1990 PLP (C (PLC(CS))

MISBAH ULLAH KHAN (MEMBER).--The appellant, Ibrahim Shah, was serving as Superintendent Secretariat (Civil) (BPS-16) in the office of the Inspector-General Frontier Corps, Baluchistan, Quetta. Prior to 21-8-1982 there were two posts of Assistant Secretary and Accounts Officer in BPS-17 in that office, but from that date two more posts were sanctioned. The posts, however, were not filled in allegedly for want of funds

2. The appellant was, however, made to work on one of the two posts in BPS-17 with effect from 1-1-1983 in his own pay scale (BPS-16). Although as already stated, the post in BPS-17 had been sanctioned, the appellant was not formally promoted to the post of Accounts Officer despite the fact that his office had been recommending for his promotion to that post with effect from 1-1-1983, the date since which he was performing the duties of Accounts Officer. The result was that the appellant literally remained in BPS-16 but had been performing the duties of officer of BPS-17 with effect from the aforesaid date. At long last the formal order of promotion of the appellant as Accounts Officer in BPS-17 was made on I1-4-1985 "with immediate effect". The appellant's office took up the case of the appellant for ante-dating the promotion with effect from 1-1-1983 but the recommendation was rc3~:cted on the advice of the Establishment Division and the appellant was informed accordingly by letter dated 25-5-1986. The appellant then submitted an application directly to the Secretary of Ministry of Interior on 11-6-1986 but the same was returned to him on 19-6-1986 directing him to submit the same through proper channel. The appellant in the meantime had proceeded on L.P.R. but his office continued recommending his case for ante-dating his promotion. Receiving no redress from the department, the appellant filed the present appeal on 15-3-1987.

3. At the very outset the respondents have raised the objection that the claim of the appellant is barred by time and consequently the appeal is liable to rejection. It was pointed out that the last intimation to the appellant whereby he was advised to submit the application through proper channel was sent to him on 19-6-1986 and that the appellant should have filed the appeal within 30 days from that day.

4. No doubt the appeal is barred by time but the appellant has filed an application for condonation of delay under section 5 of Limitation Act. The main ground stressed in the application is that during the later part of the period when his case was being processed, he was on L.P.R. and that he came to know the final rejection of his prayer when his pension papers were completed and he found that his pension had not been worked out on the basis of emplacement in BPS-17 with effect from 1-1-1983. Ordinarily we would not have allowed condonation in this case but as we are giving our reasons for the genuineness of the claim of the appellant we think that the appellant being made to suffer continuing loss in salary and pension his prayer for condonation of delay specially when he had been on L.P.R. should be accepted. Consequently we condone the delay and proceed to decide the appeal on merits.

5. As far as the. claim of the appellant for promotion with effect from 1-1-1983 is concerned we are not inclined to pass any such order because it is in the discretion of the competent authority to make promotion from a particular date and the aggrieved person can challenge they, wrong date of promotion only if his junior is promoted from an earlier date thus affecting his seniority in the new grade. In the present case such an eventuality has not arisen. However, we find, and the respondent department have not denied, that since 1-1-1983, the appellant was continuously performing the duties of Accounts Officer and he was duly qualified to hold that post. There was a sanctioned post also available but as stated in the written objections the post was not formally filled in for want of funds. There is a chain of authorities including those of Supreme Court itself that when a civil servant duly qualified to hold a post is made to perform the duties of that post then he had to be paid the salary of that post with increments in view of section 17 of the Civil Servants Act and the relevant Fundamental Rule. If any authority is needed we will refer to the case of Federation of Pakistan v. Shahzada Shahpur Jan 1986 S C M R

991. In the present case the appellant was duly qualified to hold a post of Accounts Officer in BPS-17 and he was actually working on that post since 1-1-1983. In these circumstances even if he was not formally promoted, he was entitled to get the pay of BPS-17 with effect from 1-1-1983 and was also entitled to the increments accruing thereafter. After his formal promotion his pay in BPS-17 should have been fixed accordingly by allowing the increments which he earned during the period he performed the duties of Accounts Officer. His pay on promotion should have also been fixed in BPS-17 after adding the increments earned by him during the period he performed the duties of Accounts Officer. Again on his retirement, the pension should have been calculated on the pay which was to be fixed by considering the appellant to have been continuously serving in BPS-17 with effect from 1-1-1983. 6. 1n view of this fact we accept this appeal and direct that the appellant should be paid the salary of BPS-17 with effect from 1-1-1983 together with increments admissible from time to time. Further that his pay on the date of promotion to BPS-17 with effect from 11-4-1985 should be fixed by allowing the increments upto that date from 1-1-1983. For the period 11-4-1985 onwards he should be allowed the enhanced salary thus to be worked out and on the date of his retirement the last pay drawn should also been calculated accordingly. His pension, gratuity and other retiring benefits should be revised accordingly on this basis.

7. Parties shall bear their own costs.

8. Parties to be informed accordingly. A.A./503/Sr. F. Appeal accepted.