JUDGMENT JUSTICE (R) MUHAMMAD JAHANGIR ARSHAD, CHAIRMAN - As common questions of law and facts are involved in all these appeals, therefore we propose to dispose of all these appeals through a single order.
2. All the appellants were- appointed under the Special Development Programme as PTC/untrained Teachers in the year 1982-83 for a period of six months on purely temporary basis likely to become permanent at the fixed monthly salary plus usual allowances. They were subsequently confirmed in the year 1991 on different dates. Some of the appellants after their confirmation/regularization demanded increment from the Education Department for the period prior to their regularization/confirmation. The prayer of those appellants was however, refused by the Director Public Instructions, Punjab with the remarks that the untrained Teachers were not entitled for annual increments for the period they served as untrained Teachers. The matter was brought before this Tribunal after exhausting departmental remedy through Service Appeal No. 1947 to 1949 of 2003 and the then learned Chairman of this Tribunal after dilating upon the legal as well as factual aspects of the matter vide judgment dated 22.1.2004 allowed the, appeals and directed the Education Department for payment of increments of the said period without any demur. The above- noted judgments of this Tribunal were challenged by the Government through C.Ps. Nos. 1249-L, 1286-L and 1287-L of 2004 before the apex Court but the apex Court vide order dated 23.1.2006 dismissed the petitions as under:--
(1) "These petitions for leave to appeal have been filed against the judgment dated 22nd January, 2004 passed by Punjab Service Tribunal, Lahore.
(2) Learned counsel for petitioners when called upon to satisfy as to how beyond the scope of Section 16 of the Punjab Civil Servants Act, 1974 (hereinafter referred to as the Act, 1974), fixed pay was allowed to PTC Teachers, he could not answer satisfactorily.
(3) The Tribunal has granted relief to the respondents, on having taken into consideration that salary is to be fixed according to Section 16 of the Act, 1974. Therefore, impugned judgment being in consonance with the provisions of law, warrants no interference of this Court."
3. It is stated that in terms of the above-noted judgment of this Tribunal as well of the apex Court noted above, the District Accounts, Hafizabad was directed to comply with the same by the Government of the Punjab, Education Department (School Wing), Lahore through its letter dated 30.10.2006 sent to the Assistant Registrar, Supreme Court of Pakistan, Lahore. After the above-noted judgment, several other untrained Teachers also moved this Tribunal for seeking similar relief and they were allowed the' same. However, some of the aggrieved persons instead of either coming to this Tribunal or going to the apex Court approached to the Hon'ble Lahore High Court for seeking the said relief by placing reliance on the judgment of Hon'ble Supreme Court of Pakistan generally known as Hamid Akhtar Niazi case, reported as 1996 SCMR 1185 holding "Relief granted to a civil servant either by the Service Tribunal or by the Supreme Court in service matters, the same is also available to those civil servants too whether they have approached the Court or not" and the learned Single Judge of the Lahore High Court through order dated 31.10.2008 directed the Education Department for the grant of said relief to all those, civil servants whether they were party or not to the judgment of the Hon'ble apex Court dated 23.1.2006 noted above. However, the said judgment of the Hon'ble .Lahore High Court was assailed by the Education Department before the apex Court and the apex Court through Civil Appeals Nos. 89-L to 105-L of 2009, Q.M.A. Nos. 1324-L, 1271-L of 2009 and H.R.C. No. 2-L of 2009 through order dated 7.7.2009 disposed of the above-noted as follows:-- Learned counsel for the respondents do not join issue with the mandate of Article 212 of the Constitution but submits that the respondents were seeking a relief which had already been granted to certain civil servants similarly placed; that they were also Seeking enforcement of a judgment of the Court given in Civil Petitions Nos. 1249-L, 1286-L and 1287-L of 2004. They however, on Court query, readily agreed that if all these matters are transmitted to the Punjab Service Tribunal to be decided on merits expeditiously, they will have no objection if these appeals are allowed. It was further submitted that the appellants did not challenge .The judgment' of the learned Lahore High Court in Writ Petition No. 9214/2007 and they cannot challenge its vires in these appeals. The stand taken by learned counsel for the respondents is fair. However, without expressing or opinion on the issues raised by learned counsel for the parties with regard to the merits of these appeals, we are inclined to allow these appeals only on the question of jurisdiction i.e. Article 212 of the Constitution. Consequently, writ petitions filed by the respondents shall be treated as appeals and transmitted to the learned Punjab Service Tribunal forthwith who shall decide the same as appeals within a- period of thirty days of respondents' appearance before it.
Both the parties are directed to appear before Punjab Service Tribunal alongwith copies of their writ petitions on. 15.7.2009. Needless to observe, the Tribunal shall decide the appeals on merits.
Learned Law Officer has very fairly stated that the appellants shall not raise question of limitation.
H.R.C. No. 2-L of 2009 In view of the order passed in Civil Appeals Nos. 89-L to 105-L of 2009, this human rights case has- become infructuous, which is disposed of accordingly.
C.M.A. Nos. 1824-L and 1371-Lof2009 Subject to all just exceptions, these CMAs are allowed."
4. In the above-noted background and in order to determine the controversy permanently this Division Bench was constituted so as to avoid conflicting judgment by learned Single Bench of this Tribunal. Today all these appeals were heard in the presence of all those concerned.
5. So far as the law declared by the Hon'ble Supreme Court of Pakistan . Through the order dated 23.1.20Q6 noted above is concerned, there is neither any cavil nor any difference of opinion to the same per force of Article 189 of the Constitution, 1973 holding "Law declared by the Supreme Court was binding on all the authorities in Pakistan". See also 2010 PLC (CS) 451. However, there is a dispute about the date of applicability of the above-noted judgment of the apex Court. According to the learned counsel for the appellants they are entitled to the grant of increments from the date of their very first appointment as untrained Teachers and during the whole period till they were regularized/confirmed.
6. On the other hand the stand taken by the Department is that as they accepted the appointments knowingly that they were not entitled to any increments etc. Therefore they cannot claim any increment for the said period at all. The learned Deputy District Attorney has also adopted the stand taken by the Department.
7. We have carefully considered the arguments advanced by the parties as well as the above- noted judgment of this Tribunal 22.1.2004 passed in Service Appeals Nos. 1947 to 1949 of 2003 noted above and the judgment of the apex Court dated 21.3.2007 noted above confirming the judgment of this Tribunal dated 22.1.2004 and have also perused the record.
8. As held above, we cannot agree to the viewpoint of the Government as well as the learned Deputy District Attorney that the appellants were not entitled to claim increments for the period prior to their regularization because the Hon'ble Supreme Court of Pakistan in its judgment noted above is so many words held "Salary of a civil servant is to be fixed according to Section 16 of- Punjab Civil Servants Act, 1974". For further amplification of the question involved, reproduction of Section 16 of the Act ibid appears necessary which is reproduced below:-- "Civil servant appointed to a post shall be entitled in accordance with the rules, the pay sanctioned for such post."
9. In the presence of the above-noted findings of the apex Court as well as reproduction of Section 16 of the Punjab Civil Servants Act, 1974, no further discussion to this extent is called for and we accordingly hold that all the appellants are entitled to the grant of increments prior to the period of their regularization. However, we feel that as the appellants remained silent from the date of their appointment till they were regularized and even much after their regularization and suddenly were up from slumbers and started claiming the above-noted relief and thus prima facie were guilty of acquiescence, therefore it would neither be fair nor expedient to burden the public exchequer by directing to pay increments to the appellants for the entire period prior to their regularization.
Though there is no estoppel against law, yet for remaining silent for such a Considerable time and not claiming the relief, their conduct nevertheless squarely falls at least within the mischief of acquiescence and latches, thus can neither be ignored nor approved with legal sanctity, therefore we feel that it would be most appropriate and in order to save public exchequer from heavy financial burden, if while allowing all these appeals, the appellants are allowed benefit of full increments for the period of first two years from the date of their original appointment till the regularization and in case the period exceeds two years, then for the period exceeding two years, they would be entitled to only 1/2 of the annual increment till their regularization. . Office to circulate copy of this order to air the learned Members of this Tribunal for their guidance.