ISLAMIC REPUBLIC OF PAKISTAN THROUGH SECRETARY, FINANCE DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD vs Qazi ABDUL KARIM, DEPUTY ACCOUNTANT GENERAL, N. W. F. P., PESHAWAR AND Another

ORDER

1. GHULAM SAFDAR SHAH, J.-This leave petition is meant to impugn the judgment of the Services Tribunal, Islamabad, dated 27-12-1977, by which the appeal of respondent No. 1 herein was accepted.

2. The background of the case is that respondent No. 1 herein, who was employed as an Assistant Accounts Officer in the Office of Comptroller, N.W. F. P., Peshawar, was appointed as Deputy Comptroller II in the said Office w.e.f. 5-8-1971. Vide Auditor-General Office's Notification No. 1840-- GB-II/25-71, dated 25-9-1972. However, in the said notification, it was mentioned that he would draw the pay of his own grade, namely, that of Assistant Accounts Officer until an officer from the P.

3. A. And A. S. Becomes available to replace him. On 5-8-1971, the respondent took over the charge as Deputy Comptroller, which office was subsequently re-designated as Deputy Accountant General, and consequently he claimed the pay of the said office. The record would show that in consequence of the pay slips issued to him by the Office of A. G. P. R. He succeeded to draw the- pay as Deputy Accountant General. But when the authorities came to know of this fact they issued instructions to the A. G. P. R. That since the respondent had no right to draw the pay of the said office, the position be rectified. In pursuance of these instructions, the required action was taken in the matter with the result that by the order of the Government, conveyed through letter No. F.

4. 2(6)/73-E/IV/825. Dated 8th May 1973, of the Ministry of Finance, Planning and Development (Finance Division), his pay for the period 6-8-1971 to 17-2-1972 was regularised, but his claim with respect to the rest of the period for which he had worked as Deputy Accountant General was turned down. Faced with this situation the respondent made representations to the President of Pakistan and the Prime Minister on 22-1-1973 and I1-7-1975, respectively. But no action was taken on his representations. As a result, therefore, he filed an appeal before the Services Tribunal, Islamabad, which as already stated was allowed by the impugned order. And hence this petition for leave to appeal by the Government.

5. The uncontroverted position which transpired from the record is that respondent herein had worked as Deputy Accountant-General for the following periods :- "(i) 5-8-1971 to 28-9-1973

(ii) 7-2-1974 to 8-3-1974

(iii) 1-8-1974 to 4-10-1974

(iv) 22-1-1975 to 8-3-1975"

(v) 19-5-1 975 to 20-9-1975

(vi) 11-12-1975 to 21-4-1976.

6. " From 22-4-1976 he was promoted to the said post on regular basis.

7. Now the contest between the parties before the Services Tribunal was whether the respondent was entitled or not to claim the pay for the period he had worked in the higher office as Deputy Accountant-General. The contention of the petitioner Government was that in view of the Auditor-- General Office's Notification, dated 25-9-1972 (ibid), the respondent was entitled to draw the pay of his own grade, namely, Assistant Accounts Officer. Whereas the respondent supported his claim on the strength of the policy decision of the then President and C. M. L. A., contained in paragraph 2 of the Ministry of Finance letter No. F. 4(l)/70-Exp-IV/ 114, dated February F 17, 1972, as well as on the basis of a judgment of this Court in the case of The Postmaster General, Eastern Circle (E. P.) Dacca and another v. Muhammad Hasham (PLD1978SC61). The learned Tribunal, after applying its mind to the rival contentions of the parties reached the conclusion that the stand taken by the respondent was valid, consequently accepted his appeal and held that he was entitled to the pay of the office of Deputy Accountant-General for all the period during which be had performed duty in that office.

8. According to the policy decision of the then President of Pakistan and C. M. L. A. As conveyed m the letter of the Government of Pakistan (Ministry of Finance) No. F. 4(1)/70-Exp-IV/114, dated 17th February 1972 (at page 31 of the paper book) an officer of the Ministry of Foreign Affairs, namely, Majid Akhtar, was allowed to draw the pay of the post of Chief Accounts Officer for the period during which he had actually worked on that post, although his request for formal promotion to the said post was turned down. In para. 2 of the said letter, however, it was conveyed that: "The President and C. M. L. A. Has also been pleased to decide the same treatment may be accorded to other officers who were appointed to higher posts without their formal promotion to those posts. In this connection, I am to advise you that, in future, no officer should be appointed against a higher post without his formal promotion to that post in accordance with the normal rules and orders."

9. Now the stand of the Government before the Services Tribunal was that in view of para. 2 of the said letter of the Government, respondent No. 1 was entitled to draw the pay of the Office of Deputy Accountant-General only up to February 17, 1972. But for the period subsequent thereto he was disentitled. With this contention, however, the Tribunal did not agree. The view taken by the Tribunal was that in view of the exigencies of service and in the interest of an efficient and smooth administration, the Auditor --General of Pakistan had continued the appointment of the respondent as Deputy Accountant-General even beyond February 17, 1972 and in that respect the Auditor-General had informed the Ministry of Finance of the petitioner Government, vide his D. O.

10. Letter dated 1-1-1973 and another letter No. GB-11/27-72, dated October 23, 1973. Having concluded thus, the learned Tribunal also attached no importance to the letter of Finance Division No. F.

11. 2(6),/73-Exp. IV/2044, dated July 18, 1977, in which it was conveyed that all appointments made without the approval of the appointing authority would be invalid and would not carry any right to the pay of said appointments.

12. We are of the view that in this conclusion, the learned Service Tribunal seems to be right. After all if an employee is promoted to officiate in a higher post, involving higher responsibility, he must be held to be entitle to the minimum pay of the grade of the said higher office. In this respect. It reference may be made with advantage to a judgment of this Court in the case of The Postmaster General Eastern Circle (E. P.) Dacca and another v. Muhammad Hasham in which a similar question had fallen for consid--eration. In that case also the respondent, an employee in Class II post, was promoted by the Postmaster General to officiate in Class I post but in his appointment order it was clearly mentioned that he would continue to draw the pay of his substantive office.

13. Notwithstanding this rider, however, this Court, after taking into consideration the effect of rules 30 and 35 of the Fundamental Rules, recorded the conclusion that so long as the services of the respondent were utilised in the higher post, he would be entitled to draw the minimum pay admissible in that post. It would thus be seen that the facts of the case in hand are on all fours with the facts of that case and so the ratio of the said judgment would clinch the matter in favour of the respondent.

14. This petition, therefore, fails and is dismissed.