' MUHAMMAD RAZA KHAN (MEMBER).---The appellant joined Railway Service on 30-9-1979 in Basic Pay Scale No, 17 as Assistant Engineer. On 5-9-1987 he was transferred and posted "in his own scale of pay" as XEN/Design/Headquarters Office, Lahore. He took over the charge of the higher assignment on 27-9-1987. Thereafter the appellant had been admittedly transferred and posted against assignments carrying BPS-18 for a period of more than eight years. On 10-6-1989 he moved an application to the respondent No, 1 stating therein that he has been holding the responsibility of a higher post since 1987 without any break but his promotion to the next higher grade in B-18 has not been regularised pending recommendations of the D.P.C. He also stated that vide Order dated 17-3-1988 he was holding the post of Assistant Director in B-18 and he requested that the orders may be issued clarifying that the appellant was holding the post of Assistant Director in B-18 since 28-3-1988. On this application a notification was issued on 22-6-1989 to the effect that the appellant being an Officer in B-17 may be "deemed to have been posted against B-18 post of Assistant Director in his own pay scale with effect from 28-3-1988". Finally by Notification dated 1-8- 1995 the appellant was promoted to B-18 with effect from 26-7-1995, despite the admitted position that he had been holding the higher assignment continuously. Since 27-9-1987. The appellant filed . a departmental representation on 31-8-1995 asking for retrospective promotion and pay of BPS-18 with effect from 27-9-1987 and after waiting for the statutory period of 90 days he filed the present appeal on 27-12-1995.
2. The respondents contested the appeal. Written objections were filed on 12-2-1996. It has been alleged that the present appeal asking for retrospective promotion and pay was barred by time and that the appellant was not entitled to any financial or career benefits. It was also added that the appointment against the higher assignment was not ordered by the competent Authority. It was further contended in the objections that a notification published in the Gazette dated 15-11- 1988 was not relevant to the appellant because the General Manager was not competent to make rules for service matters of the Officers and, therefore, the posting and transfer of the appellant was irregular. Hence it was concluded that the appellant was neither entitled to the promotion nor to the financial benefits for the period he held the higher assignment.
3. This is a case where an Officer was asked to perform the duties against a higher post but "in his own pay and scale"vThe appellant and so many other officers of the Pakistan Railways and dozens of officers in the Federal Government are normally ordered to perform the duties of a higher post in their own pay and scales whereas section 17 of the Civil Servants Act clearly lays down to the contrary that:-- "A civil servant appointed to a post or grade shall be entitled, in accordance with the rules, to the pay sanctioned for such post or grade: Provided that, when the appointment is made on a current-charge basis or by way of additional charge, his pay shall be fixed in the prescribed manner."
4. Thus with the enforcement of the Civil Servants Act, 1973 on the 26th of September, 1973 the civil servants were held entitled to the salary sanctioned for such post or grade as a matter of right.
Thereafter the discretion of the department or the appointing authority to allow particular benefits to a civil servant or to withhold such benefits cannot be presumed. Thus the distinction between the civil servants and the private servants was drawn that the employees in the public sector are ensured of their entitlement to the benefits of the post to which they are appointed whereas in the private service it is discretion of the employer to fix, at his sweet-will, the salary and other fringe benefits for his employees. So with the enactment of Civil Servants Act, 1973, the discretion of the department, to get the duties of higher responsibilities from the officers while paying salary for the junior post, was abolished. Every post under the Federal Government, or within statutory bodies, carries. a particular grade or scale of pay and any person appointed to any particular post is,.
Without any discretion or discrimination, entiiled to the salary sanctioned for the post in accordance with section 17 of Civil, Servants Act, as reproduced above.
5. The said section 17 became a subject-matter of discussion before various Courts and Tribunals' and the principles contained therein have been discussed thread bared and interpreted exhaustively. While going through the galaxy of judgments.On this issue one fails to find out even a single precedent whereby the appointment of a junior person against a senior post in his own pay and scale is held to be justified. Reference to a couple of precedents will show how the Courts look at the .Misuse of executive authority and what was the law laid down by the Supreme Court for' guidance of, and compliance by, the administrative agencies. In 1984 PLC (C.S.) 1606 it was held: "The greatest stress was laid by the learned counsel for the respondent-department on the .Stand that the appellant was never promoted to the post of Senior Officer (Admn.) and he was only posted as such in his own pay scale and without any extra-remuneration. It is weqrsettled by now that even if without formal promotion, a civil servant is appointed to perform the function of a higher post involving higher responsibilities he must be held to be entitled to the pay of that higher post. The mention in the order in his own pay scale and without any extra-remuneration" does not make any difference. Because this condition being contrary to the settled legal position and a vested right is simply inoperative. We have, therefore, no option but to accept the appeal and direct that the remuneration of the higher post of Senior Officer (Admn ) should be paid to the appellant for the period he had discharged the duties thereof."
' Similarly in PLD 1994 SC 233 it was laid down that: "This cannot be stretched to cover the case in hand, where the incumbent has worked against that post on his own pay and status for three years, particularly when there was no legal impediment in his way to be promoted at that time on regular basis when he was inducted on 5-7-1988. In the instant case, since the appellant was eligible and qualified for promotion to B-18, there appears no justifiable reason to deprive him Of the salary and other benefits of that post for a period of three years, which he would have received, had he been promoted on regular basis. The appellant had discharged full duties and responsibilities of the higher post and in the absence of some plausible reasons he cannot be deprived of the salary and other benefits connected with the post."
' In a case reported in 1992 SCM R 1869 it was observed: "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 observations 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."
6. These are some of the precedents whereby it has been provided that where a civil servant is assigned the responsibility of a higher post, he will be entitled to the benefits, privileges and salary attached to that higher post. The term "in his own pay and scale" and similar other terms like "without financial benefits", "in his own scale of pay", "in his own pay and status", "with no extra- monetary benefits", etc. Have been held to be inoperative, inconsequential and of no material value. Such employees have been held consistently to be entitled to the benefits attached to the higher posts despite the fact that the administration has suffixed the phrase of "own pay and scales" while assigning higher responsibilities to such employees. There is not a single precedent to the contrary. It is unfortunate that despite the large number of precedents and the clear provision of law the administrative agencies still continue using the same term to the disadvantage of their employees. The denial of benefits of the higher post, under compulsion to shoulder the responsibilities of the higher assignment, is not only the violation of law but is a clear defiance of the verdict of the Supreme Court. Public functionaries, working in a democratic, set-up, should realise that the affairs of the State are to be run in accordance with the law and the precedents and not on the basis of their own whims and wishes or illegal and obsolete practices of colonial period.
7. There are certain established meihods of filling up the posts carrying higher responsibilities like regular promotion, ad hoc promotion, promotion an acting charge basis, assignment of job on current charge basis and holding of responsibility of higher assignment on additiional charge basis. These are various modes whereby the position carrying higher responsibilities are to be filled temporarily or permanently. Various Rules have been framed and instructions have been issued by the Federal Government to provide benefits to the persons shouldering such higher responsibilities although on temporary basis but the entire set of laws, service rules, ESTACODE and administrative instructions do not provide anywhere the justification of an appointment of a person against higher post with no benefits at all or in his own pay and scale. This term is not only alien to the service laws but also a misnomer, which reflects the excessive use of executive authority and cannot be justified by any yardstibk of justice. Thus in the light of the above- discussion we are of the confirmed view that the term "in his own pay and scale", and similar other terms appearing in such orders are not only inoperative and inconsequential but also illegal, superfluous, and contemptuous. The administrative department should adjust themselves to behave within precincts of law and the principles laid down by the Supreme Courts and to refrain from constant and defiant violation of laws and their interpretation. ,8. In the written objections, the respondents have tried to take refuge by simply stating that the appointment of the appellant against the post carry higher responsibility was irregular and that such appointments could be ordered by the competent Authorities, whose approval has not been obtained and that the General Manager of Railways was incompetent to take any decision or issue any instruction concerning the terms and conditions of service of civil servants of the status of the appellant. The confusing and self-contradictory statement in the written objections is the clear proof that the respondent-department has no logical justifications to deny the benefits of a higher post for a period of almost eight years. It has been held in a number of precedents that no one can be allowed to get the benefits of his own fault. If the respondents have committed any irregularity it should be the appellant who should get the benefit and not the respondents to reap the fruit of their irregular actions.
9. The learned counsel for the respondents further argued that the cause of action arose in 1987 when the appellant was asked to perform functions of higher responsibility without any monetary benefits and that the appellant should have challenged such order within time and the appeal preferred after eight years was beyond the prescribed period of limitation. The issue has been finally settled by a judgment reported in PLD 1994 SC 233, the extract whereof is reproduced hereunder:-- "Now, so far as the first reason is concerned, as mentioned above, it can be said that presumption favourable to the civil servant' (appellant) would be that it was temporary arrangement and would not last long but it lasted for three years. Filing representation was also proper remedy and in such circumstances it would not be fair to knock down service appeal as time-barred on the ground that first notification was not challenged."
10. Moreover, the denial of. Payment of salary of the higher post was a continuing wrong and the cause of action accrued each time the appellant was paid less and, therefore, the cause of action continued as alive and the appeal filed after the issuance of the impugned order, whereby the appellant was denied the facility of retrospective financial benefits, entitled him to move this service appeal. Thus the appeal filed after compliance with the legal requirements and based on the issuance of the impugned order was within time and particularly in case where the respondent-department has admittedly allowed continuation of an irregularity for eight long years, it cannot be allowed to come around and allege that the appellant, being a victim of the said irregularity, cannot challenge such irregularity after the lapse of certain time.
11. As a result of the above discussion we are of the view that the appellant was justified to claim the salary in BPS-18 which was held by him since 27-9-1987 in various capacities. The prayer for payment of increments, etc. Cannot be accepted because the drawal of salary with increments would amount to regular promotion entailing other consequential matters like seniority, etc. Since the concept of holding senior post in own pay and scale is alien to the service structure and holding of a senior post for almost eight years on current charge basis or additional charge basis is not permissible under the instructions, for the time being in the field, therefore, his appointment against senior post may be deemed on acting charge basis and he will be entitled to receive the minimum of BPS-18 (or the relevant stage of BPS-18, if salary in B-17 with admissible increments, is higher than the minimum of BPS-18) for the period he held the post on acting charge basis with effect from 27-9-1987 till 26-7-1995. The appeal is, therefore, accepted in terms as above with costs. Parties be informed.