MUHAMMAD KHURSHID K13AN (CHAIRMAN)--Mr. Muhammad Alam Khan Kundi was appointed to the Judicial Branch of the Provin--cial Civil Service of the North West Frontier Province in the year 1948. On the 2nd June, 1964, while be was posted as Senior Civil Judge. Hazara at Abbottabad, the West Pakistan (Gazetted) Civil Services (Pay Revision) Rules, 1964 (herein -after referred to as the Rules) were promulgated by the Governor in exercise of the powers conferred by clause (2) of Articles 178 and 179 of the Constitution of 1962. The Provincial Civil Service (Judicial) i3 dealt with in Part I of the Schedule attached to it. Item No. 2 deals with the West Pakistan Provincial Civil Service (Judicial), which reads thus "2.West Pakistan Civil Service450-50-1000 Selection Grade (Judicial) 1050-50-1350 (the number of Selection Grade posts will be 10 per cent of the Cadre less listed posts).
The Rules came into force from 1st of December 1962. Mr. Muhammad Alam Khan Kundi opted for the Rules.
Item No. 2 of the Rules, reproduced above was subsequently amended by a - Notification of the Finance Department whereby the pay scale of Selection Grade meant for Provincial Civil Service (Judicial) was revised to 1050-75-1,500.
2. The posts of the Senior Civil Judges in the North-West Frontier Province except that of Senior Civil Judge, Peshawar, were in the ordinary time scale of the Provincial Civil Service. The post of Senior Civil Judge, Peshawar, prior to the establishment of Pakistan, was on the I. C. S. Cadre and was meant to afford training in Civil Law to those 1. C. S. officers in the Political Department who opted for Judiciary. After the creation of Pakistan, the post remained on C. S. P. Cadre up to 14-2-1963.
During those years, the post of Registrar, Judicial, Commissioners Court. North --West Frontier Province, was on the Provincial Service Selection Grade. This Selection Grade was attached to the post of Registrar from 1st of October, 1952, under the orders of the Government, North-West Frontier Province, as contained in their letter No. 34098 F/13/16, dated 11-1 z-1952. On the integration of the Provinces of West Pakistan into One Unit in the year 1955, the Registrar Judicial Commissioner's Court was designated as "Additional Registrar" High Court of West Pakistan. Peshawar Bench, Peshawar, with the result that the post of the Additional Registrar became a Provincial Civil Service Selection Grade post. In the year 1961, the Additional Registrar moved a proposal for the consideration of the Central Government for inter-changing of the post of Senior Civil Judge.
Peshawar, and that of the Additional Registrar, requesting that the former post be placed on the Provincial Civil Service Selection Grade while the post of Additional Registrar be brought on the C. S. P. Cadre. The proposal was accepted by the Central Government and accordingly the post of Senior Civil Judge, Peshawar was placed on Provincial Civil Service Cadre (Selection Grade, while the post of Additional Registrar was brought on c. S. P. Cadre in the Senior C. S P, Scale, with effect from 15-2-1963, Thereafter, the Govern--ment of North-West Frontier Province continued according sanction to the Provincial Civil Service Selection Grade attached to the post of Senior Civil Judge; Peshawar, on year to year basis, and this is being done up till now.
3. Mr. Muhammad Alam Khan Kundi was promoted to officiate as Senior Civil Judge. Peshawar in December, 1964 and held the post till November, 1969 when he was promoted to the Senior C. S. P. scale: (850-75-1450-100-1,650) end was appointed as Additional District and Sessions Judge, Kohat, where he took over on the 25th of November, ' 1969. At the time of promotion to the Senior C.
S. P. scale, he was drawing officiating pay of Rs. 1,350 in the Provincial Civil Service Selection Grade with a special fray of Rs. 110 per month, whereas his substantive pay in the regular line of the Provincial Civil Service was Rs. -1,000.
4. The Comptroller, Northern Area, West Pakistan, Peshawar relying on the decision taken by the Government of Pakistan, Cabinet Secretariat, Establishment Division, Islamabad, as contained in their letter No. 3/6/64 CI, dated 27-6-11-67, from Mr. M. Zaman, Deputy Secretary, to the Chief Secretaries, Governments of West Pakistan and Fast Pakistan, a copy of the same endorsed to the Ministry of Finance, fixed the pay of Mr. Muhammad Alam Khan on the basis of his substantive pay in the regular line of the Provincial Civil Service by adding Rs. 225 to this pay. The letter which contains the formula for the fixation of pay of the Provincial Civil Service COMO, on their promotion to the Superior posts in the C. S. P. Cadre, may be rah-educed with advantage to the Superior posts in the C. S.P. Cardre, may be reproduced with advantage.
"Copy of letter No. 3/6/64 CI dated the 27th January, 1967 from M. M. Zaman, T. W. A., C. S. P. Deputy Secretary, Government of Pakistan, Cabinet Secretariat, Establishment Division Rawalpindi, addressed to the Chief Secretary Government of West/East Pakistan, Lahore-Dacca and endorsed to the Ministry of Finance.
Subject:Fixation of the Pay in the New Scales of P. C. S. Officers appointed to Superior posts on the Cadre of the C. S. P.
Sir, In supersession of this Division's letter No. 3/6/64-Cl, dated 13-1-1965 and 3/5/65 CI, dated 2-10- 1965, on the subject noted above, except as provided in para. 2 below, the pay of Provincial Civil Service Officers appointed to superior posts on the cadre of the Civil Service of Pakistan in a Province shall be fixed in the senior scale laid down for the Civil Service of Pakistan in the Ministry of Finance O. M. No. Py Ga. 1 (7) IMf'/63, dated 22-4-1964 as amended from time to time, in the follow-- ing manner
(i) An officer appointed to a superior post before 1-12-1962. His pay shall, with effect from 1-12-1962 be fixed in the senior scale of C. S. P. at the stage equal to, or if there be no such stage, at the stage next above the amount arrived at by allowing an increase of 5 Y. subject to a minimum of Rs. 45 over the aggregate of the pay in the prescribed scale and cost of living allowance admissible thereon. The officer will retain his pre-revision date of increment, if any. If such an officer reverts from the superior post and is reappointed to it on or after the 1st December 1962 his pay shall be regularised by the pro--vision of sub-para (2) below:
(ii) An officer appointed to a superior post on or after 1-12-1962. (a) His initial pay shall on, each occasion of his promotion to officiate in the senior scale of the Civil Service of Pakistan, be fixed at the lowest stage which exceeds by not less than Its. 225 a month the substantive pay last drawn by him in the regular line of the Provincial Civil Service or at the stage of Rs. 1,05 whichever is greater, provided that in no case shall such an officer is granted higher pay in the Senior scale of the C. S. P. than that admissible in that scale to a member of the C. S. P. with the same length of service.
(b) On any enhancement of his substantive pay in the Provincial Civil Service (whether as a result of general revision of the Provincial Civil Service rates of pay of the operation of the Provincial Civil Service time scale or on promotion to r selection grade of that service) while officiating in a superior Civil Service of Pakistan post, such an officer shall with effect from the date of such enhancement, be entitled to have his pay in the Senior time scale of the Civil Service of Pakistan recalculated in accordance with the principles laid down in clause (a) above, on the basis of his enhanced pay 9n the Provincial Civil Service.
(c) Increments of pay in the senior scale of the Civil Service of Pakistan shall be granted to him only on completion of a full year's service at any stage of that scale, but for the purpose of calculating one year's service on a given rate of pay, broken periods, if any, of officiating service on that rate en pav, shall be taken into account;
(d) If any officer or the Provincial Civil Service drawing pay in the senior time scale of the Civil Service of Pakistan is appointed as District' Magistrate or District and Sessions Judge, he shall for the period of such appointment be allowed as special pay of Rs. 165 p.m in addition to the pay admissible to him in Senior Scale of Civil Service of Pakistan in accordance with clauses (a) to (c) above.
5. The pay of an officer, who was a permanent member of a Provincial Civil Service on 18-7-1974 and was or is appointed to hold substantively a superior post on the cadre of the Civil Service of Pakistan reserved for members of the Provincial Civil Service by rule 7 of the C. S. P. (Composition and Cadre) Rules, 1964, as amended from time to time and falls within 25 of such reserved posts calculated separately for the Executive and the Judicial Branches, shall be fixed in the following manner.
(1) An officer appointed to a superior post before 1-12-1962 He will continue to draw pay in the Superior time scale of the old I. C. S. according to the orders in force before 1-12-1962.
(2) An officer appointed to a superior post on or before 1-12-1962. He may, as from the date of such appointment elect to draw pay in the superior time scale of the old I. C. S. in which case his pay shall as from that date be fixed in that scale according to the formula laid down in the late Government of India. Home Department, Notification No. F. 754/? 2 Establishment dated the 21st August 1924.
6. Aggrieved by the decision of the Comptroller, Mr. Muhammad Alam Khan Kundi made representations against it to the authorities concerned, contending that his pay should have been fixed by taking into account in the P. C. S. Selection Grade and not on the basis of his substantive pay in the regular line of the Provincial Civil Service. The representations did not prove fruitful as a result of which he knocked the doors of Civil Court by instituting a civil suit in the Court of Senior Civil Judge, Peshawar in the year 1970. Sometime after the suit was withdrawn by Mr. Muhammad Alam Khan Kundi and it was consequently dismissed as having been withdrawn. It is not known if permission of the Court was obtained to institute a fresh suit on the same cause of action.
7. The dismissal of the suit did not bring the matter to a close. After waiting for a period of about two years. Mr. Muhammad Alam Khan Kundi again instituted a civil suit in the Court of Senior Civil Judge, Peshawar, on the 20th of April 1973, for a declaration to the effect that on promotion to the Senior C. S.P. Scale, his pay could not be less than the pay drawn by him as Senior Civil Judge.
Peshawar, with the result that he was entitled to enhanced pay alongwith other benefits of compensation for loss that had accrued to him since 11-11-1969. He also sought a permanent injunction against the Government of Pakistan and the Government of North-West Frontier Province directing them to fix the enhanced pay of the plaintiff in consultation with the Comptroller.
8. The suit which was vigorously contested by the defendants proceeded in the Court of the Senior Civil Judge, Peshawar, for sometime, whereafter, somehow or other, it was transferred to the Court of Civil Judge, First Class, Peshawar. On the basis of the pleas taken up by the defendants, as many as eleven issues were framed which need not be reproduced here. After recording all the evidence, which the parties wished to adduce, Mr, Muhammad Raza Khan, Civil Judge First Class, Peshawar, found all the material issues in favour of the plaintiff and consequently, on 21-11-73 granted him a decree for declaration and a permanent injunction against the defendants, leaving the parties to bear their own costs.
9. Feeling dissatisfied with the decision of the Civil Judge, the defend--ants went up in appeal to the District Court. During the pendency of the appeal, the North West Frontier Province Service Tribunals Ordinance 1974 (here in after referred to as the Ordinance) was promulgated by the Governor of the North West Frontier Province. In consequence of the enforcement of the Ordinance, the appeal filed by the defendants, like many other appeals relating to the terms and conditions of service of civil servants, abated whereupon the defendants moved this Tribunal by means of two separate appeals, which are being disposed of by this judgment.
10. The appeals have been contested by the respondent challenging the maintainability of the appeals on the ground that the appellants had no locus standi to bring the present appeals and that the appeal filed by them before the District Judge. Peshawar, having abated, the decree passed by the trial Court became final. On merits, the stand taken up by the respondent is that the trial Court was perfectly justified in coming to the conclusion that his pay in the senior C. S. P. scale should have been fixed on the basis of his pay in the Provincial Civil Service Selection Grade.
11. It may be stated that these appeals can effectively be decided without going into the merits of the case In other words it would not be necessary for us to decide if the pay of Mr. Muhammad Alam Khan Kundi, on promotion to the senior C. S. P. scale, was rightly fixed by the Comp--troller N.- W. F. P. on the basis of his substantive pay in the regular line of the Provincial Civil Service or that the pay ought to have been fixed by taking into account his officiating pay in the Provincial Civil Service Selection Grade post. In the circumstances, we will not enter upon a discussion of the merits of the case.
12. The first objection raised on behalf of the respondent seeks to question the maintainability of these appeals on the ground that the appellants have no locus standi to brim^ the present appeals while the second preliminary objection sought to be raised is that the appeal filed by the defendants --appellants before the District Judge, Peshawar, having abated, the decree passed by the trial Court became final.
13. We regret, we see no merit in these submissions. It is an admitted position that the plaintiff- respondent obtained the impugned decree against the defendants-appellants from the Court of Civil Judge, First Class, Peshawar. The defendants being the aggrieved persons were naturally armed with a right to challenge the decree by way of appeal to the proper forum. In this view of the matter, there can be no doubt about the fact that the appellants had a locus standi to appeal to this Tribunal against the impugned decision.
14. While pressing the second preliminary objection, the learned counsel for the respondent contended that under section 8 of the Ordinance, the appeal filed by defendants-appellants before the District Judge, Peshawar stood abated and the decree passed by the Civil Judge. First Class, Peshawar, stood intact. This contention has no force. The appeal was in continuation of the suit and, therefore, the suit also abated. In this way, the judgment and the decree passed in favour of Mr. Muhammad Alam Khan plaintiff --respondent, by the Civil Judge, stood vacated and he should have approached the Service Tribunal for the redress of his grievance.
15. The conclusion, which follow from the above discussions is that the judgment and decree in favour of Mr. Muhammad Alam Khan Kundi stood vacated by operation of law with the result that he could not now take any benefit out of the same. Consequently, we accept both the appeals with costs, declaring that the civil suit brought by Mr. Muhammad Alam Khan Kundi in which the impugned decision was made abated, and the judgment and decree passed in his favour stood vacated, by operation of law, with the result that the impugned decree was of no avail to him.