' BRIG. (RETD.) ABDUR RASHID (MEMBER).-The appellant Nazir Ahmad joined WAPDA on 22nd February, 1960 as an Operater and, in due course, was promoted Foreman (Grade-I) on 23rd April, 1976.
2. The appellant was promoted as Assistant Engineer Thermal Power Station Guddu vide Project Director, Thermal Power Project Guddu's Office Order No, MPS/EO/21/75/1045, dated 23rd April, 1976.
In accordance with this order he was appointed against a vacant post. Subsequently, however, vide letter No, 2217/PMG/E-4, dated 4th May, 1976, the promotion of the appellant was found to be not in order due to technical reasons and he was made to continue in the grade of Foreman even though working as Assistant Engineer.
3. Subsequently, the Managing Director (P) vide Office Order dated 9th October, 1976 promoted the appellant as Assistant Engineer on regular basis against the vacant post of a Junior Engineer. This promotion order in original was never communicated to the appellant. However based on this particular promotion order, Chief Engineer, Thermal issued his own posting order, a copy of which was communicated to the appellant on 26th November, 1976.
4. After this, regularization of posting/promotion of the appellant, the Chief Accountant insisted that a regular charge report should be submitted by the appellant indicating that he had formally taken over the responsibilities of the post of Junior Engineer, Guddu. The appellant submitted his charge report on 1st December, 1977 wherein the Resident Engineer T. P. S., Guddu vide endorsement No, REG-PF-24/1265, dated 1st December, 1977 clearly mentioned that the appellant had taken over as Junior Engineer with effect from 1st January, 1977.
5. After the regularization of appellant's promotion/appointment, various pay scales were communicated from time to time which was objected to by the appellant as highly disadvantageous. Ultimately, on 23rd March, 1978 a pay slip was issued on the basis of WAPDA Office Order dated 16th October, 1977 showing the appellant's total emoluments as Rs, 2,125 on 1st January, 1977. This pay slip indicated that the appellant as Assistant Engineer on 1st January, 1977 was entitled to Rs, 850 as grade pay plus Rs, 400 as personal pay (over and above the allowances).
The appellant objected to this pay fixation also and made a representation to Member (Finance)
WAPDA. This representation was passed on to Assistant Director Finance (Power) whose letter dated 18th December, 1978 addressed to the appellant is reproduced below :- "Sub : APPLICATION FOR PAY FIXATION ' Will G. M. (G) kindly refer to his letter No, 9208-09/GMG/PA-13, dated 27th November, 1978 on the subject above?
' It is the general policy of the Authority to give protection in such case by allowing personal pay where basic pay plus P. P. Is not to exceed the maximum of the scale of the promoted post.
Protections as given to Mr. Nazir Ahmad have also been allowed in similar other cases of M/s. Masroor Ahmad Khan, Asghar Hayat Khan, Mohammad Hussain Jakhar and Zahoor-ud-Din Ahmad. In all these and other such cases, the P. P. Plus Basic Pay is not in any case to exceed the maximum of the pay scale of the new post. The case of Mr. Nazir Ahmad has been correctly dealt with by Accounts to implement the protection orders given in his case as decided by the Authority and there are no grounds for accepting his representation. His request for pay fixation at the next above stage also cannot be accepted as this formula is not applicable on such like cases of G. P. S. Pay protection.
(Sd.) M. MURRAY ' Asstt. Director Finance (P) for Director Finance (Power)
WAPDA Lahore."
6. Not being satisfied with the pay fixation as finally communicated to him vide above-quoted reference, the appellant came to the Tribunal for relief on the following grounds :
(a) He held the post of Foreman on permanent basis. In the event of his promotion to a post involving the assumption of duties or responsibilities of greater importance, the law entitles the appellant to draw-as initial pay the stage of the time scale next above his substantive pay in respect of the old post. As the time scale of Junior Engineer carried the maximum pay of Rs, 1,250 and since the appellant Was drawing substantive pay of Rs, 1,500 as Foreman, the first mentioned time scale could not, at all, be considered appropriate as a time scale next above the pay of Rs, 1,500, to which the appellant was entitled as Foreman. By way or on account of promotion the time scale that could, therefore, be lawfully given to the appellant should have been compulsorily next above his last pay of Rs, 1,500. Thus the appellant was entitled to the time scale of Rs, 1,000-.75- 1750, i,e, N. P. S. No,
18. As Foreman the appellant was in the scale of 750-75-1500. As such the scale of pay meant for Assistant Engineers (Rs, 500-50-1,000/50-1,250) could never be held to be a time scale next above appellant's substantive pay of Rs, 1,500.
(b) Fundamental Rule No, 22 is in conflict with the pay fixation of the appellant.
(c) The appellant had never exercised any option for the pay fixation as enunciated in Notification No, ABF/BF & C/10-66 (b)/Vol- II/1018-117 dated 10th January, 1976 and Notification No, AD F BF & C/10-126/A dated 16th June, 1977 and as such the authority had no jurisdiction to apply the said notifications regarding his pay fixation by reducing his substantive pay of Rs, 1,500 as Foreman (Grade 1) to Rs, 850 as Assistant Engineer.
7. We heard the arguments of the learned counsel from both sides and, also, have had the benefit of perusing the record relevant to this case. The departmental representative, too, made his arguments before us defending the action of the WAPDA in the pay fixation of the appellant as has been done in this case.
8. The appellant even though a Foreman Grade I happened to be in the pay scale of Rs, 750-50- 1,500. He was drawing the maximum of this scale at Rs, 1500 p. m. When he was promoted as Assistant Engineer (Grade 17). Even though the appellant was promoted to higher grade and had to shoulder greater responsibilities the pay scale available to him was Rs, 500-50-1,000/50-1,250.
Even the maximum of this scale was lower by Rs, 250 than his maximum scale of the Foreman. The appellant, therefore, claimed that he had a legitimate right to be placed in grade 18 as per F. R. 22
(a) (i). However, as laid down at (J) (i) of National Scales of Pay and Allied Matters, (page 319 of Estacode) "An employee who will be adjusted in, or whose basic pay scale is National Scale 16, will be allowed to move over only up to and including National Scale 17." From this quotation it is clear that the appellant cannot be allowed to skip scale 17 and go over to scale 18. This being the situation we have to see how best to place him in scale 17 so that he does not suffer any financial loss.
9. For such contingencies as in the present appeal the award of personal pay (Fundamental Rule 9 (23)) is relevant which has been defined as under :- "(23) Personal pay means additional pay granted to a Government servant ;
(a) to save him from a loss of substantive pay in respect of a permanent post other than a tenure post due to revision of pay or to any reduction of such substantive pay otherwise than as a disciplinary measure ; or
(b) in exceptional circumstances, on other personal considerations."
This Rule has a broad meaning and wide application, the underlying spirit being to save a Government Servant from financial loss. As outlined in the WAPDA letter quoted at para. 5, if the personal pay plus the basic pay is not to exceed the maximum of the scale of the new post (as in the present appeal) then we have defeated the very purpose of the Rule, namely to save a Government from loss of pay. In fact this narrow and unjust interpretation whereby we wish to inflict the punishment of basic pay plus personal pay not to exceed the maximum of the scale is not supported by any rules. We hold, therefore, that the basic pay plus personal pay could very well exceed the maximum of the scale if by so doing we save a Government servant from financial loss We shall, therefore, treat personal pay as an independent entity over and above the scale pay for that is the only benign way a benign rule can be interpret ted and not as has been done in our files by strangling attachment to rules wrongly inferred or interpreted to the grave detriment of the appellant and it is time we changed our course and threw overboard our archaic thinking and presently held concepts in exchange for basic reevaluation in the light of this particular case.
10. There is no doubt that the present appellant who not exercise any option vided Office Order dated 10th January, 1976 has been unjustly treated in the matter of his pay and allowance. We order that the pay of the appellant will be fixed as under with effect from 1st January, 1977 :- {{TABLE}} Pay Rs, 1,250.00 (He will be deemed to have cleared the efficiency bar).
Personal Pay Rs, 416.00 D. A. @ 10% of scale pay 125.00 H. R. Alice. 20% of basic 100.00 pay of Rs, 500.00).
Addl. D. A.
25.00 Generation Alice.
625.00 50% of scale pay. Guddu Alice.
200.00 ' Any other allowances if admissible. {{TABLE}} ' If we were to fix the pay of the appellant with effect from 1st May, 1977 when the revised N.P.S. Came into being (with N.P.S. 17 at 900-50-1,150/ 60-1,750) we would have given him the basic pay of Rs, 1,510 p. m. For two reasons. First because this pay would have been more than Rs, 1,500 which was his maximum as Foreman and second because Rs, 1,510 fitted digitally into the revised N. P. S.
17. This was, however, not possible on 1st January, 1977 when N. P. S. 17 was only 500-1,250. To ensure that the appellant does not suffer any financial loss we have decided on a base line presumptive pay of Rs, 1510 on which to base our calculations of personal pay etc. As such, on 1st January, 1977 the appellant has been given the maximum of NPS 17 which at the time was Rs, 1,250. The presumptive pay of the appellant being Rs, 1,510, he should have received Rs, 151.00 as D A and Rs, 755 as generation allowance whereas for the pay fixed by us at Rs, 1,250 these allowances work to be Rs, 125 and 625 respectively thus causing a loss of Rs, 156 p. m. To the appellant. This loss of Rs, 156 plus the difference of Rs, 260 (between his presumptive pay of Rs, 1,510 and his scale pay of Rs, 1.250 or a total of Rs, 416 has been given as personal pay to save the appellant from an overall financial loss.
11. With effect from 1st May, 1977, the national scales of pay were revised doing away with dearness allowance of various types. According to this revision NPS-17 was fixed at 900-50-1,150160-1,750 revised with effect from (?) July 1981 to 900-50-1,150/60-1,750-100-2,200. The appellant's pay will, accordingly, be fixed vide para. 3 (1) (page 333 Estacode) of the Revised National Scales of pay which lays down that "In the case of the existing employees, the initial pay in the relevant Revised National Scale of pay shall be fixed at the stage equal to, or if there is no such stage, at the stage, next above, the amount arrived at by allowing an increase of 10% over the aggregate of the basic pay in the existing scale and the dearness allowances thereon that would have been admissible but for these orders, on 1st May, 1977."
12. Working on the above formula, the appellant becomes entitled to 10% increase on his pay of Rs, 1,250 plus Rs, 150 (D A and Additional D A) or a sum of Rs,
140. In other words his pay is to be fixed at Rs 1,250 plus 140 or Rs, 1,390 p. m. His pay will therefore be as under :- {{TABLE}} ' Pay Rs, 1,390.00 ' Generation Allowance 695.00 ' Guddu Allowance 200.00 ' House Rent Allowance As Admissible.
' Any Other Allowance ' Personal Pay Rs, 206.00 {{TABLE}}
13. It will be seen that the appellant has gained Rs, 140 in his pay and Rs, 70 in generation allowance or a total of Rs 210 over his pay fixed on 1st January, 1977. His previous personal pay of Rs, 416 has, therefore, been correspondingly reduced to Rs, 206 in accordance with F R 37.
14. The appellant will be entitled to his yearly increment on 1st December, 1977 when his pay will be fixed as under :- {{TABLE}} ' Pay Rs, 1,450.00 ' Generation Allowance 725.00 ' Guddu Allowance 200.00 ' House Rent Allowance ). As Admissible.
' Any Other Allowance ' Personal Pay Rs, 116.00 reduced by Rs, 90.00 for the increases he got in his annual increment of Rs, 60.00 and Rs, 30.00 in generation allowance {{TABLE}}
15. Based on the above formula, the appellant will be given annual increment on 1st December, 1978, 1st December, 1979, 1st December, 1980 and 1st December, 1981 thus raising his pay to the following level (on 1st December, 1981) :- {{TABLE}} ' Pay Rs, 1,690.00 ' Generation Allowance 845.00 ' Guddu Allowance 200.00 (if still the same).
' House Rent Allowance Admissible.
' Any Other Allowance ' Personal Pay {{TABLE}}
16. The appellant will be entitled to move over to grade 18 after having done three years at the maximum of the NPS-17 and after fulfilling certain conditions attached therewith as mentioned at
(J) (ii) and (iii) of Estacode page 319.
17. The arrears of pay and allowances in accordance with the formulas laid down by us shall be paid to the appellant at the earliest,
18. No order as to costs. 19 Parties be informed.