Judgment Sheet

w IN THE PESHA WAR HIGH

r ABBOTTABADBEN(
JUDICIAL DEPART/VIE)

W.P.No.429-A/2012
JUDGMENT
Date of hearing......10.7.2017..........................................................
Petitioner (Mehboob Sultan) by Haji Sabir Hussain Tanol4 Advocate.
Respondent (Managing Director etc) by Sardar Shaukat A11, Advocate.

SYED ARSHAD ALl, J:- Mehboob Sultan,Assistant

Manager (Audit) seeks the constitutional jurisdiction of•

this Court praying that:

"A. Direct the respondents to pay forthwith

salaries, allowances and all other benefits of

the posts of Deputy Director Accounts BPS-

18, since 30.3.1998 with mark-up/interest

till its realization,

B. Be imposed special cost upon

respondents by not resolving the matter till

date, and/or

ç \ C. Any other writ, order, direction deemed

i \.proper and just may also be

2. Brief but essential facts of the case are that

on 01.6.1978, the petitioner, joined the respondents,

 2
-V

Forest Development Corporation "FDC" as Assistant in

BPS-Il. On 18.11.1987 he was promoted as

Superintendent in BPS- 16, whereas he was further

promoted as Assistant Manager BPS- 17 in the year 1991.

Consequent upon termination of services of

Mr.Muhammad Saleem Awan, the then Deputy Director

(Accounts) Siran-Kaghan Forest Project Abbottabad

through Golden Hand Shack Scheme on 30.3.1988, Mr.

Meboob Sultan, Assistant Manager, the Petitioner who

was then working in the head office of FDC was

transferred and posted as Deputy Director Accounts

(BPS-18) but in his own pay and scale in the said project

through letter FDC/AdmnI3 137 dated 30.3.1998. The

record ftirther shows that the petitioner had been

performing his duties in the project as Deputy Director

BPS-18 till 30.6.2008. The respondents in their

comments have claimed that the services of Mr.

Muhammad Saleem Awan, Deputy Director (Accounts)

were terminated through Golden Hand Shake in the year

%
998. The petitioner, who was then working as Assistant
CC3 cj

Manager (Audit) in the BPS- 17, was transferred and

posted as Deputy Director (Accounts) in his own pay and

TI,
scale in the Siran-Kaghan Forestry Project, Abbottabad

vide office order No.FDC/Area Manager/3 137 dated

 3

30.3.1998. One of the conditions of his posting as Deputy

Director (Accounts) was that it would not confer any

right of seniority or promotion on the petitioner in higher

scale BPS-18. The petitioner accepted his posting on the

said terms and conditions and worked against the said

post till 30.6.2000 when the project was closed.

Thereafter the petitioner was retransferred and posted in

the head office in his own Grade i.e. BPS-17 till he

retired from service with effect from 02.1,2011.

3. The bald assertion of the respondent

corporation that the petitioner held the post of Deputy

Director till 30.6.2009 is without any documentary

evidence, whereas on the other hand, the petitioner has

placed on file his pay fixation slip which shows that he

held the position of Deputy Director in Respondents

Corporation till 30.6.2008. Now the moot question for

determination before this court is whether the petitioner

is entitled to the pay and allowance of the post of

Deputy Director which he held from 30.3.1998 till

30.6.2008. We can find answer to this question in

-
nuuut p

II 1978 SCMR 289, wherein it was held;

"If an employee is promoted to officiate in a

be.C09 higher post, involving higher responsibility,
he must be held to be entitled to the
 minimum pay of the grade of the said higher
office."

The objection of the respondents that once

petitioner has assumed charge pursuant to the order dated

30.3.1998, wherein it was mentioned that his posting as

Deputy Director Accounts in his own pay and scale, he

cannot approbate and reprobate is not legally tenable.

There is nothing on record that it was the petitioner who

had requested for the said post nor there is any assertion

by respondents that the petitioner was not eligible to hold

the post of Deputy Director. In S/i. Amar Mafloon Vs.

Government of Pun Jab 1992 SCMR 1869, it has been

laid down "that Civil servant worked against post a

higher grade and discharged functions of such post,

which entitled him to the pay attached to the said posts.

Incorporation of condition in civil servant's posting order

he was adjusted against his own pay and grade,

be inconsequential and not a bar for him to claim

higher grade pay. Civil Servant was, thus entitled to the

pay of higher post during the period he worked against

the same".

The aforesaid view has been reaffirmed

14, and followed in Abdul Hamid and others Vs. Chief

Secretary, NWFP and others 1998 PLC CS 1468,

VHT
4i-
5

K/tars/teed An war Vs. Province of NWFP throu2h

Chief Secretary and another 1999 PLC (CS) 225, Abc/uI

Sattar Vs. Distrkt Accounts Officer, Bahawalpur 2012

PLC (CS) 65.

6. In the light of above referred factual and

legal position, we hold that the petitioner is entitled to

draw the salaries and allowances in BPS- 18 from

30.3.1998 till 30.6.2008. Accordingly this writ petition is

allowed in the aforesaid terms.1

Announced.
Dt. 10.7.2011
Aftab/*

Jlak

jt1s*~z 4,'tac2 '