Syed Arshad Ali, Member.--This appeal under Section-4 of the Service Tribunals Act, 1973 was filed before this Tribunal with the following prayers: "(i) To re-fix the basic pay of the appellant as on 01.03.1992 at the minimum rate of Rs. 2560/- per month in the then prevalent pay scale of Rs22560- 195-4900.
(ii) To raise the basic pay of the appellant by granting him increase in the prevalent pay scales from 01.03.1992 to 01.11.1995 and to fix his basic pay at the rate of Rs. 4250/- as on 01.11.1995.
(iii) To pay difference of emoluments to the appellant on the re-fixation of basic pay as Assistant Manager as on 01.03.1992 to 01.11.1995 and to re-fix his basic pay fixed subsequently as per re- fixation of basic pay as prayed as on 01.03.1992 and 01.11.1995."
2. Brief facts of the case are that the appellant had joined the respondent's corporation in January 1987 as Junior Office Assistant and was posted in P&GS Division, Principal Office, Karachi. On his performance of satisfactory service, he was promoted as Office Assistant w.e.f.
24.04.1992. The appellant is a Commerce Graduate from Karachi University passed his Examination in 11 Division in 1988. The appellant appeared in In-house Competitive Examination for the post of Assistant Manager held on 03.11.1991 in response to circular dated 05.08.1991 and had been fortunate to secure First Position, but was not promoted as Assistant Manager despite his genuine representation made to the higher authorities dated 12.01.1999. The appellant had also applied for the post of Deputy Manager in response to advertisement of respone !It dated 27.01.1992, but he was not issued any letter for participating in the competition. Subsequently, he had again applied for the post of Assistant Manager, test was held on 08.07.1992, he qualified written test and interview, again he was not appointed as Assistant Manager, but was offered post of Executive Officer in Grade-8 vide letter dated 10.01.1993, which he had accepted subject to his right of representation for appointment as Assistant Manager, vide letter dated 27.01.1993.
3. The Executive Committee of the respondent-corporation in its 176th meeting held on 23.02.1994 and 02.03.1994 has decided that in future all Superintendents, on promotion, will be placed as Assistant Managers and the existing Executive Officer shall be designated as Assistant Managers.
The said decision was notified vide circular No. P&GS/PO/11/94 dated 03.04.1994. The appellant on 03.04.1994 was serving as Executive Officer and thus was entitled to be designated/ promoted as Assistant Manager in terms of the above-said circular, but he was ignored for no valid reason. The appellant per-force, continued pursuing is case for promotion which ultimately culminated in issuance of his promotion order as Assistant Manager w.e.f.
01.03.1992 vide letter dated 01.11.1995. In the above-said letter it was stipulated that the appellant was appointed as Assistant Manager (Confirmed) in Grade-9 and that he was placed as Assistant Manager w.e.f.
01.03.1992 in the cadre of Assistant Manager. Although the appellant was promoted as Assistant Manager (Confirmed) w.e.f.
01.03.1992, but his basic pay in the cadre of Assistant Manager was not re-fixed w.e.f.
01.03.1992. However, his basic pay as Assistant Manager was fixed w.e.f.
01.11.1995 @ R.s.3455/-. Consequently, the basic pay of appellant as on 01.11.1995 has been fixed at lesser amount as compared to his junior colleagues as below:- "(i) Mr.Mujeeb Qureshi was appointed as Assistant Manager w.e.f.
10.06.1992 but he was drawing pay as on 01.11.1995 Ci. Rs. 4250/- per month.
(ii) Mr. S.Ali Murtaza was appointed as Assistant Manager w.e.f.
01.01.1993, but he was drawing basic pay as on 01.11.1995 @ Rs. 3985/- per month.
(iii) Mr.Abdul Wahid was appointed as Assistant Manager w.e.f.
01.07.1994 but he was drawing basic pay as on 01.11.1995 @ Rs. 3720/- per month".
4. Another anomaly that has crept up in the re-fixation of basic pay of the appellant as on 01.03.1992, the date on which he was promoted as Assistant Manager (Confirmed) is that his other colleagues who were promoted as Assistant Manager w.e.f.
01.03.1992 were drawing basic pay almost double of the basic pay of appellant as shown below: "(i) Mr. S.Sultan Ahmed was promoted/ appointed as Assistant Manager w.e.f.
01.03.1992 and he was drawing basic pay as on 01.11.1995 @ Rs. 5575/- per month, while his basic pay as on 01.03.1992 was fixed at Rs. 3535/- per month.
(ii) Mr. Abdul Nasir Ahmed was promoted/ appointed as Assistant Manager w.e.f.
01.03.1992 and he was drawing basic pay as on 01.11.1995 (a) Rs. 4250/- per month, while his basic pay as on 01.03.1992 was fixed at Rs. 2560/- per month.
' The appellant though promoted/ appointed as Assistant Manager w.e.f.
01.03.1992, his basic pay as on 01.11.1995 was fixed at Rs..3455/- per month, while his basic pay as on 01.03.1992 was Rs. 1229!- per month.
5. That as per facts, it was to be observed, that the Assistant Managers, who were junior to the appellant, were allowed basic pay at the higher rate as compared to appellant as on 01.03.1992 and as on 01.11.1995 and the Assistant Managers, who were promoted w.e.f.
01.03.1992 the date with which effect the appellant has been promoted, have also been granted higher basic pay as on 01.03.1992 and as on 01.11.1995 and thus he has been gravely discriminated in the matter of his emoluments, which is neither permissible under the law and the Service Rules applicable to his employment. He has been making representations though lastly made on 12.01.1999 and the same has been replied in negative vide letter dated 04.02.1999; hence, this appeal.
6. The respondents in its para-wise comments took the legal objection that the appeal is hopelessly time barred as the cause of action accrued to the appellant in 1992. They have also stated that the appeal is hit by the principle of "ESTOPPEL" as the appellant accepted his appointment as an Assistant Manager with all the terms & conditions of his appointment dated 01.11.1995.
7. On merits, it was stated by the respondents that the appellant was appointed as Junior Clerk but was promoted in 1992. He was upgraded to the post of Executive Officer which, was accepted by the appellant. They have admitted that the appellant appeared in the competitive examination held on 08.07.1992 and on the basis of result was offered upgradation to the post of Executive Officer. As the appellant himself admitted that he accepted the post of Executive Officer, he is estopped from taking contrary plea. They have denied the contents of Para-5 by stating that the circular was not applicable to the appellant as he was upgraded as Executive Officer. On the basis of in-house competitive examination, whereas, the circular referred, applied to those Executive Officers, who were promoted from the post of Superintendents. The circular further mentions that Executive Officers selected through in-house competition will be considered for promotion to the post of Assistant Manager as and when they became eligible for promotion in accordance with the existing criteria. They have denied that the appellant was promoted as Assistant Manager vide letter dated 01.11.1995. In fact, he was appointed as Assistant Manager when appointment and its terms & conditions were accepted by the appellant. The pay of M/s. Mujeeb Qureshi, S. Ali Murtaza and Abdul Wahid was fixed considering their appointment and seniority respectively. The formula for pay fixation of the said Assistant Managers was correctly applied in their cases and conversely to the appellant. There is no anomaly as to fixation of pay of M/s. Sultan Ahmed, Abdul Nazir and the appellant himself.
8. We have heard the appellant in person and the learned counsel for respondents and have also gone through the written synopsis submitted on their behalf including the documents available on record.
9. The case of appellant is that he was promoted on 10.01.1993 and he accepted it as per application dated 27.01.1993, accepting his up-gradation. And reserving his right to represent for appointment as Assistant Manager: He departmentally represented for fixation of salary on 12.01.1999, which was not accepted as per letter dated 04.02.1999, hence, this appeal within thirty days. Earlier on he also represented vide letter dated 17.09.1995, but instead of 03.04.1994 or 10.01.1993. He was offered the post of Assistant Manager w.e.f.
01.03.1992 (confirmed) vide letter dated 01.11.1995, which he accepted on 02.11.1995 in the hope that the benefits of the post under State Life Employees (Service) Regulations, 1973 will not be denied.
The pay of the appellant was fixed w.e.f.
01.1 1.1995 vide fixation sheet.
10. First ambiguity in offer letter is in the word "back benefits/arrears". Both the same benefits were denied, which is not justified. If the fixation is not allowed w.e.f.
01.03.1992, then what arrears have been indicated for in that word. The appellant accepted the offer with the hope that it would be for only three year, but recurring loss is not bearable for whole life.
Section-11 of the State Life Employees (Service) Regulations states that, "Appointment to a post shall nornially be made at minimum of the pay scale of the post. But, if the qualifications and experience of the past standing of a person so warrant, appointment may be made at such higher level in a pay scale as may be deemed fit by the appointing authority".
It is thus clear from the above that employee may be placed at higher stage of pay scale but not below the minimum of any pay scale as has been done with the appellant.
11. The benefit of seniority for which the appellant was entitled was also not given to the appellant.
His seniority as at 31.12.1995 was reckoned at serial #9, but in the ensuring promotional exercise which was held in 1996, his seniors and juniors upto the seniority position number 20 were promoted, but the appellant was ignored.
12. The main grievance of the appellant is that if not a single benefit i.e. Fixation of pay, arrears and promotion was to be given then why the offer of appointment was given w.e.f.
01.03.1992 and not from 01.11.1995 as his juniors who were promoted in 1993, 1994 or in 1994 are getting more pay and enjoying better status than the appellant. It was admitted by the respondents in counter-affidavit that pay was not fixed as Assistant Manager w.e.f.
01.03.1992, but it was fixed w.e.f.
01.11.1995. In view of such admission by the respondents themselves, in our view, the appellant has been discriminated upon and thus became entitled for such fixation. The discrimination is apparent also from the fact that one Abdul Razzal had been promoted as Assistant Manager w.e.f.
28.06.2005 without back benefits vide office order dated 31.05.2010, but in the same year i.e. 2010 he was again promoted as Deputy Manager w.e.f.
28.06.2010. Vide office order dated 05.03.2013 he was been given the hack benefits, which were not allowed earlier on in 2010. The benefits were allowed to Abdul Razzaq "as a very special case on sympathetic consideration".
13. Although the appellant has been fighting for his right, but he was denied his right without any reasonable cause, but in the case of Abdul Razzaq, he was allowed the back benefits, though as a, special case. This is sheer discrimination on the part of respondents, which is violative of Article 25 of the Constitution of Islamic Republic of Pakistan.
14. It transpires from the position, as available on record beside above discussion, that there are two sets of rules for reckoning and maintaining seniority of Assistant Managers in the respondent- organization. The appellant who was upgraded was not allowed to be promoted as Assistant Manager w.e.f.
01.03.1992, whereas those who . Were promoted from Superintendents to Executive Officers, were promoted as Assistant Manager and the seniority was given with immediate effect, which is in utter disregard and violation of Civil Servants Act, 1973 and Civil Servants (Seniority) Rules made thereunder in relation to the terms and conditions of Civil Servants. Resultantly, the appellant's seniority was affected and pay and emoluments drawn by the appellant are less than those who were his colleagues and junior to him and the loss is recurring. The fundamental question arises as to why the appellant was discriminated upon and not given seniority w.e.f.
01.03.1992? Was there any cogent ground for refusal as such. In addition, the respondents arguments that the principle of Estoppel comes into play has no locus standi, for the appellant accepted the offer stating that he had reserved the right to make representation to promotion as Assistant Manager accepted the offer rather under protest.
15. In view of what has been discussed above, the appeal is allowed and the respondents are directed to remove the anomaly and re-fix pay, as prayed for by the appellant in his memo. Of appeal.No order as to costs.
17. Parties be informed accordingly.