1988 PLP (C (PLC(CS))

MUHAMMAD IRSHAD KHAN (MEMBER).‑‑It is the case of the appellant that at the time of partition of the Sub‑Continent, he was employed in a former Indian Railways as a Cash Clerk when he was transferred to newly‑established Pakistan to serve in the Railway Department under the inter‑dominion agreement and he accordingly reported for duty to the Divisional Superintendent N.W. Railway (now Pakistan Railway), Lahore, on 15‑11‑1947 where he was posted as Cash Clerk in Grain Shop, Changa Manga, Lahore Division. In 1949, however, as a consequence of abolition of Food Department in Railway, all the clerical staff rendered surplus were absorbed as clerks but under the orders of the Divisional Superintendent, Lahore, dated 20‑7‑1949 the appellant was posted as Number Taker which post was lower than a Clerk in scale of pay. The appellant asserts that it was so done in violation of the inter‑dominion agreement under which the terms and conditions of optees Government servants were guaranteed by the representatives of both the Governments. On the repeated representations . of the appellant, however, the wrong done to him was rectified and he was again posted as Clerk and was so confirmed with effect from 5‑9‑1958 and was allowed seniority with effect from 11‑12‑1949. Subsequently, however, when refixation of pay was carried out the appellant was surprised to notice that all the clerks except the appellant, were allowed the benefit of refixation of pay although some of them were not even confirmed as clerk in the former Indian Railways and were junior to the appellant. Thereon the appellant submitted a number of representations to the departmental authorities but in vain. The appellant, therefore, filed his claim before the Authority under the Payment of Wages Act which was ultimately rejected on 22‑8‑1984 for want of jurisdiction on account of the appellant being a civil servant. The appellant then filed the present appeal praying for that the benefit of refixation of pay permissible to the clerks may be allowed to him.

2. It was admitted by the respondents that the appellant was appointed as clerk on 20‑1‑1944 in the Food Organization of the Indian Railways and on his transfer to Pakistan, at the time of partition, he was posted as Cash Clerk in Grain Shop, a temporary Organization, on abolition of which he was absorbed as Number Taker on 21‑7‑1949 and later on put to officiate as Clerk with effect from 5‑9‑1959 but he was not so re‑instated as claimed by him. It was further admitted that the appellant was confirmed as a Clerk Grade‑I, with effect from 5‑9‑1958 and for the purpose of seniority as such from 11‑12‑1949. It was, however, contended that the benefit of refixation of pay but without arrears pertaining to the period prior to 27‑8‑1964 in higher scales was given to those employees of the former Indian Railways who were absorbed as clerks and were working as such on 12‑10‑1953, the date from which the claim for refixation of pay in higher scale was allowed. As the appellant was not working as a clerk on 12‑10‑1953 but was working as a. Number Taker, he was not allowed the said benefit.

3. Having heard the learned counsel for the parties and perused the record we are led to the conclusion that when the appellant was allowed seniority as Clerk (Grade‑I) with effect from 11‑12‑1949 there was no justification for not treating him as such on 12‑10‑1953 although he was then working as Number Taker and not as clerk but it was so for no fault of him and, therefore, if seniority as a clerk could be allowed to him, benefit of refixation of pay could also not be denied to him.

4. The appeal being time‑barred was accompanied by an application for condonation of delay which was opposed and contested on behalf of the Respondent‑Department. In the circumstances of the case, however, we are of the view that the technical plea of limitation should not be allowed to defeat the claim of the appellant relating to wrong done to him in the matter of fixation of pay. The explanation offered by the appellant for the condonation of delay is, therefore, accepted and the delay is condoned.

5. For the foregoing reasons, the appeal is accepted, the impugned order is set aside and it is directed that the benefit of the refixation of pay in higher scale given to the optees clerks of former Indian Railways should be allowed to the appellant also.

6. No order as to costs.

7. Parties to be informed accordingly. S.Q./388/Sr.F????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.