2000 PLP (C (PLC(CS))

CH. MUHAMMAD ARIF, J.‑‑‑This petition under clause (3) of Article 212 of the Constitution of the Islamic Republic of Pakistan is directed against the decision of petitioner's appeal by the Federal Service Tribunal, Islamabad in the following terms:‑‑ "

6. In these circumstances, we are of the view that 10% of the pay of his own post would be an adequate compensation for the appellant. Therefore, we direct the respondents to pay the appellant an allowance at reduced terms equal to 10% of the pay of his own post for performing the duties of Commercial Secretary, for the abovc mentioned period.

2. Briefly stated the facts leading to this petition are that the petitioner was working as Third Secretary in the Embassy of Pakistan, Nairobi. He claims to have held the portfolio of Commercial Secretary from May, 1991 to July, 1994 as the then. Commercial Secretary was prematurely transferred from there. The stand of Finance Division was that petitioner did continue to hold the portfolio of the Commercial Secretary from 7‑5‑1991 to 9‑7‑1994 but that the same was without any lawful authority and that the Ministry of Commerce did not post a Commercial Secretary for as long as three years. A proposal for ex‑post facto approval to the grant of additional charge of the post of Commercial Secretary, High Commission of Pakistan HCP for short, Nairobi to the petitioner for the afore‑referred period was sent to the Establishment Division but the same was turned down being not tenable vide order, dated 8‑11‑1995.

3. Petitioner's appeal before the Federal Service Tribunal was pleaded to beyond time. On the question of limitation, it was held that after the receipt of final order, dated 8‑11‑1995 the petitioner "‑‑ had preferred this appeal within 30 days ‑‑" of the receipt thereof: The petitioner had made a choice of preferring the appeal within 30 days of the receipt of final. order, dated 18‑11‑1995 with the effect that his appeal before the Federal Service Tribunal was within time.

4. On merit, it was held that the petitioner did not lay any claim to his eligibility as also qualification for promotion as Commercial Secretary. Subha Sadiq v. Secretary to Government of Punjab (1984 PLC (C.S‑.) 718), Syed Imtiaz Ali Naqvi v. Managing Director (P), WAPDA (1984 PLC (C.S.) 1606) and Federation of Pakistan v. Shezada Shah Pur Jan (1986 SCMR 991) were of no help to him as the latter precedent lays down that persons similarly placed as the petitioner were not entitled to full pay of the higher post " ‑‑‑ within the meaning of section 17 of the Civil Servants Act and should be allowed the reduced terms with presumptive pay, admissible to those not fully qualified or otherwise ineligible for promotion to the higher post". It was held that the reliance placed upon Serial Nos.63 to 69 of Chapter VI of ESTACODE, 1989 at pages 668 to 679 in fact relates to the question of grant of additional pay under F.R. 49, which allows the additional remuneration to a Government servant even if no formal appointment order has been passed and the officer concerned has merely 'deer. placed incharge of the current duties of another post in addition to his own duties. "In such cases for extra duties, it has been provided in these instructions that ordinarily the amount admissible under F.R. 49 (b) should not exceed 20 % of the pay of the post whose duties the Government servant has been performing. The appellant (petitioner herein) has admittedly been performing the duties of the post of Commercial Secretary, as is clear from the recommendation letter of Additional Secretary, Ministry of Commerce, Ministry of Foreign Affairs' letter, dated 14‑9‑1994 at Annexures V and VI to memo of appeal and the objections filed by the Department. Therefore, he is entitled for adequate compensation for the period he has been taking upon himself higher responsibilities of the post of Commercial Secretary". It was after holding as above that the petitioner was considered entitled to 10% of the pay of his own post as adequate compensation for performing the duties of Commercial Secretary during the above mentioned period.

5. We have heard Hafiz S.A. Rehman, Senior Advocate Supreme Court for the petitioner as also Mian Tariq Mahmood, Advocate Supreme Court on behalf of the respondents. Hafiz S.A. Rehman half‑heartedly argued that in all cases where a civil servant is asked to perform the functions of a post higher than that which he is holding, he will be entitled to 20% of the pay of the said post. He was, however, not in a position to specifically state either the entitlement of the petitioner to qualify for promotion to the post or even to any order having been made for bringing his case within the four corners of the afore‑referred precedent reported in 1986 SCMR

991. Be that as it may, in view of the admitted position that the petitioner did in fact hold the portfolio of Commercial Secretary, HCP; Nairobi from May, 1991 to July, 1994, he was legally allowed 10% of the pay of his own post for performing the duties as such with the observation that it would be adequate compensation for the same, Substantial justice having been done in the case, we are not inclined to the view that any good ground has been made for substituting our decision for that of the Federal Service Tribunal.

6. The instant application is sans merit and .is liable to be dismissed. Order accordingly. Q.M.H./M.A.K./A‑36/S Petition dismissed.