MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This judgment disposes of a bunch of matters comprising of 16 special leave petitions under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, all of which involve a common question. The titled special leave petitions are directed against the judgments of the N.-W.F.P., Service Tribunal disallowing the claim that the petitioners are entitled to the graded pay from the date of their appointment and affirming the decision of the respondent-Government that they were entitled to the graded pay with effect from the date of attaining the basic qualification of Bachelor of Education.
2. The petitioners were appointed as S.E.Ts. On fixed pay and temporary basis with effect from the dates specified by each one of them in his appeal when they were not possessed of the requisite qualifications, namely, B.A./B.Sc. And B.Ed. In due course of the the petitioners not only improved their educational qualifications but also attained the minimum requisite qualification of B.Ed. With effect from the dates specified by each one of the petitioners. They laid claim to the respondent- Government for the graded pay with effect from their date of temporary appointment as S.E.Ts.
Which was disallowed by the Government. The learned N.-W.F.P., Service Tribunal dismissed the appeals tiled by the petitioners.
3. In support of these petitions, Mr. Muhammad Zahoor Qureshi Azad, learned A.O.R., appearing for the petitioners cited to decisions of this Court in Civil Petition No. 204-P alongwith Civil Appeal No. 205-P of 1991. Mr. Muhammad Azam Khan, learned Additional Advocate-General N.-W.F.P., on the other hand, relied upon Civil Petition No. 288-P of 199,3 wherein a contrary view had been taken by this Court. In former to Civil Petitions decided on 19-5-1992 the operative part of the judgment rendered by a learned Division Bench of this Court reads as under:- "The learned counsel for the petitioners argued that both the respondents are not possessed of the requisite qualification for the post upon which they have been officiating and as such they are not entitled to the emoluments in BPS-15. It appears that the petitioners did not raise this plea before the Service Tribunal and as such no finding was given. The dispute before the learned Tribunal was only with regard to emoluments of the respondents on the post they were officiating upon alongwith the increments and the learned Service Tribunal as per Finance Department letter referred in the judgment made direction to the petitioners that the pay of the respondents be regulated in the the--scale of BPS-15 alongwith increments which the respondents may have earned. The orders of the Service Tribunal impugned herein do not suffer from any legal infirmity."
4. In the later Civil Petition decided on 18-9-1994, another learned Division Bench seized of an identical proposition held as under:-- "Mr. Shahzad Akbar, learned counsel for the petitioner vehemently contended that as the respondent had not acquired the requisite qualification, he was not entitled to the regularization of his post nor could pay be given fixed under pay-scale No. 15, which is the regular scale for S.E.T.
Post. From the arguments and the facts, it seems that the respondent is given fixed pay for the last 10 years; although he is performing duties of S.E.T. Teacher's post. In such circumstances, in view of the case reported as Federation of Pakistan v. Shahzada Shahpur Jan and others (1986 SCM R 991), the petitioner could not be deprived of the scale of S.E.T. Post. The observations made by the Tribunal do not suffer from any illegality. In any event no legal question of general importance has been raised. Leave is refused."
5. In the contrary decision rendered against the petitioners in the latter case, the learned Judges of the Division had placed implicit reliance on the law enunciated by 'a learned Full Bench of this Court in Federation of Pakistan v. Shahzada Shahpur Jan and 2 others (1986 SCM R 991) wherein Fundamental Rules 24, 26, 31, and 35 were pressed in aid by the Deputy Attorney-General to oppose the claim of graded pay by an officiating employee was upheld and decision of Federal Service Tribunal to the contrary was set aside. The ratio decidendi in the case of Shahzada Shahpur Jan (1986 SCM R 991) is reproduced hereunder:- "In the case (of) Muhammad Hashim, the matter again came to this Court where F.R. 35 was interpreted and the powers conferred thereunder were restricted. The entitlement of the officers-to receive presumptive pay was recognised subject to F.Rs. 30 and 26(c) It has already been shown that F.R. 26(c) has no application and F.R. 30 does not come into play because it is not the contention that assumption of greater responsibility was not involved.
As regards the cases of the second category, the legality and the effectiveness of the Auditor- General's Standing Orders, paras. 139 and 229, Chapter V has been upheld in Civil Petitions 32-P to 34-P of 1982, decided on 30-5-1983 and there is no reason to depart for not only it is a part of the terms and conditions of the service one who is not qualified for a post cannot be said to be while so disqualified fully and competently discharging the duties of the higher post with the modified designation of Clerk-in- Charge. It was within the competence of the officer to allow reduced terms then the presumptive pay admissible to those not fully qualified or otherwise ineligible."
6.Civil Appeal No. 23 of 1985 was, therefore, allowed by the Full Bench, the order of the Tribunal allowing the increments for service rendered as Clerk-in-Charge was set aside.
7. It would thus be noticed that the earlier decision in civil Petitions Nos. 204-P and 205-P was departed from in Civil Petition No. 288-P of 1993 and the ratio in the case of Shahzada Shahpur Jan (supra) (1986 SCM R 991) being more authoritative having been rendered by the learned Full Bench of this Court was rightly allowed by the learned Division Bench in Civil Petition No. 288-P of 1993.
8. In the precedent case of Shahzada Shahpur Jan (1986 SCM R 991) this Court was seized of the cases of to categories of the officers: firstly, those officers who were qualified in every respect to be appointed to the higher post, and were called upon to discharge the full responsibility of the higher post, severing their connections with the lower posts, while in the other category the officer was lacking the eligibility on account of the absence of qualification prescribed for being promoted and appointed to the post the full duties of which he was called upon to perform. It was in this background that in the second category of the case it was held that "it is a part of the terms and conditions of the service one who is not qualified for a post cannot be said to be while so disqualified fully and competently discharging the duties of the higher post with the modified designation of Clerk-in-Charge" and that, therefore, it was within the competence of the Officer to allow reduced terms than the presumptive pay admissible to those not fully qualified or otherwise ineligible. It is not the case of the petitioners before us that restricted pay and allowances were not offered to them in their letters of appointment. Conversely, their appointment letters categorically contains the stipulation that they would be drawing the basic pay scale only and they would not be entitled to the graded pay. Respectfully following the ratio in Shahzada Shahpur Jan (1986 SCM R 991) which had been followed in Civil Appeal No.288-P of 1993 titled The N.-W.F.P. Government through Secretary Education, Peshawar and others v. Muhammad Qavi Khan, we are inclined to hold that in the circumstances of these cases the petitioners in all these petitions had accepted the terms and conditions initially offered to them wherein they were held entitled, to a fixed pay of the scale without any increment. Since they have attained the basic qualification from a specific date, they are entitled to the graded pay with effect from the date they had passed their B.Ed.
Examination and not from the date of initial appointment on temporary basis. The learned Service Tribunal was, therefore. Correct to hold that the petitioners were not entitled to the graded pay with effect from the date of their appointment and that they could claim the graded pay with effect from passing their B.Ed. Examination. This finding of the learned Tribunal does not suffer from any infirmity of the kind warranting our interference under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973.
9. In view of what has been observed above no case for grant of leave has been made out in these petitions which are accordingly dismissed.