IRSHAD HASAN KHAN, J.- The dispute in this case relates to salary of an Engineering Supervisor in the Telegraph and Telephone Department. The petitioner, who was at the relevant the a telephone technician, was promoted as officiating engineering supervisor as a stop-gap arrangement against an existing vacancy in his own scale of pay plus officiating allowances as admissible under the rules. He was liable to be reverted at any the without notice or assigning any reason. His officiating appointment was made vide memo No. E-160/XII/KW/2 dated 20-4-1974, passed by the Divisional Engineer, Telephones, Internal, Lahore in compliance with the memo No. DTL/E- 653/ES/XII/128 dated 16-4-1974 of the General Manager (Telecommunications).
2. After a lapse of 13 years, the petitioner moved a petition under section 25-A of the Industrial Relations Ordinance, 1969 before the Punjab Labour Court No.1, stating therein that the General Manager, Lahore Telecommunication Region, Lahore be directed to grant him basic pay scale No. II of engineering supervisor alongwith the permissible back benefits with effect from 20-4-1974. The Labour Court dismissed the petition inter alia on the ground that the petitioner was not entitled to get the emoluments attached to the post of engineering supervisor, in that, he was not duly qualified to hold that post at the the of his officiating appointment. It is, however, an admitted fact that the petitioner did not possess the requisite qualification to hold the post of engineering supervisor when he Was appointed as such in officiating capacity. He took the plea before the Labour Court that subsequent to his posting in officiating capacity, in compliance with the letter No. ESTT/AT-32/V dated 22-10-1976, he alongwith other telephone technicians was sent provisionally to undergo training for engineering supervisor course in the internal and external centres. It is alleged that the petitioner went to the institute for taking the requisite course and completed the same on 31-7-1977. The Labour Court-repelled the contention stating therein that in Exh. P2, i.e. The letter, by which the petitioner7 was provisionally sent to the course, it was clearly stated that the trainees will not be entitled to seniority and promotion to the cadre of engineering supervisors. On these premises, it was held that the petitioner was not entitled as of right to get the pay scale No.LI with effect from the date he Was appointed as engineering supervisor as stop-gap arrangement.
Consequently the petition was dismissed vide order dated 21-4-1990.
3. Being aggrieved with the aforesaid order, the petitioner filed appeal before the Punjab Labour Appellate Tribunal, whereby the decision dated 21-4- 1990 recorded by the Punjab Labour Court dismissing the grievance petition of the petitioner was modified with the direction to respondent No.1 to pay the petitioner officiating allowance with effect from 20-4-1974 at the rate of 10% of his substantive post.
4. Ch.M. Khalid Faruq, learned counsel for the petitioner assailed the validity of the impugned order of the Labour Appellate Tribunal on the ground that the petitioner having been deputed for training of engineering supervisor in terms of letter dated 20-4-1974 and having successfully completed the training and again posted as engineering supervisor without there being any break in his status, post or duty, he was entitled to emoluments of the post of engineering supervisor. In support of his contention reliance is placed on Federation of Pakistan V. Shahzada Shahpur Jan and 2 others (1986 SCM R 991). In the precedent case the Supreme Court was pleased to grant leave to examine whether annual increment in the higher pay scale can be claimed by such a civil servant on the basis of decision in Islamic Republic of Pakistan V. Qazi Abdul Karim, Dy. Accountant General.
NWFP. Peshawar (1983 SCM R 883). In Qazi Abdul Karim (supra) case, it was held that if an employee is permitted to officiate in a higher post involving higher responsibility, he must be held to be entitled to minimum pay of the grade of the said higher office. Reference be also made to the case of Post Master General, Eastern Circle (EP) Dacca and another V. Muhammad Hashim (PLD 1978 SC 61). In that case, as well, the respondent therein was an employee class-II post. He was promoted by the Postmaster General to officiate in clause I post but in his appointment order, it was clearly mentioned that he would continue to draw the pay of his substantive office. Notwithstanding this rider, the Supreme Court after taking into consideration the effect of rules 30 & 35 of the Fundamental Rules held that as long as the services of respondent therein were utilized in higher post, he was entitled to draw the minimum pay admissible in that post. Reference be also made to the Accountant General Pakistan Revenue, Government of Pakistan, Islamabad V. Arbab Mukhtar Ahmad (1986 SCM R 1206), whereby the appeal filed by the Government against the judgment of Federal Service, Tribunal was dismissed with the following observation:- "A similar question, namely whether a Government servant without his being regularly promoted, but who is qualified and performs the functions of the higher post is eligible to draw the benefit of the higher post such as pay with periodical increments, was considered in Civil Appeal No.23 of 1985 and others, and it was held that he was so entitled to draw the pay and periodical increments of the higher post."
5. In- case of Shahzada Shahpur Jan (supra), the Supreme Court held that the controversy of concerned office fell into two categories. The first was of those officials, who were qualified in every respect to be appointed to the higher post and were called upon to discharge full responsibility of the higher post severing their connection with the lower post. The cas6 of the petitioner admittedly does to fall in the first category. The second category was, where a person appointed to a higher post or looking after the liabilities on account of absence of qualification prescribed for being promoted and appointed to the post the full duties of which he was called upon to perform. For example, failure to pass the prescribed promotion examination from which he was not exampted.
Here the petitioner admittedly did not possess the required qualification to hold the post when he was appointed in officiating capacity in a purely stop-gap arrangement. The claim of the petitioner is also not based on the second category stated above. He, however, took the plea that subsequent to his appointment in the officiating capacity, he completed the prescribed departmental examination for holding the said post. However, no documentary evidence has been placed on the record of this court to show that the petitioner successfully completed the prescribed departmental examination and in consequence thereof he was declared qualified by the competent authority to hold the said post from a particular date.
6. Learned counsel for the petitioner has frankly conceded that the petitioner was not entitled to pay of the higher post at the the of his appointment being unqualified to hold the higher post. He has, however, failed to disclose what were the qualifications and conditions, which he was lacking at the the of officiating appointment and in the absence thereof, the mere fact that he allegedly passed the departmental examination at subsequent stage does not ipso facto lead to the conclusion that he became qualified in all respects to hold the post and was entitled to draw pay for the same. In any event, Learned counsel for the petitioner himself stated that his case-does not fall in second category explained in the case of Shahzada Shahpur Jan (supra). His sole reliance is on the third possible category discussed in the said case in respect of which it was held that such a category would be of those rare cases where severance from duty has taken place as a sequal to disciplinary proceedings, which were subsequently set aside and restoration of office took place. It is an admitted fact that no disciplinary proceedings were taken against the petitioner during the relevant period and, therefore, the third category is also not applicable to the facts and circumstances of the present case.
7. A concurrent finding of fact has been recorded by the Labour Cour and the Punjab Labour Appellate Tribunal that the petitioner was appointed h officiating capacity in purely stopgap arrangement, therefore, it was within the competence of the competent authority to allow reduced terms than the presumptive pay permissible to those who fully qualified or otherwise eligible. The same view was taken by the Supreme Court m Shahzada Shahpur Jan (supra) strongly relied upon by Learned counsel for the petitioner. It, therefore, cannot be. Said that the impugned order dated 10.10.1990 passed by the Tribunal allowing officiating allowances to the petitioner with retrospective effect from 20.4.1974 that is to say, the date when ne was appointed in officiating capacity by way of stop-gap arrangement, suffered from any illegality warranting interference in the exercise of writ jurisdiction. The impugned order is in conformity with the following dictum laid down in Shahzada Snahpur Jan (supra):- "As regards the case of the second category, the legality and the effectiveness of the Auditor- General's Standing Orders, paras 139 and 229, Chapter V has been upheld in Civil Petitions 32-P to 35-P of 1982, decided on 30.5.1983 and there is no reason to depart for not only it is a part of the terms and conditions of the service one who is not qualified for a post cannot be said to be while so disqualified fully and competent discharging the duties of the higher post with the modified designation of Clerk-in-Charge. It was within the competence of the officer to allow reduced terms than the presumptive pay admissible to those not fully qualified or otherwise ineligible."
In view of the above, I find no force in the writ petition, which is hereby dismissed with no order as to costs.