1. MUNAWAR ALI KHAN (CHAIRMAN). ---This common judgment will dispose of three appeals: Appeal No. 115/94, Appeal No. 116/94 and Appeal No. 117/94, all filed by Mr. Khuda Bux Khoso, Divisional Forest Officer (i.e. D.F.O.). These appeals are inter-connected and have arisen in consequence of the decision of the Service Tribunal in Appeal No. 1/85 filed by the appellant earlier.
2. The factual background of the above appeals may briefly be narrated as follow.
3. In 1977, while the appellant was working as D.F.O., Khairpur, he was placed under suspension. His suspension was followed by his dismissal from service vide Forest Department's Notification, dated 10-10-1977. The appellant challenged his dismissal order in Service Appeal No. 11/78 which was, however, withdrawn on account of some technical defect. The departmental appeal preferred from the said order was rejected by the then Martial Law Administrator on 19-12-1982. The appellant filed fresh Service Appeal No. 4/83 which was disposed on 31-1-1984, directing the competent Authority to hold fresh proceeding with strict compliance of the relevant rules. After doing the needful the appellant was once again dismissed by order dated 16th August, 1984, which was ultimately targeted first in departmental appeal and then in Service Appeal No. 1/85. By its judgment dated 12th August, 1987, the Service Tribunal converted the appellant's dismissal from service into his demotion to the post of Sub-Divisional Forest Officer, directing further that the period intervening between the date of impugned order and the date of above decision shall be treated as extraordinary leave without pay.
4. In the wake of the above judgment of the Service Tribunal, the appellant made a representation seeking three reliefs: one, that he be allowed annual increments for the period prior to the impugned order: to, that consequent upon refixation of his pay in the light of annual increments, he be given move-over in Grade-19 and three, that all arrears of his pay etc. Be paid to him. His said representation was turned down by three separate orders passed on the same date i.e. 6th July, 1991. His departmental appeal from the said order was however rejected by one consolidated order of the Chief Secretary dated 16-6-1994, which was communicated to the appellant on 13-9-1994. As such, he filed the present three appeals on 12th October, 1994.
5. We heard the appellant personally besides his learned Advocate. We also heard the learned A.A.-G.
6. On behalf of the official respondents. With the help of the parties and their counsel, we were taken through the relevant documents available in the case file.
7. It would be noticed that the appellant's to demands: one for more--over and another for payment of arrears of salary etc. Are obviously premature and therefore, the Appeals Nos. 116/94 and 117/94 relating to such demands are liable to be dismissed on the above solitary ground. The question of move-over would arise only after the appellant had succeeded in getting all the annual increments he thought to be due to him. In other words the cause of action for his Appeal No. 116/94 would accrue to him after his Appeal No. 115/94 which pertains to annual increments was accepted. It was yet to be considered if the appellant was entitled to the said annual increments.
8. So long the decision in this regard was pending, he had no cause of action to file appeal for move- over. The sanctioning of the move-over also depended upon earning of specified number of good reports. But contrary to this, the appellant's whole service career appeared to be crisis ridden. He had hardly put in three years' service when he was subjected to one disciplinary action after the other. The unfortunate drama of departmental proceedings, which was admittedly started against him in 1977 with his suspension, kept continuing for over a decade culminating ultimately not in his exoneration but in his major penalty of demotion from the post of D.F.O. To that of Sub---D.F.O. Vide judgment of the Service Tribunal dated 12-8-1987 in Appeal No. 1/85. In this background of his case, it was to much to expect that he would be rewarded with good annual reports. For the above reasons the Appeal No, 116/94 with regard to move-over was not legally sustainable and as such it is dismissed with no order as to costs.
9. Similarly the fate of the Appeal No. 117/94 was also linked with success of other to appeals namely Appeal No.115/94 and Appeal No.116/94. In Appeal No.117/94, the appellant's prayer is for payment of arrears to be, accumulated as a result of adding annual increments to his pay and further refixing of his pay after allowing him the move-over in Grade-19. It was pointed out earlier that the question whether the appellant was entitled to be paid the annual increments claimed by him was still pending decision. Similarly the grant of the move-over was dependent upon the sanction in of annual increments to the appellant. Because then alone he would be in a position to reach the maximum of the Pay Scale 18, thereby paving the way for him to move-over to higher Pay Scale 19.
10. Again after the appellant succeeded in winning the move-over in higher Grade-19, his pay was to be refixed and thereby he would earn some arrears. Thus, after the appellant succeeded in Appeal No. 115194 (of Annual increments) and in Appeal No. 116 (of move-over) he would first approach the departmental authorities for payment to him the arrears arising from success of above to appeals.
11. It was only after their refusal to make such payment of arrears that cause of action would accrue to the appellant for filing service appeal for arrears. However the departmental present refusal to make payment of the arrears was quite justified. As such the Appeal No. 117 which has been filed for payment of arrears is also premature being without cause of action. Accordingly that Appeal to is dismissed with no order as to costs.
12. After disposing the above to appeals, we are left with only Appeal No. 115/94 in which the appellant's prayer is that the order refusing to grant annual increments for the period from 10-10- 1977 to I 1-8-1987 be set aside. The relevant portion of the said order reads as under:-- Mr. Khuda Bux, Divisional Forest Officer (BS-18) did not avail of extraordinary leave. But owing to the judgment of Sind Service Tribunal the period during which he remained out of service was treated as extraordinary leave. Rule 50(d) of S.C.S.R., Vol. 1 is not attracted in his case. Finance Department therefore regrets its inability to allow increments during extraordinary leave.
13. Without going into merits of the above order it would be seen that it was based on the judgment of the Service Tribunal that the period Dr which the appellant remained out of service was to be treated as extraordinary leave without pay. That is to say that the appellant had neither applied for extraordinary leave nor was it granted to him in accordance with the rules But instead the specified period for which the appellant remained out of service was treated as extraordinary leave without pay by the force of the judicial announcement of the Service Tribunal regardless of the position spelt out by the relevant rules. It appears to us that the stand taken- in the above order was correct. The extraordinary leave granted in accordance with the rules is not same as has been so declared by the judicial order because it was quite possible that the period of extraordinary leave covered by the judicial decision far exceeded the maximum of such leave permitted under the rules. Obviously in that case the extraordinary leave pronounced in the judgment of the judicial Forum cannot be- placed at par with that granted in accordance with the rules.
14. Alternative argument advanced on behalf of the appellant was that the period prior to the impugned order which was passed on 16-8-1984 was not included in the extraordinary leave as declared by the Service Tribunal. In this connection it may be pertinent to refer to the relevant portion of the judgment of the Service Tribunal. It reads as under:-- The period from the date of issue of the impugned order shall be treated as extraordinary leave without pay till today (i.e. 12th August, 1987).
15. It was true that the Service Tribunal did not speak of the period immediately preceding the impugned order, which was admittedly passed on 16-8-1984 in its judgment referred to above.
16. Despite this it is an admitted position that for the period prior to passing of the impugned order, the appellant mostly remained out of service. In such an eventuality on final disposal of the case the departmental authorities were required under proviso 2 to section 18 of the Sind Civil Servants Act, 1973 to pass an appropriate order as they deemed fit. Although we have not been shown any express order in this regard yet it is not unambiguous for us to understand that the appellant has been wholly denied the benefit of arrears on any count. But at the same the the appellant himself also was to blame for the delay and lethargy shown by him in claiming the monetary benefits. As soon as the impugned order was passed on 16-8-1984, he should have been vigilant in agitating for payment of arrears for the period prior to the date of the said order. But he took no steps whatever in this direction. Again on 12th August, 1987 when his case was finally decided he got another opportunity for moving for arrears. But as per his own admission in para 9 of his memo of appeal he made representation for grant of increments after more than three years after the judgment of the Service Tribunal. He thus once again missed the bus. Thus his claim for annual increments and arrears arising therefrom is hopelessly the-barred. Consequently we see no legal justification to allow such claim. The appeal is therefore dismissed with no order as to costs.
17. Before parting with this case we cannot help observing that the appellant who was struck by ill- luck soon after he joined service seems to have suffered a lot both me-tally and financially.
18. Therefore we feel that he deserves utmost sympathy and help. His right to arrears at least for the period prior to the date of the impugned order remained intact to the extent the departmental authorities thought fit to allow him under proviso 2 to section 18 of Sind Civil Servants Act, 1973 though in view of the hurdle of limitation it cannot be enforced through judicial process. The departmental authorities are still free to pass order in terms of above provision of law allowing the appellant some financial relief.