MUHAMMAD ISMAIL (MEMBER).---Brief facts of the case are that the appellant S. Kabir Ali, Director/Deputy Secretary (Retired), Ministry of Foreign Affairs, Government of Pakistan, while working as Section Officer in the Ministry of Foreign Affairs at Islamabad, qualified the lateral entry examination held in ,1974 and was appointed as Deputy Secretary with effect from 3-7-1974. He was however allowed to work as Director in the sum Ministry in Grade-18 plus special pay of Rs.440 per month. Subsequently h was posted as First Secretary in the Pakistan Consulate Bradford ii December, 1976 and allowed the basic pay in Grade-18 but the special pay o Rs.440 was withheld, as no special pay was attached to the post of Firs Secretary in Pakistan Missions abroad. In January, 1977, the appellant was inducted in the Foreign Affairs Group as First Secretary vide order dated 4-41977. His name was included in the Gradation List of First Secretaries at the appropriate place and on the basis of the said seniority he was promoted as Counsellor (BPS 19) with effect from 1-3-1983.
2. During the year 1978, the Ministry of Finance, vide their O.M. Dated 5-1-1978, placed all categories of incumbents of the post of Deputy Secretary to the Federal Government and other equivalent posts in the Federal Secretariat, carrying NPS 18 plus special pay of Rs.440 in the revised NPS 19, without any special pay. The appellant, in view of the above said O.M. Requested the Chief Accounts Officer, Ministry of Foreign Affairs, Islamabad vide his letter dated 18-1-1978, to fix his pay in NPS 19 but his request was turned down vide D.O. Letter dated 14-2-1978, on the ground that the officers who were holding the post of First Secretary/Consul carrying Pay Scale No.18 only (without special pay of Rs.440 p.m.) were not eligible to the benefits provided in the Finance Division O.M.
Dated 5-1-1978, so long as they continued to hold the post of First Secretary. However, on their transfer back to Pakistan and assumption of duties as Director/Deputy Secretary at the headquarters or otherwise on their assumption of charge of the post of Counsellor in NPS 19, they shall be eligible to be benefited by the service already rendered by them as Deputy Secretary in NPS 18, with special pay of Rs.440 p.m., in excess of 13 years class-I service. The appellant, then submitted his representation dated 24-2-1978 to the Ministry of Foreign Affairs but the same was also turned down vide O.M. Dated 17-4-1985 The appellant thereafter submitted appeal to the President on 12-5-1985 in the matter and after repeated reminders he was informed by the Ministry of Foreign Affairs vide their D.O. Letter dated 29-9-1988, that he had no case on merits and that his claim for fixation of pay in NPS 19 was not covered by the Ministry of Finance O.M. Dated 5-1-1978 and 22-11-1978 and it was also time-barred. The appellant again wrote a letter dated 21-10-1988 to the Foreign Secretary in the matter, to which he received reply dated 8-8-1993 from the Ministry, informing him that his case was forwarded to the Establishment Division, which. Conveyed that the appellant's pay had been fixed correctly and there was no merit in the case. Besides the case was also time--barred and the Division did not consider it appropriate to process it further.
3. Being aggrieved and dissatisfied with the above reply from the Ministry of Foreign Affairs, the appellant filed the present appeal before this Tribunal on 5-9-1993 with the following prayer "(i) That it may be declared that the appellant ought to have been appointed to the post of Deputy Secretary in NPS 19 with effect from 3rd July, 1974; (ii)That it may be declared that the Respondents are to pay to the appellant a sum of Rs.4,16,651.54 'together with bank mark up thereon."
4. The main contention of the learned counsel for the appellant is that since the appellant was appointed as Director/Deputy Secretary on 3-7-1974 under the lateral entry scheme and was allowed pay in Grade-18 plus special pay of Rs.440 and had also served in the Ministry till 1-12-1976, he was entitled to fixation of his pay in NPS 19 in view of the Ministry of Finance O.M. Dated 5-1-1978 and 22-11-1978. The appellant has also placed his reliance on the judgment dated 17-4-1983 of the Federal Service Tribunal in Appeal No.88(L)/79, filed by late Mr. Inam Hussain v. Secretary, Finance Division and Secretary, Ministry of Foreign Affairs, Islamabad, whose claim for appointment as Deputy Secretary (Grade-19) was established and he was appointed as Counsellor (Grade-19) from the date of his initial appointment abroad and was paid arrears of pay and allowances of the post of Counsellor.
5. Another contention of the appellant's learned counsel is that by virtue of Ministry of Finance O.M.
Dated 5-1-1978 and 22-11-1978, the appellant had become the holder of NPS 19 post ab initio from 3-7-1974. Consequent upon his confirmation in the Foreign Affairs Group vide Notification dated 3- 7-1977, he had also become a substantive holder of the post of Director/Deputy Secretary. His pay and rank in service, could not, therefore, be reduced either during his service in Pakistan before his posting abroad, or during deputation in public interest in Bradford and Lagos.
6. On the other hand, the learned Standing Counsel for the respondents raised the plea of limitation, contending that the appellant accepted the appointment as First Secretary in BPS 18 in December, 1976 and did not raise any objection at that time within thirty days of the date of relevant order in 1976. He argued that under the provisions of section 22 of the Civil Servants Acts, 1973 and under sub-rule (4) of rule 5 of the Civil Servants (Appeal) Rules, 1977, the appeal was hopelessly time-barred. He further submitted that the appellant had no case even on merits as the appellant was inducted in the Foreign Affairs Group, as First Secretary vide Ministry of Foreign Affairs O.M. Dated 4-1-1977 in pursuance of Establishment Division O.M. Dated 8 April, 1974.The appellant did not raise any objection to his induction as First Secretary in the Foreign Affairs Group with effect from 4-1-1977. His name was included in the Gradation List of First Secretaries at the appropriate place and on the basis of the said seniority, he was promoted as Counsellor (BPS 19) with effect from 1-3-1983. The appellant had thus severed all connections with the Secretariatth Group as Deputy Secretary, with effect from 4-1-1977, the date from which he became a member of the Foreign Affairs Group and later confirmed as such. He further submitted that since the appellant held the post of First Secretary, which was not equivalent to that of Deputy Secretary, he could not claim cover of the Ministry of Finance O.M. Dated 5-1-1978 and 22-11-1978, as these O.M.
Were applicable to those persons, who were holding the post of Deputy Secretary or equivalent post in 1978, in BPS 18 with special pay of Rs.440.
7. As regards the appellant's reliance on the Tribunal's judgment in the case of late Mr. Inam Hussain v. Secretary, Ministry of Finance and Secretary, Ministry of Foreign Affairs, the learned counsel submitted, that the facts in the case of late Mr. Inam Hussain were distinguishable from the present case. Mr. Inam Hussain was promoted as Deputy Secretary in the Federal Secretariat on 2- 8-1973. He was given the rank of First Secretary (B-18) in the Embassy of Pakistan, London when he was serving as Second Secretary. Mr. Inam Hussain did not accept this position and requested that by virtue of his promotion as Deputy Secretary, he should be appointed as Counsellor in the Mission or allowed to go back to the headquarters for availing his promotion. The matter was taken up with the Establishment Division, which allowed the Ministry of Foreign Affairs to promote Mr. Inam Hussain against an equivalent post in the Foreign Affairs without asking him to report back to Pakistan. Mr. Inam Hussain was thus deemed to have been promoted against BPS 19 post with effect from the date of his promotion as Deputy Secretary and his claim for pay of BPS 19 post was thus justified and rightly upheld by the Federal Service Tribunal in its judgment dated 17-4-1983.
The view taken by the Federal Service Tribunal in the case. Of Mr. Inam Hussain, cannot, therefore, be attracted in the appellant's case, which is not of identical nature.
8. We have heard the learned counsel for both the parties and perused the record. We are of the view, that had the appellant continued to be borne on the strength of the Secretariat Group, as Deputy Secretary, he, would have had the sound case for fixation of pay in BPS 19 and posting abroad as Counsellor instead of First Secretary. But on 4th January 1977 he was inducted in the Foreign Affairs Group as First Secretary and later on confirmed as such. Thus, the appellant severed all connections with the Secretariat Group, on becoming a member of the Foreign Affairs Group with effect from 4-1-1977. The appellant's name was reflected in the seniority list of First Secretaries of the Foreign Affairs Group and thus he could not be given the post of Counsellor on his posting abroad, without being formally promoted as Counsellor. It seems that the appellant was trying to get benefits from both the sides i.e Secretariat Group and the Foreign Affairs Group. His case is not attracted by the Finance Division O.M. Dated 5-1-1978. The appellant was promoted as counsellor in 1983 and is entitled to BPS 19 from that date.
9. The record shows that the cause of action arose to the appellant, when he was appointed as First Secretary in BPS 18 without special pay of Rs.440 p.m. In the month of December, 1976 but he did not raise any objection within the stipulated period of thirty days as provided under the rules.
He approached the Chief Accounts Officer Ministry of Foreign Affairs for the first time vide his letter dated 18-1-1978 to fix his pay in NPS 19. His request was turned down on 14-2-1978. The appellant then submitted representation dated 24-2-1978 to the Ministry of Foreign Affairs but the same was also turned down vide O.M. Dated 17-4-1985. He submitted appeal to the President on 12-5-1985 in the matter and after repeated reminders he was informed by the Ministry of Foreign Affairs vide their D.O. Letter dated 29-9-1988, that he had no case on merits and his claim for fixation of pay was not covered by the Ministry of Finance O.Ms. Dated 5-1-1978 and 22-11-1978 and it was also time-barred.
10. Under the Civil Servants (Appeal) Rules, 1977, the appellant had to prefer a departmental appeal within thirty days but he failed to do so. In this case the appellant's departmental appeal was hopelessly time-barred and thus the appeal before this Tribunal is also time-barred in view of the decision reported in PLD 1990 SC 951 (Chairman, PIAC v. Naseem Malik).
11. For the reasons mentioned in the foregoing paragraphs, the appeal fails both on the point of limitation as well as on merits and is hereby dismissed.