' MUNAWAR ALI KHAN (CHAIRMAN).---The appellant, Mirza Abdul Majid, started his service career as Clerk in the Sindh Secretariat. He was holding the post of confirmed Assistant when, in the wake of establishment of One-Unit, he was transferred to non-Secretariat Organization. However, his right to Secretariat Pay-scales which were comparatively higher than the corresponding scales of the non-Secretariat Organization was protected. On his promotion as Superintendent on 21-5-1961, the appellant was allowed Secretariat Scale 350-20-450/25-600). Following the introduction of National Scales of Pay in 1974, he was given NPS-16 (Secretariat Scale) though he was posted in the office of the Chief Engineer Irrigation where Superintendent's Scale of Pay was Rs,375-600. On 1-12- 1975 he was allowed move-over to NPS-17 as per intimation conveyed to him by letter dated 8-4- 1978 of Secretary, Irrigation and Power Department.
2. On 15-10-1980, the appellant was appointed as Administrative Officer, on his own pays and grade, with special pay as admissible under Finance Department's Letter No, SR-1-11/16/78, dated 29-3-1978. After serving in that capacity for over one year he proceeded on leave preparatory to retirement. He ultimately retired on 16-12-1982. Although he enjoyed the special pay until the last day of his service, he was denied the benefit of the same in computation of his pension. Finance Department's decision to the above affect was conveyed to him by Secretary, Irrigation Department's letter dated 14-12-1988. He preferred departmental appeal to the Chief Secretary and after waiting for the statutory period for its decision, the appellant challenged the impugned order in the present service appeal filed on 16-4-1989.
3. We heard with patience, the protracted arguments of the learned appellant's counsel and of the learned AA.-G. We also went through the relevant documents with equal care and attention.
4. The preliminary objection that emerged from the arguments addressed at the bar was with regard to limitation. According to the learned A A.-G., the appeal was time-barred. But the learned appellant's counsel vehemently opposed the objection contending that the departmental appeal having been filed against the final rejection, by the Finance Department, of the appellant's request ,for inclusion of the Special Pay for the purpose of computing his pension, this appeal was well within time. We have given our careful thought to the views expressed on both hands in the light of the documents laid before us. It is to be seen which document gave the cause of action to the appellant for the first time. Admittedly the appellant retired with effect from 7-12-1982. There is nothing on record to indicate when the appellant's pension was sanctioned and the pension order was issued in his favour. However, we came across a letter dated 26-5-1984 written by the District Accounts Officer, Khairpur to the Section Officer, Irrigation and Power Department, obviously in reply to the latter's communication, explaining therein the reasons for not accepting the appellant's claim for special pay of Rs,220 p.m. And further intimating him that the service statement and L.P.C.
Of the appellant had been sent to the Acountant-General for processing his pension. It is clear from the letter that until the said letter was issued the question of the appellant's pension had not been finalized. Another important communication which came to our notice was the Irrigation and Power Department's letter dated 27-10-1985 addressed to the Accountant-General, Sindh inter alia it contained the following words: "It is therefore requested that the amount of pension allowed to Mr. Abdul Majid Mirza, Administrative Officer (Retired) may please be refixed by allowing him the benefit of special pay also
5. It is significant to note from the above letter that although the appellant's pension had been fixed, the Administrative Department had made back reference to the Accountant-General obviously on the appellant's request to refix the amount of appellant's pension, allowing him also the benefit of the special pay. This is clear from the fact that a copy of the said letter was endorsed to the appellant. Thus, the first ever document which aggrieved the appellant was the pension order which seemed to have been issued round about 27-10-1985 when the Irrigation Department, as pointed out above, made back reference to the Accountant-General for refixation of the appellant's pension. Accordingly the departmental appeal was to be filed within 30 days of the communication to him of the pension order. Instead of doing so he wasted his time in pursuing the matter in the wrong manner. Even if his representation to the Irrigation Department was considered as departmental appeal which the aforesaid Department had to forward to the concerned quarters, namely Chief Secretary, the appellant after waiting for 90 days, was to approach this Tribunal and in this way the present appeal should have been filed some time in the first quarter of 1986. Again if we accept the argument of the learned appellant's counsel that the Irrigation Department had taken up the matter of refixation of the appellant's pension on their on initiative, that was no reason for the appellant to remain quiet over the matter and thereby allow his right of filing departmental appeal to be time-barred. His callousness is further clear from the fact that even after he was apprised by the Irrigation Department vide its letter dated 7-7-1988 that the Finance Department had not agreed to inclusion of special pay for his pensionary benefits, he took no steps for filing departmental appeal. In these circumstances we are unable to persuade ourselves to accept the argument of the appellant's learned counsel that the Irrigation Department's letter dated 14-12-1988 whereby the appellant was intimated third time about the adverse order passed with regard to fixation of his pension should be considered as starting point for calculating the limitation period. Accordingly we hold that the appeal is hopelessly time-barred.
6. Even on merits, the appellant does not have a good case. It is an admitted position that while the appellant was working as Superintendence (Grade-16) in the office of Chief Engineer Sukkur Barrage, he was appointed as Administrative Office on his own pay and grade and posted in the office of Project Director, SCARP, Khairpur vide Irrigation and Power Department's Notification, dated 4th October, 1980. On his induction in the aforesaid post, the appellant was allowed 20% special pay as per Finance Department's Circular No, FD-SR-1-11(16)/78, dated 29-8-1978. It is not denied that the appellant continued to enjoy the said special pay until he retired from service on 6-12- 1982. The controversy that we are called upon to resolve in this case is whether the appellant was entitled to inclusion of the benefit of the special pay in his pension. In this connection reliance has been placed on the Finance Department's Circular Letter No, FD(SR-III)3-1-76, dated 19th March, 1979 which says that the pension is calculated on the basis of average emoluments which in turn are computed on the basis of last 12 months service. The question would arise if the special pay would form part of average emoluments calculated under the above Finance Department's circular.
7. As disclosed in the written statement the District Accounts Officer, Khairpur was of the view (vide his letter dated 26-5-1984 addressed to the Irrigation Department) that the special pay could not be included in the appellant's average emoluments for the purpose of calculating his pension unless the Finance Department gave its approval as a special case. We have perused the District Accounts Officer's said letter. He has given two reasons for denying the benefit of special pay for purpose of appellant's pension: namely, first, that the appellant's case was not covered by the Finance Department's circular dated 29-8-1978 regarding grant of special pay and hence the special pay was illegally granted to the appellant, second that as soon as the appellant proceeded on leave, preparatory to retirement, he ceased to hold the charge of Administrative Officer and consequently the special pay stood withdrawn. In order to meet the second objection, the appellant's learned counsel drew our attention to the certificate issued by the Irrigation Department to the effect that the appellant would have continued to work as Administrative Officer had he not proceeded on LPR. In our opinion the certificate was meaningless on face of it. Since his retirement was to take effect immediately on expiry of the appellant's L.P.R., the question of his continuing as Administrative Officer did not arise. The appellant was not promoted to the post of Administrative Officer. His temporary appointment to the said post on his own pay and grade undoubtedly came to an end as soon as he proceeded on L.P.R. Accordingly we endorse the learned A.A.-G's. Above argument which was based on the District Accounts Officer's views.
' We are also in full agreement with the view that the appellant's case was not covered by Finance Department's circular with regard to grant of special pay and as such the special pay granted to the appellant was legally not in order. The Finance Department's circular dated 29-8-1978 under which the appellant was allowed special pay reads as under: "I am directed to invite a reference to the Sindh Civil Servants (Amendment) Ordinance, 1978, notified in the extraordinary issue of the Sindh Government Gazette, dated 23rd May, 1978 which inter alia envisage that who in exigencies of service appointment for temporary period is made to higher post or grade the appointing authority may direct that the appointee shall, instead of drawing pay of such higher post or grade draw the pay of the lower post or grade he held immediately before such appointment with such special pay as may be prescribed.
2. I am accordingly to advise that in such cases special pay at 20% of the pay of appointee in the lower post may be allowed subject to a maximum of Rs,220 p.m. The special pay will be admissible so long as the appointee holds higher post without restriction of time and not upto any specific period as in cases of additional charge. Where the appointment to higher post lasts for a period less than one month, the special pay would not be admissible.
3. This will take effect from the date of issue of this circular letter."
' It would be noticed that above circular was issued in the wake of the Sindh Civil Servants (Amendment) Ordinance, 1978, issued on 23rd May, 1978. By the said Ordinance the first proviso to section 18 of the Sindh Civil Servants Act, 1973 was substituted by the revised proviso which reads as under: "Provided that, when in exigencies of service, the appointment for temporary period is made to higher post or grade the appointing authority may direct that the appointee shall, instead of drawing the pay of such higher post or grade, draw the pay of the lower post or grade he held immediately before such appointment, with such special pay as may be prescribed ' It appears to us that the intention of the above amendment was to pay some compensation in the shape of special pay to the officer appointed to higher post for temporary period, without allowing him the benefit of higher pay carried by the said higher post. In the same spirit the F.D's. Above circular prescribed the special pay at the rate of 20% of the pay of the lower post the appointee was holding immediately before his appointment to higher post subject to the maximum of Rs,220 p.m.
8. It is an admitted position that the appellant who had been working as Superintendent in Grade- 16 had reached the maximum of that grade in 1972 and as such he was allowed move-over w,e,f, 1- 12-1975. Accordingly the appellant had already drawn four increments in Grade-17 when he was appointed to the post of Administrative Officer vide the Irrigation and Power Department's Notification dated 4th October, 1980. The post of Administrative Officer was admittedly in Grade-16.
The question would therefore arise if such appointment of the appellant who was already drawing his salary four stages above the basic limit of Grade-17, was in the nature of the appointment to higher grade the answer would obviously be in the negative. Consequent upon his induction in the Administrative Officer's post (Grade-16), if he had been allowed the pay of that so-called higher post instead of special pay, he would have certainly sustained a loss. Therefore, in our opinion the appellant could not be held to have been appointed to higher grade while drawing the pay in lower grade within the meaning of the proviso to section 18 of the Sindh Civil Servants Act, 1973. Even otherwise the posts of Superintendent and Administrative Officer were placed in the same grade namely Grade-16. Accordingly in no case the appellant was entitled to any compensation in the shape of special pay for his appointment as Administrative Officer. For him, the said appointment was transfer, pure and simple.
9. We were shown the F.D's. Circular No, FD/SRI-1(27)/83, dated 19th October, 1983 wherein it was clarified that move-over was not promotion to higher post. On the basis of the said clarification it was submitted by the learned counsel for the appellant that despite the fact that the appellant was given mover-over, the appellant continued to remain as Superintendent and consequently his appointment as Administrative Officer was in the nature of appointment to higher post. It is true that move-over is not a promotion because in the case of promotion, the official concerned not only acquires monetary benefit but also gains in status. As has been explained above the special pay is allowed only on financial considerations and not in recognition of the higher status of the post. So long both the posts of Superintendent and Administrative Officer were bracketed within the same grade namely Grade-16, the appellant did not qualify for compensation and hence for special pay, it was immaterial if the post of Administrative Officer was considered higher than that of Superintendent only status-wise without corresponding financial gain. Besides, the appellant was drawing his pay at higher stage of Grade-17 when his appointment in question was notified.
Accordingly the Finance Department rightly rejected the appellant's claim for inclusion of the special pay for pensionary benefit.
' For the foregoing reasons the appeal is without any merit and as such is dismissed with no order as to cost.