ERNEST PETERS Versus SECRETARY FINANCE DIVISION
MUHAMMAD ILYAS LODHI (MEMBER). ‑‑‑Briefly, the facts of the case are that the appellant, Ernest Peters qualified Section Officers, Promotional Examination held in 1985 and got merit position 119 which, according to him was wrong and he represented to the Secretary, Establishment Division requesting that the marking by the Federal Public Service Commission on the basis of ACRs seemed to be wrong. The FPSC accepting his request placed him at serial 62 vide Notification dated 30‑7‑1989 mentioning that candidate will be deemed to have taken effect from the date of issue of the original Press Note viz. No. F‑7/1/85‑FPO, dated 20‑5‑1986. Accordingly, he was appointed Section Officer by the Establishment Division on the basis of 1985 Promotional Examination vide Notification dated 13‑12‑1989. He also qualified training and was regularised in the OMG Group with effect from 31‑12‑1989 vide Notification dated 16‑3‑1991 and not from 1986. He filed departmental appeal to the Secretary, Establishment Division against impugned order dated 13‑12‑1989 on 29‑8‑1990 to which he received rejection order on 13‑4‑1994 and communicated to him on 31‑5‑1994. The present appeal was filed on 29‑6‑1994.
2. The appellant argued that due to late decision of the FPSC in announcing his result he was denied to serve Government. He submitted that under FR 26(c) he was entitled for refixation of his pay from the date his juniors were promoted on the basis of Section Officers Promotional Examination of 1985 i.e. 12‑11‑1986. He also submitted that Ministry of Finance have given pay protection to Miss Nasreen Zia Ansari under FR 26(c) on the grounds that her promotion from Research Officer (B‑17) to Deputy Director (B‑18) was withheld by the Government due to no fault of her. He submitted that he has been allowed all administrative benefits by the Establishment Division including seniority and placement on regular footing but was not given financial benefit from 1986 as such as per rules and number of decisions of this Tribunal he may be given consequential benefits with effect from 1986. He submitted that his promotion as Section Officer was withheld due to no fault of his own and he was promoted as Section Officer and assumed charge of the post with effect from 19‑12‑1989 on the basis of 1985 Promotional Examination whereas his juniors were promoted as Section Officer with effect from 12‑11‑1986. He prayed that his appeal be accepted allowing him re‑fixation of his pay with increments in BPS‑17 under FR 26(2) with effect from 12‑11‑1986 to 19‑12‑1989 the date he assumed the charge of the post of Section Officer.
3. The departmental representative of Finance Division submitted that the appellant's appointment was made as Section Officer on Acting Charge basis vide Notification dated 13‑12‑1989 and as such he assumed the charge of the post on 19‑12‑1989. This was his initial appointment and in both the notifications no element of retrospective effect was involved and his appointment was also subject to his successful completion of the prescribed training course. As soon as he completed his training, he was regularised on 31‑12‑1989 and the period from 19‑12‑1989 to 30‑12‑1989 could not be regularised as he remained on acting charge basis. He submitted that the appellant has no right to claim financial benefits from 12‑11‑1986 as he was regularised as Section Officer on 31‑12‑1989 and was not entitled to refixation of his pay and annual increments prior to his actual assumption of charge of the post on the following reasons:‑
"(i) FR‑26(c), the benefit of which has been claimed is not applicable on the case of appointments like that of the appellant. This applies on case of presumptive promotions.
(ii) The appellant has not been prevented from performing the duty of the higher post against which he was appointed. He has already been allowed appointment with pay fixation from the date he assumed charge of the post of Section Officer as a result of revision of his result by the FPSC.
(iii) Consequent of revision of his result the appellant has already been given appointment as Section Officer with effect from 19‑12‑1989 to which he was not even entitled otherwise. He cannot be allowed fixation of pay with effect from 12‑11‑1986 because as stated by the Law and Justice Division on general principle a person cannot be allowed to reap a double advantage.
(iv) He had assumed charge of the post with effect from 19‑12‑1989 from which date he became entitled to pay in terms of FR‑22/30, which he is already drawing from the same date."
The departmental representative further submitted that seniority allowed by the Establishment on acting charge basis cannot be made a basis for pay fixation under any of the FR moreso when there is a gap between the date of his acting charge appointment (19‑12‑1989) and the date of placement on regular footing in the cadre (31‑12‑1989). His case is not of wrongful prevention from rendering service in the higher post. On the contrary he has been given appointment as Section Officer when the FPSC modified his result even though he was vet to complete the prescribed training. He prayed that the appeal be dismissed.
4. We have heard both the parties, perused the relevant record and judgments of Muhammad Akram Mirza v. Establishment Division Appeal No. 128‑L of 1990 and the case of Kh. Zaheer Ahmad v. District Accounts Officer and others (Appeal No. 188‑R of that after the enforcement of the Civil Servants Act, the pay of a Government servant in view of section 17 thereof cannot be curtailed and that FR‑35 is not consistent with the section and as such is not saved under the Civil Servants Act" (1986 SCMR 991/1005 . Moreover, the Establishment Division and finance Division had. allowed such benefit of arrears of salary to M/s. Roshan Ali, Joint Secretary, M. Sargees Nagi, Deputy Secretary, M.S. Bhatti, Deputy Secretary and Aftab Ahmed, Section Officer who were granted relief by the Tribunal but the Finance Division did not file any appeal before the Supreme Court. Furthermore, the Establishment Division has also not agreed to contest appeal on behalf of Federal Government before the Tribunal and advised the Finance Division to reconsider the appellant's case on the analogy of law cases and administrative Precedents as quoted thereto. But in spite of that, the Finance Division has made again reference to the Establishment Division to file a Division appeal before the Supreme Court. Since the Supreme Court in the reported cases as quoted thereto, had determined the similar substantial question of law of the public importance that "the arrears of salary in case the civil servant, who for no fault of his own is wrongfully prevented from rendering service to State in the higher post to which is‑ admittedly entitled, should be given salary for higher post in spite of FR‑17." The said principle as laid down by the Supreme Court is‑binding ‑to be followed in the identical cases under Article 189 of the Constitution 1973 by the other Courts including public functionaries in the interest of justice.
5. In view of the above, we accept the appeal on the same analogy of aforesaid Law Cases and direct the respondent‑department to refix the pay, of the appellant from the date his juniors were granted i.e. 12‑11‑1986.
6. No order as to costs.
7. Parties be informed.
H.B.T./1011/Sr.F ???????????????????????????????????????????????????????????????????? ??????????? Appeal accepted.