2009 PLP (C (PLC(CS))

MOAZZAM HAYAT (MEMBER).

Appellant Hafiz Sanaullah is a Librarian in WAPDA Engineering Academy, Faisalabad. On 11-12-1995 he was served with a show-cause notice as on physical verification 28 books were found short in the Library under his supervision. Another notice was issued to him on 8-2-1996. Vide order dated 14-5-1996 the appellant was awarded penalty of censure. It was also ordered that an amount of Rs.23,623.23 with 15% consequential charges shall he recovered from him. This order was ultimately challenged by the appellant in this Tribunal by filing Appeal No.398(L) of 1996. This appeal was decided on 6-3-1997. The operative part of judgment of the Tribunal is as under:

"

8. Keeping in view the job of Librarian we are of the considered opinion that there is every possibility of loss of books and that is why certain percentage of loss of library books is exempted the world over. We feel that the said loss is inevitable as and to err is human and to forgive divine. Taking the lenient view we accept the appeal, and direct the respondents to write-off the remaining amount from appellant with the warning to the appellant to be careful in future. Ordered accordingly".

2. The respondent revised the case in the light of judgment of the Tribunal and passed an order of 20-4-1997 by which Rs.6,000 were to be recovered from the appellants as total cost of library books instead of Rs.23,623.23. The penalty of censure was substituted with a warning that the appellant shall be careful in future. The grievance of the appellant is that he had reached the maximum of BPS-16 on 1-12-1995, therefore, he was entitled to move-over w.e.f. 1-12-1996 but it was not allowed to him. The appellant was informed by the Director (Admn.) Power-II WAPDA House, Lahore vide letter dated 28-9-1999 that since penalty of recovery had been imposed upon him even after the decision of the Federal Service Tribunal, therefore, he was not eligible for move-over w.e.f. 1-12-2001 as per move-over policy. His departmental appeal met with the same fate. Rana Kazim Ali Khan, Director Admn. Power-II conveyed to the General Manager Training vide his letter dated 12-8-2000 that the appellant was not eligible for move-over and since he was agitating the matter through different forums, therefore, he was violating the office decorum and liable to admonition. It is in this backdrop that the appellant has filed the present appeal wherein he has prayed for grant of move-over w.e.f. 1-12-1996.

3. The appeal is resisted by the respondents. It is stated that the appellant had been awarded penalty of recovery of Rs.6,000, therefore, he is not entitled to move-over. It is also stated that the appeal is barred in view of Government of Pakistan, Finance Division's letter No.F.1(5)Imp/2001 dated 30-1-2002 by which it was laid down that "grant of Selection Grade and Move-over to the next higher scale now stands discontinued". A legal objection has also been taken that the appeal is time-barred.

4. We have heard the learned counsel for the parties and have also perused the record.

5. The respondents have maintained that the appeal is time-barred as the appellant had prayed for move-over w.e.f. 1-12-1996 whereas the present appeal had been filed on 13-9-2000. We do not find any force in this objection of the respondents. The appellant has a continuing cause of action. He has been deprived of extension of his pay by move-over. Every month he is getting lesser pay so a cause of action is accruing in his favour every month. This cause of action is still there even today. Section 23 of the Limitation Act 1908 deals with cases of continuing causes of action. It states "in the case of a continuing wrong a fresh period of limitation begins to run at every moment of the time during which the wrong continues". In view of this clear provision of law the appeal of the appellant is, not time-barred as he has a continuing cause of action and the wrong done to him has not been redressed to-date. The objection is overruled.

6. The respondents have not allowed move-over to the appellant for the reason that penalty of recovery had been imposed upon him which had even been maintained by the Federal Service Tribunal in the earlier appeal filed by him. It is- settled law that a minor penalty is not a hurdle in the promotion of a Civil Servant. When minor penalty is not a hurdle in the promotion of a Civil Servant it can never be a hurdle in the grant of move-over to him because move-over is simple an extension in his pay scale. Reliance is placed on 1996 PLC (C.S.)

986. We accordingly hold that imposition of penalty of recovery of Rs.6,000 was not a ground for refusing move-over to the appellant.

7. According to the respondents the facility of move-over has been discontinued by the Federal Government vide its notification dated 30-1-2002. This notification does not have retrospective effect. The claim of the appellant is for a period much prior to the issuance of this letter by the Federal Government. On the basis of this letter the respondents were not justified in refusing the grant of move-over to the appellant from the date it was due.

8. No further argument has been advanced.

9. For the foregoing reasons we accept the appeal and direct the respondents to grant move-over to the appellant from the date it was actually due to him. The penalty of recovery of Rs.6,000 shall not be a hindrance in the grant of move over to him.

10. There shall be no order as to costs. Parties be informed. H.B.T./20/FST Appeal accepted.