JUSTICE (RTD.) MUNAWAR ALI KHAN (CHAIRMAN).- The appellant, Mr. Karim Bux Khubro, was working as Head Master, Government Pilot Secondary School Larkana, when Government of Sindh in Finance Department promulgated office Memorandum dated 27th August 1983, whereby the basic pay scales with fringe benefits were sanctioned for the Government's Civil employees. The said Memorandum was given effect from 1st July 1983. As per para 14 of the said memorandum, a teacher of a High School who possessed or acquired Master's degree was inter alia allowed three advance increments and in case of a teacher who possessed or acquired Master's degree in Education (M.Ed) and also a Master's degree in any academic subject was allowed six advance increments. In its subsequent circular dated 19th December 1983 (Vide para 5) it was clarified by the Finance Department that Head Master/Principals of High Schools were to be treated as teachers for being eligible for the advance increments. Again by Finance Dept's circular dated 30th Nov. 1986 the benefit of advance increments was extended without allowing arrears. This circular was later modified vide Finance Depart's circular dated 13th January 1987 whereby though advance increments were sanctioned w.e.f. 1-7-1983, yet the arrears arising therefrom were payable from 30th November, 1986. Accordingly, the appellant who possessed the requisite Master's degree at the relevant time was allowed three advance increments from 1-7-1983 and the arrears arising from the said benefit from 30-11- 1986 vide Education and Culture Department's order dated 19th February 1987. Dis-satisfied with the aforesaid order, the appellant moved for its revision on the basis of some cases in which the Sindh Government had allowed the benefit of arrears from the same date from which the advance increments were sanctioned and also in view of the orders of other Provincial Governments. He furnished the required proof in support of his claim but still his request was turned down vide Finance Dept's letter dated 222-2-1993. From the said decision he preferred appeal which was also rejected by the order dated 27-10-1993.
Somehow, he came to know about the fate of his deparmental appeal on 12-12-1993 when he made application for a copy of the decision which was supplied to him by letter dated 9-12- 1993.
As such his present appeal was filed on 29-12-1993.
2. We heard Mr. Mazhar Ali Chohan for the appellant and Mr. Abdul Latif Ansari, AAG on behalf of the official respondents. We also carefully went through the relevant documents.
3. The learned AAG desired us to first decide the question of limitation before going into merits of the case. According to him, the appeal was hopelessly time-barred. In this connection he ivited our reference to the order of Addl.. Education Secretary, dated 19th February 1987 whereby the appellant was allowed three advance increments w.e.f. 1-7-1983 but he was denied the benefit of arrears arising from the said increments from the same date? Thus, it was the above order which aggrieved the appellant for the first time. Therefore, the contention of the learned AAG was that the present appeal which was filed nearly seven years later, on-29-12-1993, was badly hit by the limitation. The appellant's learned counsel advanced various arguments in an attempt to meet the objection of limitation. After giving our best thought to the above issue, we are of the view that the delay can either be made in availing the departmental remedy or in seeking the relief through intervention of this Tribunal or at both stages. It is a mandatory legal requirement that before filing appeal before this Tribunal, the aggrieved civil servant had to first exhaust the departmental remedy. If delay was made in approaching the departmental authorities, it was for those authorities to condone that delay. So far this Tribunal is concerned it has power to condone only the delay in filing appeal before it. Keeping the above position in view, we have to determine if the delay for which the appellant was held responsible was condonable by the departmental authorities or its condonation lay within the powers of this Tribunal.
4. As stated in para 4 of the memo of appeal, the appellant moved application for revision of the impugned order dated 19th. February 1987, requesting therein that he be given the benefit of three advance increments from 1-7-1983, as had been given to Head Master Muhammad Yakoob Memon and such others and also like extending of the same benefit by other Provincial.
Government. However it was not known on what date the appellant had made such application for revision of the earlier decision. We were shown the Finance Department's communication dated 27th December, 1990 addressed to the appellant, intimating him that his request for arrears had been turned down. The order clearly indicated that the delay made in filing revision application was totally ignored as the appellant's request for arrears was disallowed not on the ground of limitation but on merits of the case, as it was disclosed in the afore-said communication that the appellant's request for arrears was not covered by the existing instructions. The above intimation should have, in ordinary course^ closed the appellant's case at departmental level and from that stage onward he should have addressed himself to the Judicial forum for the desired relief. But some how not only his request for arrears was neither considered nor decided by higher departmental authority, but also by subsequent communication dated 23rd December 1992 addressed to the appellant, he was required again by Finance Department to substantial his claim that Head Masters in other provinces had been allowed the benefit of arrears w.e.f. 1-7-1983, by producing documents Again by yet another communication dated 22nd February 1993 addressed to the appellant, the Finance Department conveyed its decision sticking to its earlier advice contained in the said Department's letter dated 27-12-1990.
At this stage it was to be considered if the limitation would be computed from 27.12.1990, the date of earlier communication addressed to the appellant or from 22nd February, 1993 when the Finance Department reiterated its earlier advice. As has been pointed out above as soon as. The appellant moved for revision of the original order dated 19th February, 1987 his application should have been forwarded to higher appellate authority and orders of the said authority should have been obtained on the appellant's request. But instead of closing his case in that manner, the Finance Department continued its correspondence with the appellant, informing him first by letter dated 27th December, 1990 that his request was not covered by the existing instructions, then by another letter dated 23rd September, 1992 requiring him to furnish certain documents in support of his claim and finally by its letter dated 22nd February, 1993 intimating the appellant that the said Department (Finance Department)stuck to its earlier adviced tendered by .Letter dated 27th December, 1990. All this correspondence undoubtedly created positive impression in the appellant's mind that his case was still alive and he was within his right to fight it out. It appears to us that even the appellant's first application was belated and was perhaps not made within 30 days of the impugned order and that seemed to be the reason that he carefully avoided mentioning the date on the application. The Finance Department could have finally closed the appellant's case even at that initial stage by declaring that his application was time-barred. But it was to his good luck that instead his case was kept alive until communication of the Finance Department's letter dated 22nd February, 1993. Even that letter did not convey to the appellant, the decision of the departmental appellate authority but only reiteration of the Finance Department's earlier advice. The appellants had therefore rightly challenged the Finance Department's decided in the departmental appeal addressed to the Chief Secretary. As disclosed in the Education Department's letter dated 9th Dec. 1993, the decision taken on his departmental appeal was conveyed to him on 27-10- 1993. The. Appellant filed his personal affidavit swearing therein that he had not received the letter dated 27th October, 1993 which was addressed to his Larkana address, as by that time he had already been transferred to Shikarpur. The appellant's above assertion has not been controverted and as such we see no reason to disbelieve it. According to him he got the copy of the aforesaid letter after making application on 2-12-1993. Accordingly to him he got the copy of the aforesaid letter after making application on 2-12-1993. Accordingly, his present appeal which has been filed on 29-12-1993 was within time, and the objection raised in this behalf by the learned AAG was untenable.
5. As for merits of the appellant's claim, it may be useful to reproduce the relevant portion of the "Office. Memorandum " dated 27th August, 1993 whereby basic pay scales and fringe benefits were allowed-In civil employees of Sindh Government. The said portion which begins with caption 'III- High School Freads as under: "A teacher who possesses or acquires Master's degree shall be allowed three advance increments.
In case of a teacher who possesses or acquires Master's degree in Education (M-Ed) and also a Master's degree in any academic subject. Shall be allowed six advance increments."
In its preamable the said Memorandum clearly indicates that the Basic Pay Scales, Allowances and other Fringe Benefits detailed in the said Memorandum have been sanctioned with effect from 1st July, 1993. In view of such un-ambiguous language used in spelling out the actual date of the sanction of the benefit including the advance increments all that we have to ensure was whether the appellant was eligible and hence qualified to grant of three advance increments. To ascertain his eligibility for the above benefit. We may refer to para. 3 of the memo of appeal wherein the appellant has claimed: "That at the relevant time i.e. 1-7-1983 the appellant was serving as Head Master Government Poilot Secondary School Larkana in Grade-17 and was possessing the requisite higher qualification as such ............ The appellant and others were given such benefit of 3 advance increments............. "
Although the reply to the appellant's above assertion in the corresponding para. 3 of the written statement is obviously evasive, yet it is confirmed by the order of Addl. Secretary, Education Department dated 19th February, 1987, whereby the appellant Karim Bux Khubro was allowed to draw three advance increments by virtue of his passing MA. Examination with effect from 1-7-1983.
It is only the later portion of the said order which became controversial as it did not permit the payment of arrears arising from the said advance increments from the same date (i.e. 1-7-1983) but from 30-11-1986. It is for this reason that the said portion of the order has been called in question in this appeal. There appears no rhyme or reason for withholding the payment of arrears from the same date from which the advance increments were allowed, particularly when the appellant was admittedly eligible in all respects for enjoyment of the benefit of advance increments right from the date of the sanction i.e. 1st July 1983. In support of his arguments the appellant's learned counsel drew our attention to the order of Education Secretary dated 12th May 1986 whereby Mr. Muhammad Yaqoob Memon, Head Master of Government Haji Manki Bhatti High School Hyderabad was granted three advance increments effective from 1-7-1983. In the above order the prohibition clause, with-holding the payment of arrears arising from the advance increments was conspicuously missing. Why such discrimination in case of the appellant has not been explained. In any case we are of the firm view that since advance increments were allowed to the appellant w.e.f. l;7-1983 on the basis of the specified eligibility which remained intact and un- interrupted throughout, there was absolutely no justification to deny him the payment of arrears also from the same date.
For above reasons the appeal is allowed with no orders as casts.
7. Given under our hands and the seal of this Tribunal this 15th day of September, 1994 at Karachi.