' MUHAMMAD AFZAL LONE, J.---This judgment shall dispose of C.A.No,166/85 and C.A.No,167/85, which are directed against the Punjab Service Tribunal's same judgment dated 30-11-1983.
2. There is not much controversy about the facts. Sh. Amar Maftoon appellant, who was serving as Senior English Teacher in NPS-16 in the Education Department, was posted/adjusted on his own pay and grade by order dated 10-5-1981 issued by the Director, Public Instructions, Punjab, Lahore, as Subject Specialist, Government College for Elementary Teachers, Sargodha, and took over the charge on 13-5-1981. He made a representation to the Department that having been posted against a higher post he was entitled to draw the pay and allowances attached to the post with effect from the date he took over the charge. This representation went unheeded. The appellant, therefore, filed an appeal before the Punjab Service Tribunal. During its pendency, the appellant was promoted regularly in NPS-17 with effect from 20-9-1983 vide Punjab Government Notification No,S.O.(SE)-1-47/82, dated 22-9-1983.
3. Before the Tribunal the appellant took up the stand that, as he took over the charge of NPS-17 post involving greater responsibilities, on 13-5-1981, he could not be disallowed the maximum pay of the grade of the higher post plus the increments. In his submissions, the imposition of the condition that he was promoted on his own "pay and grade" was wholly illegal. The Tribunal referred to one of its earlier judgments, in which reliance was placed on Islamic Republic of Pakistan, through Secretary, Finance Division, Government of Pakistan, Islamabad v. Qazi Abdul Karim, Deputy Accountant-General, N.-W.F.P., Peshawar and another (1978 SCMR 289), and in para. 8 of the impugned judgment maintained: "As the provisions of section 17 of Civil Servants Act, 1973 and section 16 of the Punjab Civil Servants Act, 1974 arc identical, we respectfully accept the interpretation made by the learned Federal Tribunal of the above provisions and hold that the appellant would be entitled to annual increments in NPS-17, permissible under the rules, as the appellant was drawing more pay in his own pay and grade in NPS-16 than the minimum pay of the Subject Specialist (NPS-17 post) on 13- 5-1981, when he took over the charge of this post in his own pay and grade. The appellant was drawing Rs,1,225 per month as substantive pay on 13-5-1981 in his own pay and grade (NPS-16) whereas the minimum pay scale of NPS-17 was Rs,900 per month. The appeal is thus, accepted to the extent as indicated above that the appellant shall be entitled to annual increments in NPS-17, for the period he has been working as Subject Specialist (NPS-17 post) in his own pay and grade i.e, from 13-5-1981 to 19-9-1983."
4. The appellant then moved a miscellaneous application dated 21-12-1983 seeking clarification of para.8 aforesaid. It was averred that the Tribunal was not conscious of the difference between the minimum pay and maximum pay of scale and that the question of his regularization from the date he assumed the duty of NPS-17 post was left undecided. The application was turned down by the Tribunal on 29-12-1983 with the observation that if the appellant was dissatisfied with the order dated 30-11-1983, he could approach. Supreme Court. It was, thereafter, that the appellant came to this Court.
5. In the cross appeal filed by the Punjab Province, their case is that from 13-5-1981 to 19-9-1983, he worked as Subject Specialist (NPS-17 post) on his own pay and scale and this condition was specifically incorporated in the order dated 10-5-1981; he was not eligible for grant of annual increments in NPS-17 w.e.f, 13-5-1981 to 30-11-1983.
6. Both the sides have been heard. The appellant's case is, that the higher posts of Subject Specialist, against one of which he was posted, were lying vacant; he was thus, entitled to be promoted on regular basis w.e.f, 13-5-1981, but as the A.C.Rs, of some of the officers were not available, the department instead of granting 'him promotion in a regular manner, just adjusted him against one of the higher posts and further unlawfully withheld the financial benefit attached to the post. His submission is that he fully qualified for promotion but the department failed to regularize his case for a period of 2 years and 5 months without any fault on his part. That during the entire period from 13-5-1981 to 20-9-1983 he discharged all the duties and responsibilities of the higher post without any break, quite successfully. In these circumstances according to the appellant, he is entitled to promotion with retrospective effect.
7. The appellant's other submission is that the Tribunal awarded him increment in NPS-17, but the impugned order is silent as to the NPS in which he was to draw his pay for the period from 13-5-1981 to 20-9-1983. The contention is that as on 13-5-1981, he was drawing Rs,1,225 p.m. In NPS 16, his pay should have been fixed at the appropriate stage in N.P.S. 17, for the period in question, and allowed to draw pay as raised by earning increments.
8. The appellant's claim for award of formal promotion w.e.f, 13-5-1981 is not well grounded. The determination of his suitability and fitness for promotion was the domain 'of the departmental authorities. There is nothing on the record before us indicating the reasons for not promoting the appellant on regular basis on 13-5-1981. It is therefore, not possible to ante-date the appellant's promotion. However, there is merit in his other contention. The Tribunal's order is not clear enough that in which pay scale he was to draw his salary. Undoubtedly, the appellant worked against the post of the higher grade and discharged the functions as a Subject Specialist; he was entitled to the pay attached to the post. The learned counsel appearing for the Punjab Government has failed to justify the withholding of the formal benefits attached to the higher post against which the appellant functioned. The incorporation of the condition in the appellant's posting order that he was adjusted against his own pay and grade, is inconsequential and is not a bar for him to claim the higher grade of pay. We may refer here with advantage to the following observation appearing in the Islamic Republic of Pakistan v. Qazi Abdul Karim (1978 SCM R 289): "If an employee is promoted to officiate in a higher post, involving higher responsibility, he must be held to be entitled to the minimum pay of the grade of the said higher office."
This principle has seemingly also received recognization in the impugned order and in pursuance thereof, the Tribunal held the appellant entitled- to annual increments in NPS 17, but did not with sufficient clarity, state that he had to receive pay attached to the post of the Subject Specialist. It is clear to us that the appellant was entitled to the pay of the higher post during the period he worked against the same. But as mentioned in the impugned order, his substantive pay in NPS 16 on 13-5-1981 was much more than the minimum of pay scale of NPS 17. Award of minimum of pay scale of NPS 17 was thus out of question. In these circumstances he was entitled to draw initial pay in NPS 17, the stage of the time scale, the next above his substantive pay in NPS 16 and allowed to earn annual increments, as directed by the Tribunal. We .
For the foregoing reasons Appeal No,166 of 1985 is partly accepted and Appeal No,167/1985 is dismissed. The parties are left to bear their own costs.