' A.
0. RAZIUR RAHMAN (MEMBER).-The appellant, an L.D.C. In the Inspection Depot Armaments, P.O.F.
Wah Cantt., was granted two advance increments, on passing the typing test, in 1960, in accordance with the rules on the subject. At that time, the scale of pay for L.D.Cs. (Scale 5) was upto Rs, 180 and, on reaching the maximum, his advance increments were stopped at Rs,
180. With effect from 1st March, 1972 the scale for L.D.Cs. Was revised as Rs, 150 to Rs, 280. On refutation of his pay in the revised National Pay Scales, his pay was fixed at Rs, 220. At that time, he had represented that his pay was wrongly fixed at Rs, 220, because he should have been allowed the two advance increments which had previously been given to him and allowed to draw the same till he reached the maximum of the scale namely, Rs, 280. According to him, no decision was taken on his representation, but, on account of 10% reduction in staff, he was discharged from service with effect from 13th April, 1974. Some time later, i,e, with effect from 22nd April, 1980, he was employed once again as a new entrant in the department and his pay fixed at the initial of the L.D.C's. Scale, which had been further revised in 1977 and fixed at Rs, 290 to Rs, 470, with two advance increments admissible to those who passed the typing test, subject to the condition that the pay including the advance increments would not be payable beyond the maximum of the scale. According to him on his fresh employment as L.D.C. In his department, he was treated as a new entrant and his pay fixed at Rs, 290 per month, which was the minimum of the scale. On 20th February, 1981, he applied for payment of the two advance increments also, in addition to the initial pay, because he had already passed the typing test in 1960 and had been allowed the two advance increments to which he was entitled under the rules at that time. In response to this application, it was stated, on behalf of the respondents, that since his case for re-instatement in service, which had been terminated on 30th April, 1974 was pending with the G.H.Q. The question of allowing him the advance increments for passing the typing test would be considered later when the G.H.Q's. Decision was received. He made a further application on 30th September, 1981. But again the department put off a decision, on the ground that, since the appellant had gone in appeal before the Service Tribunal (Court), in connection with his claim for re-instatement, the department would await the Tribunal's decision.
2. In the written objections filed on behalf of the respondent, two preliminary objections were raised : (1) That the appellant had not exhausted the departmental remedy, as required under proviso (a) to subsection (I) of section 4 of the Service Tribunals Act, 1973. (2) That the appeal was barred by limitation.
3. So far as the first objection is concerned, we do not consider it tenable, because, from the facts, as stated in the memo. Of Appeal and the documents filed by the appellant, it is clear that the appellant approached the relevant departmental authority, namely the Commandant of the Inspection Depot Armaments, P.O.F. Wah Cantt. After he had been denied the two increments which he claimed to be entitled to under the rules. The representation before the Commandant was, therefore, an appeal against a final decision taken by the concerned departmental authority.
If the refusal to pay him the two advance increments was on the orders of an authority other than the Commandant, the representation was rightly made to the Commandant and, therefore, an appeal against the order of the Commandant, or his failure to make an order within 90 days of the representation, is a competent appeal and, therefore, entertainable by the Tribunal. If, however, it is contended that the Commandant himself was the relevant authority and he decided not to pay him the two advance increments, the representation lay to the next higher authority. But, since the representation was made to the Commandant himself, the representation would not be deemed to be a representation to the next higher authority as contemplated in proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973. This, however, will not deprive the appellant of the right to corn up before the Tribunal. The Tribunal has invariably taken the view that whenever an aggrieved civil servant makes a representation to the same authority which passed the impugned order or some other departmental authority other than the one to whom it should have been made, it is the duty of the said departmental authority to forward the representation to the correct authority and that failure on the part of the appellant to send his representation to the correct authority shall not debar him from approaching the Tribunal under section 4 of the Act. For these reasons, we reject the first objection raised by the Respondents.
4. As regards the second objection, it is seen that the Commandant, on representation made by the Appellant, took the decision that "since the case has gone to the Service Tribunal, we will wait for their decision." This order could be interpreted either as a rejection of the prayer of the Appellant or as an order postponing a decision. Since both the interpretations; are equally plausible, the advantage must go to the appellant and the order of the Commandant be treated as a postponement of the decision. Since no decision was given by the Commandant within 90 days of the representation made by the Appellant, the appeal, filed by him on 19th November 1981 will be taken to have matured after the expiry of 90 days from the date of the representation, namely, 30th September, 1981. In view of this, we are of the view that the appeal is not time barred.
5. On merits, the appellant's case is that he should have been given two advance increments, when, on his fresh appointment, his pay was fixed in the National Pay Scale for Grade-5, as revised in 1977, although, according to him the test, which he had passed in 1960, entitled him to draw special pay equal to two advance increments. According to the Respondents, although they had not stated it so in their written objections but contended during the hearing, since his present employment, with effect from 22nd April, 1980, was a fresh service and he was to be treated as a new entrant, he could not get the advance increments automatically but could claim these only after passing the typing test. It appears that the department did, after the present appeal had been filed, make a reference to the Accounts Authorities to clarify the rule on the subject but did not succeed in getting a clear reply on the point whether passing of the typing test once again was required in this case. This is borne out by Office Memorandum No, Pay/5006/82, dated 25th April, 1982 issued by the office of the C.O.F.A. (Pay I.D.A.), P.O.F. Wah Cantt, photostat copy of which was supplied to us at the time of hearing and has been placed on the file. In our judgment, the Government's orders, issued at the time the advance increments were originally sanctioned, merely stated that, on passing the typing test, their pay was to be advanced by two stages above what was admissible to them in their scale. The appellant passed the test in 1960 and was, therefore, allowed the two advance increments. Subsequently, he went out of service but came back as a fresh entrant. Since the pre-requisite of passing the typing test has been laid down to ensure that the special pay in the form of advance increments was given only to those who knew typing of a certain minimum standard, the fact that the appellant had already passed the typing test more than 20 years ago should suffice for the purpose of entitling him to two advance increments after his fresh appointment in 1980. The mere fact that he has been treated as a fresh entrant and his pay fixed at the initial stage, should not stand in the way of his getting the special pay on account of passing the typing test. To deny him this pay would amount to denying that he ever passed the typing test, which would be a totally absurd stand in the face of the admitted fact.
6. In the light of the above we are of the view that the appellant should be allowed two advance increments, i,e, Rs, 20 per month, in addition to his basic pay of Rs, 290 fixed at the initial stage with effect from 22nd April, 1980 and that these two advance increments would continue to be admissible to him till the basic pay plus advance increment reach the maximum of the scale, namely, Rs, 470. We, therefore, allow the appeal and order accordingly.
7. The appellant has, in his Memo. Of Appeal, also raised the question of refixation of his pay on the introduction of the National Pay Scales, on 1st March, 1972 by virtue of which, according to him, his pay should have been fixed at Rs, 220. Plus two increments (i,e, Rs, 20 per month). Since this is a claim which he should have preferred at the time the National Pay Scale was introduced and his pay refixed under the National Pay Scale, the matter cannot be re-opened at this stage and is, therefore, not examined.
8. No order as to costs.
ABDUR RASHID (MEMBER).-The appellant had been discharged from service with effect from 13th April, 1974. Anything that happened before, this date is a closed chapter and any allusion to it is not relevant.
11. The appellant was re-employed as a fresh entrant with effect from 22nd April, 1980. In nutshell, what he is now claiming is, that two advance increments on the basis of his typing test which he passed in the year 1960 be allowed to him, even though as stated, he is a fresh entrant. This is, to my mind absurd. During the course of the bearing it came out very clearly that as soon as the appellant had passed his typing test he would be allowed the desired increments and the appellant understood the point very well and accepted it. The departmental representative present before us promised to arrange such a test at the earliest. This was, virtually, an announcement of the judgment by us to which my learned colleague acquiesced in without demur, at least, at that time. I am highly surprised that in view of what has been stated by me this appeal should be allowed when it has no basis whatever.
12. Whether or not this appeal is time-barred I shall not go into.
13. I emphasize that as a fresh entrant the appellant had no option but to pass the test afresh and then alone he would be within his rights to claim two advance increments as a fresh entrant.
14. My learned colleague who acknowledges the appellant to be a fresh entrant, has nevertheless, allowed the appeal because : "Since the prerequisite of passing the typing test has been laid down to ensure that the special pay in the form of advance increments was given only to those who knew typing of a certain minimum standard the fact that the appellant had already passed the typing test more than 20 year ago should suffice for the purpose of entitling him to two advance increments after his fresh appointment in 1980. The mere fact that he has been treated as a fresh entrant and his pay fixed at the initial stage should not stand in the way of his getting the special pay on account of passing the typing test. To deny him this pay would amount to denying that he ever passed the typing test which would be a totally absurd stand in the face of admitted fact."
14. With utmost respect I would say that I cannot subscribe to the above-mentioned viewpoint in any case. The matter is a simple one and is one of application of rules or their non-application and, obviously, I would choose one of application of rules. If we treat the appellant as fresh entrant which he, admittedly, is then his having passed the typing test 20 years ago and his having certain ability to type is quite irrelevant unless he E qualifies afresh and this was the conclusion, I thought, we had; arrived at on the date of hearing and I see no reason why I should change, it.
JUSTICE SHAH ABDUR RASHID (CHAIRMAN).-In this appeal, which has come up before me under section 3-A (2) (b) of the Service Tribunals Act (LXX of 1973), on a difference of opinion between the two learned Members of this Tribunal, I, after hearing both the parties, am inclined to agree with Brig. Abdur Rashid Member, that the appeal should be dismissed for the reasons recorded by him.