' Subah Sadiq has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Secretary. Communication and Works Department, Government of the Punjab, Lahore, as respondent.
2. By virtue of this appeal he has prayed that the respondent be directed to pay the appellant all the fringe benefits including pay and allowances, attached to the post of S. D.
0. (N.P.S.-17) from the date of his appointment till the date of his retirement.
3. Brief facts of the case are that the appellant who was working as Sub-Engineer, was selected as S. D.
0. Vide Officer Order No, E-III/1-37/72 (Provl), dated 22nd September, 1975 issued by respondent and his services were placed, on deputation with the Auqaf Department. After such selection the appellant served the Auqaf Department. After repatriation to the parent Department, the appellant was posted against a clear vacancy of S. D.
0. Vide Order No, SDO (C & W) 3-4/77, dated 14th January, 1979 and continued working against this post till the date of his retirement i. e. 19th December, 1982. However, the respondent instead of sanctioning the pay and allowances for the post held by the appellant allowed him to draw officiating pay at the rate of 15% subject to the condition that the officiating pay would not exceed the pay normally admissible to him. Aggrieved against this order he filed representation in which he claimed that he should be allowed the pay of S. D.
0. To which no reply was given. He also filed a reminder for the same but did not receive any reply.
Hence this appeal.
4. I have heard the appellant in person as well as the learned District Attorney and have perused the record of this case carefully with their assistance.
5. Learned counsel for the appellant has relied on the judgment of the Supreme Court of Pakistan, which is placed on record cited as Islamic Republic of Pakistan through Secretary, Finance Division, Government of Pakistan, Islamabad v. Kazi Abdul Karim, Deputy Accountant-General, N. W. F. P., Peshawar and Auditor-General of Pakistan. Relying on the said judgment it has been submitted that their Lordships of the Supreme Court of Pakistan have clearly held that a person officiating against a higher post involving higher responsibilities, must be entitled to the minimum pay of the cadre of the said higher post.
6. On the other hand learned District Attorney has submitted that firstly the appeal was time- barred and secondly the appellant was unqualified Sub-Engineer and could not be promoted as S. D.
0. Under the rules. According to him he was posted as S. D.
0. In his own pay and scale which he accepted and never represented to the Government for the pay of the post of S. D.
0. Till his superannuation on 19th December, 1982. In this way the point of estoppel was agitated against the appellant. As to the merits of the case, it has been conceded that the appellant had been working as S. D.
0. But in his own pay and scale with officiating pay of 15% and in terms of S & GAID's letter No, SORI (S & GAD)16-70, dated 28th March, 1978. In this manner the appeal has been resisted by the respondent.
7. I have given my anxious thought to the arguments advanced by the parties and have carefully perused the judgment of the Supreme Court of Pakistan on which reliance has been placed by the appellant in order to assess the merits of the case. The perusal of the judgment reveals that their Lordships of the Supreme Court of Pakistan while reaching to the conclusion observed that an employee if promoted to higher post involving higher responsibilities, would be entitled to the grade and pay of the said post and have also relied on the previous judgment of their own i. e.
Postmaster General, Eastern Circle (E. P.), Dacca and another v. Muhammad Haqbau . The judgment pertains to dispute between the parties who were before the Service Tribunal and the assumption therein was whether a civil servant was entitled or not to claim the pay for the period he worked in a higher office as Deputy Accountant-General. The contention of the petitioner Government was that in view of the Auditor-General Office's notification, dated 25th September, 1972 (ibid) the respondent was entitled to draw the pay of his own grade, namely, Assistant Accounts Officer, whereas the respondent supported his claim on the strength of the policy decision of the then President and CMLA, contained in para. 2 of the Ministry of Finance letter No, F.
4(1)/70-Exp-1V/114, dated 17th February, 1972 as well as on the basis of a judgment of the Supreme Court in case of Postmaster-General Eastern Circle (E. P.) Dacca and another v. Muhammad Haqbau (2) The learned Tribunal, after applying its mind to the rival contentions of the parties reached the conclusion that the stand taken by the respondent was valid, consequently accepted his appeal and held that he was entitled to pay the Office of Deputy Accountant-General for all the period during which he had performed duty in that office. The learned Supreme Court of Pakistan upheld the judgment of the Tribunal and the appeal of the Government was dismissed.
8. In view of the above quoted judgment, I have no hesitation t bold that the appellant who was working as S. D, 0. And retired as such, would be entitled to the pay of the said post for the period he was allowed to work by the respondent.
9. With regard to the point of limitation and ineligibility of the appellant for promotion as S. D.
0. It would be sufficient to say that the point of ineligibility cannot be raised at this stage when the Department itself promoted the appellant and allowed him to work against the post of S. D.1
0. Which contained higher responsibilities and status for all that long years both on deputation as well as with the Department, when the appellant stood repatriated to his parent Department. As to the point of limitation, in view of the strong merits of the case, which are based on the judgment of the highest Court of the realm, I condone the delay, as the appellant has been pursuing his remedy with diligence as well as vigilance.
10. The result is I accept the appeal and direct the respondent to allow him the pay of N.P.S.-17, which was attached with the post of S. D.
0. Including allowances, for the period he worked as such till his superannuation i. e. 19th December, 1982 in view of the positive decision of the highest Court of the realm viz. Supreme Court of Pakistan so cited in the earlier part of my judgment. There will be no order as to costs. PLD 1971 SC 49 (?) .