Rao SOLAT YASIN KHAN vs DIRECTOR-GENERAL, FEDERAL DIRECTORATE OF EDUCATION, ISLAMABAD and 2 others

' NOOR MUHAMMAD MAGSI (MEMBER).---The appellant, in this appeal was initially appointed as Library Assistant (B-5) in F.G. Boys Middle School, Tarnaul, (FA.) Islamabad by Directorate of Federal Government Educational Institutions' Office Order, dated 21st March, 1984. By order dated 23-9- 1985, he was placed in B-9 with effect from 22-3-1984. He was admittedly transferred to Federal Government Boys Model School, F-8/3, Islamabad against a vacant post of Librarian (B-15), vide order dated 31-12-1989. Since then, he has continuously been working on the higher post of Librarian (B-15). He submitted a representation on 27-9-1994 for grant of pay of the higher post of (B-15). But the Federal Directorate of Education, rejected his representation vide Letter No, F.1- 84/82(A-II)FDE, dated 10-11-1994 which was endorsed to the appellant on 3-1-1995. He has, therefore, filed this appeal in this Tribunal claiming pay of Grade-15 with effect from 31-12-1989 from which he has been continuously working on that post.

2. Learned counsel for the appellant argued that a civil servant posted to work against a higher post is entitled to the pay of the said post. In support, he relied on Subah Sadiq v. Secretary, Government of Punjab 1984 PLC (C.S.) 718 and 1984 PLC (C.S.) 1606. Referring to section 17 of Civil Servants Act, 1973, he contended that the pay of the appellant cannot be curtailed than that of the presumptive pay of B-15 as he has been performing the duties of B-15 right from 31-12-1989. The learned counsel also referred the cases of Shahzada Shahpur Jan 1986 SCMR 991; Qazi Abdul Karim (1978 SCMR 289). On the other side, it has been argued on behalf of the respondents' Department that although the appellant was posted/transferred against the vacant post of Librarian (B-15), but since he was not qualified for the said post, he is not entitled to full pay of the higher post. In their written objections, they have also raised the objection that the appeal is time-barred and also hit by section 4(b) of the Service Tribunal's Act, 1973.

3. We have heard the parties at length and perused the record. As regards the question of limitation, the learned counsel for the appellant has also submitted an application for condonation of delay. In this connection we are of the view that this Tribunal has always taken a view that in matters of pay and pension, the bar of limitation is not applicable. In support decisions of this Tribunal in 1984 PLC (C.S.) 386 and 1987 PLC (C.S.) 181 are referred to. The same view was taken by this Tribunal in 1986 PLC (C.S.) 66 which was also upheld by the Supreme Court of Pakistan. In the light of these decisions, the plea of limitation has no substance in this case. The objection of section 4(b) has also no force because it is not a case of promotion nor against the departmental order determining the fitness or otherwise, but in fact the Department had itself transferred the appellant against a post of B-15 and the appellant has been continuously performing the duties of the higher post, as such denial of remuneration of higher post is not justified. We find that it has been held in 1984 PLC (C.S.) 718 that an official posted against a higher post was allowed only 15% of his pay over and above his own pay, but the Tribunal came to the conclusion that since he has been performing duties of higher post involving higher responsibilities, he must be entitled to the minimum pay of the said higher post. The same view has been taken in 1984 PLC (C.S.) 1606, where it is held that a civil servant appointed to perform functions of a higher post involving higher responsibilities without formal promotion, is entitled to the pay of the higher post. It is also observed in this ruling that the mere mention in the order "in his own pay scale without any extra remuneration" does not make any difference. The Tribunal held this condition to be contrary to the legal position, hence not operative. We are, however, of the view that the question of grant of pay of the higher post has been exhaustively discussed by the Supreme Court of Pakistan in Federation of Pakistan v. Shahzada Shahpur (1986 SCMR 991). In this case two categories of officers have been discussed; the officers falling in the first category were those who were qualified and eligible for promotion to the higher posts, against which they were working, and as such they were held to be entitled to the full pay of the higher posts. The second category is of those who lacked eligibility for promotion to the higher post. In regard to second category, the view of the Supreme Court was that they were not entitled to full presumptive pay like fully qualified and eligible persons. But they are not to be deprived altogether from the additional remuneration for working on higher post.

Since the official of this category, on account of their ineligibility, were not fully discharging the duties of the higher post against which they were made to work, therefore, they would be entitled to the reduced terms than the presumptive pay as admissible to the first category. The appellant's case thus falls in the second category because it is common ground between the parties that the appellant was F.A. With a Certificate in Library Science and was thus not eligible for promotion to the post of Librarian (B-15). He is, therefore, entitled to reduced term than the presumptive pay of (B-15) as held by the Supreme Court of Pakistan in 1986 SCMR 991. Though not qualified, but it is admitted in the written objection and also by the departmental representative that the appellant was transferred against a vacant post of Librarian (B-15). Although section 17 of the Civil Servants Act, 1973 entitles the appellant to the pay of the post or grade against which he has been working but in view of aforesaid judgment of the Supreme Court of Pakistan, we are of the view that he cannot be given full pay of B-15, but as he has been performing higher duties, he cannot be deprived of adequate compensation for doing duties of higher post. His claim for full pay of B-15 is not acceptable. However, in our view, 20% of his own pay in (B-9) would be an adequate compensation for the duties he has been performing of the higher post i.e, B-15. From the record produced by the respondents with their Objections, we find that the appellant on transfer against vacant post of Librarian (B-15), joined the Federal Government Model School, F/8-3, Islamabad with effect from 8-1-1990, therefore, the claim of the appellant with effect from 31-12-1989 is also not correct, but he is entitled for adequate compensation only with effect from the date of his joining i.e, 8-1-1990.

4. In view of the above discussion, we accept the appeal to the extent that appellant is entitled to 20% of his own pay (B-9) and not the full pay of (B-15). We, therefore, direct the respondents to pay the adequate compensation @ 20% of his own pay of (B-9) in addition to his own pay with effect from 8-1-1990 from which date he has been performing the duties of Librarian (B-15), with all consequential benefits.

5. No order for posts. Parties be informed.