1996 PLP 595 (PLC)

AJMAL MIAN, J.‑‑‑By this common judgment, we intend to dispose of above five appeals. Appeals Nos. 790 of 1992 to 792 of 1992 have arisen out of applications filed by respondent No. 1 under section 15(2) of the Payment of Wages Act, 1936, hereinafter referred to as the Act. Whereas Civil Appeals Nos. 793 of 1992 and 794 of 1992 have arisen out of the proceedings under section 25‑A of the Industrial Relations Ordinance, 1969, hereinafter referred to as the I.R.O., filed by Ghulam Hussain and Muhammad Yasin Shad, respondent No. 6 and respondent No. 9 respectively in the above two appeals.

2. We intend to give the brief facts of the aforesaid appeals in seriatim:‑‑ (a) Civil Appeal No. 790 of 1992: In the above appeal, 'respondent No. 1 (Shaukat Ali Hamdani) filed an application under section 15 before the Authority under the. Act on or about 20‑5‑1979 claiming a sum of Rs.3,309, being the alleged amount illegally deducted during the period from 8‑5‑1974 to 31‑3‑1979 on account of withholding of due promotion. Paras. 2 and 3 of the aforesaid application read as follows:‑‑

"

2. A sum of Rs.3,309 has been unlawfully deducted from his wages till 31‑3‑1979 (amount) for the wages period (a) which ended on (give dates) 31‑3‑1979.

3. Here give any further claim for explanation. Difference of 55 % wages paid and payable as promotion as due on 8‑5‑1974 instead of 31‑8‑1978 and increment on promotion. The applicant estimates the value of the relief sought by him at the sum of Rs.3,309." The present appellant filed parawise comments to the aforementioned application and in reply to paras. 2 and 3, stated as under:‑‑ "Paras. 3 and

4. Not admitted. The petitioner is put to a strict proof that he was due for promotion as G.I. S.T.Es. on 8‑5‑1974 instead of 31‑8‑1978." However, the Authority by its order dated 12‑5‑1982 allowed the above claim inter alia for the following reasons:‑‑ "Since the petitioner had been illegally prevented from rendering service as G.I.S.T.E. from 8‑5‑1974 to 31‑3‑1979 he is entitled to the benefits for the said post as if he was actually rendering service. So far as the amount claimed as such is concerned there is no evidence in rebuttal of petitioner's calculation as has been detailed in Exh. P.12." Against the above order, the appellant filed an appeal before the Punjab Labour Court, but the same was dismissed by an order dated 30‑10‑1982. Against the aforementioned order, no further proceedings were filed by the appellant and the same had acquired finality. (b) Civil Appeal No 791 of 1992: This appeal has arisen as the appellant, after the above appellate order dated 30‑10‑1982 had become final, had paid the amount as was directed by the Authority but, instead of paying the wages in future as was determined in the above proceedings, paid less than what was due. Respondent No. 1 filed a second application under section 15(2) before the Authority under the Act on or about 26‑3‑1993, claiming a sum of Rs. 5,034 for the period from 1‑4‑1979 to 31‑81982, the break‑up of which was given in para. 3 as follows:‑‑-- Period ' Paid Due Diff. Amount 1‑4‑79 to 30‑11‑79 Rs.774 Rs.830 56 x 8 Rs.448 1‑12‑79 to 30‑11‑80 Rs.760 Rs.870 110 x 2 Rs.1,320 1‑12‑80 to 30‑6‑81 Rs.774 Rs.900 126 x 7 Rs.882 1‑7‑81 to 30‑11‑81 Rs.802 Rs.932 130 x 5 Rs.650 1‑12‑81 to 30‑11‑82 Rs.830 Rs.964 134 x 12 Rs.1,608 1‑12‑82 to 31‑12‑82 Rs.870 Rs.996 126 x 1 Rs. 126 Rs.5,034. " The appellant filed a written statement dated 24‑8‑1993, in which legal objections as to the limitation etc. were raised. However, in reply to para. 3 of the application, the following averments were made:‑‑

"

3. The para. No. 3 of the petition is admitted to the extent that the applicant has not been entitled for Rs.3,309.50 the claim for the period from 8‑5‑1974 to 31‑3‑1979 dated 15‑5‑1982 has been shown as a result of re-fixation he is in receipt of Rs.920 p.m. RNSP 11 (430‑‑980) with effect from 1‑12‑1992. The petitioner has wrongly calculated his arrears. The petition is vague and silent about the rate of increments and on what date. No illegal deduction has been made from his salary, " The Authority allowed respondent No. l's claim to the extent of Rs.1,588 through the order dated 27‑8‑1984. Against the above order, the appellant filed an appeal before the Punjab Labour Court, which was allowed by an order dated 15‑12‑1984 and the case was remanded to the Authority to decide, as to whether respondent No. 1 was a "worker" within the meaning of the Act. After the above remand order, while the matter was pending before the Authority, respondent No. 1 filed a third application referred to herein below:‑‑-- (c) Civil Appeal No. 792 of 1992: In the aforementioned appeal, respondent No. 1 filed an application under section 15(2) before the Authority under the Act on or about 1‑9‑1984, claiming that he was not given one premature increment with effect from 3‑1‑1983 Le, from the date of his promotion from G/1, S.T.Es. to the post of D/1, S.T.Es. for the period from 3‑t‑1983 to 30‑6‑1983 amounting to Rs.451 It may be pertinent to reproduce para.3 of the application, which reads as under:‑‑ "

3. That the applicant was promoted from the post of G/1 S.T.Es. to the post of D/1, S.T.Es. on 3‑1‑1983. According to rules on promotion 1 was to be allowed one premature increment raising his pay to Rs.996 p.m. with effect from 3‑1‑1983, but the other party has paid the wages to the applicant at the rate of Rs:920, thus illegally deducted a sum of Rs.451 during the period 3‑1‑1983 to 30‑6‑1983. " In the above application also, the appellant filed a written statement, in which a number of legal objections were raised including the question that respondent No. 1 was not a worker' within the ambit of the Act. As regards above‑quoted para. 3 of the application, the following averments were made:‑‑

"

3. That the para. No. 3 has not been correctly stated. The petitioner was not promoted regularly but was put to work as D.I.S.T.Es. purely on local arrangements on 3‑1‑1983. in RNSP‑10 (Now BSP‑10). He is not due any premature increments unless and until he is regularly promoted as D.I.S.T.E: by the Headquarters Officer, P.R., Lahore according to his seniority on whole P.R. basis. Moreover, this category of staff is controlled by the Hd. Qrs. Office, Lahore in regard to their seniority, promotion and transfer. His pay was re-fixed Rs.920 p.m. in RNSP-11 (430‑‑980) on 1‑12‑1982 and further allowed Rs.1,400 (Maximum of BSP‑11) on 1‑7‑1983 under the extent rules. Both the above applications were taken up by the Authority together and the same were allowed by an order dated 17‑8‑1985 by holding that. respondent No. 1 was a "worker" within the ambit of the Act and that he was entitled to the amount which was granted by the Authority earlier and also to the amount claimed under the third application. Against the above order, the appellant filed two separate appeals, which were allowed by two separate orders, both dated 31‑5‑1986, and it was held that respondent No. 1's aforesaid two applications were not maintainable as the question, whether respondent No. 1 was entitled to any increment, could not have been decided by the Authority. Against the Aforementioned orders,, respondent No. 1 filed two revisions before the Punjab Labour Appellate Tribunal at Lahore on 17‑6‑1982, which were, disposed of by a common judgment dated 4‑I1‑1988, in which it was held that the Authority failed to decide, whether paragraph H of the Revised Pay Scheme gazetted on 20‑10‑1972, was applicable to respondent No.

1. Against the aforesaid judgment, Pakistan Railways filed two writ petitions, namely, Writ Petitions Nos. 455 of 1987 and 456 of 1987; whereas respondent No1 filed Writ Petition No. 29 of 1988 The above three writ petitions were heard together and by a common judgment dated 15‑2‑1992, the same were disposed of, whereby the appellant's above two writ petitions were dismissed and respondent No. 1's aforesaid writ petition was allowed as under: "

16. For the foregoing reasons Writ Petition No. 29 of 1988 is accepted with costs. The orders dated 31‑5‑1986 passed by the Punjab Labour Court No. 9 in two appeals filed by the Railway and the orders dated 4‑11‑ 1986 passed by the Punjab Labour Appellate Tribunal, Lahore in two revision petitions filed by the petitioner are hereby declared to have been passed without lawful authority and of no legal effect. In the result of orders dated 17‑8‑1985 separately passed by the Authority in the two abovementioned petitions filed by the petitioner stand restored. " Against the above judgment, Pakistan Railways filed three petitions for leave to appeal. (d) Civil Appeal No. 793 of 1992: In the above appeal respondent No. 6, Ghulam Hussain alongwith 25 other persons who are also respondents in the present appeal, filed petitions under section 25‑A of the I.R.O. on 18‑5‑1982, claiming that they were entitles to a premature increment on account of revision of Pay Scale No. 8 to NPS‑

11. Their case was that they were last drawing Rs.1,058 per month and that the appellant had illegally fixed their salary at Rs.1,085 per month instead of Rs.1,120 per month. The above petitions were resisted but the same were allowed by the Labour Court on 4‑1‑1989. The appellant's appeal against the above order before the Punjab Labour Appellate Tribunal also failed as the same was dismissed through an order dated 6‑1‑198 hereupon, the, appellant filed a writ petition. (e) Civil Appeal No. 794 of 1992: In the above appeal, one Asad Ali and 12 others including Muhammad Yasin Shad who are now respondents in the present appeal, filed a petition under section 25‑A of the I.R.O., claiming that after the revision of Pay Scales from BS‑8 to BS‑I1, they were entitled to an increment and their salary should have been Rs.1,155 per month with effect from 9‑11‑1984 and riot Rs.1,120, which was fixed by the appellant. It was averred that the above respondents were drawing last salary at the rate of Rs.1,110 per month and that the appellant illegally fixed their salary at Rs.1,120 per month with effect from 9‑11‑1984 instead of Rs.1,155 per month. The above petition was resisted by the appellant However, the learned Punjab Labour Court through its order dated 8‑2‑1989, allowed the above petition. Against the above order, the appellant filed an appeal before the Punjab Labour Appellate Tribunal, but the same was dismissed through the order dated 15‑3‑1989. Thereupon a writ petition was filed."

3. The above two writ petitions filed by the appellant., which are covered by Civil Appeals Nos. 793 and 794 of 1,992, were heard together and through a common judgment dated 14‑3‑1992 were dismissed by a learned Single Judge for the following reasons: "

7. Learned counsel for the respondents has brought to my notice Exh. P.9 which was produced before the learned trial Court from which it is made out that the petitioner itself interpreted para. ' H' in the case of Faiz Bakhsh, Abdul Khaliq, Malik Fazal Din, Shuja‑ud‑Din and Barkat Ali and others whose pay after up gradation was fixed in the higher scale after granting them one increment in advance as under para. ' H' , therefore, department was not justified in interpreting the same para. in the case of the petitioner differently which amounts to discrimination which is violative of the fundamental rights of equality before law and equal protection of law by the Constitution. The argument has force.

8. The departmental interpretation of para. "H" in case of up-gradation of the post in respect of the said abovementioned persons is binding on the petitioner and the petitioner is not even otherwise entitled to any relief in exercise of discretion under Article 199 of the Constitution. " After that, the appellant filed two petitions for leave to appeal.

4. The above five petitions filed in respect of above five matters were taken up together and by a common order dated 14‑11‑1992, leave was granted to consider the following three questions:‑‑ (i) That para. (H) of the Pay Rules, 1962 hereinafter referred to as the Rules has been misapplied by the Courts below as the same relates to promotion and not to the revision of Pay Scales, which was the case in hand; (ii) That the impugned orders/judgments are contrary to the law enunciated by this Court in the case 'of Akbar Ali and others v. Senior Administrative Officer, Pakistan Railways and another (1992 SCMR 1341) and unreported judgment dated 9‑6‑1991 rendered in (Civil Appeal No. 674 of 1988) The Divisional Superintendent, Pakistan Railways, Multan v. Sardar Muhammad and others; (iii) That the learned Labour Court has relied upon the judgment of a learned Single Judge of the Lahore High Court passed in a writ petition, though in subsequent writ petitions the other learned Judges have taken a contrary view.

5. In support of above first three appeals, Ch. Fazal‑e‑Hussain, learned A.S.C. for the appellant, has vehemently contended that under section 15(2) of the Act, the Authority has no power to decide the question, as to whether a worker is entitled to promotion or an increment? According to him, the jurisdiction of the Authority is to grant admitted wages and not the disputed one. It ‑ has been further submitted by him that respondent No. 1 in the above three appeals should have filed a petition under section 25‑A of the I. R. O. instead of approaching the Authority under section 15(2) of the Act in view of the disputed nature of the claim and that if this Court would uphold the impugned orders/judgments, it would amount to nullifying section 25‑A of the I.R.O. He has also submitted that, in any case, the High Court should not have interfered with the revisional order, whereby the cases were remanded to the Authority. On the other hand, Mr. Khan Saeeduddin Khan, learned A.S.C. for respondent No. 1, has urged as under:‑‑ (i) That since the appellant had not filed any further proceedings against the appellate order dated 30‑10‑1982 in respect of respondent No. 1's above first application under section 15(2) of the Act, the same had acquired finality and that the appellants were not justified in not paying the wages to respondent No. 1 for the subsequent period commencing from 1‑4‑1979 as per above orders and, therefore, the question of respondent No. 1's entitlement was no longer open in view of res judicata; and (ii) That as regards the third application, there was no dispute of the nature which was not within the jurisdiction of the Authority as the matter related to the interpretation and application of clause (H) of aforesaid Pay Revision Scheme of 1972.

6. Adverting to the first submission of the learned counsel for the parties, it may be pertinent to refer to the case‑law mostly cited by Ch. Fazal‑e‑Hussain. (i) Shaukat Ali and others v. Islamic Republic of Pakistan through the General Manager, North Western Railway, Lahore (PLD 1960 (W.P.) Lah. 144); in which one of the issues before a learned Single Judge of the erstwhile High Court of West Pakistan was, what is the scope of jurisdiction of the Authority under the Act? Muhammad Shafi, J. observed as follows: "Independently of these authorities, I am of the view that the definition of 'wages' given in the Act itself makes it perfectly clear that the authority must decide as to what was the remuneration which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed, or otherwise, to a person employed in respect of his employment or of work done in such employment. To say that the authority has absolutely no jurisdiction do entertain an application under the Payment of Wages Act, if the wages stated by the petitioners are denied by the employer, will defeat the Act itself and make it absolutely ineffective. In such a case no sooner an application is made under the Act than in order to have the application rejected, all that the employer will have to do will be to deny the wages mentioned in the application. That surely cannot be the intention of the Legislature. I am, 'therefore, of the opinion that the view taken in Simplex Manufacturing Co. Ltd. v. Alla‑ud‑Din is not sound, I am at the same time in agreement with the observations 'made by Mahajan, in Kishan Chand v. Divisional Superintendent, Lahore Division, J. North Western Railways reported in (AIR 1948 Lah. 202); that the Act furnishes a summary remedy for wages earned in an office and not paid but it does not provide a remedy for investigation of queries which concern the office itself, in other words, .whether a man should be retained in one job or should be reverted to another job, in this case, therefore, I think the Authority could go into the question as to what cadre applies to the petitioners." (ii) Nasiruddin Qureshi and others v. Sindh Labour Court, Karachi and others (1987 PLC 633); In the above case, a learned Single Judge of the Sindh High 'Court has held that under section 15, the Authority's jurisdiction is limited in nature, which could extend to giving direction in regard to the payment of wages or amount deducted etc. but it did not empower the Authority to determine, whether pay of workers had been properly fixed by the employer in accordance with the Pay Scales applicable to them. (iii) Government of the Punjab through Secretary, Services, Punjab, Lahore and 4 others v. Muhammad Awais Shahid and 4 others (1991 SCMR. 696); in which the facts were that under the relevant rules, 15 ‑per cent. of regular strength of‑Civil Judges of Punjab were to be given NPS‑

18. In that background, it was held that when there is a change of grade or post for better, there is an element of selection involved and that promotion is not earned automatically but is granted under an order of competent Authority to be passed after consideration on the comparative suitability and the entitlement of the incumbents. ' (iv) Akbar Ali and others v. Senior Administrative Officer, Pakistan Railways and another (1992 SCMR 1341); In the aforesaid case, inter alia it was held that since the appellants did not fall within the category of "worker" or "workman". as defined in the Factories Act or the Workmen's Compensation Act, they would be civil servants and, therefore, on the strength of Constitutional provisions, the jurisdiction of other Courts except of, the Service Tribunal would be excluded and that the Authority under the Act has no power of fixation of pay in a particular scale or grade in view of above legal position.. (v) General Manager, Pakistan Railways and another v. Anwar Ahmed Khan and others (1995 SCMR 810); In the above case, an employee of Pakistan Railways had claimed the foreign posting allowance which was denied by the Railways. The employee filed a petition under section 25‑A of the I.R.O., which' was declined. Upon appeal, the Labour Appellate Tribunal set aside the order of the Labour Court on the ground that instead of filing a petition under section 25‑A of the I.R.O., an application under the Act should have been filed. The employee was given the option to file an application before the Authority. Pursuant to the above order of the Labour Appellate Tribunal, the Railways employee filed an application under section 15 of the Act before the Authority, which was allowed to certain extent. Eventually, the matter came ‑up before this Court with the leave. This Court quoted with approval the above passage from the judgment of Shaukat Ali and others v. Islamic Republic of Pakistan (supra) of a learned Single Judge of the erstwhile West Pakistan High Court and held as under:‑‑-- "

12. We are inclined to hold that the authority under section 15 of the Act is entitled to go into the question, whether the amount claimed by an employee under section 15 is entitled to claim the same. " (vi) A.G. D'Costa, Divisional Engineer, G.I.P. Railways v. B.C. Patel and another (AIR 1955 SC 412); in which the scope of the jurisdiction of the Authority under the Act was dilated upon inter alia as under:‑‑ "(16) But, it is said that the Tribunal has no authority to determine the question of ' potential wages'. Undoubtedly a claim to a higher potential wage cannot be brought in under the category of 'claim arising out of deduction from the wages or delay in payment of wages' if that wage depended on the determination by a superior departmental or other authority as to whether or not a particular employee is entitled to the higher wage a determination which involves the exercise of administrative judgment or discretion or certification, and which would, in such a situation; be a condition of the pay-ability of the wage. But where the higher wage does not depend upon such determination but depends on the application of, and giving effect to, certain rules and orders which, for this purpose, must be deemed to be incorporated in the contract of employment, such a wage is, in my view, not a prospective wage, merely because the paying authority concerned makes default or commits error in working out the application of the rules. In this context it is relevant to notice note that the definition of 'wages' in the Act is 'all remuneration which would if the terms of the contract, express or implied, were fulfilled, be payable.' The word ' were' .in this definition which I have underlined (herein') seems to indicate that even a 'prospective wage' which would be payable on the proper ' application' of the rules in the sense which I have explained above may well fall within its scope. The wage under the Act is not, necessarily, the immediately pre‑existing wage but the presently payable wage. " (vii) An unreported judgment of this Court dated 9‑6‑1991 in the case of The Divisional Superintendent, Pakistan Railways; Multan v. Sardar Muhammad, S.T.E. and others (Civil Appeal No. 674 of 1988), in which inter alia the following observations were made:‑‑ , "The word ' wages' has been defined in section 2(vi) to 'mean all remuneration, capable of being expressed in terms of money, which would, if‑the terms of the contract of employment, express or implied, were fulfilled, be payable' to a person employed in respect of his employment. We can find no obstacle in the way of the Authority in determining the wages of an employee as deducible from the contract of employment even if there is a serious dispute between the employer and the employee. In fact the proviso referred to above does give the indication that the Authority is competent to determine a dispute with regard to the quantum of wages payable to the employee. We are, therefore, unable to accept the contention that as ‑there was a serious dispute between the parties with regard to .the wages payable to the contesting respondents, the Authority was not competent to exercise jurisdiction in this regard However, the above appeal was allowed as the Court found that the Authority had not fixed the wages in terms of the contract of employment. (viii) An unreported judgment dated 9‑6‑1991 in the case of Pakistan Railways v. The Presiding Officer, Punjab Labour Court No. 9, Multan and others (Civil Appeals Nos. 626 to 631 of 1989), wherein the controversy involved was, whether the Railways Drivers‑drawing pay in NPS‑8 by virtue of Notification dated 18‑10‑1972 were entitled to grant of two advance increments. The Authority had granted the same. This Court allowed the appeal as under:‑‑ "

4. However, we find merit in the contention of the appellant that it was not possible from the notification by which the two advance increments were granted to all the drivers that one of the advance increments could be adjusted in the next higher scale. The teamed Authority itself found it difficult in coming to a conclusion in this regard. In the circumstances the controversy between the parties should have been left to the Government to resolve. We accept these appeals and declare the orders of the Authority and subsequent orders of the Labour Court to be without lawful authority and of no legal effect. There will be no order as to costs in, these appeal; " However, this Court reiterated the above earlier judgment of which relevant portion has been quoted above by observing as follows; "This question has already been examined by this Court in Civil Appeal ' No. 674 of 1988 (Divisional Superintendent, Pakistan Railways, Multan v. Sardar Muhammad and 39 others and it has been held that the Authority is competent to determine the; wages of an employee is deducible from the contract of his employment even though there may be serious dispute between the employer and the employee with regard to their quantum. It is, therefore, not possible to accept the contention of the appellant in this regard.'' (ix) An unreported judgment dated 7‑12‑1992 01' this Court in the case of Pakistan Railways v. The Labour Appellate Tribunal and others (Civil Appeal No. 849 of 1990). In the above case, it has been held that paragraph H of the aforesaid Revised Pay Scheme of 1972 was not attracted to Railway employees who was not promoted but he was allowed higher grade on account of revision of pay. The same view was taken earlier by a learned Single Judge of the Lahore High Court, Mr. Justice Khalil‑ur‑Rehman Khan, in the judgment dated, 4‑5‑1989 in the case of Muhammad‑Aslam Chatha v. Pakistan Railways (Writ Petition No. 4282 of 1982).

7. Ch. Fazal‑e‑Hussain has also referred to a number of judgments of the Punjab Labour Appellate Tribunal in support of his contention that the Authority has no power to go into the disputed question as to the quantum of wages.

8. The contents of the Act and the above case‑law indicate that the Act was intended and designed to provide an inexpensive a summary remedy to a worker for wages earned by him while working at a particular job or in a particular position. This remedy cannot be defeated by an employer by an employee by simplicity denying the quantum of wages claimed by a worker on the plea that the Authority has no power to decide the disputed amount and that its jurisdiction is confined to an admitted amount of wages. In such a case, the Authority has jurisdiction to go into the question of quantum of wages as defined by section 2(vi) .of the Act, namely, to "mean all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment express or implied, were fulfilled, be payable". To arrive at a correct conclusion on the above question, it must decide, what would nave peen in quantum of wages, it the terms of the contract of employment, express or implied were fulfilled. This will necessarily involve interpretation of the contract of employment, rules or circulars, if any, relating to the job or. position in respect of which wages are claimed. However, the Authority has 'no jurisdiction to decide disputed questions involving element of entitlement to promotion or to a higher job or position or vice versa, namely, wherein the claim of the workers concerned is founded on the averment that he was illegally reverted to a lower job/post. In others words, the Authority has no jurisdiction to determine the question of potential wages, which a worker might have earned, had he been promoted or given a higher job or position or had he been not reverted to a lower job/post. For example, if the claim of a worker is founded on the assertion 'that he was wrongly/illegally denied promotion and thus he was paid less wages than what he would have been entitled to 'receive, had he been promoted, in such a case the Authority has no jurisdiction. However, if the worker concerned has already been promoted, but his salary has been wrongly calculated by the employer and not in accordance with the relevant Rules, in. such a case the Authority has the jurisdiction.

9. In view of above legal position, it was not open to the appellant to have refixed the monthly salary/wages to respondent No. 1 in violation of above orders, which had acquired finality; thus respondent No. 1's second application under section 15(2) of the Act was competently filed as the appellant had illegally deducted the amount claimed by respondent No.

1. No exception can be taken to the order of the Authority or to the impugned judgment of the High Court.

10. As‑regards the third application of respondent No. 1 under section 15 of the Act, it may be observed that the same was founded on the ground that respondent No. 1 was promoted with effect from 2‑1‑1983 from the post of G/1, S.T.Es. to D/1, S.T.Es., but he was not given premature increments as per herein below quoted paragraph H of the Revised Pay Scales Scheme of 1972. In this regard, it may be pertinent to reproduce Letter No. 757‑E/365‑III (APO. I), dated 9‑4‑1987 from the Office of General Manager (Personnel), Pakistan Railways to the Divisional Superintendent, Multan which reads as under:‑‑ "Subject: D.P.C. for the Post of Special Ticket Examiners GR. 11 (B: 14). Ref: Your Letter No. 757‑E/41‑X (Loose) same, dated 1‑1‑1987. As a result of D.P.C. held on 22‑7‑1982 and 2‑2‑1986, Mr. Shaukat Ali Shah Hamdani was cleared by the D.P.C. for the post of S. T. E. Gr. II (B‑14) alongwith his seniors. Their dates of promotion as per record of this office are as under:

1. Mr. Jarar Hussain 6‑1‑1983

2. Mr. M. Zulfiqar Ali 15‑1‑1983

3. Mr. Shaukat Ali Shah Hamdani 2‑1‑1983 Pay scales of D.I/STEs/B‑10 were enhanced to B‑14 with effect from 11‑11‑1984. Please advise if there is any objection to rant of B‑14 to him with effect from 11‑11‑1984 alongwith his seniors."

11. In view of above factual position, the provision of above paragraph H of the Revised Pay Scales Scheme of 1972 was attracted to,, which read as follows:‑‑ "(H) In cases of promotion from a lower to a higher post, where the stage in the National Scales of the higher post, next above the substantive in the National Scales of the lower post gives a pay increase equal to or less than, a full increment, the initial pay in the National Pay Scales pertaining to the higher post will be fixed after allowing a premature increment in the National Pay Scales of the higher post. The existing ' rules/orders regarding grant of minimum pay increases on promotions shall be treated as withdrawn."

12. Respondent No. 1's case ‑gets support from the above unreported judgment of this Court dated 7-12‑1992 in the case (If Pakistan Railways v. The Labour Appellate Tribunal and others (Civil Appeals Nos. 849 and 950 of 1990), relied upon by Ch. Fazal‑e‑Hussain, the relevant portion of which reads as under:

7. A bare perusal of paragraph (H) would make it clear that the private respondents were not promoted. They were only allowed higher grade and their pay was fixed in the grade in accordance with the revision of pay. Paragraph (H) is applicable where there is a promotion from a lower post to a higher post. The opening words 'promotion from lower post' are significant. If a civil servant is transferred from a lower to a higher scale initial pay in the higher scale will be fixed at the stage next above the pay admissible in the lower scale. Grant of pay scale by revision of pay does not mean the promotion. "

13. We are, therefore, of the view that respondent No. 1 competently filed the above second and third applications before the Authority. He was not obliged to file a petition under section 25‑A of the I.R.O. We are also inclined to hold that the learned Judge in Chambers had rightly interfered with the appellate and revisional orders of the Courts below and correctly restored the order of the Authority. In this view of the matter, the above appeals have no merits. They are, therefore, dismissed with no order as to costs.

14. As regards the remaining two appeals, it is observed that no doubt above respondents Ghulam Hussain and Muhammad Yasin Shad's claim was founded on the ground that they were entitled to increments because of up-gradation of their pay scales from NPS‑8 to NPS‑11 and thus their case would fall within the ambit of the above unreported judgment of this Court dated 7‑12‑ 1992 in the case of Pakistan. Railways v. The Labour Appellate Tribunal and others (Civil Appeals Nos. 849 and 950 of 1992) referred to hereinabove. We would have interfered with the same but the learned Judge in Chambers has declined to exercise his Constitutional jurisdiction for two reasons, namely, that the department itself had placed construction on above Paragraph (H) in the manner in which the above respondents had claimed inasmuch as the increments were granted under aforesaid paragraph (H) to other employees, namely, Faiz Bakhsh, Abdul Khaliq, Malik Fazal Din, Shujauddin and Barkat Ali, who were placed in the same position as the above respondents and denial of the same to the above respondents would constitute discrimination being violative of Article 25 of the Constitution; and secondly he was of the view that it was not a fit case in which he should invoke discretionary Constitutional jurisdiction. However, Ch. Fazal‑e‑Hussain has referred to the case of The United Netherlands Navigation Co. Ltd. v. The Commissioner of Income‑Tax, South Zone (West Pakistan), Karachi (PLD 1965 SC 412) to contend that departmental interpretation has no legal force and, therefore, the learned Judge in Chambers should not have relied upon the departmental interpretation.

15. It will suffice to observe that, in any case, it was a Constitutional jurisdiction and the learned Judge had the discretion in the matter‑not to interfere H with the judgments of the Courts below for‑ the above two reasons. These two appeals also fail.

16. The upshot of the above discussion is that all the five appeal's are dismissed, with no order as to costs. A. A. /P‑281 /S Appeals dismissed.