1. ' MUNAWAR ALI KHAN (CHAIRMAN).---Appellant, Syed Laiq All Zaidi, presently working as Accountant at Technical Training Centre, Kotri has brought his grievance with regard to fixation of his salary in wrong pay scale for the second time. His first Appeal No, 60/86 filed on 17-7-1986 was dismissed as withdrawn vide this Tribunal's order dated 22-4-1987. The previous appeal was directed against Government's appellate order vide letter dated 1-7-1986 of the Director Manpower and Training Sindh addressed to the Principal, Technical Training Centre, Kotri. During pendency of the said appeal the Government declined to recommend BS-11 for the appellant, reiterating its earlier stand that he was wrongly allowed BS-10 and such order was conveyed to the Principal, Technical Training Centre, Kotri vide letter dated 26/27-7-1986 of the Director Manpower and Training Sindh.
2. On the basis of this letter the appellant withdrew his earlier appeal and pursued the matter at the departmental level by filing departmental appeal. After the said appeal was disposed of vide intimation given to the appellant by the Labour and Cooperation Department's letter dated 24-11- 1987, he filed the present service appeal on 23-12-1987.
3. ' The facts of the case briefly stated are as follows:-- ' In 1970 the appellant was working as Accountant, Technical Training Centre, Kotri in Pay Scale 175- 10-215-15-350 when he was transferred and posted as Head Clerk at Employment Exchange, Hyderabad. At that time pay scale for Head Clerks' post was same as that of Accountant. On introduction of National Pay Scales w,e,f, 1-3-1972, the posts of Accountant and Head Clerk were again bracketed in NPS-8. The appellant continued working as Head Clerk, Employment Exchange, Hyderabad until 21-7-1975 when he returned to the original post of Accountant, Technical Training Centre, Kotri. Thereafter came the Finance Department's Notification No, FD (SR-II)-1-54/71, dated 26-8-1975 (hereinafter referred as the said Notification) whereby posts of Head Clerk and Assistant were upgraded to NPS-10 retrospectively w,e,f, 1-7-1975. Because the appellant was working as Head Clerk on 1-7-1975, he applied to the Regional Manager, Employment Exchange, Hyderabad to fix his pay in NPS-10, whereupon the said Manager passed on the appellant's request to the Principal, Training Technical Centre, Kotri. Accordingly the appellant's pay was fixed in NPS-10 w,e,f, 1-7-1975 vide the Principal's order dated 6-12-1978. He was even. Allowed to cross efficiency bar in the said NPS vide order dated 20/24-6-1981 of the Director, Manpower and Training. For the first time in 1984 the aforesaid Directorate vide its letter dated 6-11-1984 raised objection against the fixation of appellant's pay in NPS-10 and showed the appellant in NPS-8 in the seniority ,Iist.
4. Thereupon he made representations as a result of which the order dated 1-7-1986 was issued. It was this order which the appellant impugned in his first appeal, as mentioned above.
5. ' We heard the arguments of the learned counsel for the parties and with their assistance went through the entire relevant record carefully. However, a copy of confirmation order whereby the appellant claimed to have been confirmed as Head Clerk w,e,f, 1-3-1972 was not produced by the appellant within three days after conclusion of the arguments as had been undertaken by Mr. Naimatullah Qureshi, his learned counsel.
6. ' The order No, DMTS/ANC /T-7(8)/83/11080, dated 26/27-7-1986 (hereinafter referred as impugned order) which has been made the target of attack in this appeal is reproduced as under:-- "To The Principal, Technical Training Centre, Kotri.
7. Subject:--FIXATION OF PAY OF MR. LAIQ ALI ZAIDI, ACCOUNTANT (B-8) TECHNICAL TRAINING CENTRE, KOTRI.
8. ' Reference correspondence resting with your letter No, HTC/Acctts25/1412/85, dated 3-9-1985 and this Directorate Memo. No, DMTS/A&C/T-7 (8)/83/10159, dated 1-7-1986 claiming the pay against Basic Pay Scale No, 11 instead of BS-8.
2. Request made by Mr. Laiq Ali Zaidi, Accountant has been considered by Labour and Cooperation Department and it has been advised that there is no justification in the case of the official to recommend to Finance Department for grant of BPS-11 to him.
3. Further it has been observed that pay fixed by the Principal under his order No, 181, dated 6-12- 1978 and followed by another Office Order No, HTC/Acctts/(53)/354 and 355/82, dated 6-4-1982 in respect of Mr. Laiq Ali Zaidi as Accountant in B-10 with effect from 1-7-1975 is illegal as the Principal was not competent authority to exercise such powers as done in the case of Mr. Laiq Ali Zaidi, Accountant with effect from 1-7-1975.
4. Mr. Laiq Ali Zaidi, was not holding the post of Head Clerk when the Finance Department Notification No, FD (SR-II)-1-54/71, dated 26-8-1975 was received under which the post of Head Clerk was upgraded from B-8 to B-10.
5. It is, therefore, directed that pay fixation order issued by the Principal referred to above should be cancelled and his pay should be refixed in BPS-8 with effect from 1-7-1975 and all over payments made to him in excess should be recovered from him under intimation to this Directorate.
9. ' His Service Book is also returned herewith which should be acknowledged.
10. ' End. As above ' Service Book. (Sd.)
11. (F.R. SIDDIQI.) DIRECTOR, MANPOWER AND TRAINING SINDH."
12. ' On receipt of the above order the Principal, Technical Training Centre, Kotri refixed the appellant's pay in NPS-8 w,e,f, 1-7-1975. Since the refixation of the appellant's pay has been challenged in this appeal, the moot point that falls for our determination is whether the said Notification authorised the fixation of appellant's pay in NPS-10 w,e,f, 1-7-1975. By the date of issuance of the said notification the appellant had admittedly returned to his original post of Accountant, Technical Training Centre, Kotri, though on 1-7-1975 from which the said notification was made effective he was working as Head Clerk, Employment Exchange, Hyderabad. It goes without saying that prior to the said notification posts of Accountant and Head Clerk were bracketed in the same grade namely NPS-8. By the said notification only post of Head Clerk was upgraded and placed in NPS-10.
13. The question arose if the appellant who was holding the post of Accountant could, by implication, automatically claim the benefit of higher Grade-10. The reply to this question was obviously in the negative for the simple reason that like post of Head Clerk, post of Accountant had not been specifically upgraded by the said notification. Moreover, post of Head Clerk was different from that of Accountant, as each of them carried different duties with different nomenclature and consequently they belonged to different cadres. The holders of these posts were of course interchangeable, when they were in the same pay scale. The appellant was admittedly working as Accountant at the Technical Centre, Kotri when he was transferred as Head Clerk, Employment Exchange, Hyderabad. At that time both the posts were equivalent being in the same pay scale. It is not denied that the appellant reverted to his original post as Accountant on 21-7-1975:over one month prior to the issuance of the said notification.
14. ' It was submitted by the appellant's learned counsel that the appellant was working as Head Clerk not only on 1-7-1975 from which the said notification was given effect but also he was confirmed in that post long before the said notification came into force. Accordingly his submission was that the appellant was within his right to claim fixation of his pay in Grade-10, regardless of his retransfer to Accountant's post, Kotri Training Centre. In support of his arguments he invited our reference to the entries appearing at page 8 of the appellant's service book. On perusal of the photocopy of that page it was found that appellant was shown working as Head Clerk w,e,f, 1-3-1972. In the corresponding columns: 2 and 3 on the same page the words "temp." and "officiating" respectively appeared as scored off without initial or signature of the scoring authority in token of authentication of the scoring. Furthermore, in column 2 the word "permanent" appeared over the scored word "temp", but that change too was without any authentication. The entries being suspicious did not inspire confidence. Accordingly we insisted on seeing the order whereby the appellant was actually confirmed. The entries in the Service Book are generally made in the light of orders made from time to time. Somehow the confirmation order was neither produced at the time of filing of the appeal nor was it available with the appellant or his counsel. As such it was not readily forthcoming. It did not even find mention anywhere through the memo. Of appeal. However, the learned counsel for the appellant gave an undertaking that the appellant would produce the same within three days after conclusion of the arguments but as pointed out above it was never produced.
15. ' Had the appellant been confirmed as Head Clerk, he would have certainly taken such plea not only in the present appeal but also in the previous one. We have carefully gone through the memos of both appeals but they were absolutely silent in this regard. We are therefore of the view that the appellant's claim of confirmation was afterthought and hence unbelievable. The entries of service book shown to us appeared to be the result of tampering.
16. The appellant was basically Accountant working at the Kotri Training Centre. However, for some period he was transferred and posted as Head Clerk. As stated above by the said notification only Head Clerk post was upgraded to Grade-10. The Accountant's post continued to be in Grade-8 before. Accordingly the appellant who returned to his original post of Accountant before issuance of the said notification was not entitled to the benefit of the upgradation. The retrospective benefit of the upgradation was given only to those who were Head Clerks, actually belonging to that cadre since the appellant was not a Head Clerk, he was not qualified for Grade-10. He could not claim that higher grade merely because he was temporarily working as Head Clerk on 1-7-1975 from which the upgradation was allowed retrospectively.
17. ' For these reasons we hold that the order of the Principal, Training Centre, Kotri, fixing the appellant's pay in Grade-10 was ultra vires of the said notification and hence illegal. Consequently the subsequent order whereby the appellant was allowed to cross efficiency bar in Grade-10 was also illegal. No rights whatsoever accrued to the appellant from such illegal orders. Accordingly such orders were revocable at any time their vires were called in question.
18. The upshot of the above discussion is that appeal must fail and is accordingly, dismissed with no order as to costs. Before parting with the case we would like to observe that the appellant obviously belongs to clerical cadre drawing meagre pay in Grade-8. It would be hard for him to return the amount he has already drawn in Grade-10. Moreover, he has suffered on account of error committed by the Principal, Training Centre. The Government may like to consider the writing off the amount due from the appellant or in the alternative the amount be recovered from him in easy monthly instalments.