JUSTICE (RTD) MUNAWAR ALI KHAN (CHAIRMAN).- This appeal has been filed by Mr. Mohammad Ramzan, a retired Drawing Teacher. He was receiving Rs.400 as pay on 1.3.1972, the date from which the Sind Education Department Non-Gazzetted Teaching Staff (National Scales of Pay) Rules 1974 (hereinafter referred as New Pay Scales Rules) were enforced. Under these rules the appellant was allowed NPS-9 (Rs.225-15-300/16-380-20-480) and his pay was refixed at Rs.42D/ = w.e.f, the above date. Subsequently by his order dated 2.7.1974, the Director of Education, Hyderabad Region, awarded NPS-14 (Rs.350- 25-475/25-600-30-760) to the appellant whereupon his pay was refixed at the stage next above and as such his pay was increased from Rs. 460 to Rs. 475. After due verification, the said increase was even approved by the Accountant General. Since the Drawing Teachers junior to the appellant were given NPS-14 w.e.f. 1.3.1972, he to, approached the Director, Education, for giving him the benefit of the said pay scale from that date. Accordingly by amendment of the Director's previous order, the appellant was allowed NPS-14 from 1.3.1972 and his pay was refixed at Rs.425/ = from the said date. In view of the refixation of the appellant's pay as aforesaid, he was paid Rs.6,883/ = as accumulated difference of pay for the period from 8/73 to 11 /87; However, when the case was referred to the Accountant General for his verification he fixed the appellant's pay at Rs.420/w.e.f. 1.3.1972 applying the next below rule and required the appellant to refund the excess amount he had received vide the Accountant General's entries dated 25.2.1989 in the appellant's Service Book, page 46. Accordingly the appellant was directed to refund the excess amount of Rs.6,883/= vide letter dated 11.11.1989 of the Head Master Govt. High School Larkana, addressed to the appellant. He preferred appeal from the said order to the District location Officer on 13.11.1989#As no decision was taken on his appeal within 90 days, he filed the present appeal on 10.3.1990.
We heard the arguments' of the appellant himself and of Mr. Zawwar Hussain Shah, the learned AAG We also went through the relevant record.
2. It is an admitted position that appellant was drawing Rs.4(X)/ = as his salary on 1.3.1972 when the New pay Scales Rules came into force. Following the promulgation of the said rules the appellant's pay was initially fixed at Rs.420/ = in NPS-9. After he was allowed NPS-14 w.e.f 2.7.1974 his pay was refixed at Rs.475/ = giving him the benefit of the stage next above rule. On verification, even the Accountant General approved the said refixation vide his entries at page 33 of the appellant's Service Book. On the appellant's representation he was allowed NPS-14 w.e.f. 1.3.1972, on which date his juniors were also given the said pay scale. Consequently his pay was increased from Rs.400/ = to 425/= from the said date. However, the Accountant General did not agree to the said increase but instead fixed his apply at Rs.400 + 20 equal to Rs.420/= , applying the rule of stage next below.
It appears from the record that the case was referred back to the Accountant General for his reconsideration but without any result. Despite the Accountant General's reluctance, the back reference itself was indicative of the Department's stand which was obviously in favour of the appellant. Even the written statement filed on behalf of the official respondents showed that the latter admitted the truth of all the paras (1 to 9) of the memo of appeal. It was at the end of the 'brief facts' given in the written statement, that department however, expressed its opinion that the fixation of the appellant's pay was to be made in accordance with rule 41 (a) (i) of the Sind Civil Service Rules Volume I (hereinafter referred to as SCSR). The Accountant General is not joined as a party in this appeal. Therefore we have no benefit of his views in the matter. However, his letter dated 3.7.1989 addressed to the Head Master of the concerned Schools was brought to our notice.
The said letter was obviously a reply to the back reference made to him. Reiterating the verification already made by the Accountant General's office, it was stated in the said letter that the appellant's pay was correctly verified in accordance with Rule 44 of the SCSR and Finance Department's letter No: FD-SR-1 /56/83, dated 19.3.1984.
3. It would be noticed that there was a conflict in the view of the Department and the Accountant General with regard to the rule to be applied for fixation of the appellant's pay. According to the Department, fixation was to be made under rule 41(a) (i) of SCSR whereas the Accountant General invoked rule 44 of the said rules in support of his stand. Before examining the correctness of their respective stand, we may refer to sub-rule (2) of rule 5 of the New Pay Scales Rules. It reads as under:- "The pay of civil servant under these rules shall be fixed at a stage next above the pay admissible to him on the date he opts for these rules."
4. The appellant's whole emphasis was on this sub-rule. He submitted that since he was admittedly drawing Rs.400/= on 1.3.1972, his pay should have been fixed at Rs.425/ = from that date. His further submission was that his pay was actually so fixed and he was also paid the arrears arising from such fixation of his pay, but it was after the case was referred to the Accountant General for verification of the pay when the fixation of his pay was disturbed.
5. As pointed out above the Accountant General relied upon rule 44 of SCSR for fixation of the appellant's pay. His view manifestly emanates from rule 9 of the New Pay Scale Rules which reads as under:- "Fixation of pay on promotion, etc.-Further fixation of pay a civil servant in the National Seals of Pay on promotion reversion of transfer shall be made in accordance with the Civil Service Rules applicable to him provided that in case of promotion from lower to a higher post where the stage in the National Scales of Pay of the higher post gives a pay increase equal to or less than, full increment, the initial pay in the National Scale of Pay pertaining to the higher post will be fixed after allowing a premature increment in the National Scale of Pay of the higher post."
6. As is clear from the above rule, SCSR would come into play only when the question of "further fixation of pay" was under consideration. As envisaged by the above rule, further fixation would arise in case of promotion, reversion or transfer. In the instant case, the appellant's pay was transferred from NPS-9 to NPS-14. Therefore it was the case of transfer within the meaning of above rule. Accordingly his pay was to be fixed in accordance with SCSR. Reverting to the Department's view, we have taken note of rule 41 (a) (i) of the SCSR. It appeared to us that since the appellant's transferred from NPS-9 to NPS-14 did not involve assumption of the duties and the responsibilities of great importance, the said rule was not applicable. Coming to rule 44 relied upon by the Accountant General, it is reproduced as under:- "44. (a) The holder of a 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 the the pay is changed may at his option retain his 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 the-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 the 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 the 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 the-scale, 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, the-scale his pay will not be refixed in accordance with the provisions of Rule 41."
7. As provided in clause (a) of the above rule the appellant was to be treated as if he was transferred to a new post on the New pay because the pay of his new post was changed from NPS- 9 to NPS-14. As provided in the said clause the appellant had not opted to retain to his old pay. The application of clause (c) to the appellant was dependent upon whether he was officiating holder of the post of which the pay was changed. Some how we had no such evidence before us. Neither in the memo of appeal nor in the written statement, the appellant was shown to be only officiating holder of the original post in NPS-9. On the contrary the fact that department supported the appellant in the matter of fixation of his pay would rather raise presumption in his favour that clause (c) of rule 44 hereinabove was inapplicable in the appellant's case, obviously for the reason that he was not officiating holder of the post of which the pay was changed. Even otherwise as pointed out above in the Department's view it was rule 41 (a) (i) rather than rule 44 would apply for fixation of the appellant's pay.
8. At this stage we think it appropriate to refer to the Finance Department's Circular No: Fd-SRI- 1504/75, dated 14th July, 1975 which is to the following effect: "I am directed to say that the relevant provisions in the Sind Civil Services Rules Vol.1 have in the past been interpreted differently in the matter of fixation of initial pay in the higher scales in the cases of the category referred to above. In a number of those cases, the Civil Servant concerned has been treated as entitled, under rule 41 (a) (i) to the stage in the higher scale next above his last pay in the lower scale, while in others initial, pay in the higher scale equal to the last pay in the lower scale has been allowed under rule 41 (a) (i)
2. It has been decided that, in cases of fixation of pay governed by the Sind Civil Services Rules, irrespective of any provisions to the contrary in those Rules, or in the National Scale of Pay Rules 1974 where a civil servant is not transferred from one post to another but is transferred from a lower to a higher scale, initial pay in the higher scale will be fixed at the stage next above the pay admissible in the lower scale as on the eve of the transfer to the higher scale. This decision will come into force with effect from 1.3.72 and would not apply to cases which had been settled before that date."
9. The above circular makes it perfectly clear that if a civil servant is transferred from lower to higher scale, initial pay in the higher scale will be fixed at the stage next above the pay admissible to him in the lower scale on the eve of his transfer to higher scale, regardless of any rule to the contrary. Thus as per above circular the appellant's pay originally fixed at the next above stage would have to be restored notwithstanding the Accountant General's objection. We have no doubt in our mind that the Finance Department's above circular contained the Government Instructions which had the force of rules. If any rule, be it SCSR or New Pay Scale Rules, is inconsistent with the said circular, such rule will yield to the circular to the extent of the inconsistency.
10. In view of above discussion the appeal is allowed with no order as to costs and the impugned order dated 11.11.1989 of the Head Master, Govt. High School Larkana is set aside.
Given under our hands and the Seal of this Tribunal on this 21st day of January, 1991 at Karachi.