POSTMASTER GENERAL, EASTERN CIRCLE (E P), DACCA AND Another vs MUHAMMAD HASHIM

HAMOOD UR RAHMAN, C. J.-This appeal by special leave, arises out of judgment of a Division Bench of the High Court of East Pakistan in a constitutional petition under Article 98 of the Constitution of 1962.

2. The said petition was filed by the respondent herein for having certain orders of the Postmaster- General, Eastern Circle, Dacca, promoting the said respondent to officiate in Class I Service "on his own pay" in his substantive capacity in Class 11, declared illegal and of no legal effect.

3. The respondent had joined the Postal Department initially as a clerk in the year 1928. And gradually worked his way up to the post of Inspector, R. M. S. In 1953. He was in August, 1947, a confirmed Assistant Superintendent in the Railway Mail Service holding a Class II non-gazettes post. After the Partition, he was approved by the Director-General. Post and Telegraph Department, for promotion to Class II gazetted post and was promoted as Superintendent from 1954. He was provisionally confirmed in that cadre as Superintendent of Post Offices from 29th of October, 1958, and on 10th of Mercy, 1961, he was finally confirmed substantively in that capacity.

4. Thereafter on the 31st of October, 1961, he was promoted as Superin--tendent, R. M. S., V. Division, Dacca. Which is a Class I Post, but the order of promotion stated that he would join his new duties "on his own pay in Class II". He served as such Superintendent in Class I from 8th of November, 1961, to the 2nd of April, 1962. Then on the 4th of April, 1962, he was again appointed as Superintendent, Foreign Post, Dacca, which is also a Class I post but again "on his own pay of Class II". On the 18th of March, 1965, he was debuted to officiate as Training Officer (I), P. T. C., Dacca "in his own grade" but on 25th of July, 1965, he was sent back as Superintendent, R. M- S., V-Division, Dacca "in his own grade in Postal Superintendent's service class II---.

5. He retired from service on the 31st of October, 1965, while officiating in a Class I Post but before doing so he made several representations to the Department to give him the pay of the post in which he was officiating continuously, as required' by Fundamental Rules 22 (a) (3) applicable to Government servant, as the post in which he was officiating involved the assumption of higher responsibilities. It was also maintained by him that the orders were violative of the protection given to Government servants by Article 178 (3) (a) of the Constitution of 1962. These representations were, however, rejected- He, accordingly, invoked the constitutional jurisdic--petition of the High Court and the High Court held that in terms of Fundamental Rule 22 (a) Q) read with Fundamental Rule 31 he was entitled to the salary of Class I Junior Grade during the period he officiated in those posts and declared the orders of the Postmaster-General to the extent they purported to restrict the pay of the respondent to be illegal.

6. The Postmaster-General obtained leave from this Court to consider whether the High Court was right in tatting the view that the Government) had not the right to restrict the pay of an officiating employee.

7. In support of this contention reliance is placed on behalf of the Government on Fundamental Rule 35 which reads as follows :- "A Local Government may fix the pay of an Officiating Government Servant at an amount less than that admissible under these rules."

Local Government under the Fundamental Rules means in the case of a person employed by the Centre, the Central Government and in the case of a person serving the Province, the Provincial Government. This power of tits Local Government has been delegated to all Heads of Departments, as will appear from paragraph 7 of page 5 of the Establishment Manual, Volume I, dealing with Delegation of Powers under the Fundamental and Supplementary Rules.

8. The Fundamental Rules. On which the High Court has relied, are Fundamental Rules 22 and 3 1.

Rule 22 deals with the initial substantive pay of a Government servant, who is appointed substantively to a post on a time scale of pay. This rule does not, therefore, apply to an officiating.

Appointment. So for as Fundamental Rule 31 is concerned, the learned Additional Attorney-General rightly pointed out that it is by its own terms subject to rules 26 (e), 30 and 35. The rule, which deals with officiating pay, is Fundamental Rule 30. The main portion of this rule reads as follows :- "Subject to the provisions of Ch. Vl, a Government servant who is appointed to officiate in a post shall not draw pay higher than his substantive pay in respect of a permanent post, other than a tenure post, unless the post in which he is appointed to officiate is one of those enumerated in the Schedule to this rule or unless the officiating appointment involves the assumption of duties and responsibilities of greater importance than those attaching to the post, other than a tenure post, on which he holds a lion or would hold a lien bad hip lien not been suspended."

9. This rule clearly contemplates that where a person is promoted t officiate in a higher poet, involving the assumption of duties and responsibilities of greater importance, he would ordinarily be entitled to a highs pay unless of course the Government, in the exercise of the power given t it under Fundamental Rule 35, has decided to give him a lesser benefit: The contention of the appellant is that rule x5 gives an absolute discretion to the local Government or the delegate not to give any benefit at all. The question is whether the interpretation is tenable upon the language of rule 35 itself. In cur opinion all that rules 35 permits is tile pay: rent of $ lesser amount than which would otherwise have been admissible under the Fundamental Rules themselves to an officiating employee. Reading this rule along with rule 30, which is not subject to rule 35, we are unable to accept this contention. Fundamental rule 35 gives no such vide or, unguided discretion. It only permits the fixation of a lesser amount but from this it does not follow that no benefit need at all be given. The Government's own decisions printed in the official compilation of the Fundamental and Supplementary Ruffs themselves would indicate that the rule was not intended to deprive a person of a higher remuneration if he was assuming duties and responsibilities of greater importance than those attaching to his substantive post. Thus the departmental interpretation does not also support the wide contention now sought to be lout forward. If the Rules are capable of bearing a reasonable interpretation favourable to the employee then that interpretation should be preferred.

In our view, therefore, the High Court rightly holds that the Postmaster-General could not have totally restricted the pay et the respondent to his substantive pay in Grade If while he was officiating in a higher Grade.

10. Learned Additional Attorney-General also sought to argue that the appointments were themselves bad, for, the Postmaster-General had no power to appoint any person to the Class I cadre without the approval of the resident, not since this point was not taken in the High Court, we dole not think that it will be fair to allow him to take it at the stage in the Supreme Court, particularly, since investigation into facts may be necessary to find out whether approval of the President was or was not obtained.

11. In the view that we have tales of the scope of rule 35 this appeal must, is run opinion, fail and is; accordingly, dismissed, but since an interpretation of one of the Fundamental Ruler, namely, Fundamental Rule No. 35, wag involved, we make no order for costs. The respondent has retired from service since October, 1965. There will be no point, therefore, In now sending the case back to the Department after 5 years for calculating the amount actually due to him on the basis of the minimum pay of the grade to which be was promoted. To avoid further delay we had asked the learned Additional Attorney-General to ascertain if the calculation of the respondent it acceptable to the Department. He has informed us that the Department accepts the calculation as correct. In the circumstances, we accept the detailed account submitted by respondent along with his supplementary affidavit in the High Court, on the 15th of January, 1968 vide pages 50 and 51 of the record. According to this a sum of Rs. 6,314.56 is due and payable to the respondent. In order to do complete justice we direct that this amount should be paid without any further delay. To the respondent, as the plea of bounty can no longer be set up by the Department.