Kashif Naseem v. Chief Secretary, Government of Sindh & others

Background

The appellant was appointed Senior Clerk (BPS-07) on 12.03.1991 in the office of the Registrar, Special Courts for Suppression of Terrorist Activities, Home Department, Government of Sindh. On 09.12.1999 the Registrar promoted him temporarily to Reader, and he worked as a Reader for about 22 years. Recruitment rules for these courts' staff were notified only on 04.02.2020, and no Departmental Promotion Committee (DPC) was constituted to consider his case.

After objections to his seniority position, the Registrar issued an order on 30.09.2021. It declared his post and pay fixation as Reader illegal, held that he remained a Senior Clerk (BS-07), and directed that the financial benefits he had received be adjusted. His departmental appeal of 25.10.2021 was regretted, and he filed a service appeal.

Issues before the Tribunal

• Was the appellant lawfully promoted to Reader on a regular basis?
• In which pay scale should he now be treated as serving?
• Was he entitled to the pay and benefits of the higher post he had held on a temporary basis?

The Tribunal's reasoning

Regular promotion. Under Rule 7(2) of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974, promotion to such posts must be made on a DPC's recommendation. No DPC had met or made a recommendation, so the 1999 order was not in accordance with law. To that extent the Tribunal found no illegality in the clarification that he was still a Senior Clerk.

Pay scale. It would be unjust to place him back in BS-07, the scale in which he was first appointed. The post of Senior Clerk had since been upgraded, and the Tribunal held that he should enjoy the pay scale that other Senior Clerks currently enjoy, without having to make representations for it.

Pay of the higher post. The first proviso to section 18 of the Sindh Civil Servants Act, 1973 allows an appointee to a higher post to be paid at the lower post's rate. The Tribunal held that this covers short temporary arrangements, not a person who performed the higher post's duties for about 22 years. It relied on Sarwar Ali Khan v. Chief Secretary, Sindh (PLD 1994 SC 233) and Accountant-General v. Arbab Mukhtar Ahmed (1986 SCMR 1206). It also noted that the failure to frame recruitment rules could not be attributed to the appellant.

Outcome

The appeal was partly allowed. The appellant was held entitled to higher pay and all related benefits. The competent authority was directed to complete the process of his promotion within four months and submit a compliance report to the Tribunal.

Why it matters

Many employees serve for years on temporary or acting arrangements. This judgment shows that even where the promotion itself was irregular, an employee who actually performed the higher duties for a long period may be entitled to the pay of that post. The department cannot simply claw that pay back.