JUDGMENTJUSTICE (RTD) MUNAWARALI KHAN (CHAIRMAN): By notification No.SOR-I(S&GAD)3/4-85 dated 16th July 1985, Government of Sind in the S&GAD transferred the administrative control of the Prosecution Agency from Police Department to the Law Department, with immediate effect in respect of Karachi Division, and w.e.f, lst July 1986 in respect of other Divisions. In pursuance of the above notification, the said Department issued another notification No.5()R-I(S&GAD)3/4/85 dated 3-2-1986 whereby the officers belonging to the prosecution Agency of Karachi Division specified in the notification including the appellant, Mr.Noor Muhammad, were transferred from Police Department to the Solicitor's Department under the administrative control of the Law Department with changed designation, as Deputy District Attorneys and Assistant Attorneys in their own pay and scale. Following their transfer as notified above, the Law Department, by its notification No: GENL:5-4/85, dated 4th February, 1986 absorbed Deputy District Attorneys in BS-17 and Assistant Attorneys in BS- 16. Accordingly the appellant got BS-16 in place of BS-14 as Assistant Attorney and his pay was refixed in the said higher pay scale. As per memo of appeal the appellant was drawing Rs.l5()0/= as his pay in BS-14 at the lime of his absorption in BS-16. Consequent upon the refixation of his pay in BS- 16 he got Rs.l450/= as pay plus Rs.50/= as personal pay. Dissatisfied with such refixation, he first made representation to the Accountant General through the Solicitor. After it was turned down by the said authority, the appellant made representation to the Secretary, .Finance Department. Pending any decision on the said representation, he made third representation to the Secretary Law Department. However by its letter dated 9.7.1988, the Solicitor's Department apprised the appellant that his representation had been turned down by the Law Department. On receipt of that intimation he filed the present service appeal before this Tribunal on 15.8.1988, with prayer that his pay be fixed at Rs.1530/ = from 4.2.1986.We heard elaborate arguments made at the bar and we also w'Rent through the relevant documents available on record.
2. Lt is not disputed that following the transfer of the appellant's services to the Solicitor's Department with a new designation of Assistant Attorney, he was allowed BS-16 by the Law department's notification dated 4th February, 1986 hereinabove, consequently he became entitled to refixation of his pay in the said higher scale from the date of the notification as indicated in the pay slip dated 28.8.1986 addressed to the appellant, his pay was fixed at Rs.l450/= plus Rs.50/= as personal pay w.e.f. 4.2.1986 in the Scale of Rs.'1050-80-2250 (BS-16). Admittedly the appellant was drawing Rs,1500/= in BS-14 at-the time of the above refixation of his pay in the BS-16. On the other hand the plea taken in the written statement filed on behalf of the Sind Government is that the appellant's induction in higher seals was not a promotion but was merely an upgradation of the post and as such his pay was properly fixed. In this connection it may be pertinent to refer to the relevant passage of the written statement which reads as under: "The appellant was not promoted in BPS-16 but the posts of Prosecution Sub Inspectors, Prosecution Inspector were up graded from BPS-11 & 14 to BPS-16 and redesignated as Assistant Attorney, respectively. As regards fixation of pay above the previous pay of Rs.1500/ = the presumption of the appellant is not correct, as his pay was fixed by the respondent No: 3 (Accountant General Sind) in accordance with Rules 41 (a) (ii) of Sind Civil Services Rules and Finance Department's Notification No: FD-SRI(39)/82 dated 5.5.1983, considering also that the appellant was promoted in the previous cadre of Prosecution Inspector purely on temporary and officiating basis, as such he was not entitled for premature increment in the present cadre. It is also to be clarified that appointment to the new post does not involve assumption of duties or responsibilities of greater importance, but the duties responsibilities are same as in the previous post."
3. In fact pay slip was issued by the office of Accountant General on whose behalf separate written statement has been filed. As disclosed in the latter's written statement, the stand taken is: "Since it was not a promotion case thus his pay was fixed in BPS-16 under SCSR-44 and his previous pay Rs.1500/ = was protected and new scale No.16 allowed."
4. Lt would appear that the Sind Government's plea that the appellant's pay was fixed in accordance with rule 41(a)(ii) of Sind Civil Services Rules is manifestly inconsistent with that of the Accountant General according to whom the pay fixation was made under rule 44 of the said Rules.
With a view to resolve the above inconsistency, it has to be decided first if the Sind Civil Service Rules are applicable in the case and if so, under what rule thereof the pay has been actually fixed.
We have meticulously gone through the appellant's memo of appeal. All that he has complained about is that instead of fixing his basic pay at Rs.1530/-, it has been fixed at Rs.l450/ = plus Rs.50/= as personal pay. Although he has made such claim, he has not referred to or relied upon any rule to back his claim. Thus his demand for the enhanced amount of Rs.1530/= is un-acconipanied by any legal support. It is rather swinging just in vacunm. Therefore we have to search for appropriate rules on our own for deciding the issue of fixation of appellant's pay in BS-16 involved in the appeal.
5. The date of appellant's absorption in BS-16 being 4-2-1986, the Revised Pay Rules which hold the field at that lime were Basic Scales of Pay, 19S3. Undoubtedly the appellant's induction in BS-16 was not in the nature of a promotion. But it was only upgradation of the post. On his transfer fron holding BS-14 which was subsequently upgraded to BS-16. The aforesaid 1983-Pay Scales rules are silent with regard to fixation of pay in the case of upgradation of the post. Obviously for this reason both the Accountant General and the Government have referred to Sind Civil Services Rules, saying that the necessary fixation of the appellant's pay in BS-16 was required to be made in accordance with the said rules. Of course there is slight difference in their stand in as much as that according to Govt.'s version the appropriate rule for fixation of the pay was rule 41 where as the Accountant General has stated that fixation was to be made in accordance with rule 44 of this aforesaid rules.
We have gone through both these rules. It appears to us that rule 44 is the appropriate rule for fixation of the appellant's pay in BS- 16. Even Government's plea supports our view, where it says that it was the Accountant General who had fixed the appellant's pay. This being so, the rule 44 relied upon by the Accountant General has to be preferred to rule 41 quoted by the Government.
Rule 44 reads as under: "44. (a) The holder of the post, the pay of which is changed, shall be treated as if he were transferred to a new post on the new pay: provided that a substantive holder of the post at the time the pay is changed may at his option retain is old pay until the date on which he has earned his next or any subsequent increment on the old scale or until he vacates his post or ceases to draw pay on that time-scale. The option once exercised is final.
(b) Cancelled.
(c) the officiating holder of a post of which the pay is changed will move on to the new pay scale on the pay he is drawing in the old pay scale at the time the change is made, if that is a stage in the new scale, or, if there is no such stage, the stage next below that pay plus personal pay equal to the difference (to be absorbed in the next increment), and in either case he will continue to draw that pay until such time as he would have received an increment in the old scale of pay or for the period after which an increment is earned in the new timescale, whichever is less, provided that he continues to be on duty in the post: (or in another post in the circumstances mentioned in clause
(c) of Rule 50) till the next increment is earned. If while so continuing on duty he is confirmed in the new time-scale his pay will not be refixed in accordance with the provisions of Rule 41."
6. There is nothing on record to show that the appellant had opted for old scale (BS-14) until accrual of any subsequent increment in the said scale in terms of clause (a) of the rule. In absence of such option on his part, his pay has been rightfully fixed under clause (c) hereinabove. Since there was no stage of Rs.l500/= in BS-16, the next below stage in the said scale was Rs.1450/-.
Accordingly the appellant's pay was fixed by allowing him Rs.l450/= plus Rs.50/r= which was the difference between his existing pay (Rs.1500/ = ) and the pay of the next below stage(Rs,1450/ = ).
As elaborated in the clause (c) of the above rule said difference was given to him as his personal pay adjustable towards the next increment to be earned by him in the new scale. No doubt on accrual of first increment of Rs.80/- and consequent adjustment of the appellant's personal pay of Rs.50/- towards that increment, his pay effective from 1.12.1986 became Rs.1530/- But according to the appellant's own demand, this amount was payable to him, from 4.2.1986 the date of his absorption in BS-16. Had he opted to retain the old scale in terms of clause (a) of the above rule, his pay from 1.12.1986 would have become Rs.1550/-. As stated above no such option was exercised by the appellant. Consequently his pay was fixed at Rs.1530/- in place of Rs.1550/- and thereby he became loser of Rs.20/- per month for a year until another increment of Rs.80/- become due to him w.e.f. 1.12.1987. Obviously he was to blame himself for his failure to retain the old scale, causing the total loss of Rs.240/- to him. In other words even if he had recorded the requisite option in lime, and consequently his present appeal had been accepted to that extent he would have got the monetory benefit only to the extent of Rs.240/-. For the foregoing reasons the appellant has absolutely no case on merits and as such his appeal is liable to be dismissed.
7. Apart from merits of the case as discussed above, this appeal is badly time-barred. The first ever document which reflected the adverse order for the appellant was the pay slip issued to him by the Accountant General on 28.8.1986. Instead of challenging it in departmental appeal before the appropriate authority the appellant lost lime by making representation against the same, to the same authority namely the Accountant General and that the after lapse of nearly eight months and not within 30 days of the issuance of slip. (His representation to Accountant General is dated 17.6.1987). However the Accountant General stuck to his stand vide his letter dated 8.9.1987.
Thereafter the appellant made another representation to the Secretary, Finance Department, dated 6.10.1987 palpably in the form of departmental appeal against the intransigence of the Accountant General. The pay slip which served the starting point of this litigation was issued by the Accountant General in accordance with the pay-scale rules then in force. The Finance Department was obviously the author of the said rules. Accordingly the departmental appeal lay to the said Department. However, the appellant neither waited for decision of the Finance Department nor availed the alternative course of filing the present appeal within 30 days following the expiry of statutory period of 90 days from filing of the said departmental appeal. If he had chosen the latter course he would have filed the present appeal latest by 31st January, 1988, but instead he has filed it nearly seven months late i.e. On 15.8.1988. It would appear that the appellant made third representation to the Secretary, Law Department on 12.12.1987 and it was after the said Secretary turned down his representation vide solicitor's letter dated 9.7.1988 (used in this appeal as impugned order) that he filed the present appeal. Thus the appellant kept pursuing the wrong path until his appeal became badly time-barred.
For above reasons the appeal is dismissed with no order as to costs.
Given under our hands and the Seal of this Tribunal on this 21st day of August, 1989 at Karachi.