MUHAMMAD BASHIR KHAN JEHANGIRI, J. ---Petitioners seek leave to appeal against the judgment of the learned Service Tribunal dates 23-9-1996 whereby on acceptance of the appeal filed by the respondent allowed him the running basic pay scale of his salary from the date of passing, inter alia, In-Service Teacher Training Course in Industrial Arts Examination.
2. The brief facts of the case are that the respondent was appointed as W.I. (nowadays Set Technical) on fixed pay with effect from 29-4-1978 and till the filing of his appeal he was working as S:E.T. (Technical) in BS-16 on fixed pay. The respondent passed his S.S.C. In 1971, to year's Certificate in Wood Technology from Pak-German Wood Working Centre, Teacher Training Course in the field of Industrial Arts in 1978. Then he went for In-Service Teacher Training Course in Industrial Arts in 1989 from the Federal College of Education, Islamabad, and In-Service Teachers Civil Defence Course in 1995. According to the respondent, he has been working as S.E.T. (Technical) since 1978 and had thus completed more than 17 years of service with good record. The grievance of the respondent was that he has not been awarded graded/running pay scale of S.E.T. The respondent submitted departmental appeal for award of graded/running pay from 10-10-1995 and after waiting for 90 days had filed the appeal before the Service Tribunal. The claim of the respondent was vehemently contested by the petitioner and in their reply have repudiated the claim of the respondent.
3. After hearing the learned counsel for the parties and perusal of the record, the learned Service Tribunal while accepting the appeal allowed the respondent running basic scale of his grade from the date of qualifying In-- Service Teacher Training Course in Industrial Arts in 1989.
4. Mr. M. Azam Khan, Additional Advocate-General, N.-W.F.P., appearing on behalf of the petitioner submitted that the learned Service Tribunal has not correctly applied the ratio of the judgment reported in Federation of Pakistan v. Shahzada Shahpur Jan and 2 others (1986 SCM R 991). His further contention was that the learned Service Tribunal had failed to appreciate that the respondent did not possess three years' Post Matric Diploma nor qualification equivalent to the Industrial Arts.
5. We have considered the contention of the learned Additional Advocate-- General. We regret that we have not been able to agree to the stance taken by him. The learned Additional Advocate- General has not been able to specify in terms unequivocal as to what portion of the evidence has been mis-interpreted or misread by the Tribunal. This contention is, therefore, untenable. Again the case of the respondent in para. 3 of his memorandum of appeal was that he had passed In- Service Teacher Training in Industrial Arts in 1989 from the Federal College of Education, Islamabad and In-Service Teacher Civil Defence Course in 1995. These assertions could not be controverted by the learned Additional Advocate-General and, therefore, his first contention is without substance.
6. The learned Additional Advocate-General has placed reliance on the case of Federation of Pakistan v. Shahzada Shahpur Jan and 2 others (1986 SCM R 991). We have already considered the ratio of the case of Shahzada Shahpur Jan (supra) The ratio decidendi in the case of Shahzada Shahpur Jan was reproduced in the bunch of Civil Petitions titled Muhammad Riasat v. The Secretary of Education, N.-W.F.P., Peshawar, and 2 others (C.Ps. 149-P to 161-P and 170-P to 172-P of 1996). It is, however, reiterated as under:--- "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 than the presumptive pay admissible to those not fully qualified or otherwise ineligible."
7. It would thus be noticed that ratio in the case of Shahzada Shahpur Jan (supra) supports the claim of the respondent that he was entitled to a graded/running pay of Grade-16 as S.E.T.
(Technical) from the date of qualifying In-Service Teacher Training Course in Industrial Arts from Federal College of Education, Islamabad, in 1989. The finding of the learned Tribunal does not, therefore, suffer from any infirmity of the kind warranting our interference under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973.
8. In view of what has been observed above no case for grant of leave has been made out in this petition which is accordingly dismissed.