' MIAN MUHAMAMD AJMAL, J.---By this common judgment we propose to dispose of Civil Appeals Nos.108, 698, 699, 701 to 712, 849 to 861, 951 to 967, 971 to 975 and 1012 to 1017 of 2000 as they involve identical questions of law and facts.
' Facts of C.A. No, 108 of 2000.
' Malik Aman respondent was appointed as S.V. Untrained Teacher on fixed pay by the Divisonal Director of Education (Schools), Peshawar vide order dated 15-10-1980. He was allowed graded pay w,e,f, 1-8-1988 vide order dated 31-10-1988 after he passed C.T. Examination. He also passed M.A.
Examination from University of Peshawar in 1992. He filed departmental appeal on 16-1-1996 for grant of running pay and other benefits claiming that he was entitled to graded pay from the date of his appointment. His departmental appeal was not responded within the statutory period, as such, he filed Appeal No,340 of 1996 before the N.-W.F.P. Service Tribunal, Peshawar (hereinafter to be called the Tribunals), which was allowed vide impugned judgment dated 24-9-1998, the respondent was declared entitled to the graded pay w.e.f 15-10-1980 i,e, the date of his appointment and he was also held entitled to the arrears from the date of his departmental appeal. Feeling aggrieved the appellants/department preferred. C.P. 256-P/98, wherein leave was granted by this Court on 16-3-2000 as under:-- "Mr. Imtiaz Ali, learned Addl. A.G. N.-W.F.P., in support of this petition contended with reference to the case of Muhammad Riasat S.E.T. (Science) and others v. The Secretary Education, Government of N.-W.F.P. Peshawar and 2 others (1997 SCMR 1626) that besides the service appeal being hopelessly time-barred, the learned Tribunal has erred to grant relief to the respondent ignoring the law laid down by this Court in the case of. Muhammad Riasat (supra) (1997 SCMR 1626) that the civil servants were entitled to graded pay with effect from the date of obtaining basic qualification prescribed for the post he is holding and not from the date of appointment when he was not possessed of such prescribed qualification.
' In the case of Muhammad Riasat (supra), this Court has held that f the civil servants who had accepted the terms and conditions initially offered to them wherein they were entitled to a fixed pay of the scale without any increment and since he had attained the basic qualification from a specific date, he would be entitled to the graded pay with effect from the date he had acquired the basic qualification (in that case of B.Ed Examination) and not from the date of initial appointment on temporary basis.
' Leave to appeal is granted to consider whether the learned Service Tribunal was not justified to follow the law laid down by this Court on the subject in the case of Muhammad Riasat (supra)
(1997 SCMR 1626)."
' Almost same is the position in connected Civil Appeals Nos.698, 699, 701 to 712, 849 to 864, 951 to 967 and 1012 to 1017 of 2000.
' In Appeals Nos.971 to 975/2000, the appeals of the private appellants before the Tribunal were accepted as under:-- "On factual side, the appellants have got sufficient teaching experience at their credit. According to the authority of the Hon'ble Supreme Court of Pakistan 1976 SCMR page 297, no distinction can be made between a trained and untrained teacher with regard to the graded pay. Moreover, according to the Hon'ble Supreme Court of Pakistan, if an employee is made to work against a particular post, he is entitled to all the monetary benefits attached therewith. The question of graded pay has been thoroughly thrashed by this Tribunal and the judgments have been upheld by the Supreme Court, of Pakistan. The reply of the respondent-department has got no cogent objection except the trained and untrained. If a person has qualified the basic requirement for a post from a certain date, he is fully entitled for the award of graded pay from the date of qualification and in other cases, the person holding the post is entitled to the pay of the post and not fixed pay. A civil servant who is made to work against a particular post is fully entitled to all the benefits attached to that post. So with these observations, the appeals in hand as well as the connected 10 appeals are accepted as prayed for, with no arrears and no advance increments. No order as to costs. File be consigned to the record."
' Feeling aggrieved, the appellants challenged the above decision of the Tribunal before this Court through Petitions for Leave to Appeals Nos.301-P to 305-P of 2000, wherein leave was granted as under:- "This order will dispose of C.Ps. 301-P to 305-P/2000. All these civil petitions call in question the legality of the order of the learned Service Tribunal whereby on the one hand they had been held entitled to graded pay from the date of induction in service as prayed for in the petition and on the other they were not given arrears and advance increments from the said date.
' Learned counsel for the petitioners stated that this is contradictory order itself, because what was given on one hand has been taken on the other. He stressed that the petitioner should-have been given all the benefits of graded pay from the date of joining the service. He referred to C.P. 170- P/2000 to C.P. 180-P/2000 and submitted that leave has been granted in the above cases on the same points. We also grant leave in these petitions to consider the above submission and also for the reasons given in the leave granting order of the other connected petitions."
' Civil Appeals Nos.703 to 705 and 712 of 2000 are barred by time by 16 days and 92 days, respectively.
2. Learned Additional Advocate General contended that the appeals of the respondents were hopelessly time-barred from the date of their appointments as they approached the Tribunal after the lapse of long time, in some cases it is more than ten years, therefore, their appeals were liable to be dismissed on this score alone. He submitted that when they were employed in service they were untrained and did not possess the requisite qualifications for the posts, therefore, they were appointed on fixed pay as reflected in their letters of appointment. They on acceptance of the terms and conditions of their employment joined the service. They were granted graded pay after they acquired the requisite qualifications. They were estopped by their conduct to claim graded pay from the date of their initial appointment as they had accepted the terms and conditions of service when they were initially appointed. He urged that respondents were rightly given graded pay on acquiring the requisite qualifications for the post held by them. Reliance was placed on the case of Muhammad Riasat, SET (Science) and others v. The Secretary of Education, N.-W.F.P.
Peshawar and 2 others (1997 SCMR 1626), wherein it has been laid down that the teachers were entitled to graded pay with effect from the date they attained basic qualification for the post and not from the date of initial appointment on temporary basis.
3. On the other hand, learned counsel for the appellants in C.As. 971 to 975 and respondents in other appeals, contended that no doubt respective appellants and the respondents were untrained teachers till they acquired the requisite qualification, whereupon they were allowed graded pay from the date they qualified the training course, however, they served as teachers and discharged full duties like trained teachers, as such, they were entitled to running pay alongwith annual increments and other service benefits. Reliance was placed on Province of Sindh through the Secretary, Education Department, Karachi and 2 others v. Ghulam Rasul and 35 others (1976 SCMR 297) and N.-W.F.P. Government through Secretary Education, Peshawar and others v. Muhammad Qavi Khan (1996 SCMR 1011)
4. In the interest of justice and 'similarity of the point involved in all the cases, the delay in filing Civil Appeals Nos.703 to 705 and 712 of 2000 is condoned.
5. After hearing the learned counsel for the parties and going through the record of the case, we are inclined to follow the law laid down in Muhammad Riasat's case, supra as the learned Bench, after examining the divergent decisions rendered in C.P. 204-P, 205-P of 1991 and C.P 288-P of 1993 (1996 SCMR 1011) and relying on page 1005 placitum given in Federation of Pakistan v. Shahzada Shahpur Jan and others (1986 SCMR 991), held as under:-- "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."
It is an admitted fact that the respondents at the time of their initial appointment did not possess the basic qualification for the post and they accepted the terms and conditions of their service whereby they were employed on fixed pay. They never raised any objection with regard to their fixed pay when they were employed or till the time they were awarded graded pay on acquiring the requisite qualification. Once the respondents had accepted the fixed pay for the lack of requisite qualification, they were estopped by their conduct to claim graded pay from the date of their initial appointment and they cannot be allowed to take a turn after a considerable long time to say that they were entitled to the graded pay from the date of their initial appointment though they were not qualified for the same.
6. Consequently, we allow appeals filed by the department and dismiss that of the private appellants i,e, C.As. 971 to 975/2000. In C.A. 962/2000 as the respondent has not acquired the requisite qualification so far, therefore, the impugned judgment to his extent is set aside and he is declared to be not entitled to the graded pay. No order as to costs.