' SALIM KHAN, J---Syed Kamal Hussain, the then Enquiry Officer (BPS-17), was relieved on 24-9-1995 by the Directorate General of Registration, Islamabad, (his parent Department) to join the post of Civil Judge-cum-Judicial Magistrate on contract basis for a period of one year. He was allowed the right of reversion to his parent Department. On audit objection regarding his initial substantive pay as well as the initial pay of the post of Civil Judge-cum-Judicial Magistrate, he was directed to get relaxation of F.R. 22(b). It was contended by him that the case was processed by the Finance Department and Honourable the Chief Justice of Peshawar High Court, vide his order conveyed on 4-12-1995, granted the said relaxation and the order was implemented, but the District Accounts Officer, Abbottabad, withheld his pay for a period of three months, which action on his part was patently tainted with mala fides, which was released on the intervention of the Registrar of this Court. The petitioner further contended that the District Accounts Officer, Abbottabad, moved further and got the order of his parent Department, that the petitioner was on contract basis and was not entitled to increment and to the pay mentioned above as a result of relaxation, and the pay of the petitioner was retrenched on his transfer from Abbottabad to Bannu.
2. The comments of the Secretary Finance, Government of N.-W.F.P. The Accountant-General N.- W.F.P. District Accounts Officers, Abbottabad and Mansehra (respondents No,1,5,6 and 7 respectively) were obtained. The theme of comments of the respondents is that the petitioner was on contract basis, and, therefore, was entitled only to the initial pay of the contract post, but was not entitled to annual increment, and that the provisions of F.R. 22(b) of the Fundamental Rules were not applicable. We heard Mr. Abdul Samad Khan, Advocate, for the petitioner, Mr. Muhammad Saeed Khan, Addl. A.-G. For respondent No,1 as well as Mr. Salahuddin Khan DAG for respondents Nos.2 to 4 in detail, and perused the available record.
3. Sub-rule (b) of F.R. 22 of the Fundamental Rules provides that if the conditions prescribed in clause (a) are not fulfilled, the employee will draw as initial pay the minimum of the time-scale.
F.R.22 of the said Rules prescribes the condition that the initial substantive pay of a Government servant who is appointed substantively to a post on a time-scale of pay is regulated as follows:--
(a) If he holds a lien on a permanent post, other than a tenure post, or would hold a lien on such a post had his lien not been suspended.
(i) When appointment to the new post involves the assumption of duties or responsibilities of greater importance (as interpreted for the purposes of rule 30) than those attaching to such permanent post, he will draw as initial pay the stage of the time-scale next above his substantive pay in respect of the old post.
(ii) When appointment to the new post does not involve such assumption, he will draw as initial pay the stage of the time-scale which is equal to his substantive pay in respect of the old post, or, if there is no such stage the stage next below that pay plus personal pay equal to the difference, and in either case will continue to draw that pay until such time as he would have received an increment in the time-scale of the old post or for the period after which an increment is earned in the time-scale of the new post, whichever is less. But if the minimum pay of the time-scale of the new post is higher than his substantive pay in respect of the old post, he will draw that minimum as initial pay;
(iii) when appointment to the new post is made on his own request under rule 15(a) and the maximum pay in the time-scale of that post is less than his substantive pay in respect of the old post, he will draw that maximum as initial pay.
4. Syed Kamal Hussain Shah was posted as Enquiry Officer (BPS-17) under the Directorate General of Registration, Islamabad. His post of Civil Judge-cum-Judicial Magistrate was also in BPS-17. The question of difference of the time-scale of the old post and the time-scale of the new post did not arise. In this way, the question of drawing as initial pay the stage of time,scale next above his substantive pay in respect of the old post, the difference of stages of the two times-scale, the minimum pay of the timescale of the new post being higher than his substantive pay in respect of the old post, and the maximum pay in the time-scale of the new post being less than his substantive pay in respect of the old post, also did not arise. The minimum and maximum pay of the post of Enquiry Officer (BPS-17), Directorate-General of Registration, Islamabad, and the minimum and maximum pay of the post Civil Judge-cum-Judicial Magistrate (BPS-17) were equal.
5. He was drawing his salary at a certain stage of the time-Kale of pay in BPS-17 against his old post. The same stage was available, neither higher nor less, for the post of Civil Judge-cum- Judicial Magistrate. His application for the new post was departmentally forwarded, and, consequently, he was a recommendee of his parent Department. He was granted the right of reversion to his parent Department by retaining his lien there. His case fell under sub-clause (ii) of sub-rule (a) F.R. 22, because the new post did not involve the assumption of duty or responsibility of greater importance. He was, therefore, to draw his initial pay at the stage of the time-scale which was equal to his substantive pay in respect of the old post. He had fulfilled the condition prescribed in clause (a) mentioned above and was not liable to be treated in accordance with clause (b) of F.R.22.
6. The only question brought up to hinder his case was that he Was appointed on contract basis, and, therefore, he was to draw the minimum of BPS-17 and was not entitled to the increment. In the Notification issued by the Services and General Administration Department (Services Wing) of the Government of N.-W.F.P., vide No,SOS-II(S&GAD) 2(ii) /98 dated 29-7-1998, appointing the petitioner at serial No,10 thereof one of the terms and conditions of service of the petitioner, as in para-2(ii) thereof, was as follows:-- "(ii) They will be allowed the minimum of BPS-17 (Rs,3880-290- 7360) plus other allowances as admissible under the rules. Those who are already in Govt. Service and whose pay is more than the minimum of BPS-17 will be allowed to draw pay which they were drawing before their appointment as Civil Judges. Their pay shall be fixed at proper stage in BPS-17."
7. In the Notification, vide No,SOS-II(S&GAD)2-11/95 dated 31-8-1995, while appointing Syed Kamal Hussain Shah on contract basis at serial No,23 thereof for a period of one year, extended by different orders from time to time till appointment as such on regular basis, One of the terms and conditions of appointment of the petitioner, as in para 2(ii) thereof, was as follows:-- "They shall be entitled to draw pay at the minimum of BPS-17 with usual allowances as admissible to officers of the same status and grade."
' This part of the order was against the provisions of F.R.22. The only difference between a post on contract basis and a regular post was that a post on contract basis was for a certain period whereafter the services were to be terminated/returned and the incumbent was not entitled to pensionary benefits, while appointment on a regular post was to continue upto the age of retirement and the incumbent was entitled to pensionary benefits under the relevant rules. The question of grant of C increment during the period of appointment on contract basis for one year had already been settled in F.R.
22. As an increment was not to be granted while performing duties on contract basis, the increment on the pay of the old post was to be given and that was to be considered as the increment because that would be the only increment and the question of minimum increment between the two increments did not arise.
8. The comments of the respondents are placed on wrong footings and on misinterpretation of Clause (b) of F.R. 22 was not applicable in the circumstances of the present case, and, even then; Honourable Chief Justice of Peshawar High Court, on the initiation of the respondents, granted relaxation for the protection of pay of the petitioner, which amounted to correcting the defect in para 2 (ii) of the appointment order dated 31-8-1995 mentioned above.
9. In these circumstances, we accept the present writ petition, and direct the official respondents to issue the correct pay slip to the petitioner by allowing him the initial substantive pay of the old post along with increment/s for the period the petitioner was serving as Civil Judge-cum-Judicial Magistrate on contract basis.