the date of institution of appeals before the learned Tribunal by the appellants in each case. The learned counsel for the Government has not been able to point out any law under which the claim for arrears of salary of the appellants could be denied on the ground that it has become time-barred. The learned Tribunal having held that the appellants were entitled to draw the minimum salary in Pay Scale No. 17 from the date of their appointment as Subject Specialist, could not reject the part of the claim of their salary on the ground that they were only entitled to recover salary for three years from the date they filed appeals before the Service Tribunal. It may be mentioned here that the question regarding payment of salary of BPS-17 post was being agitated by the appellants from the dates of their appointments, first before the departmental authority and, thereafter, before the Service Tribunal. In these circumstances, it was hardly open to argument that their claim for salary for the period they worked against the post of Subject Specialist B-17 had become time-barred, The controversy with regard to entitlement of pay against the post of B-17 having been agitated and finally decided by the Service Tribunal through the impugned judgments the appellants were entitled to the arrears of salary for the entire period they have worked against the post of Subject Specialist in B-17 on the basis of minimum pay payable against B-17. We, accordingly, partly allow Appeals Nos. 18 of 1995 and 539 to 551 of 1995 and modify the order of the learned Service Tribunal to the extent that the appellants in these appeals were entitled to the payment of minimum salary against the post of Subject Specialist B-17 from the dates of their respective appointments.

6. In so far the claim of appellants in the above appeals with regard to their regularization against the post of Subject Specialist B-17 is concerned, the learned Tribunal rightly declined to grant the same as, in the first instance, the question of regularization of appellants against the post of Subject Specialist is to be considered by the department. Therefore, no exception can be taken to the judgment of the Tribunal in so far as it left the question of regularization of appellants against the post of Subject Specialist B-17 to be decided by the department. The appeals stand disposed of, accordingly, with no order as to costs. A.A./A-96/S Order accordingly.