JUDGMENT JUSTICE (R) ABDUL GHANI SHAIKH, CHAIRMAN - The appellant has filed the instant appeal under Section 4 of Service Tribunal Act, 1973 before the Tribunal on 30.1.2001 with the following prayer:- "(a) to direct the respondents Nos. 1 and 2 to pay the additional pay/special pay for holding the current charge appointment i.e.f. 5.5.1994 to 24.4.1999 as Head Master, Railway High School, M.Y. Bin Qasim under cover of FR 40/and as well per se letter dated 2.6.2000.
(b) Costs of the appeal."
2. The facts as narrated in the memo, of appeal are that appellant had joined Education Department of Railways as Assistant Teacher at Pakistan Railway High School, Sukkur i.e.f. 3.10.1967.
He was subsequently transferred and posted at Pakistan Railway Secondary School M.Y. Bin Qasim on 21.4.1981 and since then he was working there as founder of the said School. He discharged his duties as Head Master i.e.f. 21.4.1981 to 4.2.1982 and subsequent thereto i.e.f. 5.2.1982 to 6.12.1986 under the orders of the competent authority. He also performed his duties as Head Master in the said School i.e.f. 8.12.1986 to 3.12.1989 under the orders of the competent authority. Subsequently he was directed to work as Assistant Head Master i.e.f. 4.12.1989 to 5.5.1994. On retirement of Mr. Muhammad Ashraf Jeelani, the appellant again worked as Head Master of the said School i.e.f 5.5.1994 to 24.4.1999 and thereafter one Mr. Riazuddin was transferred from Railway High School, Karachi Cantt. And posted at M.Y. Bin Qasim against the post of Head Master. Now the appellant has claimed difference of pay for the period from 5.5.1994 to 24.4.1999 as according to him he is a civil servant and is entitled for the pay of higher post, which he performed under the orders of competent authority as the same relates to terms and conditions of service.
3. We have heard learned counsel for both sides and have also perused the record minutely.
4. The learned counsel for the appellant argued that the appellant had performed his duties of higher post in his on pay and if a civil servant performed or is performing the duties of the higher post in his on pay and grade, he would be entitled to pay of the higher post and placed reliance on 1988 PLC (CS) 682 which was re-affirmed in another judgment reported as 1990 PLC (CS)
136. He also relied on a judgment of the Hon'ble Supreme Court of Pakistan reported in 1992 SCMR 1869 wherein it was held that "if a civil servant is detailed to work against the higher post in addition to his on post, then he became entitled to pay for the higher post". He argued that appellant is entitled for payment of special pay for the addition charge he was holding and placed reliance on a judgment reported in 1977 SCMR 509. He also referred to Civil Servants Act, 1973. The Personnel Manual Volume l/Railways Rules and Regulations framed and issued by the competent authority as well as ESTA CODE and contended that same are applicable to the Gazetted Officer/Federal employees. He argued that in receipt past Rs. 1,100/- per month have been enhanced to that of Rs.
1,515/- per month on account of special allowance for holding additional charge appointment of identical/non-dentical post and that of special pay for holding current charge appointment which is available on record. He argued that the appellant took over the charge as Acting Head Master i.e.f. 5.5.1994 under the order of respondent No. 2 and relinquished the charge on 24.4.1999 which is available on record, but nothing has been paid to the appellant which is his vested right and not bounty of the state and can be claimed as a matter of right by the employee and placed reliance on PLJ 1999 Tr. C. (Services) 405 and PLD 1970 Supreme Court page 415.
5. On the other hand, learned counsel for the respondents had vehemently opposed the contentions raised by the learned counsel for the appellant and supported for the impugned order.
6. We have given anxious consideration to the argument advanced by both the learned counsel for the parties.
7. Admittedly, the appellant was holding a charge of higher post as Acting Head Master i.e.f.
5.5.1994 under the order of respondent No. 2 and relinquished the charge on 24.4.1999 and thus he was entitled to get the salary of higher post in addition to his on pay which has not been done in the case of the appellant. Reliance is placed on PLJ 1998 Tr.C. (Services) 367 wherein it was held that:- "Service Matter- -Civil servant-Proforma promotion-Without arrears-Challenge to-In a case of civil servant, who for no fault of his on is wrongly prevented from rendering service to State in higher post to which he is admittedly entitled, should be given salary for higher post-Gone are the days when pay and allowances were considered to be bounty of State, It is an age of awareness wherein pay and allowances are claimed as of right under statutory provisions- These are no longer paid as bounty of State-Much water has gone under bridge when such payment was considered as bounty of State-Held: Appeal is accepted with all consequential benefits."
Reliance is also placed on 1985 SCMR 1349, 1973 SCMR 304 and PLJ 1999 Tr.C. (Services) 405 cited by the learned counsel for the appellant wherein the same view was taken. It may be mentioned that on or querry from, the learned counsel for the respondents whether the appellant had worked as Head Master and if so he should state whether such plea had been taken in the comments, he simply stated that in the comments plea has been taken that he had simply looked after the school affairs, as Head Master of his on. The learned counsel for the appellant, in rebuttal, argued that in the order of the Divisional Superintendent dated 15.5.1994, it has been mentioned that such order was issued with the approval of the competent authority. We are in agreement with the learned counsel for the appellant and find that such order was issued with the approval of the competent authority.
8. For the reasons discussed above, we allow the appeal and direct the respondents to pay additional pay/special pay to the appellant for holding the current charge appointment i.e.f.
5.5.1994 to 24.4.1999 as Head Master, Railway High School, M.Y. Bin Qasim. No order as to costs.
9. Parties be informed accordingly.