JUSTICE (RTD.) MUNAWARALI KHAN (CHAIRMAN).- Aggrieved by the notification No. SO (COORD) L&T- 9-2/91, dated 30th June, 1991 of the Labour Department, Govt, of Sind, the appellant Sarwar Ali Khan, Registrar, Sind Labour Appellate Tribunal has come to this Tribunal in the present appeal filed on 4- 11-1991.
2. The appellant's case, as disclosed in his memo of appeal, is that while he was working as Superintendent in BS-16 in the Sind Labour Appellate Tribunal, the said post was converted into that of Assistant Registrar in BS-17. On due recommendations of the DPC, he was adjusted in the ungraded post, vide Labour Department's notification dated 22-1-1986. By subsequent notification of the said Department issued on 5th July, 1988, the appellant was appointed to the post of Registrar in his own pay and status until further orders. The same notification however, entitled him to Special Pay as admissible under the instructions of the Finance Department. He was intimately promoted as Registrar on regular basis by the impugned notification mentioned above Since the appellant was not given promotion from the earlier date of his appointment to the Registrar's post, he challenged the notification of his promotion in departmental appeal dated 15-7-1991 before the Chief Secretary. After waiting for statutory period of 90 days for decision on his said appeal he has approached this Tribunal for the desired relief.
3. We heard the arguments of the appellant's learned counsel and so also of Mr. Habibur Rasheed appearing for official respondents. We also went through the relevent documents available in the case file.
4. It was urged by the appellant's learned counsel that the appellant having performed the duties of the higher post of the Registrar from the date of his induction in that post until his promotion thereto, he was entitled to the salary of Registrar's post for the said intervening period. Consistent with this argument the appellant has made the following prayer in his memo of appeal:- "That this Hon'able Tribunal will be pleased to direct the appellant to be paid his salary in BS-18 from 5-7-1988 since the date he had been performing higher and greater responsibilities of the Registrar which post admittedly fell in BS-18, and allow him all consequential benefits thereof, award, costs and any other relief as deemed just and proper."
5. It would appear from the appellant's above prayer that all he wanted was payment of salary of registrar's post in BS-18 for the period he had performed the duties of that post. There was not even a remote indication his prayer that he claimed promotion to the post of Registrar from the date of his initial induction in the said post. Keeping his prayer in view, one wonders why the appellant did not challenge the notification of his appointment as Registrar immediately after its issuance. In our opinion it was that notification of his appointment as Registrar immediately after its issuance, in our opinion it was that notification which gave him case of action. Because under the said notification he was allowed payment of his lower posts (Deputy Registrar) salary for performance of the duties of higher post (Registrar). Since he has sought relief as mentioned in his prayer hereinabove his appeal should have been filed before this Tribunal sometime in 1988. There was absolutely no cogent reason to defer the filing of the appeal until after notification of his regular promotion to the post of Registrar was issued. As such his appeal became hopelessly the-barred.
6. The notification impugned by the appellant in this appeal is reproduced as under; "On the recommendation of the Departmental Promotion Committee for Sind Labour Appellate Tribunal and with the approval of the competent authority Mr. Sarwar Ali Khan, Deputy Registrar (BS-17) Sind Labour Appellate Tribunal, Karachi is promoted to the post of Registrar (BS-18) in the Sind Labour Appellate Tribunal, Karachi on regular basis with immediate effect."
7. Obviously by the above, notification the appellant was promoted to the post of Registrar on regular basis, Prima facie it gave him no cause of complaint. We also see nothing adverse in the notification for the appellant. As pointed out above, his prayer did not show that he desired his regular promotion to have been notified from the earlier date on which he was first appointed to Registrar's post. Nor could he seek such relief because he could be promoted on regular basis only after due clearance by the relevant selection Board. The necessary approval of the said Board was not available when he was initially appointed to the post of Registrar. Thus the appellant has not prayer for setting aside or modifying the impugned notification. In fact there was hardly any nexus between, the relief sought by him in his prayer and the impugned notification. The appeal is.
Therefore not maintainable even on this ground.
8. Apart from above legal drawbacks, the appellant has no case even on merits. In this connection reference may be made to proviso I to Section 18 of the Sind Civil Servants Act 1973 (hereinafter referred as the Act). It 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 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 but where the appointment is made on current charge basis or by way of additional charge, the pay of the appointee shall be fixed in the prescribed manner.
9. The above proviso clearly shows that in exigencies of service while making appointment to higher post or grade for temporary period, the appointing authority has power to direct the appointee to draw the pay of his own lower post instead of getting the salary of higher post to which he is appointed, provided that he will be allowed special pay as may be prescribed in addition to his own scale pay. In the face of the above law, the argument of the appellant's learned counsel had no force to the extent that the appellant could not be made to perform the duties of the higher post of Registrar without paying him the salary of that post. The learned counsel's next contention was that the above proviso speaks of a stop gap arrangement for a temporary period, whereas in case of the appellant, he worked as Registrar for nearly three years from 5th July, 1988 to 30th June, 1991. Accordingly he was of the view that such long period could not be construed as stop-gap arrangement nor could it be treated as temporary period. Of course continuing of the temporary arrangement for nearly three years did not reflect well on efficiency and working of the authorities concerned. It may even be held as abuse of powers vested in the said authorities, for which appropriate action be taken against them. But the inefficiency and redtapism which have now become more or less the permanent features of the beaurocractic workings would not have the effect of radically changing either the nature or purpose of appointment under the aforesaid proviso. Apart from the fact that the appellant was drawing special pay in addition to his scale pay for the entire period in question, the respondents have come out with explanation as mentioned in their written statement that because recruitment Rules for the post of Registrar were under process and were ultimately notified on 17th May, 1990, the appellant's temporary appointment to the Registrar's post had to be prolonged. Moreover, the very nature of the appointment under the said proviso clearly showed that it was made as an stopgap arrangement lasting for temporary period.
As such the appellant could not claim nor was he entitled to excess of the emoluments permissible under the aforesaid proviso.
10. In view of above discussion we see no substance in the appeal which is therefore dismissed with no order as to costs.
11. Given under our hands and the seal of this Tribunal on this 12th day of February, 1992 at Karachi.