SARWAR ALI KHAN Versus CHIEF SECRETARY TO GOVERNMENT OF SINDH

1. SAJJAD ALI SHAH, J : ‑‑This appeal, with the leave of the Court, is directed against the judgment dated 12‑2‑1992 of the Sindh Service Tribunal, whereby appeal of the appellant herein is dismissed and his prayer for salary of the post of Registrar from the date of taking over, is rejected.

2. Briefly stated, the relevant facts in the background are that the appellant was working as Superintendent in BS‑16 in the Sindh Labour Appellate Tribunal when that post was converted into that of Deputy Registrar in BS‑17 on 1‑7‑1985. He was upgraded for that post on the recommendation of Departmental Promotion Committee. Later on 1‑7‑1988 Post of Registrar (BS‑18) fell vacant and vide Notification dated 5‑7‑1988 the appellant was appointed to that Post in his own Pay and Status with immediate effect and till further orders and was allowed Special Pay as per instructions. Ultimately, the appellant was promoted on regular basis to the post of Registrar (BS‑18) on the recommendation of Departmental Promotion Committee vide Notification dated 30‑6‑1991. He applied for salary of BS‑18 from 5‑7‑1988, when he took over as Registrar on the ground that he was performing duties of higher post in higher grade and made representation but to no avail. The appellant then filed appeal before Service Tribunal under section 4 of Sindh Service Tribunal Act, 1973.

3. The Tribunal has rejected the prayer of the appellant for three reasons. Firstly, that the appellant did not challenge Notification dated 5‑7‑1988 whereby he was inducted as Registrar on his own pay and status. Had he intended to do so, he would have filed service appeal in 1988. Secondly, regular promotion at the initial stage was not possible without clearance by Selection Board. Thirdly, the appellant was compensated with Special Pay as contemplated under Proviso I to section 18 of the Sindh Civil Servants Act, 1973.

4. Now, so far as the first reason is concerned, as mentioned above, it can be said that presumption favour-able to the civil servant (Appellant) would be that it was temporary arrangement and would not last long but it lasted for 3 years. Filing representation was also proper remedy and in such circumstances it would not be fair to knock down service appeal as time‑barred on the ground that first notification was not challenged.

5. About the second reason that regular promotion could take place after clearance by Selection Board, question arises whether there was valid reason for not getting clearance from the Selection Board. Reason assigned seemingly is that Recruitment Rules were under consideration and had not been approved. Recruitment Rules were notified vide Notification dated 17‑5‑1990 requiring that Post of Deputy Registrar (BPS‑18) can be filled by Promotion from the holder of the Post of Deputy Registrar with 5 years or such length of service as prescribed by the Government from time to time.

6. On 7‑5‑1990, when Recruitment Rules were notified the appellant stood qualified as having done 5 years' service as Deputy Registrar with no adverse report, hence the Departmental Promotion Committee could have approved and there is no legal justification for getting clearance late and promoting him on regular basis on 30‑6‑1991 with immediate effect. In the absence of plausible explanation, this action cannot be treated as fair and equitable to the appellant. Even otherwise, according to the old Recruitment Rules contained in notification dated 27‑2‑1984, the appellant was eligible and qualified to be promoted as Registrar, when he was initially so appointed in his own pay and status on 5‑7‑1988. In the old Rules requirement for induction in BS‑18 is 5 years in B‑17. It is mentioned in paragraph (a) thereof that where post is upgraded from B‑16 to B‑17, by revision of pay‑scale, this service in B?16 may be reckoned in B‑17 for the purpose of promotion to B‑18. The appellant has stated in the memorandum of appeal filed before the Service Tribunal, that he had worked as Superintendent in B‑16 for 5 years when on 1?7‑1985 the post was upgraded to that of Deputy Registrar in B‑17. This statement of the appellant is not challenged in the Written Statement.

7. The third reason in the impugned judgment, as mentioned above, is that the appellant was compensated with special pay, hence he should not have grievance on that account. No doubt proviso (I) to section 18 of the Sindh Civil Servants Act, 1973, envisages that if appointment is temporary, then appointing Authority may direct that such appointee, instead of drawing pay of such higher post or grade, draw pay of the lower post or grade he held immediately before such appointment with special pay as may be prescribed. It is apparent that this can be done when appointment is for a short period and the vacancy is to be filled on immediate basis in spite of the fact that the appointee does not fulfill necessary requirements. This cannot be stretched to cover the case in hand, where the incumbent has worked against that post on his own pay and status for three years, particularly when there was no legal impediment in his way to be promoted at that time on regular basis when he was inducted on 5‑7‑1988. In the instant case, since the appellant was eligible and qualified for promotion to B‑18, there appears no justifiable. reason to deprive him of the salary and other benefits of that post for a period of three years, which he would have received, had he been promoted on regular basis. The appellant had discharged full duties and responsibilities of the higher post and in the absence of some plausible reason, he cannot be deprived of the salary and other benefits connected with that post. In support of the above proposition, reference is made to the case of Federation of Pakistan v. Shahpur Jan and 2 others 1986 SCMR 991. The appellant, who was present in the Court, informed us on our querry that for the period of three years, when he discharged his duties of the post of B‑18 in his own pay and status, he earned three ACRs, which are very good.

8. For the facts and reasons mentioned, we set aside the impugned judgment, allow the appeal and hold that the appellant is entitled to the salary of B‑18 and other benefits connected therewith from 5‑7‑1988, when he was appointed as Registrar in his own pay and status minus and special pay already drawn for that period. The respondents are directed to issue such notification I retaining necessary clarifications.

9. AA./S‑801/S ??????????????????????????????????????????????????????????????????????????? ??????????? Appeal accepted.