1990 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Ghulam Muhammad Chaudhri, an Assistant Superintendent under the Accountant General, Pakistan Revenues, Islamabad, was promoted as CIC (denoting the designation of Clerk in Charge), vide office order dated 20-9-1980. He was promoted as Accountant (BPS-16) on regular basis under AGPR Islamabad's Office Order No. Admn.I/1-2-B Vol.I1I/380, dated 15-6-1987 against 33 per cent. promotion quota. He made representation for getting pay for the post of Accountant (BPS-16) with effect from 20-9-1980 when he was promoted as CIC. His representation was not accepted. He has brought this appeal for getting pay of the post of Accountant (BPS-16) with effect from 20-9-1980 with annual increments on the basis of decision by the Supreme Court in the case of Mahfooz Ali Khan and Muhammad Yousaf.

2. The respondents have resisted the appeal contending that the appellant was not eligible for promotion to the post of Accountant (BPS-16) and it was in that context that he was appointed as CIC with effect from 20-9-1980 and he was actually promoted as the Accountant (BPS-16) when he became eligible therefore. Their contention is that the decision taken by the department is in accordance with the judgment of the Supreme Court.

3. The appellant has placed on record a copy of the judgment of the Supreme Court in the case of Mahfooz Ali Khan decided alongwith other appeals involving the same question, which were of identical nature, reported in 1986 S C M R

991. The ratio decidendi of the decision of the Supreme Court in those cases is that a civil servant put in charge of a higher post, otherwise eligible to be promoted to that post, is entitled to the emoluments of the higher post; but a civil servant who is not eligible to be promoted to such higher post is not entitled to the emoluments attached to that post. The appellant's case is identical to that of Malik Mushtaq Hussain whose Appeal No. 283(R) of 1985 was dismissed by judgment dated 29-I1-1988, a Photostat copy whereof has been placed on record by the respondents, in the light of the judgment of the Supreme Court, referred 40 above. However, the learned counsel for the appellant took pains to differentiate the appellant's case by making reference to a letter No. F.6(22)/7Z-E.IV/1468, dated the 24th July, 1973 of the Finance Division; another later No. 2175?GB.II1/24-73, dated 18-10-1973 from the office of the, Auditor-General of Pakistan to AGPR, Islamabad and Accountants-General, etc.; and paragraph 139 of the Manual of Standing Orders issued by the Comptroller and Auditor?-General, published in 1962. Under Finance Division letter dated 24th July, 1973, referred to above, it was conveyed to all concerned that the President was pleased to decide that 33 per cent. of the posts in the S:A.S. Cadre (denoting Subordinate Accounts Service Cadre) would be filled ii). by promotion from UDCs anti SGCs', on the basis of seniority-cum-fitness against the vacancies occurring on or after 1-7-1973. Under the Auditor-General's letter doted 18-10-1973, mentioned above, instructions were issued for making promotions against 33 per cent. quota allocated for promotions from UDCs/SGCs under the orders of the President. It is provided under paragraph 139 of the Manual of Standing Orders that no person who has not passed the prescribed departmental examination would be eligible for appointment to the Subordinate Accounts Service provided that the Comptroller and Auditor-General may on his own initiative himself waive this requirement in special cases. The learned counsel for the appellant advanced the argument that by virtue of the order of the President made in 1973 that 33 per cent. posts in the SAS shall stand allocated to the UDCs and SGCs, the appellant stood exempted from passing the departmental examination and, therefore, he A was deemed to have been promoted to the post of Accountant on the day he was appointed as the CIC. This argument could hold ground if it were shown that any vacancy was available in 33 per cent. quota allocated to the UDCs/SGCs. The stand of the department is that no such post was available and even if any such post were available, the appellant was not senior enough to have been promoted as the Accountant and the departmental representatives have made reference to a seniority list published in the year 1980 and pointed out that the appellant stood at the lower level in the seniority list as he was appointed as CIC against a post outside the quota allocated to the UDCs and SGCs and he was actually promoted as the Accountant when he became actually due for the post. Obviously, the appellant was not entitled to the emoluments of the post of the Accountant until he became due for promotion to that post in accordance with the rules.

4. The appeal stands dismissed for the reasons recorded above. No order is made for costs. AA./507/Sr. F? Appeal dismissed.