1996 PLP (C (PLC(CS))

Date of hearing: 13rd August, 1995 NOOR MUHAMMAD MAGSI (MEMBER). ‑‑‑This is an appeal under section 4 of the Service Tribunals Act, 1973 filed by the appellant Dr. Shuja‑ud Din Khan, whereby he has prayed for antedation of promotion to the post of Eye‑Specialist (B‑18) from the date he completed five years' service i.e. 20‑5 1991 and also for the pay of the higher post during the period he worked against that post.

2. Brief facts of the case are that the appellant joined Pakistan Railway as Medical Officer (B‑17) on ad hoc basis with effect from 20‑5‑1986. On selection by the Federal Public Service Commission he was appointed on regular basis as Medical Officer, Cairns Hospital, Lahore vide Notification dated 12‑11‑1989. He continued there as such till his posting as Eye Specialist in his own pay scale pending clearance by the D.P.C. against B‑18 post of Eye Specialist in Mughalpura Hospital vacated by Dr. Bashir Ahmad Chaudhry vide Notification dated 1‑12‑1990. He assumed the charge of the post on 2‑12‑1990.

3. The appellant worked against the higher post of Eye‑Specialist in B‑18 till 27‑12‑1994 when he was promoted to the post of Eye‑Specialist in (B‑18) on regular basis vide Notification dated 5‑1‑1995. This Notification was conveyed to the appellant on 20‑2‑1995. The appellant made a departmental appeal against this notification claiming that his promotion as Eye‑Specialist in (B‑18) may be regularised with effect from 20‑5‑1991, when he had completed five years' service as Medical Officer (B‑17) instead of 27‑12‑1994 and he may be paid pay of the post of Eye‑Specialist in (B‑18) with effect from 2‑12‑1990. After waiting for the statutory period of 90 days, he has approached the Service Tribunal by way of this appeal on 28‑5‑1995.

4. We have heard the parties at length. The learned counsel for the appellant argued that since the appellant completed five years' service required for promotion from B‑17 to B‑18 on 20‑5‑1991, therefore, he is entitled to be promoted from that date. He further contended that the appellant is entitled to the pay of the higher post for the period he worked against the higher post of Eye‑Specialist in (B‑18).

5. It is no doubt true that five years' service in Grade‑17 is the minimum requirements for eligibility for promotion to Grade‑18, but rendering of five years' service did not ipso facto entitle the appellant to enter Grade‑18 by promotion. We are supported in this view by a similar and identical judgment of Federal Service Tribunal reported as Mr. Aftab Mahmood v. Secretary, Establishment Division and others 1989 PLC (C.S.) 609). The same question also came under consideration of the Supreme Court of Pakistan in 1990 SCMR 657, in which the civil servant's claim to promotion from antedate with effect from 4‑10‑1989 when he completed five years' service in Grade‑17 was rejected by the Service Tribunal and confirmed by the Supreme Court. In view of these two rulings the appellant cannot claim promotion with effect from 20‑5‑1991 on which date he completed the five years' service in B‑

17. The contention that the post of Eye‑Specialist in (B‑18) lying vacant at retirement of Dr. Bashir Ahmed Chaudhry with effect from 10‑11‑1990 and appellant a Medical Officer in B‑17, should not have been denied promotion after he had rendered five years' service in Grade‑17, is misconceived as filling of the post lay within the discretion of concerned authorities depending upon the expediency of service and the appellant was considered for promotion at the appropriate time. Moreover the claim of promotion from back date is time‑barred because the appellant did not agitate for consideration of his case for promotion to B‑18 on regular basis when he had completed five years' service and even he failed to agitate against the open advertisement dated 13‑8‑1992 and consequent appointment of respondents made vide Notification dated 27‑2‑1993. Therefore, his claim of promotion at this belated stage is also not tenable.

6. As regards claim of pay of the higher post is concerned we are of the view that in matters of pay and pension, the bar of limitation is not applicable. In support decisions of this Tribunal in 1984 PLC (C.S.) 386 and 1987 PLC (C.S.) 181 are referred to. The same view was taken by this Tribunal in 1986 PLC (C.S.) 66 which was also upheld by the Supreme. Court of Pakistan therefore, plea of limitation raised by the respondents has no ‑substance as far as the claim of pay of the higher post is concerned. The contention of the learned counsel for the appellant is that the appellant is entitled to pay of the higher post with effect from 2‑12‑1990, from which he held the charge of the post of Eye Specialist in (B‑18). We find substance in the contention of the appellant. It is admitted fact that the appellant had continued to work against the higher post of the Eye‑Specialist in (B‑18) with effect from 2‑12‑1990 till his regular promotion as such i.e. 27‑12‑1994. Therefore, notwithstanding the fact till the order of his posting was in his own pay scale pending clearance by the D.P.C. but in our view he was entitled to the full pay of the higher post with effect from 20‑5‑1991 to 27‑12‑1994 during which period he discharged the duties of the higher post of Eye‑Specialist in (B‑18). Nevertheless since the appellant though not eligible but was called upon to discharge full duties of the higher post of Eye‑Specialist in (B‑18) with effect from 2‑12‑1990 he was not entitled to full pay of the higher post on account of suffering from ineligibility and deficiency in service, but he could not be deprived of adequate compensation for doing duties of higher post. Therefore, for the period from 2‑12‑1990 to 19‑5‑1991 the appellant is entitled to 20% of his pay over and above his own pay (B‑17). The question of grant of pay of higher post has been exhaustively discussed by the Supreme Court of Pakistan in Federation of Pakistan v. Shezada Shahpur Jan 1986 SCMR

991. In the reported case two categories of officers have been discussed, one who were qualified and eligible for promotion to the higher post against which they were working, and as such they were held to be entitled to full pay of the higher post. The second category was of those who lacked eligibility for promotion to the higher post. In regards to second category, view of the Supreme Court was that they were not entitled to full presumptive pay like fully qualified and eligible person. But they are not to be deprived altogether from the additional remuneration for working on higher post.

7. In view of the above discussion, the appellant's prayer in regard to his claim for antedation of his promotion from 27‑12‑1994 to 20‑5‑1991 cannot be allowed. But his prayer with regard to his claim of pay for the higher post is e accepted. The appellant is allowed the full pay of the post of Eye‑Specialist (B -18) with effect from 20‑5‑1991 to 26‑12‑1994 as well as 20% of his own pay scale i.e. (B‑17) in addition to his own pay of B‑17 with effect from 2‑12‑1990 to 19‑5‑1991, with all consequential benefits. 8 No order as to costs. 9 Parties be informed. H.B.T./20/Sr.F Order accordingly