1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This service, appeal has arisen out of the refusal by the Federal Service Tribunal to grant to the appellant the benefit of the higher scale in which he worked; though he was entitled to a lower scale of pay. The order for grant of leave to appeal reads an follows:-- "This service matter against the dismissal of the petitioner's appeal by Service Tribunal, involves the question; whether, the petitioner was not entitled to the salary of the higher post on which he was made to work, although he had not yet been promoted to the same.
2. ' Learned counsel has stated that there is no dispute that the petitioner had occupied and worked in the post of Deputy Assistant Director Ordnance Service (DADOs) a post in Grade-18, in which, the performance of duties was during the time while he was posted as O.O. (Civ) B-16 and 17. The Tribunal has held that the petitioner was posted in the Ordnance Services Directorate even though he was amongst the junior most in the Cadre and further that if the Government wanted to give benefit of higher scales they would have posted a person much senior in the Cadre as compared to him. Learned counsel for the petitioner in support of this petition has relied on Province of the Punjab v. Muhammad Ashraf (1973 SCM R 304); Postmaster General, Eastern Circle (E.P), Dacca v.
3. Muhammad Hashim (PLD 1978 Supreme Court 61); Islamic Republic of Pakistan v. Qazi Abdul Karim, Dy. Accountant-General, N.-W.F.P., Peshawar (1983 SCM R 883); Federation of Pakistan v. Shahzada Shahpur Jan and 2 others (1986 SCM R 991) and Imdad Ali Khan v. Pakistan and another (PLD 1986 Supreme Court 349).
4. ' The questions raised in this petition require examination. It is converted into appeal."
5. ' After considerable discussion during the hearing of this appeal it was agreed that the basic judgment of this Court laying the rule which has never been departed from is in the case of Muhammad Hashim. Learned counsel for the respondent relied upon the following observations made therein at page 63: ' This rule (30 Fundamental Rule) clearly contemplates that where a person is promoted to officiate in a higher post, involving the assumption of duties and responsibilities of greater importance, he would ordinarily be entitled to a higher pay unless of course the Government, in the exercise of the power given to it under Fundamental Rule 35, has decided to give him a lesser benefit. The contention of the appellant is that rule 35 gives an absolute discretion to the local Government or the delegate not to give any benefit at all. The question is whether the interpretation is tenable upon the language of rule 35, itself. In our opinion all that rule 35 permits is the payment of a lesser amount than which would otherwise have been admissible under the Fundamental Rules themselves to an officiating employee. Reading this rule alongwith rule 30, which is not subject to rule 35, we are unable to accept this contention. Fundamental Rule 35 gives no such wide or unguided discretion. It only permits the fixation of a lesser amount but from this it does not follow that no benefit need at all be given." (Underlining is ours)
6. ' In the case of Muhammad Ashraf suffices it to observe the subject-matter regarding arrears of salary was in different context. It has no bearing on the present controversy.
7. ' The case of Qazi Abdul Karim is directly relevant. The case of Muhammad Hashim was relied upon therein and it was thought that the said case was on all fours with the case of Muhammad Hashim though it needs to be mentioned that one aspect regarding the power of the Government or its delegate to award lesser benefits, was not as highlighted as in the case of Muhammad Hashim.
8. ' In another similar case of Imdad Ali Khan, again the rule earlier laid down was followed; namely, that "when a civil servant. Otherwise, suffering from no ineligibility or deficiency is promoted or called upon to discharge full duties of higher post, he is entitled to increments in pay scale of higher post for so long as he discharges those duties and holds such a post. "Where there was no indication, suggestion or material on record to show that civil servant was in any way ineligible or deficient in qualification he was entitled not only to time scale pay at its minimum but also to increments falling due."
9. ' Two observations in this judgment are in addition to what was held in ' Muhammad Hashim's case; namely, that in the eventuality of a person suffering from ineligibility or deficiency for promotion to the higher post concerned or for discharging full duties of the higher post, he might not be eligible for grant of the benefit in question. The other element noted was that when he is otherwise entitled to a higher benefit that would also include the increments falling due as well.
10. ' The last case which needs to be mentioned from amongst those noted in the leave grant order is that of Imdad Ali Khan. It again followed stricto senso the basic rule laid down in the case of Muhammad Hashim but highlighted that the raise of pay from time to time in the higher scale concerned would also be included in the benefits. Secondly, it was held that when there was no order by a competent authority denying the benefit to which a civil servant is eligible in the light of the foregoing discussion, he would be entitled to the minimum of the higher scale and increments.
11. Thirdly, while dealing with a particular instance in that case it was held that when officers claiming Grade-16 pay scale and all service benefits such as seniority, confirmation, etc., holding post of Assistant Superintendent, had not passed qualifying examination of Accountant for regular promotion to higher post of Accountant (Grade-16); but nevertheless was put incharge of that post and was required to perform duties of that post, being designated as Clerk-in-Charge and paid a fixed Special Pay per month in terms of an office order; the said officer having not been qualified for the post, it was held, could not be said to be while so disqualified, fully and competently discharging duties of higher post with modified designation of Clerk-in-Charge. Accordingly, it was within the competence of the higher officers to allow them reduced terms than presumptive pay, admissible to those not fully qualified or otherwise ineligible. Consequently the order of the Service Tribunal allowing increments, as in this case for service rendered as Clerk-in-Charge, was set aside.
12. ' In this case the Tribunal has in the judgment impugned by the appellant held, by giving a finding of fact, as follows:- "It, therefore, goes to prove that the intention of the Government in this case was not to allow the benefit of higher pay to the appellant as a junior in the cadre against the post of DADOS which was tenable by OO(Civs) of B-16 to B-18."
13. ' The question of eligibility and qualification also was discussed but in a wider sense; namely, as argued from the respondents' side that the post in question was reserved for persons holding rank of Major in the army and thus the appellant could not be promoted in the context of eligibility and qualification to the said post. But it appears that there is no clear cut finding by the Tribunal on this question. Be that as it may, if the appellant was qualified and eligible, as held in the case of Muhammad Hashim, he was entitled to at least some benefit, there could not be a total denial as held by the Tribunal; namely, that the Government did not allow any benefit of the higher pay to the appellant. It was within the discretion of the Government to grant lesser benefit in pay but total denial was not permissible if other conditions were satisfied. For this ground alone this appeal merits to be allowed and case remanded for determination by Government or its delegate as to whether in the light of the rulings in the cases of Muhammad Hashim and others it would allow the minimum pay of the higher scale; namely, B-18 in this case to the appellant and if not; whether, it will allow some benefit in pay which cannot be denied in toto if all conditions above discussed are satisfied. In that connection a token benefit in pay could also be granted.
14. ' On principle it is possible in case the person concerned is getting other benefits which are attachable to higher post; and we, during the hearing, visualised many such benefits for the enjoyment of which innumerable persons not only try for but also offer to work in a higher post not for the sake of the increase in the pay but for other benefits and the status going with the higher post. For example, in this case the other benefits enjoyed by the appellant in Grade-18 a very prestigious post by occupying which, as admitted by the learned counsel, the appellant had an almost all Pakistan role to play. Thus while following the case of Muhammad Hashim ordinarily the minimum scale of pay of the higher post and in some cases further reduced pay would satisfy the command of law; but, in rare cases where the other benefits tenable or otherwise relatable to status are enough to offset the pay increase, the same could be only notional as well.
15. It also needs to be clarified that eligibility and qualification shall always have to be kept in mind. If a person is made to work on a higher post for which he suffers the disqualification and/or ineligibility otherwise, he would not be entitled to any additional benefit on the basis of rule laid down in the afore discussed case-law.
16. There is another exception also; namely, that when a person is only made to perform some other function which does not strictly fall within the scope of the duties of the post on which he is appointed already, in accordance with the exigencies of the distribution of the work but without promotion to officiate in or hold the higher post, so as to discharge the full duties of the higher post, this rule of increase of pay on the reasoning in the case of Muhammad Hashim would not apply.
17. For example, where a person performing function in one post is made in addition, to work also in another capacity equal or higher, but without promoting him to officiate in or hold the higher post so as to discharge the full duties of the higher post, for such work or duty, he would not be entitled to the increase of the pay even to the minimum.
18. ' There is yet another aspect which needs to be dealt with. Learned Deputy Attorney-General made a statement as follows:-- "This was not a post in BPS-18 but it is a post for Army Majors to be paid from the defence budget.
19. Hence the tribunal had no jurisdiction in the matter nor it being Grade-18 post the appellant was entitled to the benefit on the basis of Muhammad Hashim's case."
20. He also relied on General Manger, Canteen Stores Department, Karachi v. Abdul Rashid and another (1983 SCM R 487) and Ghairat Hayat v. The Federation of Pakistan"(PLD 1960 Supreme Court (Pak.) 227).
21. ' As this subject has not been specifically dealt with in the impugned judgment we would not like to make any comment. It is also because in the light of the foregoing discussion we have decided to allow this appeal and remand the case to the competent authority for deciding the claim of the appellant afresh in accordance with law as already discussed. This question raised by the Deputy Attorney-General may also be examined during the remand proceedings. With this observation and the said order of remand the appeal stands partly allowed. There shall be no order as to costs.