MUHAMMAD ANWAR Versus PROVINCE OF N.W.F.P. and 3 others

ORDER

FAZAL ILAHI KHAN, J.---The Petitioner appointed in the Health Department as Junior/Senior Clerk at Lady Reading Hospital, Peshawar, in BPS-6 in the year 1948 and subsequently promoted as Almoner in BPS-9 in the year 1956 was subsequently appointed Social Officer (Male) in the Lady Reading Hospital, Peshawar in BPS-16 on ad hoc basis. He performed his duties as such from 21-7-1973 to 25-1-1980. The petitioner was subsequently appointed as Assistant Accounts Officer (BPS-17) in Lady Readings Hospital on ad hoc basis and performed his duties from 26-1-1980 to 13-12-1983 whereafter he was granted earned and medical leave for 135 days. Consequence upon arrival of selectee of N.-W.F.P. Service Commission, petitioner was kept on waiting list till 14-12-1983 though he had reported for duty, whereafter vide Notification No,80(H)1/4-24/83 dated 5-12-1983, Government of N.-W.F.P. Health and Social Department appointed and posted him as Assistant Accounts Officer BPS-17 at District Headquarter Hospital, Abbottabad on a vacant post of which he took charge on 14-12-1983 and performed his duty till 20-5-1984, when all of a sudden respondent No,1 modified the order of posting of the petitioner and directed that petitioner be allowed to draw the pay and allowance as Almoner (BPS-9) for performing the duties of the higher post of Assistant Accounts Officer (BPS-17). Petitioner, however, applied for leave preparatory to retirement with effect from 20-5-1984. The matter remained under correspondence when finally on 8-1-1987 he was retired from service, as Almoner BPS-9. The petitioner's pension claim remained hanging for reason that his pay from 14-12-1983 to 20-5-1984, the period for which the petitioner performed the duties of Assistant Accounts Officer (BPS-17) was not yet settled by the respondents Nos.1 to 3 despite clear direction of respondent No,1 that pay for the said period should have been paid in BPS-17 and such was view of the respondent No,2.

Respondent No,1 has, however, on 26-4-1992 passed the final order wherefrom it transpired that respondents were reluctant to allow pensionary benefit to petitioner of the post of Assistant Accounts Officer which post he was holding prior to his retirement. Petitioner, therefore, made representation and thereafter appealed before the Federal Service Tribunal. His appeal was dismissed by the learned Tribunal, holding that his appointment in BPS-17 was neither with the approval of the competent authority nor in conformity with the Rules. Hence, he was, therefore, not entitled to ask for the pensionary benefit of BPS-17.

The contention raised by the learned counsel for the petitioner; whether, the Service Tribunal was justified in holding that the petitioner's initial appointment in BPS-17 was not in accordance with rule although he held the post and performed such duties in compliance of the order of appointment and whether he can be deprived of his pensionary benefits of such post and several other questions of public importance raised, required consideration. .