JUSTICE (RTD) MUNAWAR ALI KHAN, CHAIRMAN.- By its judgment dated 28th February, 1991 the Supreme Court has remanded this case to this Tribunal for fresh hearing in accordance with the law. The factual background of the afore-mentioned judgment may briefly be summarized as follows: The appellant Ghulam Mustafa, Kabirani was Secretariat Stenographer attached to the Advisor, Agriculture Extention, Govt of Sind in the Secretariat pay scale of Rs.200-20-400, when the integration of West Pakistan took place. Instead of being absorbed in the new Secretariat of West Pakistan he was posted in the Directorate of Agriculture, West Pakistan, Lahore, enjoying the same scale of pay. On 7th May 1956, he was shifted to the Regional Office of the Deputy Director, Agriculture, Hyderabad. There too he continued to draw him salary in the same scale. It was on 2nd May 1960 when he was informed that he was entitled to pay .Scale of Rs. 160-10-325 and not Rs.
200-20-400 from the date of his transfer to the Regional Office. He was therefore required to refund the excess amount he had received since his transfer to the Regional Office. Since the appellant was allowed lower pay scale in violation of the Government instructions issued in December, 1956, he filed civil suit in the Court of 1st Class Civil Judge, Hyderabad for declaration that he was entitled to secretariat pay scale of Rs.200-20-400. The suit was decreed in his favour. As no appeal was filed against the judgment and decree of the Civil Court, the Secretariat Pay Scale of Stenographer was restored to the appellant. In October, 1968 he was promoted as Superintendent. Initially he was allowed the Secretariat pay scale of that post but later on the orders of the said scale were withdrawn. The appellant agitated against the orders of withdrawal but without any success. He ultimately filed appeal before this Tribunal on 10.12.1974 which was partly allowed vide judgment of the Tribunal dated 24th February, 1977. On 1st June, 1977 an application was moved on behalf of the appellant, praying to the Tribunal for correction of typographical error in its said judgment. The application was allowed by the order dated 17.6.1977 and necessary correction was made in the last para of the judgment by changing the figure in roman III to that in roman II. The Government went in appeal before the Supreme Court against the judgment of the Service Tribunal. The said appeal was disposed by the Supreme Court as mentioned above.
2. We heard the arguments of the learned counsel for the parties and with their assistance went through all the necessary documents.
3. The contention of the learned counsel for the appellant was that without disturbing the findings of the Service Tribunal on merits of the case, the Supreme Court remanded the case only for the limited purpose of hearing the Government side before passing of the order of correction of the typographical error in the judgment of the Tribunal. In support of his contention the learned counsel referred to the judgment of the Supreme Court. I may be significant to reproduce the following portions of the judgment: " Leave to appeal was granted by this Court in order to consider the question whether the Service Tribunal had misread paragraph 3 of the aforesaid circular letter. ......................................................
Mr. RA Qureshi, Learned Counsel for the appellant (Govt. Side) states that since the subsequent order dated 17th June, 1977 has been passed without notice to the appellant and also without granting any opportunity of hearing to them, it is appropriate that the case may be remanded to the Service Tribunal for fresh hearing.
The respondent (appellant) who appeared in person has no objection. ................................................................................................... .................................................................. We feel that it is only just and proper cause pi action for disposal of this appeal. We, therefore, set aside the impugned judgment of the High Court (Service Tribunal) and remand the case to the Service Tribunal for fresh hearing in accordance with the law. ....................."
4. It appears from the above parts of the judgment of the Supreme Court, that while highlighting his objection that the order of correction of typographical error, dated 17th June, 1977 was passed without notice and without granting any opportunity of hearing to the Government side, the learned Government counsel had suggested that it was appropriate that the case be remanded back to the Service Tribunal for fresh hearing. The appellant who was obviously un-represented, raised no objection to the said suggestion. Accordingly we are inclined to agree with the appellant's learned counsel only to the extent that the remanding of the case was ordered in view of the argument that before correcting the typographical error in the judgment of the Service tribunal neither notice nor hearing was given to the other side namely the Government. The order of remand however does not limit the scope of hearing of the case. There is neither express nor implied direction to this effect in the said order. On the contrary, as is clear from the judgment of the Supreme Court the whole of the judgment and not only the order of correction of typographical error, of the Service Tribunal has been set aside. Furthermore the cas6 has been remapded "for fresh hearing in accordance with the law". If the intention was to restrict the hearing of the case only to the issue of correction of typographical error such direction would have appeared in the specific language in the judgment of the Supreme Court. Accordingly the arguments were heard also on merits of the case.
5. It would appear that the real issue involved in this appeal is to determine if the appellant was entitled to get Secretariat Scale of Superintendent, consequent upon his promotion to that post in the Directorate of Agriculture, Sind. In this connection the appellant's learned counsel has relied upon the Government's decisions contained in the Government of West Pakistan's Circular letter No:1359-FEI-50 dated 15th December, 1956 issued by the Finance Department. The said Government decisions are reproduced as under: "(i) Ministerial Government Servants of the previous integrating Secretariat or combined Secretariat-cum-Head of Departments/Offices who had been confirmed in the Secretariat scales on or before 13th October, 1955, and such of them who were officiating against permanent posts carrying the Secretariat Scales in clear vacancy on 13th October, 1955 will continue to draw pay in the J. Cretariat scales of pay in the offices of the Heads or attached Departments in posts carrying lower pay scales but of corresponding status and responsibility. Such Government servants will not be reverted to lower scales.
(ii) When these covered by clause (1) are promoted consequently to hold higher posts in the regular line they mil be entitled in such higher posts to draw pay in the original higher Secretariat scales to which they would have been entitled had they been appointed to corresponding Secretariat posts in their units of origin. Thus for instance, if a permanent Assistant, who was in Secretariat scale of pay in a combined office like that of Inspector General of Police/Joint Secretary is promoted after 14th October, 1955, as Head Assistant in Inspector General of Police's office he will draw the Secretariat pay and special pay prescribed for the post of Deputy Superintendent, Head Assistant or an equivalent post in his unit of origin.
(iii) Those who were drawing pay in the Secretariat scales on 13th October, 1955, in the Secretariat of integrating Units or in the Secretariat-cum-Heads of Departments/Offices and who are not covered by clause (1) above, i.e., they were neither substantively holding such posts nor were officiating therein in clear vacancies will be allowed to retain the Secretariat scale in the posts in which they are appointed in the offices of the Heads of Attached Departments which may carry lower scales of pay but corresponding status and responsibility. They will however have no right to the higher Secretariat scales on subsequent promotion in the No Secretariat offices.
(iv) If, however, any official referred to in sub-paragraph (1) above is posted to a post in a Non- Secretariat office on his own request he shall be allow only the scale of the corresponding Secretariat post but shall not be entitled to Secretariat scales on promotion."
8. We have to see if the appellant satisfied the requirement of para I of above circular so that he was entitled to the benefit specified in para II thereof. It is an admitted position that of his appointment as Stenographer he was allowed secretariat pay scale of Rs.200-20-400, which he continued to enjoy, subject to periodical revisions, until his promotion as Superintendent. There is nothing on record to show that the appellant was allowed the secretariat scale of Stenographer as a special case. In absence of such evidence, the presumption would be that he was a secretariat employee, therefore he was given the aforesaid scale of course the presumption was rebuttable but the respondents have not produced any tangible material to rebut the same. Merely to say that he was not secretariat employee was not enough. On the contrary the appellant has produced copies of several orders which go a long way to confirm his claim of being a secretariat employee. The first order is of Food and Agriculture Department dated 2nd May 1953 whereby he was appointed to official as Steno to the Secretary of the said Department. By the same Department's letter dated 24th July, 1954, his services were placed at the disposal of the S&GAD for appointment as Steno to Education Minister. Consequent upon creation of new Ministry, the S&GAD by its order dated 11th November, 1954 made certain adjustments whereby the appellant's services were replaced at the disposal of Food and Agriculture Department. His case is that he was working as Steno to the Advisor, Agriculture Extention, Sind when One-Unit came into being. We are thus convinced that the appellant was a secretariat employee when the integration of West Pakistan took place.
7. Having arrived at the above conclusion, the next requirement to be ascertained is if the appellant was confirmed in the Secretariat scale or was officiating against a permanent post carrying the said scale in a clear vacancy. Of course the appellant does not claim to have been confirmed in the Steno's secretariat scale. But he has taken a plea in para 3 of his memo of appeal that he was appointed to officiate as Stenographer to Secretary to Government of Sind, Food and Agriculture Department with effect from 2.5.1953 in a clear and permanent vacancy. In support of his plea he has referred to the said Department's order dated 2.5.1953. The said order no doubt confirms his plea with regard to his appointment as Steno to the Secretary but it is silent if his appointment was made in permanent and clear vacancy. However the truth of the appellant's above plea has been admitted in para I of the written statement filed on behalf of the official respondents. In other words it has been admitted by Secretary to Govt, of Sind Agriculture Department and other respondents that the appellant was appointed as officiating Steno to Secretary, Food and Agriculture Department in permanent and clear vacancy.
8. Even on fulfilment of two conditions of clause (i) of above circular, clause (ii) required that only those who were promoted to higher posts in regular line were entitled to higher pay in original secretariat pay scales. Admittedly the appellant had ceased to be secretariat employee following his posting in field offices after integration of East Pakistan Province. So much so that he had accepted his interset seniority vis-a-vis Assistants, Head Clerks, and senior Auditors. It is also not disputed that he got promotion to higher post of Superintendent not as Secretariat employee but on the basis of his joint seniority in the field office of Director of Agriculture. Accordingly he was not entitled automatically, under clause II also to the benefit of higher Secretrate scale of Superintendent on his promotion to non-secretary post of Superintendent. With a view to over come this difficulty, the learned appellant's counsel drew our attention to the Government's two circulars issued by Finance Department, West Pakistan: one, dated 15th April, 1969 and another, dated 1st August 1969. The first mentioned circular reads as under: " I am directed to refer to Finance Department's circle letter No: 139-FEI-56, dated the 15th December, 1956 on the subject noted above and to state that in partial modification of the orders contained in paragraph (1) thereof, the Governor of West Pakistan is pleased to decide that Ministerial Government Servants of the previous integrating Secretariats or combined Secretariat- cw/n-Heads of Departments/offices who had been confirmed in the Secretariat scales on or before the 13th October, 1955, and such of them as were officiating against permanent posts carrying the Secretariat scales and in clear vacancies on the 13th October, 1955, would continue to pay in the existing Secretariat pay scale, if they had opted for them until the 30th November, 1962, and in the consolidated Secretariat pay scales in accordance with the instructions contained in Finance Department's Circular letter No.FD.P.C. (1)63/63 dated the 15th June, 19sick even if they were posted in the offices of Regional heads of Departments, i. e. Regional Directors of Education, Regional Additional Chief Engineers, Deputy Chief Engineers, etc, against posts carrying lower pay scales but of corresponding status and responsibility."
9. Clarifying the applicability of above circular even to those promoted to higher posts in the field offices, second circular was issued which reads as under:- "2. Finance Department observed that in sub. Para 2 of para 1 of Finance Department's circular letter No. 1359-FEI-56 dated 15.12.1956 being referred to by the Accountant-General, West Pakistan, it is laid down:- " When those covered by Clause I are promoted consequtively to hold higher posts in the regular line, they will be entitled in such higher posts to draw pay in the original higher Secretariat scale."
3. Since by virtue of the order contained in Finance Department's subsequent circular letter No.F.D. 1
(PR) 3-7/59 (Vol.III) SR. 119383./69 dated 15.4.1969, the provision of sub-paragraph 1 has been relaxed so as to include the Staff otherwise entitled to protection but posted in Regional office, the order contained in subparagraph 2 of Finance Department's circular letter dated 15.12.56 referred to above, would, therefore automatically apply to persons concerned on promotion to higher posts in the Regional offices also."
10. As per combined effect of above two circulars the appellant was entitled to Secretariat scale of superintendent on his promotion to that post even in the field office of Director Agriculture. We were however told that the appellant's promotion to the said post took place in October, 1968. Since the benefit of Secretariat scale to the promotion of the field offices was allowed by circular dated 15th April 1969 which had not been given retrospective effect, the appellant would be entitled to secretariat pay scale of Superintendent with effect from the date of issuance of the said circular i.e. 15th April 1969 and not from the date of his promotion i.e. October 1968. The learned counsel appearing on behalf of the official respondents did not Seriously contest the above views. Moreover our predecessor Tribunal had also partly allowed appellant's appeal.
11. In view of the above discussion we allow the appeal with no order as to costs in as much as that appellant would be entitled t6 Secretariat pay scale of Superintendent w.e.f. 15th April 1969.
12. Given under our hands and the Seal of this Tribunal on this 19th day of November, 1991 at Karachi.