1994 PLP (C (PLC(CS))

(c) Re‑calculation of Pension, Commutation on the basis of last pay after grant of annual increments for Rs.3,500 instead Rs.3,050. (d) The defendant is liable to pay the difference of pay and allowance arising out of incorporation of annual increments and Pension, Commutation etc., due up to date with interest of 15% per annum till the date of payment thereof. (e) A decree for Rs.55,731 with interest at the rate of 15% per annum from the date of option i.e. from 1‑7‑1983 till ‑the date of payment against the defendant. (f) Cost of the suit. The appellant, in Written Statement, denied the claim of respondent and maintained that latter was promoted to National Pay Scale 18 on 26th May, 1983 with effect from 7‑12‑1982, as such, his pay was fixed in National Pay Scale 18 (1,350‑‑75‑‑1,650/100‑‑2,650) i.e. on 2‑12‑1982 in National Pay Scale 17 Rs.1,450 and pay fixed on 7‑12‑1982 in National Pay Scale 18 Rs.1,

575. Also, it is the case of the appellant that in Pay Group‑9 the respondent w.e.f. 1‑4‑1983 got his pay at Rs.2,300 p.m. It is alleged that on introduction of new Government Pay Scale from 1st July, 1983 `Point to Point' Pay fixation formula' was adopted and pay of the respondent on 1‑7‑1983 was fixed at Rs.2,600 According to appellant, the respondent has misinterpreted Fundamental rules and miscalculated his pay. Maintainability of suit was also challenged on the plea of estoppel. From the pleadings of the parties, the following issues were settled : ‑‑ (1) Whether the suit is not maintainable? (2) Whether the plaintiff' under the law is entitled to claim the dues of pay and allowances, Pension and Commutation etc. from the defendant as an employees as transferees of the defendant if so its effect? (3) Whether the plaintiff" has claimed its dues from the defendant with retrospective effect or prior to that if so its effect? (4) Whether the plaintiff is entitled to the relief claimed? (5) What should the decree be? In support of his case, the respondent examined himself, and the appellant examined Muhammad Munawer and M. Shakoor Abbasi. On assessment of evidence brought on record, learned trial Judge decided issue No. 1 in negative and issues Nos. 2 to 4 in affirmative and consequently he decreed the suit, as prayed. It is contended by learned counsel for the appellant that the respondent was not adversely affected by the fixation of his pay at Rs.2,600 and he could not claim his rights twice if at ail he had any. Also, it has been argued that the Director Finance had not fixed pay of the respondent according to rules on the subject, in this case material facts are not disputed and the fate of the appeal hinges upon interpretation of various provisions of law/rule, administrative letters and documents. Under section 14 of the Ordinance NO.XXX/1982 every civil servant employed in the department immediately before the establishment of authority, shall, on such establishment, stands transferred to and became an employee of the authority on such terms and conditions as may be prescribed by regulations. This section contained a proviso, which mentioned that pay and allowances to which such civil servant shall be entitled, shall not be less favourable than those to which he was entitled immediately before such transfer. Fundamental Rule 23 and para. 7.47 of Hand Book of D.D.O. that are relevant for this matter are as follows: ‑‑ "F.R.23: ‑The holder of a post, the pay of which is changed shall be treated as if he were transferred to a new post on the new pay provided that he may at his option retain his old pay until the date on which he has earned his next or any subsequent increment on the old scale, or until he vacates his post or ceases to draw pay on that time scale. The option once exercised is final. "7.47. Fixation of pay on the change of scale of a post t (F.R.23).‑‑If the scale of pay of a post is changed the holder of the post is treated as having been transferred to another post on the new pay and his pay is refixed under F.R.22(a)(ii) as if the transfer to the new post did not involve assumption of higher responsibilities. In such cases where the pay of a post is changed the Government servant concerned has an option to retain his old pay until the date on which he earns his next increment of any subsequent increments in the old scale, or until he vacates his post or ceases to draw pay in the time scale. The option once exercised is deemed as final." It is a proven fact that, on 7th November, 1985, the respondent had applied for fixation of pay stating therein that fixation of his pay at Rs.2,600 on 1st July, 1983, in Pay Group‑9, was disadvantageous to him inasmuch as the pay of many of his Junior Officers in Pay‑Group No.8, was fixed at higher stage. I may pause here to mention that this assertion of the respondent, fixing pay of his Junior Officers at higher stage, was not challenged, during the course of argument by the learned counsel for the appellant. The respondent by said letter opted to retain his pay in old National Pay Scale 17 up to 1‑7‑1983 as permissible in FR‑23, read with para. 7.47 quoted above. The appellant also, as per Administration Order No.3/83, dated 12th January, 1983, clarified that rules, regulations and procedure in respect of efficiency and Discipline, conduct, pay and allowances, TA. and DA. etc. as those existed on 6th December, 1982, will continue to apply to all employees of the Civil Aviation Authority. This being an admitted position that the pay of respondent could not be fixed, which could be less favourable to him, there was no justification in not fixing the pay as determined by the Director Finance applying the Formula, which is on record at Exh. 5/J: The order of Director Finance reads as follows: The pay of Officer in Civil Aviation Authority Pay Group‑9 on 1‑7‑1983 on exercise of his option is re‑fixed at Rs.3,050 p.m., with date of his next increment raising his pay to Rs.3,200 on 1‑12‑1983 in the Scale of Rs.2,100‑‑150‑‑3,500." If the respondent would have continued in National Pay Scale No.17 on 1‑7‑1981 his minimum pay in new Scale, including 10 increments to which he was entitled, would have been Rs.2,800 and for bringing it in National Pay Scale No.18 his pay as per above fixing formula would have been Rs.3,

000. The appellant, however, fixed his pay on 1‑7‑1983 in Pay Group‑9 at Rs.2,600, which was against the spirit of section 14 of the Ordinance XXX of 1982 and F.R.23 read with para. 7.47 referred to above. Above‑quoted provisions safeguard the interest of respondent and he could not be deprived of his legal dues by resorting to narrow interpretation of above provisions. The pay fixed by the Director Finance was in accordance with the spirit of law and the respondent should have been paid as per said fixation. It is strange enough to note that in identical case of another employee namely Syed Aqeel Ahmed, the appellant had accepted the fixation of pay by the Director of Finance, while in case of respondent so was not done, despite the fact that the same rule was followed by said director. Appellant witness M. Shakoor Abbasi, who was present at the time of arguments, even conceded that the amount of Rs.13,130 as arrears was already paid to said employee. Accordingly I hold that pay as fixed by the Director Finance of the appellant is correct and the respondent is entitled to his pay at that rate and is also entitled to re‑calculation, Pension, and i communication on the basis of last pay after grant of annual increment for Rs.3,500 instead of 3,

050. Learned counsel for the appellant contended that the suit was not maintainable. According to him, the principle of estoppel is applicable. He argued that the respondent admitted his signaturers at Exh. 5/G; which contains an undertaking regarding fixation of pay and allowances, and as such he could not claim re‑fixation of pay. Estoppel is rule by which a person, under certain circumstances will not be permitted to plead the contrary of a fact or state of things, which earlier he proclaimed. A party who has not been misled by any such declaration or act of the other party cannot implore assistance for the applicability of doctrine of estoppel, which does not operate against the provision of a statute. It is a rule of evidence and deals with the question of fact and not of right. Mere signing an undertaking would not debar the respondent from claiming his rights conferred upon him by a statute and nor the appellant was misled by said undertaking, which in fact, he was made to sign at the time the pay was re‑fixed. The principle of estoppel, under the circumstances, is not applicable to this case. The last point to be considered in this matter is of interest. The title of the plaint shows that the respondent had claimed his dues amounting to Rs.55,

731. In his examination‑in‑chief also, he claimed said amount. It is true that in the last line of examination‑in‑chief he stated that his suit be decreed as prayed, but there is no justification for granting him‑interest. Basically, it is not a suit for recovery of money. Pay of said Syed Aqeel Ahmed was also re‑fixed from 1‑7‑1983 and no interest was paid to him. The respondent is entitled to Rs.55,731 as arrears of pay, but he is not entitled to any interest, which is refused. Necessary decree be drawn excluding the interest. With above modification in decree, the appeal is dismissed with costs. AA./C‑314/K Appeal dismissed