2001 PLP (C (PLC(CS))

ABDUL RASHEED MEMON (MEMBER‑II).‑‑‑The appellant who was working as Office Superintendent in Karachi Metropolitan Corporation came to this Tribunal after being aggrieved and dissatisfied with the order of respondent No. l who rejected his appeal/representation and presented his case asunder: . That the appellant was Graduate and joined in the service of respondent No. l on 2‑10‑1959 and was working, as Steno typist since 16‑5‑1963 and attained the status of Stenographer, on 24‑4‑1969. He was allowed Selection Grade BPS‑16 on 3‑11‑1984. However, going back to narrate the history of his appointment; states that while in the year 1975 when he was working as Stenographer he was superseded by his juniors against the post of Office Superintendent in contravention of Service Rules. The appellant preferred an appeal but justice was not done. Respondent No.4 who was junior to the appellant was promoted to 'the post of Private Secretary to Municipal Commissioner. Against this supersession he also submitted appeal to the Competent Authority i.e. respondent No. 1, and a further appeal/representation to the Secretary, Local Government as the Appellate Authority; but no action was taken. Thus, the matter of promotion of appellant was kept pending by the respondents without any reason and thus respondents Nos.5 and 6 who were junior to him were promoted. However, appellant's appeal dated 20‑9‑1995 was accepted by respondent No.3 whereupon he was allowed higher start at Rs.5,450 with effect from 18‑8‑1991 ‑ i.e. the date his juniors were promoted arid the appellant's seniority was protected/restored from the said date. His pay was accordingly fixed in BPS‑17 since 1‑12‑1992. His move‑over was approved in the meeting of the Service Board, Karachi Metropolitan Corporation on 10‑2‑1996; he. was allowed further move‑over since 1‑12‑1992 from BPS‑17 to BPS‑18 and his pay was fixed by the Administration of KMC accordingly. Since he became entitled to revised pay and allowances with effect from 18‑8‑1991 as per orders of respondent No.3, the appellant claimed the pay and allowances up to this time, but Respondent No.8 in an arbitrarily, illegal and unauthorized manner refused to allow appellant benefit of this fixation. He claimed that, since he had rendered 38 years' service with an unblemished record, he was denied with his legal pay and allowances which have been duly sanctioned by the Competent Authority and. even otherwise on account of his length of service, promotion, upgrading and move‑over he became eligible to receive full pay and allowances as claimed in this appeal. He compared his case with his juniors who were also drawing salaries in higher scales. However, illegal refusal of respondent No.8 to pay the full pay and allowances to the appellant from 18‑8‑1991 up to this time that the appellant who had. a large family to support was suffering hardship He, therefore, prayed the Tribunal to‑‑ (i) declare that all the orders passed by the Competent Authority in favour of the appellant from 18‑1-1996 Annexures 'J', 'K', 'L', 'M' and ' N' , respectively are legal and valid and the appellant is entitled to all his pay, allowances, increments and other benefits with effect from 18‑8‑1991 up to this time; (ii) declare that the appellant being senior most in service to respondent No.4 Mr. Ausaf Ali is eligible for promotion to the post of Deputy Director as well as Private Secretary, as various juniors mentioned above have been granted due promotion to the post of Deputy Director while the appellant has been ignored unlawfully and mala fide; (iii) declare that the respondent No.7, who has been promoted as Deputy Director against all rules of service is not eligible to hold the post of Deputy Director and the appellant is entitled to be promoted as Deputy Director in the office of respondent No. 1. (iv) Declare that the appellant is entitled to and be granted BPS‑19. (v) Any other relief which this Hon'ble Tribunal deems just and proper may also be given to the appellant as justice of the case may demand in his case. The respondents specially the official respondents in their written statement supported his case on facts except respondent No.8. They have also narrated the same story as cited by the appellant and have stated that since the case of juniors of the appellant was wrongly processed, therefore, the appellant was also allowed benefits, as he had become entitled to the same. However, as far as not allowing him the benefits of fixation of salary in BPS‑17 and BPS‑18, respondents Nos.1, 3, 4 and 5 have ultimately supported respondent No.8 that the said refusal was not illegal. They have, however, stated that under section 4(b) of Sindh Service Tribunals Act, no appeal shall lie to the Tribunal against an order or decision of departmental authority determining the evidence or otherwise of a person to be appointee to or hold a particular post who are to be promoted to higher post or grade. They have, therefore, pleaded that the appellant's claim was not legal and as such was not maintainable. The Advocate of the appellant in his written arguments submitted before us on 2‑12‑1998 has himself clearly stated in paras 9 and 10 that the appellant was ‑already in BPS‑16 as 'Selection Grade Stenographer and in BPS‑17 by way of move‑over and upon reaching the maximum of BPS‑17, the appellant was allowed move‑over to BPS‑18 vide order dated 21‑5‑1996 by the Competent Authority and his pay was accordingly fixed by the KMC Audit Department. Bill of arrears was prepared and submitted to Auditor but the Auditor refused to pass the bill in spite of justifiable reasons and the appellant had personally explained the position, but his pleas were not accepted and the bill was not passed. In order to, sort out the matter with the Audit, the Auditors of the KMC were called in, who appeared personally and explained the position. They submitted the history of the case alongwith other documents through A.A.‑G. on 11‑4‑2000. The Auditors were asked to explain their position vis‑a‑vis approval by the Competent Authority and to justify their refusal in not allowing the emoluments as fixed by the Administration of the KMC through their various orders. They have stated that Mr. Shabbir Hussain was promoted as Office Superintendent vide Office Order dated 18‑8‑1991 but he declined his promotion vide his application dated 19‑8‑1991 thereafter his promotion order was cancelled on his own request by the authority vide order dated 5‑9‑1991. He was again promoted as Office Superintendent vide order dated 28‑7‑1994 and he joined his promotion with effect from 28‑7‑1994. This promotion was in BPS‑

16. However, an order was issued by the Municipal Administrator on 18‑1‑1996 in which he was allowed higher start of Rs.5,450 being the maximum of BPS‑17 with effect from 18‑8‑1991 i.e. the date on which his juniors were promoted. After that he was allowed move‑over from BPS‑17 to BPS‑18 vide order dated 6‑5‑1996. Accordingly his pay was fixed in BPS‑18 after allowing him move‑over in BPS‑

18. As he was an employee of BPS‑16, he could not be given maximum of BPS‑17 as per provisions of Rule 38, Chapter V‑D, Schedule I of K.M.C. Rules which is applicable on initial induction only. These orders are, therefore, irregular and. besides the incumbent had surrendered his promotion and the then authority had cancelled his promotion orders which had not been withdrawn at any subsequent stage. Besides even if subsequently some ‑one wants to avail the promotion, he has to wait for four years, before he is again to be considered for the same. Hence, he cannot be eligible for taking benefit of previous promotion and seniority on the plea that his juniors were promoted. . In view of above facts, the claim of the appellant amounting to Rs:1,73,181 which was presented to the Audit on 27‑1‑2000 was returned by them on the same date with remarks that he was allowed move‑over from BPS‑16 to BPS‑17 w. e. f. 1‑12‑1992 and second move‑over, from BPS‑17 to BPS‑18 w. e. f. 1‑2‑1992 i..e. same date, cannot be allowed; as two successful move‑overs were not permissible in terms of Para.II of Finance Department Circular dated 12‑6‑1986. Thus it has been found out that the appellant had been allowed maximum of BPS‑17 after his promotion to BPS‑16 was irregular and not admissible, as at no stage he was promoted to BPS‑

17. However, if that was allowed by way of move‑over he can claim the benefits of the same as permissible. Further, he cannot be allowed second move‑over w.e.f. the date when he was allowed move‑over to BPS‑17 as no two move‑overs were allowed to officers in BPS‑16 and above. We, therefore, hold that the order of K.M.C. Administration allowing him second move‑over was illegal and against the rules laid down by the Government of Sindh and hence, hereby direct the K.M.C. Administration to withdraw the same as it was not allowed in consultation with Audit as has been mentioned in various orders of the said period. From the foregoing, facts, prayer No. l of the appellant that the orders passed by the Competent Authority in respect of the appellant may be declared as valid and legal is not accepted and all the orders allowing him maximum of BPS‑17 after promoting him to BPS‑16 and move‑over to BPS 18 are invalid and of no legal effect. As far as his prayers Nos.2 and 3 are concerned, we hold that the same have no bearing in this case; as his claim was basically to allow him benefits of ill‑earned move‑overs and his declining to avail the promotion in 1991, cannot make respondents Nos.4 to 7 junior to him. His pleas are, therefore, infructuous and he has illegally and maliciously involved them unnecessarily, which must have caused harassment to these respondents, which he should have not done to get financial benefits at their cost and by maligning them. His plea to declare him entitled to BPS‑1.9 is absurd and needs no consideration. Thus no further benefits can be allowed to him for the foregoing reasons: Accordingly, the appeal of the appellant is dismissed with no order as to costs. Given under our hands and the Seal of the Tribunal this 9th day of May, 2000 at Karachi. H.B.T. 53/K(Sr.Trib) Appeal dismissed.