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Petitioner: GOVERNMENT OF WEST PAKISTAN AND ANOTHER VS Respondent: AYUB HASSAN
Court Name: Sindh High Court Judge(s): Ghulam Rasool K. Shaikh Title: GOVERNMENT OF WEST PAKISTAN AND ANOTHER vs AYUB HASSAN Case No.: Second Appeal No, 528 of 1969 Date of Judgment:1970-08-17 Reported As: PLD 1971 Karachi 848 Result: Appeal allowed
JUDGMENT
JUDGMENT This is an appeal against the Judgment of the learned Additional District Judge, Nawabshah, maintaining the Judgment and decree passed by the Civil Judge. The respondent is now serving as a Civil Judge under the West Pakistan Civil Service Judicial Branch. He had appeared in the competitive examination held in the year 1963 and was declared successful. Subsequently by letter No, SP-6-34/64-SOX Lahore, dated 14th December 1964 (Exh. 22) he was appointed as Civil Judge. This letter reads as under : "The Governor of West Pakistan is pleased to appoint you a Civil Judge in the West Pakistan Civil Service (Judicial Branch) in the consolidated scale of pay of Rs, 450-50-1,000, subject to the following conditions : "1. Medical Fitness. Your appointment is contingent on your passing the medical test, verification of your date of birth and antecedents etc. You will have to appear before the Standing Medical Board. The appropriate date and time and the station where you are to be medically examined will be intimated to you later. The date of birth is to be verified for official purpose from the authenticated documents. You are required to submit for inspection your Matriculation School leaving Certificate or some other certificates, in original, granted by the University or Institution which contains the required information. 2. Pay. You will be allowed subject to the approval of the Finance Department initial pay of Rs, 350 p.m. which will be raised to Rs, 400.00 p.m. on your passing the Departmental Examination by the lower
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standard and Rs, 450.00 p.m. in the scale of Rs, 450-50-1,000 on attaining the Higher Standard. 3. Probation. You will be considered on probation for a period of 2 years with effect from the date you actually resume duty. 4, Departmental Examination. You will be required to pass the Departmental Examination prescribed in the West Pakistan Civil Service (Judicial Branch) Rules 1962, by the Higher Standard within two years and in case you fail to do so your service may be terminated without notice. The Departmental Examination are held twice a year and your application for taking the same should be forwarded through normal channel. 5. Leave & Pension. You will be governed by the Civil Service Rules of the West Pakistan Civil Service (Judicial Branch) Rules, 1962. 6. Medical Attendance. You will be governed by the West Pakistan Government Medical Attendance Rules, 1959. The members of your family will also be eligible free of charge, medical attendance, treatment in a hospital on the scale and condition allowed to you. 7. Other Conditions of Service. You will be governed by the West Pakistan Civil Service (Judicial Branch) Rules, 1962. 8. Government Servants Conduct Rules. You will be governed by the Government servants conduct Rules and such other rules as may have been or may be enforced by the Government in this behalf. 9. General. You will be governed by all the other rules and instructions issued by Government for Provincial Government Servants, from time to time. The offer hold good for a period of one month. In case you accept the offer on the foregoing terms and conditions you are requested to contact the Registrar, High Court of West Pakistan Lahore, who will issue your posting orders." The respondent resumed as Civil Judge on 16th January 1965, in the afternoon. Although he was appointed in the time scale of Rs, 450-50-1,000 but his initial pay was fixed at Rs, 350 which was to be raised to Rs, 400 on his passing the departmental examination by lower standard and to Rs, 450 in the time scale on attaining the higher standard. It may be mentioned here that prior to the appointment as Sub-Judge he was working as Assistant in the Central Public Service Commission and was holding the post substantively and was drawing Rs, 405 per month as his pay. The period of probation according to the letter was 2 years but it was extended by one year under rule 8 of the West Pakistan Civil Service (Judicial Branch) Rules, 1962 by letter No, SP-7-4/64-SOX dated 26-11-66 (Exh. 26). So the extended period expired on 17th January 1968, but till then the respondent had not passed the higher standard examination. He passed it on 27.1-68. However, no confirmation order was issued by the Government but the respondent claimed that he was deemed to have been confirmed from the date of his original appointment as Civil Judge by virtue of Explanation 2 to clause B sub-rule 3 of Rule VIII of P. C. S. (Judicial Branch) Rules, 1962. As amended vide Notification No, SOS-V111-218/63 dated 14th April 1966, Part 1. On the basis of this and in view of note IV below Rule 4.4 of Civil Service Rules Punjab Vol. I he was entitled to have his pay re-fixed in the time scale next above his substantive pay in respect of his old post. Thus he claimed his initial starting pay at Rs, 450 per month. He further claimed all the increments retrospectively in view of Audit Instruction No, V of Fundamental Rule 26. Thus he claimed three increments falling due on 17-1-66, 17-1-67 and 17-1-68. In addition he claimed Rs, 100 per month on account of his passing the departmental examination and pay for 2 days as joining time i,e, 15th and 16th January 1965.
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In spite of the representation made by the respondent no heed was paid and the Comptroller fixed his pay at Rs, 450 in time scale with effect from 27-1-68. Consequently the suit was filed after service of notice dated 28th March 1968, under section 80, C. P. C. The suit was resisted and various pleas were taken. It was pleaded that the appointment of the respondent was subject to condition No, 2 as shown in the appointment letter and accordingly he was allowed initial pay of Rs, 350 per month and, therefore, on the passing of the departmental examination the pay was fixed at Rs, 450 in the time scale with effect from 27-1.68 and the next increment would fell due on 27th January 1969. No confirmation order was passed as the confirmation of all judicial officers had been kept pending till the finalisation of the seniority list of the judicial officers belonging to various integrating units. The respondent had accepted the appointment with terms and conditions laid down in the letter fixing his pay at Rs, 350 p.m. subject to further limitations and, therefore, he was not entitled to claim Rs, 450 as initial start. It was denied that the respondent was holding a substantive appointment of the post of assistant in the Central Public Service Commission. It was disputed that the respondent was entitled to claim annual increments from the date of his appointment, but he was entitled to earn increments in the time scale after the passing of the departmental examination by higher standard. He was not entitled to claim pay on the basis of his old post as he was a substantive holder of a temporary post. On recruitment to the Provincial Service his pay could not be substantive or protected for the purpose of pay fixation. His pay was regulated as per Government of West Pakistan S&GAD letter No, SP-6- 34/64-SOX dated 27th August 1967, read with their letter No, SP-6-34/64-SOX dated 13th April 1968. The receipt of the notice was admitted but the matter was still under consideration of the Government for final decision and in the meantime the respondent filed the suit which was premature and not legally maintainable. On the basis of the above pleadings following issues were framed : "(1) What is the effect of Government letter No, SP-8/8/65SOX dated 11.4-1966 on the terms and conditions of appointment order? (2)Whether the plaintiff is deemed to have been confirmed in his appointment on expiry of his probationary period? If so, from what date and with what effect ? (3)Whether the plaintiff is entitled to have his pay refixed on his confirmation under F. R. 22(b) Audit Instruction No, 6 from the date of his appointment ? (4)Whether the plaintiff is entitled to draw annual incre-ments from the date of his appointment in the time scale of P.C.S. (J.B.) ? (5)Whether the suit is not maintainable at law ? (6)Whether the suit is premature ? (7)What should the decree be ? Additional Issues (1)Whether the plaintiff was holding permanent appointment in the Central Government before his appointment to P.C.S. (J.B.) and was in receipt of the substantive pay ? (2)Whether the plaintiff is entitled to an increase of Rs, 100 per month on passing his departmental examination ? (3)Whether the plaintiff is entitled to joining time, joining time pay, and T.A. etc. on his appointment to P.C.S. (J.B.)?" The respondent appeared in the witness-box and produced various documents in support of his contentions, while one witness Mr. Samiullah Khan Assistant Account Officer in the office of the Comptroller S. A. W. P. Karachi, was tendered on behalf of the appellant and he produced certain documents. The learned Civil Judge on consideration of the various documents and different
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rules accepted the contention of the respondent and decreed the suit, except Rs, 100 claimed on account of passing the examination. Against this decision an appeal was filed. Before the learned Additional District Judge issues 2 to 4 were agitated and, therefore, he renumbered them as 1, 2 and 3. On consideration of the contentions raised before him, he confirmed the view taken by the learned Civil Judge and dismissed the appeal. Consequently the present second appeal had been filed. Before proceeding to consider the merits of the controversy it is necessary to refer to the documents and various rules relied upon by the parties. Letter of appointment has already been reproduce above. In this letter the initial pay of the respondent was fixed at Rs, 350 although he was appointed to the time scale of Rs, 450-50-1,000. This pay was to be raised to Rs, 400 on his passing the departmental examination by lower standard and to Rs, 450 in the time scale on attaining the higher standard. The period of probation was fixed at 2 years and it was subsequently extended by one year. By this letter, West Pakistan Civil Service (Judicial Branch) Rules, 1962, were made applicable. The relevant rule for this purpose is rule 8 which reads as under. "Probation (1) A person appointed to the service against a substantive vacancy shall remain on probation for a period of two years. Explanation Officiating service and service spent on deputation to a corresponding or a higher post may be allowed to count towards the period of probation. (2) If the work or conduct of a member of the Service during the period of probation has been unsatisfactory Government may, notwithstanding that the period of probation has not expired, dispense with his service. (3) On completion of the period of probation of a member of the service, Government may subject to the provisions of sub-rule, (4) confirm him in his appointment, or if his work or conduct has in the opinion of Government not been satisfactory-- (a)dispense with his service ; or (b)extend the period of the probation by a period not exceeding two years in all, and during or on the expiry of such period pass such orders as it could have passed during or on the expiry of the initial probationary period. Explanation I.--If no orders have been made by the day following the completion of the initial probationary period, the period of probation shall be deemed to have been extended. Explanation II.--If no orders have been made by the day on which the maximum period of probation expires, the probationers shall be deemed to have been confirmed in his appointment. (4) No person shall be confirmed in the service unless he successfully completes such training and passes such departmental examinations as may be prescribed by Government from time to time. (5) If a member of the service fails to complete successfully the training or pass any departmental examination prescribed under sub-rule (4), within such period or in such number of attempts as may be prescribed by Government. Government may dispense with his service." It may be mentioned that explanation 2 as stood prior to amendment by Notification 2 No, SOX- VIII.218/63 dated 14-4.66 reads as under :- "If no orders have been made by the day on which the maximum period of probation expires, the probationer shall be deemed to have been confirmed in his appointment from the date on which the period of probation was last extended or may be deemed to have been so extended." By amendment the following words were deleted : "from the date on which the period of probation was last extended or may be deemed to have been so extended." The respondent passed the departmental examination on 27th January 1968, but he was not required to undergo any training. So far the question of pay is concerned the appointment letter laid down that the initial pay would
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be Rs, 350 which would be raised to Rs, 400 per month on passing the departmental examination by lower standard and Rs, 450 p.m. in the time scale of Rs, 450-50-1,000 on attaining the higher standard. Thus according to this letter the fixation of pay was not dependent upon the confirmation nor the date of confirmation is relevant for the purpose. According to the letter the pay had to be refixed on the passing of the departmental examinations and, therefore, the increments would be earned on the expiry of one year after the passing of the higher standard examination. The Government has the power under Fundamental Rule 35 to fix the pay at a rate lower than the time scale. The rule reads as under : "A local Government may fix the pay of an officiating Government servant at an amount less than that admissible under these rules." It may be mentioned here that this power cannot be exercised generally but separate order has to be passed in an individual case as required by government note under the rule as it was laid down that a general order purporting to oust universally the operation of F. R. 31 would be ultra vires of F. R. 35. Fundamental Rule 31 reads as under :- "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." Although under F. R. 31 the pay of a Government servant has to be fixed in reference to his previous post which he holds substantively but this rule is subject to the provisions of Rule 35 and, therefore, a Government servant cannot claim that his pay must be fixed not less than the pay which he was previously drawing in his substantive post. Fundamental Rule 22 deals with the fixation of initial substantive pay of a Government servant who is appointed substantively to a post in time scale of pay. The relevant portion of the rule which has been relied upon by the parties reads as under : "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. (b) When appointment to the new post involved the assumption of duties or responsibilities of greater importance (as interpreted for the purpose 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 the 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, he will draw that minimum as initial pay; (h) If the conditions prescribed in clause (a) are not fulfilled he will draw as initial pay the minimum of the time scale. Audit Instructions (6) When a Government servant is appointed to officiate in a post on a time-scale of pay but has his pay fixed below the minimum of the time-scale under F. R. 35, he must not be treated as having
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effectively officiated in that post within the meaning of F. R. 22, or having rendered duty in it within the meaning of F. R. 26. Such an officer on confirmation, should have his initial pay fixed under F. R. 22(b) and draw the next increment after he has put in duty for the usual period required to be calculated from the date of his confirmation." Then comes Fundamental Rule 24 which lays down that an increment shall ordinarily be drawn as a matter of course unless it is withheld. F. R. 26 also deals with the increment and the relevant portion reads as under :- F. R. 26.--The following provisions prescribe the conditions on which service counts for increments in a time-scale:- (a) All duty in a post on a time-scale and periods of leave other than extraordinary leave count for instruments in that time-scale. Audit Instructions: (5) If a probationer is confirmed at the end of probation exceeding twelve months, he is entitled to claim retrospectively the increments which, but for his probation, he would have received in the ordinary course." Similar provisions exist in Civil Service Rules (Punjab) Volume I, Rule 4.7 lays down : "An increment shall ordinarily be drawn as a matter of course unless it is withheld." Rule 4.9 lays down : "All duty in a post on a time cable counts for increments in that time-scale." The note 4 appended to this rule reads as under :- "A Government servant who holds substantively a permanent post in a cadre and is appointed "on probation" to another post (vide concluding portion of rule 2.49) will count service for increment in the post which it is actually rendered i,e, the post which he holds "on probation". He will, therefore, draw increments in that post even before the end of his probation if the period of probation exceeds twelve months." This note was deleted after the respondent's case, Then is Note 7 to Rule 4.13 which reads as under: -- "The pay of a Government servant officiating in a post the pay which is subject to increase upon the passing of an examination or on the completion of a certain period of service is the pay which he would, from time to time, receive if he held the post substantively." Under Civil Service Rules (Punjab) the Government has also power to fix the pay of a government servant at lesser amount. This is rule 4.16 and it reads as under: "A competent authority may fix the pay of an officiating Government servant at an amount less than that admissible under these rules." Audit Instructions No, 2(a), (b) and (c) under F. R. 9(6) reads as under (a)The terms "probationer" does not cover a Government servant who holds substantively a permanent post in a cadre and is appointed ''on probation" to another post. (b)No person appointed substantively to a permanent post in a cadre is a probationer, unless definite conditions of probation have been attached to his appointment, such as the condition that he must remain on probation pending the passing of certain examinations. (c)The status of a probationer is to be considered as having the attributes of a substantive status except where the rules prescribed otherwise. Now I propose to advert to some of the letters which have been referred to during the course of arguments. The Government issued letter No, F. D. S. 0. 1 (S. R.) 432/59, dated 27th May 1959 (Exh. 41) regarding the pay and allowances to be allowed to a Government servants, during the period of training. It lays down that in case the period of training is less than one year or upto one year the amoluments would be 3/4th of the initial pay plus usual allowances and if the period is more than one year the emoluments would be 3/4th of the initial pay with allowance plus the annual
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increment for every subsequent year. The para. 2 of the letter which may be found useful reads as under : "As regards those already in Government service whether permanent or officiating, their case will be governed by the provisions of rule 4.3 of C. S. R. Pb. Vol. 1, Part 1, Rule 35 of S. C. S. R. and Rule 20 of the Fundamental Rules." In view of the representation made by the respondent, there was some correspondence with the Government about the re-fixation of the pay of the respondent on his appointment to the Provincial Civil Service (JB) and payment of salary for the period of joining time. Consequently the Government sent a letter No, S. P. 8/8/65 S 0 X, dated 11-4-66 (Exh. 24) to High Court, which reads as under : "I am directed to refer to your letter No, 1565-Gaz./VI. J. 375 dated the 9th February 1966, on the subject noted above and to say that so far as the pay during the period of training to Mr. Ayub Hassan P. C. S. (JB) is concerned he will be entitled during the period of training, the pay which he would have drawn had he not been placed under training under rule 4.3 of the C. S. R. Pb. Volume 1 or Rule 20 of Fundamental Rules. 2. As regards T. A. joining time pay, the case of Mr. Ayub Hassan is governed by clause (A) of Note 7 below rule 9.1 of the C. S, R. Pb. Volume 1 part and he will be entitled to T. A. joining time and joining time pay." Rule 4,3 of Civil Services Rules (Punjab) Part I and rule 20 of Fundamental Rules mentioned in the foregoing letter deal with the same subject and are analogous with slight language difference. Rule .3 of C. S. R (Punjab) reads as under : "4.3 When a Government servant is treated as on duty under rule 2,16(b), the competent authority may, at its option, authorise payment to him of the pay of his substantive appointment or any lower rate of pay which it may consider suitable. If the duty consists a course of training or instruction and the Government servant was at the time when he was placed on such duty, in receipt of higher pay on account of an officiating appointment, he may on every occasion during the period of instruction or training when he would have held that officiating appointment but for such training or instructions, be allowed to draw, instead of either of the rates just specified, pay equivalant to what he would have drawn had he been holding the officiating appointment." In the above rule there is the mention of rule 2 (16) (b) which reads as under : "Duty............................................ (1)................................... (2)................................... (3)................................... (b) A Government servant is also treated as on duty under the circumstances specified in the schedule to this Chapter." Referring to the schedule it would be found that there are 8 clauses laying down the conditions in which the government servant is treated on duty. Clause 1 deals with the case of a government servant who is following a duly authorised course of training or instructions in Pakistan or/and abroad. Clause 2 deals with the case of a student. Clause 3 deals with a Government servant on his arrival in Pakistan after having been appointed in England or abroad. Clause 4 deals with the government servant permitted to appear at an optional examination prescribed by Government in any oriental language. Clause 5 deals with the case of an engineer officer of the Public Works Department. Clause 6 deals with the period occupied in attending all other obligatory examinations including the time occupied in journey. Clause 7 deals with the period occupied in attending all other optional examinations at which a Government servant is permitted to appear and the time occupied in journey. Clause 8 deals with the period of periodical military training of reservists of Pakistan Army in Civil Government employ. Rule 20 of Fundamental Rules as under :
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"When a Government servant is treated as on duty under rule 9(6)(b), the local Government may, at their option, authorise payment to him of the pay which the local Government may consider suitable. If the duty…
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