GENERAL MANAGER, PAKISTAN RAILWAYS Versus QAMAR-UD-DIN

This is an appeal challenging the decision dated 18‑9‑85 recorded by the learned Presiding Officer, Punjab Labour Court No.4, Faisalabad, whereby the order of the appellants reducing the pay of the respondent was set aside and the previous order of the appellants whereby the pay of the respondent had been fixed, was restored.

2. The pay of the respondent was initially increased to Rs.290 from Rs.275 on the basis of letter No.561‑E/129‑VII (E‑1/E) dated 25‑1‑1977 mentioned in Notification of 15‑2‑1977 whereby anomaly created by clause (H) of Notification No. E‑72/PC.1/2‑II dated 22‑6‑1972 was removed by adding a fresh clause. The said clause provided that where the pay of a person had increased under clause (H) on his promotion to next higher post, the pay of his senior who had been promoted before the Notification of 1972 be equalised, with his pay. The relevant pars whereby the anomaly has been removed reads as under:‑

"In those cases of promotion from a lower to higher post, in which the promotion had taken place before the employees coming on to the Scheme of National Scales referred to above (and to which the above clause (H) would have been applicable if the promotion in question had taken place after the employee's coming on to the above scheme), the pay of the employees concerned in the N.P.S of the higher post would be so enhanced that it would not be less than the pay that would have been admissible to him if his promotion to that post had taken place after the date of his coming on to the above Scheme."

It is thus clear that where a junior has taken benefit of clause on promotion to next higher post, the pay of his senior is to made equal to his pay. Where the benefit of clause (H) has not taken and either any other provision of law or erroneously the of the junior has increased, the anomaly removing clause reproduce above would not apply. Neither in the pleadings nor by any document it has been shown that the pay of the junior of the respondent increased under clause (H) ibid. There is no evidence as to how an under which provision of rule the pay of the junior of the respondent was fixed at Rs.290 per month. It is said that the scale of train examiners Grade‑I and Grade‑II were equalized and were merged in NPS‑8, but no notification whereby this was provided is on the record. If there is a provision in the said notification that while bringing Grade‑I train examiner in scale No.8 from scale No.6 one increment should be given and that the pay of the junior of the respondent was fixed at Rs.290 per month, then it is doubtful if such a fixation would be correct. One increment can be given where clause (H) applies and the clause applies only when there is promotion from lower post to a higher post and not when from a lower grade one is sent to higher grade. If the pay of the juniors of the respondent was fixed wrongly, he could not claim that his pay be made equal to the pay of his juniors. So before deciding if the respondent ,gas entitled to the increase in his pay to Rs.290 per month, it was to be decided whether the pay 'of his juniors had been rightly fixed at Rs.290 per month. Even if the pay of the juniors of the respondent had been rightly fixed, still it is to be seen if it was done under clause (H)? It may be emphasised that anomaly removing clause 'I'll uld apply only if the anomaly was created by clause (H). Needless to I say that the state exchequer cannot be burdened by illegal 1‑ivition and wrong application of rules. The appellant is the custodian of notifications and relevant instructions, so they should have brought on the record the notification whereby scale of train examiners Grade‑I and Grade‑II were merged and were placed in scale No.8. As the said notification is not on the record, no final opinion can be expressed. So the case needs further probe and inquiry.

3. As a result the appeal is accepted and the case is remanded for fresh decision in the light of the observations made above. The parties will be at liberty to produce further evidence besides the notification or the instructions, as the case may be, whereby the scales of Grade‑I and Grade‑II train examiners were merged in scale No.8. Nemo for parties.

A.E./109/Lb.P Case remanded