' CH. MUHAMMAI) ARIF, J.---Fazal Rahim Khattak appellant was offered the post of Junior Instructor (BPS-11) against a vacant post of Senior Instructor (Technical Teachers Training Wing) at Government Polytechnic Institute, Peshawar vide office order, dated 17-4-1980, which post he accepted on the same date. According to him, he holds Post Graduate Degree, M.Sc., Second Calss in Psychology and, in addition thereto, a Diploma of Technical Teachers Education. As he was discharging higher responsibilities of the post of Senior Instructgr in BPS-17 ever since the date of his posting, he represented to the respondents for grant of BPS-17 as also for regularization of his services in the said scale. Instead of making any decision on the representations of the appellant, the respondents relegated him to the post of Trade Instructor, this time in BPS-14 and not in BPS-11, by posting him to Vocational Institute, Ghazi on 24-10-1987. Within a short span of 2 months, he was again transferred and posted against the vacant post of Senior Trade Instructor at Government Vocational Institute, Bara. He once again represented to the respondent-Department for grant of BPS-17, but to no effect. Appellant's last representation was made to the Department on 17-1-1993 and, after expiration of 90 days thereof, he filed Appeal No.142 of 1993 on 17-5-1993 before the N.- W.F.P. Service Tribunal, Peshawar (hereinafter referred to as the Tribunal), with the following prayer:-- "It is, therefore, respectfully prayed that on acceptance of this appeal, this Honourable Tribunal may graciously be pleased:-- "(I) To regularise the appointment of the appellant in BPS-17 with effect from 17-4-1980.
"(II) To direct the respondents to disburse the appellant the monthly emoluments of BPS-17 alongwith all the appurtenant benefits like the annual increments etc; and assignment of proper seniority with effect from the aforesaid date on the Seniority List among the Senior Instructor(s)."
2. After obtaining parawise comments to his Memo. Of Appeal (No.142 of 1993) from the respondents wherein they had denied the accrual of cause of action pleading lack of requisite locus standi to maintain the same; being not competent for non joinder of necessary parties and being time-barred and, after hearing the parties, the Tribunal upheld the objection of the respondents/Department that the appeal was beyond time. Further, the Tribunal repelled their plea that the nature of duties performed by the appellant was different from that of a Senior Instructor and held the appellant entitled to the presumptive pay, inclusive of the increments of the post of Senior Instructor, for a period of only 3 years immediately preceding the institution of the appeal i.e. 17-5-1993. Paras. 16 and 17 of the impugned judgment, dated 27-7-1994, read thus:-- "16. The respondents could not satisfy us on the difference in the nature of duties performed by the appellant vis-a-vis those required of him as Senior Instructor. In case, the appellant was never assigned the duties of Senior Instructor as alleged by the respondents, then it was incumbent upon them to have downgraded and redesignated the post which the appellant was holding. He remained posted against the post of Senior Instructor involving higher responsibilities, right from 17-4-1980 to date, except for a brief spell of about 50 days. The Tribunal therefore, holds that the appellant actually worked against the post of Senior Instructor.
"17. The perusal of the record shows that at the time of his appointment as Junior Instructor against the post of Senior Instructor on 17-4-1980, he was not fully qualified/eligible to hold the post of Senior Instructor as at least he did not possess the prescribed length of five years teaching experience. This Tribunal therefore, holds that the appellant was entitled to the grant of the minimum of the pay scale prescribed for the post of Senior Instructor for the period he was not fully qualified to be appointed/promoted to the post. As for the remaining period less the period during which he actually performed the duties of Trade Instructor (BPS-14) from 24-10-1987 to 11-12-1987, during which he was fully eligible and qualified under the rules to hold the post of Senior Instructor, he is entitled to the presumptive pay inclusive of the increments of the post of Senior Instructor. He shall be entitled to draw arrears of pay only in respect of such period of his service as fell after or within three years immediately preceding the institution of this appeal i.e. 17-5-1993. The claim for arrears for the earlier period is time-barred. The appeal is accepted to this extent only. Parties are left to bear their own costs. File be consigned to the record."
3. This Court granted leave to appeal on 22-2-1995 to consider whether after holding the appellant entitled to presumptive pay including the increments of the post as also to arrears thereof, could he be legally denied the benefit afore-referred beyond the period of 3 years preceding the date of institution of the appeal?
4. Hence this appeal.
5. Mr. Abdul Qadir Khattak, learned Advocate Supreme Court, appearing for the appellant, has reiterated the pleas noticed in Leave Grant Order, dated 22-2-1995 and referred to Islamic Republic of Pakistan through Secretary, Finance Division, Government of Pakistan, Islamabad v. Qazi Abdul Karim, Deputy Accountant-General, N.-W.F.P., Peshawar and another (1978 SCM R 289) in support of his plea that an employee promoted to officiate in a post involving higher responsibilities is entitled to minimum pay of grade of the higher post. He was also critical of the Tribunal limiting the entitlement of the appellant to draw arrears of pay only for a period of 3 years immediately preceding the institution of the appeal. The plea was that the constraint of time afore-referred, is sans any support from the law.
6. Mr. Talat Qayyum Qureshi, learned Additional Advocate-General, N.-W.F.P. Has argued the case in relation to 3 facets thereof. Firstly in relation to grant of annual increments in BPS-17, he submitted that the appellant is not entitled to any such indulgence. Secondly, regarding grant of presumptive pay and arrears he submitted that the appellant is entitled to the minimum Scale of BPS-17 for the entire period in that limiting the same to only 3 years preceding the institution of the appeal, cannot be supported by him. Lastly, it was argued that in view of this Court's unreported judgments in Civil Appeals Nos.18, 128 and 539 to 551 of 1995, dated 26-2-1997 and in Civil Appeal No.156 of 1995, dated 12-1-1998, the matter in relation to regularization of services of persons similarly placed as the appellant cannot be resolved/decided in these proceedings in that the same is to be undertaken by the Department itself.
7. While exercising his right of reply to the arguments of the learned Law Officer, Mr. Abdul Qadir Khattak, learned counsel for the appellant, has also referred to this Court's judgment, dated 19-5- 1992 in Civil Petitions No.69-P and 70-P of 1991, to contend that in addition to allowing these reliefs to the appellant the Tribunal should have directed for the regularization of his services as Senior Instructor in BPS-17 as well.
8. We have considered the arguments addressed at the Bar on behalf of the appellant as well as the respondent-Department. A perusal of the photo copies of the precedent-cases, relied upon by the learned Law Officer, shows that the case of the appellant to the extent of receipt of minimum scale, without annual increment, with effect from 17-4-1980 todate finds support therefrom. The following excerpts from the judgment, dated 26-2-1997 are to the point:- "4. We will first of all take Civil Appeal No.128 of 1995 filed by the Government of N.-W.F.P. Against the judgment of Service Tribunal, dated 31-5-1994. We may mention here that in so far the judgment of Service Tribunal, dated 24-7-1994 in the remaining appeals is concerned, that has not been impugned by the Government of N.- W.F.P. The respondent in Civil Appeal No.128 of 1995 was appointed as S.E.T. In B-15 and adjusted against the post of Subject Specialist vide order, dated 26- 4-1988 w.e.f. 10-4-1998. The respondent was denied regularization against the post of Subject Specialist B-17 as well as pay in B-17 on the ground that his appointment as SET in B-17 was temporary appointment and therefore, he was not entitled to draw salary against the post of Subject Specialist which was a post in B-17. The learned Tribunal upheld the claim of the respondent in Civil Appeal No.128 of 1995 with regard to payment of minimum pay of B-17 as he was holding the post of Subject Specialist continuously from the date of his appointment. However, the learned Tribunal did not allow the claim of the respondent beyond the period of three years from the date he filed writ petition in the High Court on the ground that the pay for the period beyond that period was time-barred. The learned counsel for the appellants in Civil Appeal No.128 of 1995 contended that the respondent was not entitled to draw the salary against the post of Subject Specialist which was a post in B-17 as he did not possess the required qualification namely B.Ed. Or M.Ed. This contention of the appellants in Civil Appeal No.128 of 1995 was rejected by the Tribunal and rightly so in view of the decision in the case of Islamic Republic of Pakistan v. Abdul Karim (1978 SCM R 289) and Federation of Pakistan v. Shahzada Shahpur Jan (1986 SCM R 991). We, accordingly, find no substance in the contention of the appellants in Civil Appeal No.128 of 1995 which is, accordingly, dismissed.
"5. We now take up Civil Appeals Nos.18 of 1995 and 539 to 551 of 1995. In all these appeals, the appellants had claimed arrears of pay from the date they were appointed as Subject Specialists in B-17. The learned Tribunal though accepted their contention that having worked in the higher post in B-17, they were entitled to get minimum pay of B-17 from the date,of their respective appointments but their claim for arrears of salary was allowed only for a period of three years in the Civil Appeal No.18 of 1995 from the date of filing of Writ Petition in High Court and in all other cases from the date of institution of appeals before the learned Tribunal by the appellants in each case. The learned counsel for the Government has not been able to point out any law under which the claim for arrears of salary of the appellants could be denied on the ground that it had become time-barred. The learned Tribunal having held that the appellants were entitled to draw the minimum salary in Pay Scale. No.17 from the date of their appointment as Subject Specialist, could not reject the part of the claim of their salary on the ground that they were only entitled to, recover salary for three years from the date they filed appeals before the Service Tribunal. It may be mentioned here that the question regarding payment of salary of BPS-17 post was being agitated by the appellants from the date of their appointments, first before the departmental authority and thereafter before the Service Tribunal. In these circumstances, it was hardly open to arguments that their claim for salary for the period they worked against the post of Subject Specialist B-17 had become time-barred. The controversy with regard to entitlement of pay against the post of 13-17 having been agitated and finally decided by the Service Tribunal through the impugned judgments the appellants were entitled to the arrears of salary for the entire period they have worked against the post of Subject Specialist in B-17 on the basis of minimum pay payable against B-17. We, accordingly, partly allow appeal Nos.18 of 1995 and 539 to 551 of 1995 and modify the order of the learned Service Tribunal to the extent that the appellants in these appeals were entitled to the payment of minimum salary against the post of Subject Specialist B-17 from the dates of their respective appointments.
"6. In so far the claim of appellants in the above appeals with regard to their regularization against the post of Subject Specialist B-17 is concerned, the learned Tribunal rightly declined to grant the same as in the first instance the question of regularization of appellants against the post of Subject Specialist is to be considered by the department. Therefore, no exception can be taken to the judgment of the Tribunal in so far it left the question of regularization of appellants against the post of Subject Specialist B-17 to be decided by the department. The appeals stand disposed of, accordingly, with no order as to costs.
' So are the observations made by this Court in the second precedent in paras. 9 to 11 thereof, which reads thus:- "9. In the case of Shahzada Shahpur Jan (supra) (1986 SCMR 918) the question came up for consideration whether an incumbent who while working in the higher grade but without any formal order of promotion to the higher grade, was entitled to the pay of the higher grade in NPS-17 alongwith annual increments falling due every year. Three categories of officers were under consideration in the precedent case. It is not disputed that the case of the respondent herein relates to second category discussed in the aforementioned decision. The relevant passage whereof is at page 1005-H, which reads thus:-- "As regards the cases of the second category, the legality and the effectiveness of the Auditor- General's Standing Order, 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 that the presumptive pay admissible to those not fully qualified or otherwise ineligible."
"A bare perusal of the aforesaid passage would show that if a person is not qualified for a higher post for which he is performing his duties, it is within the competence of the competent authority to allow reduced terms than the presumptive pay to such incumbent. Clearly, the entitlement of the respondent for the grant of increments is not established. The Tribunal was, therefore, not right in allowing the increments to the respondents for the service rendered by him in the higher post for which latter was admittedly not qualified. In the case of Muhammad Hashim (supra) this Court, while dealing with the case of a person promoted to officiate in higher post involving the assumption of duties and responsibilities of greater importance, held that he would ordinarily be entitled to a higher pay unless the Government, in the exercise of the power given to it under Fundamental Rule, 35, has decided to give him a lesser benefit.
"10 In our view, therefore, the respondent had no vested right to claim the annual increments in the facts and circumstances of the case, pursuant to the earlier judgment of the Tribunal. The respondent has already been held entitled to the pay of higher post for the period he has so functioned but is not entitled to the benefits of increments of the higher post, as stated above.
"11 For the reasons given above, the appeal is accepted by setting aside the order of the Tribunal allowing the increments to the respondents. There shall, however, be no order as to costs."
9. Learned counsel for the appellant was not aware of the ratio in the precedent cases referred to by the learned Law Officer, excerpts wherefrom have been quoted in the preceding paragraph.
Even, a perusal of judgment, dated 19-54992, pressed into service by him while replying to arguments of his adversory, shows that in the said precedent as well as the grant of monitory benefits to the concerned employee in similar terms as in this case, was upheld. We find that the appellant was entitled to minimum scale of pay of the post of Senior Instructor in BPS-17 with effect from 17-4-1980 i.e. The date of his appointment as Junior Instructor and posting against a vacant post of Senior Instructor.
10. As regards the entitlement of the appellant to annual increments, suffice it to say that in line with the precedent-cases dealt with in paras. 7 to 9 above, the appellant is not entitled to the same.
11. Even the question with regard to reglarization of appellant's services need not detain us any longer. The learned Tribunal did attend to this question in para. 9 of the impugned judgment and came to the conclusion that the post of Senior Instructor falls within fife purview of the Public Service Commission and as he could not make the grade before the Commission, therefore, he was not a bona fide ad hoc appointee but was holding the post of Senior Instructor as stop-gap arrangement. It is not denied that appellant's earlier representations requesting for appointment as Senior Instructor on ad hoc basis were turned down by the Department and that he did not challenge such orders of the respondent-Department any further. The plea that the case of the appellant falls within the purview of section 3 of, the N.-W.F.P. Ad Hoc Civil Servants (Regularization of Services) Act, 1987 cannot but be repelled, which we hereby do.
12. The above are the reasons for our short order of even date which reads thus:- "For reasons to be recorded later, the appeal is accepted, allowing the salary to the appellant as Senior Instructor, at minimum scale.
"There will be no order as to costs."