1987 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).‑‑This judgment will dispose of five appeals involving common points of law and fact. They are (1) Appeal No. 55 of 1984 filed by Ghulam Nabi Shahani, (2) Appeal No. 56/1984 filed by Akhtar Ali Avesi, (3) Appeal No. 60/1984 filed by Muhammad Ismail Memon, (4) Appeal No.61/1984 filed by Ali Nawaz Lashari, and (5) Appeal No. 66/1984 filed by Muhammad Saleh Sahito. The case of the five appellants is that they were working as teachers in Government High Schools (grade 16) when they were directed to take over as Headmasters (grade 17) vide orders dated 8‑12‑1981, 27‑8‑1981, 8‑12‑1982, 15‑9‑1982 and 27‑8‑1981 respectively regarding transfer and posting of Ghulam Nabi Shahani, Akhtar Ali Avesi, Muhammad Ismail Memon, Ali Nawaz Lashari and Muhammad Saleh Sahito. However, they were allowed pay in their own Grade (i.e. grade 16). Following the clearance by Departmental Promotion Committee the appellants were ultimately promoted on regular basis as Headmasters in grade‑17 by notification dated 12th March, 1984. During the intervening period, they were even shifted from one place to another in the same capacity of Headmaster. The appellants' prayer is that since they worked in the posts of Headmaster, from the dates of their posting mentioned above, their promotion to the said posts should be notified from the said dates instead of from the date of later notification viz. 12‑3‑1984. Their further prayer is that they may be allowed full emoluments prescribed for the post of Headmaster for the entire period for which they had held that post. We heard the arguments of the learned counsel for the parties and also went through the relevant record. In course of his arguments, the learned counsel for the appellants did not press the appellants' demand that their promotion to the post of Headmaster (Grade‑17) be notified retrospectively from the dates of their first posting in that capacity. He rather confined himself only to the prayer that the appellants be paid all the emoluments prescribed for the post of Headmaster for the entire period they had performed the duties of the said post prior to their formal promotion to Grade‑

17. The learned A.A.‑G. however repelled this claim by raising the legal objection of limitation. According to him the earlier orders by which the appellants were required to work as Headmasters on the pay of their own grade had obviously given them cause of action. Therefore his argument was that since they chose not to challenge those orders within prescribed period of limitation, they could not agitate for the lost cause in the garb of assailing the orders of their promotion. It would appear that by the impugned order, dated 12‑3‑1984 which is the target of attack in these appeals, the appellants have been promoted as Headmasters in Grade‑

17. After the appellants gave up their demand of promoting them from the dates of their first posting as Headmasters instead of from the date of the impugned order, at least the impugned order ceased to be controversial. All that the said order indicates is that the appellants stand promoted from the date of that order, the position that even the appellants have accepted. The question would arise how then it provided cause of action to the appellants so that they have based their appeals on that order. If their grievance was that they were not paid the emoluments of higher post of Headmaster for the period prior to their promotion to that post, the impugned order has nothing to do with such grievance. The impugned order does not say that emoluments claimed by the appellants are either disallowed or lesser amounts are allowed as the said emoluments. Therefore, we are of the view that impugned order does not give any cause of action to the appellants. In fact the relief now sought by the appellants was denied to them by the initial orders of their posting as Headmasters prior to their promotion to the said posts. Therefore, the learned A.A.‑G. was right in pointing out that the said orders had really aggrieved the appellants and had given them cause of action. Somehow no step was taken to challenge those orders. Even if the present appeals were considered to be directed against the said earlier orders of posting, they were hopelessly time‑barred. The said orders were passed in years 1981 and 1982 but the present appeals were filed in 1984, after the notification with regard to the appellants' promotion was issued on 12‑3‑1984. It was by the earlier orders of posting that the appellants were posted in the higher posts of Headmasters without allowing them the emoluments carried by these posts. On the contrary it was expressly mentioned in those orders that the appellants would draw their salary in their own grade i.e. Grade‑

16. Such orders were obviously adverse for the appellants. Therefore, they should have been challenged first in departmental appeal and then in the present appeals. But as pointed out above the appellants quietly accepted those orders as no step was taken by them to call the said orders in question. By the time the present appeals were filed, the appellants had already missed the bus as appeals from such orders had become time‑barred. Even if the appellants did not challenge the earlier orders of their postings as Headmasters within time, they could put forth their claim for the emoluments of the higher post of Headmaster for the period they served in the said posts prior to their promotion, after the notification of their promotion was issued. They could do this by making such representation to the appropriate authority. If the said authority refused to accede to their demand, they could have preferred departmental appeal against the original order of the refusal. Thereafter, the appellants could approach this Tribunal either after rejection of their departmental appeals or after expiry of 90 days v from filing of such appeals. Merely challenging the order of their promotion in departmental appeal and agitating for payment of emoluments of higher posts in such appeals was not enough. Since they had not put forth their claim for emoluments of higher post before the original authority, the question of pressing it in departmental appeals did not arise. Apart from above our attention was invited to the amendment of proviso 1 to Section 18 of Sind Civil Servants Act 1973. The amendment was made in 1978 by Sind Ordinance 7 of 1978. The amended proviso reads as under: "Provided that, when in exigencies of service, the appointment for temporary period is made to higher post or grade, the appointing authority may direct that the appointee shall, instead of drawing the pay of such higher post or grade draw the pay of the lower post or grade he held immediately before such appointments, with such special pay as may be prescribed, but where the appointment is made on a current charge basis or by way of additional charge, the pay of the appointee shall be fixed in the prescribed manner." It would appear that in view of the above amendment the appointing authority possessed the power to direct that a civil servant of lower grade if appointed to the post of higher grade in exigencies of service for temporary period, such civil servant instead of drawing the pay of higher grade will draw the pay of lower grade but in that case he will be entitled to special pay in addition to his own pay, as may be prescribed. Thus the posting of the appellants as Headmasters on the pay of their own grade was not altogether illegal, though in case of such posting they were entitled to special pay in addition to their own grade pay. It is true that the appointing authority could exercise the power under the proviso only when it was satisfied that the appointment or posting in the higher grade was made in exigencies of service and for temporary period. We need not go into the detailed examination of the validity of appellants' posting as Headmasters, as the orders relating to their such posting have not been challenged in these appeals. If the present appeals are held to be directed against those orders, then as pointed out earlier the appeals are time‑barred. The authority reported as Federation of Pakistan v. Shahzado Shahpur Jan (1986 S C M R 991) and relied upon on behalf of the appellants, was not helpful to them. First of all it relates to a case of Civil Servant of Federal Government whereas the present cases are with regard to provincial employees. Secondly it is not shown that Federal authorities possessed powers as conferred by proviso 1 to section 18 of the Sind Civil Servants Act 1973 on provincial authorities. Thirdly the posting orders allowing the appellants pay of their own grade while they performed the duties of Headmasters (high grade) have not been impugned in these appeals. For above reasons we have come to the conclusion that appeals must fail. Accordingly they are dismissed with no order as to costs. Before parting with these cases, we must observe that appellants' postings as Headmasters before their promotion to these posts was presumably made in exercise of power conferred by proviso 1 to section 18 reproduced above. Therefore the authorities concerned must ensure that each of the appellants is paid special pay as may be prescribed in addition to their grade pay as required by said proviso. If no such payment was made to them, the appellants will be free to have recourse to legal remedy. First they will make representation for payment of special pay to their appointing authority. If that authority refused to accede to their demand, they will file departmental appeal. Thereafter, they can even approach this Tribunal for the desired relief. To avoid such unnecessary litigation the authorities concerned will see that as required by the law referred to above the appellants are paid special pay obviously due to them under the said law. A.A./126/Sr.S. Appeals dismissed.