1988 PLP (C (PLC(CS))

S.ABDUL JABBAR KHAN, (CHAIRMAN). ‑‑Charagh Muhammad Rai, Director Physical Education, Government Commercial Training Institute, Faisalabad, has filed this appeal a/s 4 of the Punjab Service Tribunals Act,1974, in which he has impleaded the Secretary to Government of the Punjab, ‑ Education Department, Lahore, and the Secretary to Government of the Punjab, Finance Department, Lahore, as respondents. 2. By virtue of this appeal he has prayed that impugned orders dated 13‑6‑1985, and final order dated 11‑11‑1985/1‑12‑1985, be set aside and respondents be directed to allow NPS‑17/BS‑17 to the appellant w.e.f. 30‑5‑1983, by giving the effect of amendment to the Punjab Senior Teaching Posts (National Pay Scales) Rules,1974, and Revision of Pay Scales‑Scheme of Basic Pay Scales and Fringe Benefits of the Punjab Government Employees, 1983, Rules from the said date (30‑5‑1983) instead of 14‑3‑1985. 3. Brief facts of the case are that the appellant joined service as D.P.E. in the Punjab Education Department, and was enjoying the Pay Scale of the post of DPE, which was revised and its status raised to gazetted post w.e.f. 1‑6‑1970. The D.P.Es. of the Govern ment Colleges were also given the same status vide Notification dated 20‑9‑1971. The Government of the Punjab introduced the Punjab Senior Teaching Posts (National Pay Scales) Rules,1974, whereby the Pay Scale of the post of D.P.E. of the Colleges was revised, and the same concession was granted to the appellant who belonged to the Technical Education Department. M.A. in Physical Education was introduced by the Punjab University for the first time in the Session 1980‑82. As a result of this D.P.Es. of the Colleges as well as the appellant took admission to M.A. Classes. By Notification dated 30‑5‑1983, appellant was declared successful in the said Examination and was awarded Degree by the Punjab University. Whereas quite a number of persons who passed M.A. Examination alongwith the appel lant, were awarded NPS 17 retrospectively w.e.f. 30‑5‑1983, vide notification dated 11‑7‑1983, but the appellant was not considered for the same on the plea that he belonged to the Technical Education Department. The appellant submitted application dated 8‑5‑1982, Annexure 'G', in which he pointed out anomaly with regard to the DPEs of the Technical Education Department with M.A. Physical Educa tion, qualification vis‑a‑vis the Pay Scale of DPEs of other colleges of the same Department with the same qualification. His case was strongly recommended by the Director, Technical Education, Punjab, Lahore, vide his letter dated 15‑5‑1983. Ultimately the anomaly was removed and appellant was granted the benefit of his qualification but not from the date he acquired M. A. Physical Education Degree but from the date of notification viz. 14‑3‑1985. The appellant made a representation against the same but the same was turned down. Hence this appeal. 4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance. 5. Learned Counsel for the appellant has submitted that the case of the appellant was a case of discrimination, whereas 7 DPEs of other colleges M/s. Muhammad Younas Moghal etc. who passed M.A. in Physical Education in 1983, alongwith the appellant were awarded NPS No‑17, from the date of their passing M.A.(Physical Education) vide Notification dated 11‑7‑1983, but in the case of the appellant the same concession was not allowed to him. It has been vehemently argued that the appellant has been denied the benefit due to the anomaly created by the Finance Department itself in the Pay Revision Rules, 1974, as well as subsequent Pay Revision Rules,1983, and' ultimately the Finance Department realized the anomaly and removed the same by notification dated 13‑6‑1985 and not from the date when he passed his M.A. Physical Education Examination. Learned Counsel for the appellant has relied on the case of Faizanul Haq etc. of the same Department who were deprived of NPS‑18 from the due date i.e. 1‑3‑1972, and ultimately the Finance Department removed the anomaly w.e.f.1‑1‑1975. They filed appeal before the Punjab Service Tribunal through Appeal No.58/56 of 1985, which was accepted and detailed judgment was passed. It has been prayed that the case of the appellant was absolutely on all the four to the case of M/s. Faizanul Haq etc. and may be allowed same benefit to him. A copy of this judgment has been placed on record as Annexure "Q". 6. On the other hand learned District Attorney has opposed the appeal on the ground that as the notification has laid down that it will be with prospective effect, therefore, the appellant had no right to claim the benefit from the date of acquiring M . A .Physical Education Degree. 7. We have given our anxious thought to the arguments advanced by the parties and have also perused our detailed judgment given in the case of M/s. Faizanul Haq and four others of Nuclear Research Laboratory Government College, Lahore. The fact of the matter is that anomaly did occur and it was highlighted in the letter addressed to Secretary Finance Punjab, Lahore by the Secretary Education, Punjab, Lahore, dated 19‑9‑1985, in which it was made out that the case of the appellant was fully justified and no discrimination could be made with the Technical Education Wing and ultimately it was requested that he should look into the matter personally and remove the disparity which was being faced by the DPEs working in the Technical Wing of the Education Department. This letter has been placed on record as A/I. Once it is established that the anomaly did occur and was resolved by the Anomaly Committee and a notification was issued in favour of the appellant, the only point for determination is whether the benefit would accrue to the appellant from the date of qualification or from the date of notification. For this we will rely on our own judgment and would reproduce the relevant paragraph of the same which has also been mentioned in the memo of appeal so filed by the appellant: ‑ "We have given our anxious thought to the arguments of the parties and have consulted the record of this case very care fully. The appellants have been allowed NPS 18 vide Notification dated 13‑1‑1975 (Annexure C) w.e.f. 1‑1‑1975. The grievance of the appellants is that there was an anomaly in the Pay Revision Rules of 1974, in their case and for that reasons they were not given NPS 18 w.e.f. 1‑3‑1972 i.e. the date from which other officers of the Education Department were given the benefits of the Revised Pay Scale. This grievance has been accepted by the Government and the anomaly has been removed w.e.f. 1‑1‑1975. There was no logic or justifica tion that the anomaly should have been allowed to subsist for the period from .1‑3‑1972 to 31‑12‑1974 simply because the Finance Department had committed the same in the first instance. A similar case came up before this Tribunal in appeal of Mrs. Ulfat Rashid (Case No.536/575 of 1983 decided on 11‑7‑1984), in which case also the Finance Department had taken the same plea that the amendment regarding removal of anomaly was to take effect from the date of issue of the notification and not with retrospective effect of the date of enforcement of the Revised Pay Rules, i.e. 1‑5‑1977. In that case respectfully relying upon an identical case decided by the Supreme Court of Pakistan and reported as P L D 1970 SC 247, we did not accept that plea. The relevant portion of the said judgment of Mrs. Ulfat Rashid is reproduced below:‑ 10. We have also the advantage of going through the Supreme Court judgment P L D 1970 SC 247 West Pakistan v. Abdul Khaliq, Accountant Hazara Treasury. In that case also an amendment to Pay Revision Rules, 1959 (which were given effect from 14‑10‑1955) was issued in the year 1962, and that amendment was given effect from the date of issue (1‑3‑1962). The Supreme Court of Pakistan did not accept the plea of the respondents that amendment cannot have retrospective effect. It was held that since the main rules had been given effect from 14‑10‑1955, and as such the schedule issued under the same rules was also to have effect from the same date. In this case also we find that Pay Revision Rules,1977, have been given effect from 1‑5‑1977, Rule 3 of these rules lays down that a civil servant draw pay in the National Pay Scale against the post. The post of the appellant has been included in the Schedule appended to those rules, therefore, the aforesaid judgment of the Supreme Court is fully applicable in this case and the appellant is entitled to draw her pay in Revised National Pay Scale 17 from the date of her appointment i.e. 12‑5‑1980, which is later than the date from which the rules took effect (1‑5‑1977) ." 8. In the light of the above we proceed to accept the appeal, set aside the impugned orders and direct the respondents to allow the benefit of NPB 17/BS‑17 w.e.f. 30‑5‑1983, the date when he obtained degree in M. A. Physical Education and not from 14‑3‑1985. However, there will be no order as to costs. A.E./72/Sr.P Appeal accepted.