NAZIM HUSSAIN SIDDIQUI, J. - This appeal under Section 96 C.P.C., is directed against judgment and decree dated 15-5-1990 passed by the then learned Vth Senior Civil Judge Karachi, South, in Suit No. 1484/87, whereby suit of the respondent for recovery of money and mandatory injunction was decreed. The facts relevant for decision of this appeal are as follows:- Respondent Aziz-ur-Rab Siddiqul, on 13-8-1987, filed the suit against appellant for recovery of money and mandatory injunction. The case of respondent is that he was a Grade 18 Officer in the Defunct Department of Civil Aviation, Government of Pakistan Ministry of Defence (Aviation Division) and consequent upon establishment of Civil Aviation Authority through Ordinance No. XXX of 1982 his services were transferred to said authority from where he retired as Corporate Manager Personnel on 12-7-1986 after attaining the age of superannuation and completing 37 years Government service. He was placed in category of the employees, who were classified as "transferees" as per Clause 3.01(b) of Chapter-3 Civil Aviation Authority Service Regulations read with Section 14 of the aforesaid Ordinance and Civil Aviation Authority Administration Order No. 3/83 Vide CAA/2401/1/1 dated 12-1-1983. On introduction of Civil Aviation Authority Pay Group w.e.f. 1- 4-1983, he was brought on equivalent to Pay Group-9 (Rs. 2300-150-3500). The Civil Aviation Authority Board modified its Sub-Regulation (a) of Regulation 3.13. Of Civil Aviation Authority Service Regulations, and substituted the one which is reproduced below:- "The initial pay of the Transferee as on 1-4-1983 may be calculated with reference to the equivalent Basic Pay Scales which they could have drawn on the basis of point to point pay fixation formula as announced by the Government w.e.f. 1-7-1983. The pay so calculated will however be fixed at the appropriate stages in the relevant pay group of the Authority. The maximum of the relevant pay scales of the Authority shall not be exceeded in any case. In these cases the LCA and Rest and Recreation Allowance already paid will be adjusted. The retiring benefits will be so calculated that the amount of pension, Gratuity, and Commutation of Pension will not be less than that which they would have received if they had retired from Government service."
It is alleged that the respondent exercised his option, under the provisions of Fundamental rule 23, read with para 7.47 of the Hand Book of Drawing and Disbursing Officers, for fixation of pay as on 1- 7-1983 in the Government Basic Scale of Pay 18 under the existing Rules. The Director Finance Civil Aviation Authority, accepted option of respondent on 13-3-1986 and fixed his pay in Civil Aviation Authority Pay Group-9 at Rs. 3050/- on 1-7-1983 with date of his next increment raising his pay to Rs. 3200/- on 1-12-1983. The respondent made efforts to get his pay as was fixed by the Director Finance, but with no result. According to him; suffered recurring loss from 1-7-1983 and its details are as fol lows: - On 1-7-1983 he was paid @ Rs. 2600/- instead of Rs. 3050/- On 1-12-1983 paid @ Rs. 2750/- instead of Rs. 3200/-.
On 1-12-1984 paid @ Rs. 2900/- instead of Rs. 3350/-.
On 1-12-1985 paid (a1 Rs. 3050/- instead of Rs. 3500/-.
This loss continued till he retired on 12-7-1986. Besides above loss, the Pension and Commutation were not allowed to him on the basis of his enhanced pay. He served legal Notice upon the appellant, but with no result. Hence, the suit was filed for the following reliefs:-
(a) Implementation of orders of Pay fixation of Director Finance of CAA/Defendant.
(b) Grant of Annual increments to the Plaintiff for December, 1983, December 1984 and December, 1985 on the revised fixation of Pay approved by Director Finance, CAA vide letter No. HQ CAA/2404/9/Per (PT) Dated 14-4-1986 alongwith the pay fixation Proforma (Annexure-K & K-l).
(c) Re-calculation of Pension, Commutation on the basis of last pay after grant of Annual increments for Rs. 3500/- instead Rs. 3050/.
(d) The defendant is liable to pay the difference of pay and allowance arising out of incorporation of Annual increments and Pension, Commutation etc., due upto date with interest of 15% per annum till the date of payment thereof.
(e) A decree for Rs. 55,731/- with interest at the rate of 15% per annum from the date of option i.e. From 1-7-1983 till the date of payment against the Defendant.
(f) Cost of the Suit.
The appellant, in Written Statement, denied the claim of respondent and maintained that latter was promoted to National Pay Scale 18 on 26th May, 1983 w.e.f. 7-12-1982, as such, his pay was fixed in National Pay Scale 18 (1350-75- 1650/100-2650) i.e. On 2-12-1982 in National Pay Scale 17 Rs. 1450 and pay fixed on 7-12-1982 in National Pay Scale 18 Rs. 1575/-. Also, it is the case of the appellant that in pay group-9 the respondent w.e.f. 1-4-1983 got his pay at Rs. 2300/- p.m. It is alleged that on introduction of new Government Pay Scale from lst July, 1983 'Point to Point' Pay fixation formula' was adopted and pay of the respondent on 1-7-1983 was fixed at Rs. 2600/-. According to appellant, the respondent has mis-interpretated Fundamental rules and miscalculated his pay.
Maintainability of suit was also challenged on the plea of estoppel.
From the pleadings of the parties, the following issues were settled:-
1. Whether the suit is not maintainable?
2. Whether the plaintiff under the law is entitled to claim the dues of pay and allowances, Pension and Commutation etc. From the defendant as an employees as transferees of the defendant if so its effect?
3. Whether the plaintiff has claimed its dues from the defendant with retrospective effect or prior to that if so its effect?
4. Whether the plaintiff is entitled to the relief claimed?
5. What should the Decree be?
In support of his case, the respondent examined himself, and the appellant examined Muhammad Munawer and M. Shakoor Abbasi.
On assessm ent of evidence brought on record, learned Trial Judge decided issue No. 1 in negative and issues Nos. 2 to 4 in affirmative and consequently he decreed the suit, as prayed.
It is contended by learned counsel for the appellant that the respondent was not adversely affected by the fixation of his pay at Rs. 2600/- and he could not claim his rights twice if at all he had any. Also, it has been argued that the Director Finance had not fixed pay of the respondent according to rules on the subject.
In this case material facts are not disputed and the fate of the appeal hinges upon interpretation of various provisions of law/rule, administrative letters and documents. Under Section 14 of the Ordinance No. XXX/1982 every Civil Servant employed in the department immediately before the establishment of authority, shall, on such establishment, stands transferred to and became an employee of the authority on such terms and condition as may be prescribed by regulations. This Section contained a proviso, which mentioned that pay and allowances to which such Civil Servant shall be entitled, shall not be less favourable than those to which he was entitled immediately before such transfer. Fundamental rule 23 and para. 7.47 of Hand Book of D.D.O, which are relevant for this matter are as follows: - "F.R.
23. The holder of a post, the pay of which is changed shall be treated as if he were transferred to a new post on the new pay provided that he may at his option retain his old pay until the date on which he has earned his next or any subsequent increment on the old scale, or until he vacates his post or ceases to draw pay on that timescale. The option once exercised is final."
"7.47 Fixation of pay on the change of scale of a post (F.R. 23)-If the scale of pay of a post is changed the holder of the post is treated tis having been transferred to another post on the new pay and his pay is refixed under F.R. 22(a) (ii) as if the transfer to the new post did not involve assumption of higher responsibilities. In such cases where the pay of a post is changed the Government servant concerned has an option to retain his old pay until the date on which he earns his next increment of any subsequent increments in the old scale, or until he vacates his post or ceases to draw pay in the time scale. The option once exercised is deemed as final." * It is a proven fact that, on 7th November, 1985, the respondent had applied for fixation of pay stating therein that fixation of his pay at Rs. 2600/- on 1st July, 1983, in Pay Group-9, was dis- advantageous to him in as much as the pay of many of his Junior Officers in Pay-Group No. 8, was fixed at higher stage. I may pause here tomention that this assertion of the respondent, fixing pay of his Junior Officers at higher stage, was not challenged, during the course of argument by the learned counsel for the appellant. The respondent by said letter opted to retain his old National Pay Scale 17 upto 1-7-1983 as permissible in FR-23, read with quoted above. The appellant also, as per Administration Order No. 3/83 th January, 1983, clarified that rules, regulations, and procedure in efficiency and Discipline, conduct, pay and allowances, TA. & D.A. Etc. Xsisted on 6th December, 1982, will continue to apply to all employees il Aviation Authority. This being an admitted position that the pay of could not be fixed, which could be less favourable to him, there was no ion in not fixing the pay as determined by the Director Finance applying ula, which is on record at Ex. 5/J. The order of Director Finance reads ows: "The pay of the Officer in Civil Aviation Authority pay Group-9 on 1- 7-1983 on exercise of his option is re-fixed at Rs. 3050/- p. m., with date of his next increment raising his pay to Rs. 3200/- on 1-12- 1983 in the Scale of Rs. 2100-150-3500."
If the respondent would have continued in National Pay Scale No. 17 on 1-7- 1983 his minimum pay in new Scale, including 10 increments to which he was entitled, would have been Rs. 28,000/- and for bringing it in National Pay Scale No. 18 his pay as per above fixing formula would have been Rs.
3000/-. The appellant, however, fixed his pay on 1-7-1983 in pay Group-9 at Rs. 2600/-, which was against the spirit of the Section 14 of the Ordinance XXX of 1982 and F.R. 23 read with para 7.47 referred to above. Above quoted provisions safeguards the interest of respondent and he could not be deprived of his legal dues by resorting to narrow interpretation of above provisions. The pay fixed by the Director Finance was in accordance with the spirit of law and the respondent should have been paid as per said fixation. It is strange enough to note that in identical case of another employees namely Syed Aqeel Ahmed, the appellant had accepted the fixation of pay by the Director of Finance, while in case of respondent so was not done, despite the fact that the same rule was followed by said director. Appellant witness M. Shakoor Abbasi, who was present at the time of arguments, even conceded that the amount of Rs. 13,130/- as arrears was already paid to said employee. Accordingly I hold that pay as fixed by the Director Finance of the appellant is correct and the respondent is entitled to his pay at that rate and is also entitled to re-calculation, Pension, and commutation on the basis of last pay after grant of annual increment for Rs. 3500/- instead of 3050/-.
Learned counsel for the appellant contended that the suit was not maintainable. According to him, the principles of estoppel is applicable. He argued that the respondent admitted his signatures at Ex. 5/G; which contains an undertaking regarding fixation of pay and allowances, and as such he could not claim re-fixation of pay. Estoppel is rule by which a person, under certain circumstances will not be permitted to plead the contrary of a fact or state of things, which earlier he proclaimed.
A party who has not been misled by any such declaration or act of the other party can not implore assistance for the applicability of doctrine of estoppel, which does not operate against the provision of a statute. It is a rule of evidence and deals with the question of fact and not of right.
Mere signing an undertaking would not debar the respondent from claiming his rights conferred upon him by a statute and nor the appellant was mi said undertaking, which infact, he was made to sign at the time the pay fixed. The principle of estoppel, under the circumstances, is not apple case.
The last point to be considered in this matter is of interest. The plaint shows that the respondent had claimed his dues amounting to In his examination in chief also, he claimed said amount. It is true th line of examination in chief he stated that his suit be decreed as prayed, is no justification for granting him interest. Basically, it is not a suit for re money. Pay of said Syed Aqeel Ahmed was also re-fixed from 1-7-1983 interest was paid to him. The respondent is entitled to Rs. 55,731/- as arrear pay, but he is not entitled to any interest, which is refused. Necessary decree drawn excluding the interest. With above modification in decree, the appeal I dismissed with costs