1. ' MUSHTAIC ALI KAZI (CHAIRMAN).-The appellant, a retired Consulting Architect Buildings, Sind has a grievance regarding fixation of his pay and pension and he has accordingly preferred this service appeal.
2. ' The facts in brief are that the appellant was working originally in East Pakistan as an Architect Assistant. In the year 1952 a vacancy arose under the Government of Sind in respect of the post of Consulting Architect, P.W.D., in the rank of Senior Class-I. However, the post remained vacant because no candidate with requisite qualifications was forthcoming. The appellant approached Secretary, P.W.D. In this connection and he was appointed to fill this post as stop-gap arrangement. Since he did not possess the prescribed qualification he was designated as Assistant Architect. In 1955 a Consulting Architect, a British National, was appointed on contract basis, but he resigned after short period. The appellant was nominated under Columbo Plan for studes in Canada but he was recalled after one year as there was no one to hold the post of Consulting Architect. From 12th June, 1964 the appellant again held the post of Consulting Architect and then proceeded on L.P.R. With effect from 2nd-January, 1982. While the appellant was proceeding on L.P.R. The Government issued a notification that the appellant had relinquished the charge of the post of Assistant Architect and proceeded on L.P.R. It is the case of the appellant that he had never held the post of Assistant Architect but he was holding the post of Consulting Architect and performing the duties as Consulting Architect and he was, therefore, entitled to the pay of the post in which he was actually working. He filed a departmental appeal regarding his claim and then preferred the service appeal under the rules.
3. ' Pending the stand appeal the Government of Sind passed an order, dated 27th September, 1983, in the following words "ORDER"
4. ' No E I (CKW) 1-199/70-IL-Government of Sind is pleased to allow Mr. S. A. Ansari, Assistant Architect (retired), special pay at the rate of 10% of his pay in Grade-18 for the period from 12th June, 1964 (the date from which he had been holding the post of Consulting Architect in higher grade) to 3rd January, 1982 forenoon when he proceeded on L.P.R. And ceased to hold charge of the post of Consulting Architect.
5. ' S. G. MURTAZA SHAH ' SECRETARY TO THE GOVERNMENT OF SIND COMMUNICATION & WORKS DEPARTMENT"
6. ' Although, at the stage of written statement filed on 11th December, 1983 the respondent Government had taken the stand that the appellant worked as Assistant Architect in his own pay and scale against the post of Consulting Architect from 8th January, 1964 till he proceeded on L.P,R.
7. With effect from 2nd January, 1982, this stand was later on modified and it is now an admitted position that the appellant had been holding the post of Consulting Architect from 12th June, 1964 to 3rd January, 1982. It is also clear that he was not holding the post of Consulting Architect in addition to his own duties as Assistant Architect but he had the sole charge of the post of Consulting Architect. It is not therefore, clear under what law or rule the appellant has been allowed Special Pay at the rate of 10% of his pay as Assistant Architect in Grade-18 for a period of nearly 18 years. This question has been asked by the Accountant-General, Sind, also, while postponing the implementation of the above order of the Secretary, Communication and Works Department.
8. ' The learned Advocate for the appellant has pointed out that the position admitted by the Government in the last order that the appellant was holding the post of Consulting Architect had not been disputed even during the term of service of the appellant. That on 21st September, 1962 it was mentioned by the Secretary, Government of West Pakistan, Communication and. Works Department, in the order of transfer, that Mr. S. A. Ansari, Consulting Architect, Western Region, Buildings and Roads Department, Quetta, was transferred and posted as Consulting Architect, B & R Department, Southern Region, Hyderabad vice Mr. Alberto Ronaldi. The learned counsel has been referred to the charge report, dated 12th June, 1964 under which the appellant delivered the charge of the office of Consulting Architect B & R Southern Region, Hyderabad to Mr. Taj Muhammad Shaikh, S.S.E.I, By an order, dated 6th December, 1971 the Government relaxed the qualifications and age limit conditions in favour of the appellant to enable him to compete for the post of Consulting Architect to be filled by the Public Service Commission. There is also an order of the Government of Sind, Communication and Works Department, dated 22nd January, 1980 allowing leave to Mr. S. A.
9. Ansari holding the charge of the post of Consulting Architect. It is, however, unfortunate that from the date of appointment of the appellant until his retirement the question of fixation of his pay remained pending and under dispute.
10. ' Under section 18 of the Sind Civil Servants Act, 1973a civil servant appointed to a post or grade shall be entitled, in accordance with rules to the pay sanctioned for such post or grade. Under rule sub-rule (39) of the Sind Civil Services Rules, Manual, Volume-I. Pay means the pay which has been sanctioned for a post held by an officer substantively or in officiating capacity or to which he is entitled by reason of his posting in a cadre. The learned counsel for the appellant has cited an analogous case A Muhammad Hashim v. Postmaster General and another . In that case one Muhammad Hashim a Postal Superintendent, Class-II was posted in place of Postal Superintendent, Class-I for four years until his retirement. He was not allowed to draw the pay to which he was entitled under the rules while officiating in the Class-1 post. The post to which he was appointed was meanwhile down-graded from Class-I to Class-II. In this connection fundamental rules 22 and 31 were quoted. Under the normal rule when appointment to the new post involves the1 assumption of duties or responsibilities of greater importance than those attached to the old permanent post, the officer will draw as initial pay the stage of the time scale next above his substantive pay in respect of the old post. Under the later rule a Government servant officiating in a post will draw the presumptive pay of that post. It was accordingly held that the Post Master General had no authority to pass any order in violation of these fundamental rules and that the appellant was entitled to the pay attached to the post of Superintendent, Class-I. That the post could not be down-graded for the purpose of denying him the salary of the superior post.
11. On the above principles the appellant would be entited to officiating pay of the post of Consulting Architect against which the appellant was working until his retirement. His salary may be calculated accordingly and the difference may be paid to him as arrears of salary. The pension of the appellant may be fixed on the basis of his officiating pay as Consulting Architect.
12. ' The appeal is allowed in terms of the above order. The parties will bear their own costs. PLD 1969 Dacca 254