' ABDUL HAMID CHAUDHRY (MEMBER).-- Mrs. Ulfat Rashid, Assistant Bacteriologist, Punjab Drugs Testing Laboratory, 1-Birdwood Road, Lahore has made this appeal under section 4 of the Punjab service Tribunals Act, 1974, wherein she has impleaded the Secretary to Government of the Punjab, Health Department, Lahore and Secretary to Government of the Punjab, Finance Department, Lahore as respondents.
2. By virtue of this appeal, the appellant has prayed that the impugned Notification, dated 21-8- 1983 in so far as it orders that the Revised National Pay Scale Rs,900 Rs,2,250 (No, 17) shall take effect from 21-8-1983 be set aside and it may be given effect from 12-5-1980 instead of 21-8-1983.
3. Brief facts of the case are that the appellant has relied on the judgment of this Tribunal, dated 15-6-1983 in her earlier Appeal No, 602/2024 of 1982. The grievance of the appellant is that according to the judgment of the Tribunal she is entitled to NPS 17 from 12-5-1980, whereas the respondents have failed to implement that judgment properly and has allowed her the National Pay Scale No, 17 from 21-8-1983 instead of 12-5-1980 vide their impugned Notification, dated 21-8- 1983. Hence this appeal.
4. We have heard the parties i,e, Mr. Masud Ahmad Riaz, Advocate for the appellant, Mr. Masood Ahmed Shuman, Deputy District Attorney assisted with the help of the representative of the respondents Mr. Basharat Ali.
5. The learned counsel for the appellant has relied on the judgment of this Tribunal in case No, 602/2024 of 1982 delivered on 15-6-1983 and has submitted that according to this judgment, the Finance Department was required to allow the N.P.S. 17 to the appellant from 12-5-1980 but somehow or other vide Notification, dated 21-8-1983 the appellant has been allowed this scale w,e,f, 21-8-1983 i,e, the date of issue of the Notification. Thus, there is anomaly in issuing of this Notification and he has prayed that respondents be directed to remove this anomaly and allow the appellant NPS 17 from 12-5-1980, the date of her appointment as Assistant Bacteriologist, because she fulfilled the similar prescribed qualifications as for Bio-Chemist and Assistant Pharmaceutical Chemist of the same institution who were given NPS 17 from the dates of their appointments i,e, 17- 5-1980 and 10-5-1980, respectively.
6. On the other hand the learned District Attorney assisted with the help of the representative of the Finance Department has relied on the parawise comments submitted by the respondents and has submitted that the appellant has been given the Grade 17 w,e,f, 21-8-1983 vide Notification, dated 21-8-1983. He has submitted that as the amendment in the Pay Revision Rules was issued on this date, hence the appellant has rightly been given NPS 17 from the said date i,e, 21-8-1983, as the amendment cannot be issued retrospectively. It has been also submitted by the learned Deputy District Attorney that if the appellant is given the grade retrospectively from the year 1980 it will entail heavy financial repercussion. Therefore, it has been pointed out by the learned Deputy District Attorney on behalf of the respondents that the Notification, dated 21-8-1983 is unexceptionable and cannot be challenged by the appellant/appellant's counsel.
7. We have given our anxious thought to the arguments of the parties and have also consulted the record of this case. The case of the appellant had already come before this Truibunal in case No, 602/2024 of 1982 which was decided by this Tribunal on 15-6-1983. The operative paras. 6 and 7 of this judgment are reproduced below with advantage:- "6. We have given our anxious thoughts to the arguments of the parties and have also consulted the record with the assistance of the respondents. Record shows that the proposal was made by the Health Department vide UO. No, SO(P & P) 7-21/80, dated 18-7-1982, to the Finance Department for upgradation of the post of Assistant Bacteriologist which reads as follows:-- "PUC is from the DHS Punjab, Lahore regarding upgradation of the post of Assistant Bacteriologist from NPS 16 to 17 in the D.T.L Punjab, Lahore. The D.H.S. Has stated that the post of Assistant Bacteriologist was created by the Government for the D.T.L. Under Memorandum No, SO(Drugs)
MISC. 22/68, dated 4.4.1968. This post carries the pay scale of NPS 16 and the qualification as M.Sc.
(Microbiology). The Government of the Punjab had upgraded all NPS 16 posts carrying the qualification of M.Sc. To NPS 17 all over the Province. Hence the post of Bio-Chemist and Assistant Pharmaceutical Chemist in the D.T.L. Carrying the qualification of M.Sc. B. Pharm., respectively have been upgraded from NPS 16 to 17 under Government Memo. No, SOV(M)6-231/76(II), dated 17-5- 1980 and No, FD.PC-14/33/78, dated 10-5-1980, respectively.
' In view of the above facts it has now become necessary to remove the anomaly by upgrading the post of Assistant Bacteriologist from NPS No, 16 to NPS 17 to bring it at par with the other posts carrying the same qualification. The Technical Officer working against the post of Assistant Bacteriologist at present holds the qualification of M.Sc. (Microbiology) and is running the Micro- biological Section independently, which is well-equipped to carry out microbiological Assay of Anti-biotics and sterility tests for injectable and other pharmaceutical preparations. Accordingly, the nature of duties of this officer are highly technical.
' In the light of the above, D.H.S. Punjab has made a request to upgrade the post of Assistant Bacteriologist from NPS No,16 to NPS 17. As the request is genuine, we may approach Finance Department to record necessary sanction to the upgradation of this post as stated above.
Duplicate copy of the note is added belaw for use in F D "
' Perusal of the record of the Finance Department shows that this proposal of the Health Department was not examined properly and on merits. When this case was dealt in the Finance Department, it got mixed up with the General upgradation of the posts of other Departments referred to the Finance Department. Thus, this case needs proper examination by the Finance Department, in view of the full justification and the recommendations made by the Health Department."
"7. In view of the above facts, we direct the Secretary to Government of the Punjab, Finance Department to examine the case of upgradation of the post of Assistant Bacteriologist, from NPS 16 to NPS 17, on merits keeping in view, the similar cases of Bio-Chemist and Assistant Pharmaceutical Chemist of the same institution, wherein upgradation to NPS 17 had already been allowed by the Punjab Finance Department, on the basis of similar qualifications as held by the appellant. The case shall be disposed of within one month from the date of issue of this decision by the Punjab Finance Department. The appellant can revive this appeal, if she is not satisfied with the decision of the Finance Department."
' Keeping in view this judgment the Notification, dated 21-8-1983 has been issued by the Finance Department, Government of the Punjab, wherein the appellant has been allowed NPS 17 w,e,f, 21-8- 1983. The grouse of the appellant is that she should have been allowed NPS 17 from 12-5-1980 instead of 21-8-1983, as she had been working on the post from this date and fulfilled the qualifications on the basis of which this Notification, dated 21-8-1983 has been issued by the Finance Department.
8. We have considered the plea of the respondents that the amendment to the Rules cannot be given retrospective effect. Furthermore, if this is done then it will have heavy financial repercussions. We find that the respondents have not applied proper mind to the case of the appellant. Actually the case of the appellant is a case of removal of anomaly and discrimination and not a matter of issue of amendment with retrospective effect. The actual fact is that the appellant when appointed was duly qualified as she was M.Sc. (Micro biology) and according to her qualifications she was entitled to the same treatment which was extended to other officers of the same Department with the similar qualifications holding the equivalent post of Bio-Chemist and Assistant Pharmaceutical Chemist in the Drug Testing Laboratory. We have already observed in our earlier judgment, dated 15-6-1983, mentioned above, that the Health Department had itself conceded that it was a case of removal of anomaly which was caused due to omission on the part of the Health Department/Finance Department. It was, therefore, admitted by that Department that she was not brought at par with other posts carrying the same/similar qualifications at the proper time. Had the Finance Department dealt with the case properly in the year 1980, then she must have got NPS 17 from the due date. As far as the plea that it will involve heavy financial repercussions, this is unfounded and unconvincing because such situation has been created by the Finance Department due to its acts of omission and commission and the appellant should not suffer financial loss for the omission and commission on the part of the Finance Department as she had served on a post with prescribed qualifications and she is entitled to NPS 17 so admissible to her as Assistant Bacteriologist since 12-5-1980 keeping in view her qualifications and also as permissible to the others with the similar qualifications. To us it appears that this is a clear cut case of discrimination between various officers holding same/similar qualifications and equivalent posts. As the matter of fact Government being a litigant should have removed the anomaly itself by giving the Notification, dated 21-8-1983 effect from 12-5-1980. By issue of this notification, dated 21-8-1983, the Finance Department has conceded the appellant's right/eligibility to NPS 17 keeping in view her qualifications.
10. We have also the advantage of going through the Supreme Court judgment PLD 1970 SC 247 West Pakistan v. S. Abdul Khaliq, Accountant, Hazara Treasury. In that case also an amendment to Pay Revision Rules, 1959 (which were given effect from 14-10-1955) was issued in the year 1962 and that amendment was given effect from the date of issue (1-3-1962). The Supreme Court of Pakistan did not accept the plea of the respondents that amendment cannot have retrospective effect, it was held that since the main Rules had been given effect from 14-10-1955 and as such the schedule issued under the same rules was also to have effect from the same date. In this case also we find that Pay Revision Rules, 1977 have been given effect from 1-5-1977. Rule 3 of these Rules lays down that a civil servant appointed on or after 1st May, 1977 shall draw pay in the National Pay Scale against the post. The post of the appellant has been included in the Schedule appended to those rules, therefore, the aforesaid judgment of the Supreme Court is fully applicable in this case and the appellant is entitled to draw her pay in Revised National Pay Scale 17 from the date of her appointment i,e, 12-5-1980 which is later than the date from which the rules took effect (1-5-1977).
11. The upshot of the above analysis of the case is that we accept the appeal and the respondents are directed that the Revised National Pay Scale 900-50-1,150/60-1,750-100-2,250 (No, 17) shall be given effect w,e,f, 12-5-1980 instead of 21-8-1983 in respect of the appellant.
' There are no orders as to costs.