MIAN SHAKIRULLAH JAN, J.---Khurshid Anwar writ petitioner through this Constitutional petition has prayed for issuance of directions to the respondents to allow him ante-date promotion in regular stale of Rs,450--50--1,000 with effect from 1-12-1971 instead of 6-3-1974 including all benefits, and anti-date promotion on up gradation of the post from BPS-17 to BPS-18 with effect from 1-7-1991 with all benefits.
2. Brief facts of the case are that the petitioner was appointed as Librarian in the Education Department (College Cadre) in the year 1957. In the year 1971 he was transferred from the post of Librarian, Government College, Peshawar to the Directorate of Education Extension Service, Peshawar and appointed as Assistant Director Libraries on his own pay and grade with effect from the date of his taking over charge. On 30-5-1974 the petitioner was awarded the Scale of Rs,450- -50--1,000 with effect from 6th March, 1974. The petitioner in the years 1980 and 1986 made representations for his promotion to BPS-17 with effect from 16-10-1971 instead of 6-3-1974, but his representations were not acceded to. Later on, the petitioner was sent on pre-mature retirement, which action of the respondents was challenged by the petitioner before the Service Tribunal and on acceptance of his appeal he was re-instated in service with all back benefits. The respondents filed an appeal before the Supreme Court of Pakistan against the said reinstatement order of the Service Tribunal, but the august Supreme Court of Pakistan dismissed the appeal/petition of the respondents. The petitioner was re-instated in service on the post of Librarian (BPS-16) which order of the respondent was again challenged by the petitioner before the Service Tribunal and the Service Tribunal ordered that the petitioner is entitled to BPS-17 for the reason that at the time of his premature retirement from service he was drawing his pay in BPS-17. In the year 1994 the petitioner again moved a representation before the respondents praying for grant of emoluments of the post of BPS-17 with effect from 16-10-1971. The petitioner in the year 1995 filed a writ petition in this Court for the said purpose but the petitioner prayed for dismissal of the petition as withdrawn provided the respondents are directed to pass a final order on the representation of the petitioner pending before them enabling him to seek his seniority before a proper forum. The writ petition was accordingly dismissed. Hence the present writ petition.
3. Notice to the Advocate-General was given on 29-9-1996 so as to apprise this Court of the facts, in response whereof the learned A.A.-G. appeared on 26-10-1996 and stated that no representation as alleged by the petitioner has either been filed or pending before the respondents. The learned A.A.-G. was asked to file the comments within a fortnight and the same were filed accordingly. In their comments the respondents have stated that the petitioner was awarded BPS-17 with effect from 6-3-1974 for the reason that he did his Master Degree in Library Science. It has further been alleged in the comments that basically the post of Librarian carries BPS-16 but in case of incumbents having acquired Master's Degree in Library Science the scale of BPS-17 is granted without any up gradation. The respondents also alleged that letter Annexure A/2 with the petition has not been issued by a competent Authority and also bears the forged signatures of the Director Education (Colleges).
4. We have heard the learned counsel for the parties and have also gone through the material available on file. According to the petitioner, he was promoted and posted as Assistant Director (Libraries) on 1-12-1971, but was not awarded the regular scale of Rs,450-50-1,000 which grade was however, awarded to him on 30-5-1974 with effect from 6-3-1974. As against this, the stand of the respondent's department is that the petitioner was not promoted but transferred from Government College, Peshawar and was passed as Assistant Director (Libraries) in his own pay and scale and that the letter Annexure "A/2" attached with the petition is having the forged signatures of the Director, Education (Colleges), which letter has thus not been issued by a competent Authority. We have perused both the letters, Annexures 'B' and Annexure ' A/2' and both bear the date "16-10-1971".
In our view, this controversy is not so material because the petitioner's stand is that the post of Assistant Director (Libraries) was a Grade-17 post, but till 6-3-1974 he was not awarded the emoluments of that post. It is now well-established principle that a civil servant working against a higher post would be entitled to draw the pay of that post at his minimum but would also be entitled to the increments falling due, if he is otherwise not ineligible or deficient in qualification in any way. In this view of the matter, the assertion of the respondent's department is having force in it by saying that the petitioner was awarded the scale of BPS-17 from that date under the Rules when he acquired the qualification of Master Degree in Library Science. According to the respondents, any person holding qualification of BPS-17 can be posted as Librarian in any Government College and can also be posted by way of transfer as Assistant Director (Libraries) in the Directorate of Education (Colleges). The plea of getting the higher qualification by the petitioner at a later stage, necessary for the post of Assistant Director (Libraries), gets support from a judgment of the Service Tribunal, Annexure D/A, delivered in an appeal filed by the petitioner, wherein while discussing the assertions of the respondent-department. It has been mentioned that:-- "At the time of his transfer to the Directorate of Education (Colleges) he was not holding the degree of Master of Library Science nor he could be promoted to the post of Assistant Director under the rules of service."
May be, the post of Assistant Director (Libraries) was a BPS-17 post, and the petitioner was duly appointed/called upon to work against such post, but as he was not having the requisite qualification attached with the post, therefore, in our view, he was not entitled to draw his salary against such higher post. As and when he acquired the requisite qualification, he was accordingly granted BPS-17 and there seems no irregularity/illegality to have been committed by the respondents while dealing with the case of the petitioner.
5. It is also evident from the material placed on file that till the date, when the petitioner was awarded the Pay Scale-17 he was drawing less salary from 16-10-1971 but he never made any objection till the year 1980, when he made representation to the respondents, which was duly considered and rejected. Again, he never objected on this decision of the Provincial Government till the year 1986 when he made another representation and which representation was also considered and filed. For the third time, the petitioner allegedly made representation in the year 1994 and in the year 1995 he filed a writ petition before this Court, and the learned counsel appearing for the petitioner prayed that if a final order on the representation of the petitioner is passed, which is pending before the respondent, then he would withdraw this writ petition with permission to seek his redress from the proper forum. The writ petition was accordingly dismissed as withdrawn. Here too, an adverse inference can be drawn against the petitioner that he was trying to bring a time-barred claim within time. From the above facts, the petitioner was quite negligent in pursuing his cause at the appropriate stages.
For the aforesaid reasons, this writ petition being without any substance is hereby dismissed.