' MUHAMMAD KHURSHID KHAN (CHAIRMAN).-Sultan Bahadur, Assistant Accounts Officer in the office of the Director of Agriculture, N.-W. F. P. Was appointed as Section Officer in the Civil Secretariat on deputation basis for a period of six months vide an order Annexure III. He was to draw pay, etc. In his own pay scale as admissible to him in his parent Department. This appointment was extended for a further period of six months. He served as Section Officer for a period of one year, I. e. From 14- 5-1973 to 13-5-1974. As was repatriated to his parent Department on 13-5-1974 vide order dated 8- 5-1974 Annexure V. The North-West Frontier Province (Gazetted) Civil Services (National Scales of Pay) Rules, 1974 (hereinafter called the Rules) were promulgated on 3rd April, 1974. The appellant opted for the Rules which came into effect from 1st March, 1972. He then moved the Accountant- General, N.-W. F. P. For the fixation of his pay as Assistant Accounts Officer as well as Section Officer with special pay. The Accountant-General, however, declined to fix his pay as Section Officer in National Pay Scale No, 17 and also refused to allow him special pay vide Annexure-VIII. The Government addressed a letter dated 4-12-1974, Annexure-I, to the Accountant-General, N.-W. F. P.
Intimating that the appellant was, during the period of his deputation, drawing his pay in grade 16 and was not allowed either grade 17 or special pay of Rs, 220 p. m. The appellant challenged this position by means of a Departmental Appeal, Annexure-IX, to the Governor but with no success. He was subsequently intimated vide letter dated 27-12-1975 endorsed to him on 5-1-1976, Annexure H, that the Finance Department had not agreed to the request made by him. Aggrieved from this decision, he has come on appeal to this Tribunal.
2. It was strenuously contended by the appellant that he was legally entitled to pay in National Pay Scale No, 17 admissible to Section Officers under the Rules plus a special pay of Rs, 220 per mensem for the period he served as Section Officer. He, in support of his contentions, relied on section 17 of the N.-W. F. P. Civil Servants Act, 1973, rule 6 of the Rules and rules 22 (a)(i) and 31 of the Fundamental Rules, besides PLD 1965 SC 106 and 1969 Dacca 254. The Government Pleader, on the other hand, maintained that the appellant was appointed on deputation as Section Officer on his own pay and scale without promotion to the post of Section Officer in grade 17 and, as such, he was neither entitled to the pay in grade 17 nor to the Special Pay claimed by him.
3. Before we proceed to deal with the respective contentions of the parties, we would like to reproduce the relevant provisions of the Law and the Rules referred to by them. Section 17 of the N.- W. F. P. Civil Servants Act, 1973 reads as under: "17. Pay.-A civil servant appointed to a post or grade shall be entitled, in accordance with the rules, to the pay sanctioned for such post or grade: ' Provided that, when the appointment is made on a current-charge basis or by way of additional charge, his pay shall be fixed in the prescribed manner: ' Provided further that where a civil servant has, under an order which is later set aside, been dismissed or removed from service or reduced in Rank, he shall, on the setting aside of such order be entitled to such arrears of pay as the authority setting aside such order may determine."
' Rule 6 of the Rules reads thus: "6. The pay of every Government servant covered by rule 5 shall be fixed both in the scale of his substantive post and the scale of the post held by him in temporary or officiating capacity."
' Rules 22 and 31 of the Fundamental Rules are in these terms:- "F. R.
22.-The initial substantive pay of a Government servant who is appointed substantively to a post on a time-scale of pay is regulated as follows:-
(a) If he holds a lien on a permanent post, other than a tenure post, or would hold a lien on such a post had his lien not been suspended.
(i) when appointment to the new post involves the assumption of duties or responsibilities of greater importance (as interpreted for the purposes of rule 30) than those attaching to such permanent post, he will draw as initial pay the stage of the time-scale next above his substantive pay in respect of the old post;
(ii) when appointment to the new post does not involve such assumption, he will draw as initial pay the stage of the time-scale which is equal to his substantive pay in respect of the old post, or if there is no such stage the stage next below that pay plus personal pay equal to the difference, and in either case will continue to draw that pay until such time as he would have received an increment in the time-scale of the old post or for the period after which an increment is earned in the time-scale of the new post, whichever is less. But if the minimum pay of the time-scale of the new post is higher than his substantive pay in respect of the old post, be will draw that minimum as initial pay;
(iii) when appointment to the new post is made on his own request under rule 15(a) and the maximum pay in the time-scale of that post is less than his substantive pay in respect of the old post, he will draw that maximum as initial pay.
"F. R.
31.-Subject to the provisions of rules 26(c), 30 and 35 a Government servant officiating in a post will draw the presumptive pay of that post provided that, (except in the case of a Government servant whose appointment to the post in which he is officiating was made on his own request under rule 15(a), if the presumptive pay of the permanent post on which he holds a lien or would hold a lien had his lien not been suspended + (*), should at any time be greater than the presumptive pay of the post in which he officiates, he will draw the presumptive pay of the permanent post."
' It is common ground between the parties that the appellant was Assistant Accounts Officer, Class-1I, in the office of the Director of Agriculture, N.-W. F. P., when he was appointed as Section Officer in the Civil Secretariat on deputation basis and was to draw pay, etc. In his own pay scale as admissible to him in his parent Department. In the parent Department, he was in the pay scale of 350 -35-525/40 25 whereas the pay scale for Section Officer was 450-50 -1,000. It may be pointed out that before the enforcement of the Rules, the West Pakistan (Gazetted) Civil Services (Pay Revision) Rules, 1964 were in vogue and under these Rules, Technical Section Officers in Senior Class I scale P. C. S. Officers, appointed as Section Officers, were allowed Special Pay of Rs, 220 per mensem. In the Rules, Section Officers belonging to the Secretariat Service were allowed Junior Scale of Rs, 500- 50-1,000/50-1,250 (National Scale No, 17) whereas for others, the grade provided was the same grade plus special pay of Rs, 220 per month. The assertion of the appellant that he was entitled to the pay in grade 17 under Section 17 of the N.-W. F. P. Civil Servants Act, is not tenable. In this context, it may be stated that a civil servant appointed to a post or grade is no doubt entitled to the pay sanctioned for such post or grade but this right is not an absolute one and is subject to be governed by the rules. The term "in accordance with the rules" is significant and cannot be lost sight of. It is true that under rule 6 of the Rules, the pay of every Government servant covered by rule 5 shall be fixed both in the Scale of his substantive post and the scale of the post held by him in temporary or officiating capacity but it is equally true that the appellant held the post of Section Officer as a deputations on his own pay and scale and not in the pay scale of a Section Officer. On exercising his option for the Rules, the pay of the appellant to be fixed under rule 6 ibid would be the same which had to be fixed in the parent Department. Normally unless an officer is promoted to a higher grade, he cannot claim pay admissible in that grade. The appellant was never promoted as Section Officer and, as such was not entitled to the pay in the grade meant for a Section Officer. The appellant was not, by operation of the Rules, promoted to grade 17, and it being so, he cannot claim pay in this grade.
4. Coming now to the Fundamental Rules reproduced above, we are of the view that they have no relevance to the present case. Fundamental Rule 22 regulates the initial substantive pay of a Government servant who is appointed substantively to a post on a time scale of pay whereas F. R.
31 pertains to the pay of a Government Servant officiating in another post if the presumptive pay of the permanent post on which he holds a lien is greater than the post in which he officiates. Since the appellant, as Section Officer, was drawing presumptive pay of the permanent post of his own Department, these rules shall not be applicable to his case. The appellant relied on PLD 1969 Dacca 254 but the observations made therein are not attracted to the facts of the instant case.
The facts of that case briefly are that the petitioner held the post of Superintendent Class If and from 8th of November 1961, he officiated as Superintendent, Class I, Junior Grade, continuously for about four years. The scale of pay of Class I Superintendent, Junior Grade, was higher than that of Superintendent, Class II. He was, however, not allowed to draw the pay to which he was entitled while officiating in Class I post. It was contended on behalf of the respondent that the petitioner was asked to officiate in Class I post which was downgraded and, therefore, holding a Class II post, he could not ask for the salary of Class I post. While repelling this contention, their Lordships, observed that the petitioner, in terms of Fundamental Rule 22(a) (1) read with F. R. 31 was entitled to the pay attached to Superintendent, Class I, Junior Grade, for the period for which he officiated in that post and that the post could not be down-graded for the purpose of not paying the salary of the person officiating. These facts on which the above observations are founded are absolutely distinguishable from the facts now before us and the authority is of no assistance to the appellant.
Similarly, the observations made in PLD 1965 SC 106 which proceed on absolutely different facts cannot be availed of by the appellant.
5. Reverting now to the appellant's claim for special pay of Rs, 220 per mensem, it may be stated that he was a Class II officer in the parent Department. As remarked above, the special pay of Rs, 220 was admissible to Technical Section Officers in Senior Class-I Scale/P. C. S. Officers appointed as Section Officers, under the West Pakistan (Gazetted) Civil Services (Pay Revision) Rules, 1964.
This special pay was not attached to the post of a Section Officer inasmuch as Section Officers from the Secretariat Service were not entitled to it, and instead, it was admissible to the category of Officers mentioned above. Since the appellant was not in Senior Class I scale nor was he a P. C. S. Officer, he was not entitled to the special pay under the aforesaid Rules. It is provided by rule 13 of the Rules that if a special pay was attached to a post or admissible to certain incumbents of such posts in the existing pay scales, such special pays shall, unless otherwise specified in the Schedule, continue to be admissible at the existing rates with the National Pay Scales, without any maximum limit of pay. The special pay, in the instant case, was neither attached to the post of Section Officer nor was admissible to the appellant who was neither Senior Class I nor a P. C. S. Officer. It follows that the appellant could not make out a case for special pay claimed by him. From the above, it will be seen that the appellant was not entitled, without being promoted as Section Officer in grade 17, to the pay of the said post and was to draw his (own) pay which he was drawing in the parent Department as would be evident from the terms and conditions of his letter of appointment.
6. As a result of the foregoing discussion, we find no substance in this appeal and dismiss it with no orders as to costs.