C.M. No. 2468/2008 IQBAL HAMEED-UR-RAHMAN, J. --- This is an application under Order I, Rule 10, CPC filed by Attiq seeking to be impleaded as respondent on the ground that the applicant is a necessary party as well as Shafique Ahmad, who is stated to be senior to the petitioner and whose seniority had been challenged by the applicant Attiq Ahmad through an appeal before the Service Tribunal as such the applicant would be an effected person if the petitioner is promoted. It is further stated that the petitioner is challenging the eligibility through this petition, the same falls within the terms and conditions of service as such the Service Tribunal has the exclusive jurisdiction to hear the matter on this point the applicant would like to assist this Court. It is further stated that without impleading the applicant, multiplicity of litigation between the parties will arise and any decision in favour of the petitioner would adversely effect the applicant.
2. The applicant is not a necessary party, for the reason that now the question to be determined in the instant writ petition as asserted by the petitioner remains only to the extent of the payment of the salary and allowances with effect from 22.05.2002 to 10.02.2008, therefore, no question as to the promotion is to be determined. In this background it would not be necessary to implead the applicant as a necessary party in the instant writ petition as such, this application impleading Attiq Ahmad, as respondent is dismissed . MAIN CASE:
3. Brief facts of the case are that the petitioner was appointed as Instructor in BS-17 in the Government Woolen Centre Jhang vide order dated 27.09.1997. Thereafter he was directed to look after the charge of the post of the post of General Manager/Principal, Government Wool Spinning and Weaving Development-cum-Training Center Jhang till further orders vide order dated 03.11.2001 issued by respondent No. 2. On 22.05.2002 the petitioner was allowed to continue work as Acting General Manager, Government Woolen Centre Jhang. The petitioner made a representation on 04.10.2002 to respondents praying therein that he be considered for promotion on regular basis as per his entitlement from 03.11.2001 when the first vacancy became available. As the same was not decided the petitioner filed Writ Petition No. 10090/2007, which was disposed of vide order dated 18.10.2007 with a direction to respondent No. 1 to consider the representation of the petitioner and proceed in accordance with law preferably within one month. On 18.10.2007 the petitioner was also given the dual charge of the post of General Manager/ Principal Government Weaving and Finishing Institute Shandara, Lahore, vide Order dated 11.02.2008 passed by respondent No. 3 the petitioner was promoted as General Manager/Principal (BS-18), Government Wool Spinning and Development-cum-Training Centre, Jhang. On 19.02.2008 the petitioner made a representation to respondent No. 2 praying that he be promoted from 03.11.2001 on regular basis in BS-18 as General Manager/Principal and pay salary and allowances from that date be granted and dual charge allowance of the additional post be also granted w.e.f. 18.10.2007. The respondents had not decided the said representation dated 19.02.2008 the petitioner has filed the instant writ petition praying therein that he be promoted from 03.11.2001 on regular basis from the date when the post in BS-18 became vacant and salary and allowance be also granted w.e.f. 03.11.2001 and that dual charge allowance of the additional post be also granted w.e.f. 18.10.2007.
4. Learned counsel for the petitioner states that as the petitioner was allowed to continue work as Acting General Manager/Principal, Government Woolen. Centre, Jhang vide order dated 22.05.2002 and he was promoted as General Manager/Principal BS-18, Government Wool Spinning and Development-cum-Training Centre, Jhang vide order dated 11.02.2008, the salary and allowances in accordance with the post of BS-18 on which the petitioner has been performing his duties as Acting General Manager, Government Woolen Centre, Jhang be granted with effect from 22.05.2002 to 10.02.2008.
5. On the other hand, learned A.A.G. Has questioned the maintainability of the writ petition. It is stated that according to the prayer of the petitioner, he seeks promotion which comes within the ambit of terms and conditions of service, therefore, no writ lies against the same. It is further stated that according to Punjab Civil Servants Appointment by Promotion, Transfer or Deputation Rules, 1974, Rule 13(iii), an officiating promotion shall not confer any right of promotion on regular basis but shall be liable to be terminated as soon as a person becomes available for promotion on regular basis.
6. I have taken into consideration the arguments advanced by the learned counsel for the petitioner as well as the learned A.A.G. And have also perused the material made available on the record.
7. The objection of the learned A.A.G. Regarding maintainability of the writ petition cannot sustain as in the present circumstances the petitioner wants to avail his remedy before the competent forum, to the extent of his promotion, therefore, no question of maintainability of the writ petition arises. The claim of the petitioner for the payment of his salary and allowances for a period with effect from 22.05.2002 to 10.02.2008 on account of his performing duties as Acting General Manager in BS-18 seems to be genuine . Reliance is placed on the case of Sh. Amar Maftoon v.
Government of the Punjab through Secretary Education and another (1992 SCM R 1869) wherein it has been held that:--- "Civil servant worked against post of higher grade and discharged functions of such post, which entitled him to the pay attached to that post. Incorporation of condition in civil servant's posting order that he was adjusted against own pay and grade, would be inconsequential and not a bar for him to claim higher grade of pay. Civil servant was thus, entitled to the pay of higher post during the period he worked against the same."
1986 SCMR 991) it has been held that "Civil servant, who while working in higher grade but without any formal order of promotion to higher grade, was entitled to pay of higher grade from the date he was promoted to higher post with said higher grade, onwards alongwith increments falling due every year." In the case of Islamic Republic of Pakistan through Secretary, Finance Division, Government of Pakistan, Islamabad v. Qazi Abdul Karim, Deputy Accountant General, N.W.F.P., Peshawar and another (1978 SCM R 289) wherein it has been held that "Employee promoted to officiate in a higher post involving higher responsibility is entitled to minimum pay of grade of higher post."
8. In view of the above circumstances, this petition is accepted to the extent of the claim of the petitioner regarding payment of the salary and allowances of the post of Acting General Manager/Principal in BS-18. Accordingly, respondents are directed to make the payment of pay and dual allowances of the post of Acting General Manager/ Principal BS-18 to the petitioner with effect from 22.05.2002 to 10.02.2008. accordingly.