1984 PLP (C (PLC(CS))

3. Brief facts of the case are that the appellant was required to work as Deputy Secretary (Complaints) in the Headquarters MLA Punjab vide Government of Punjab, Services and General Administration and Informa tion Department (Section 1) Notification No. SI.2‑2/79 dated 6th October, 1979. The Governor, Punjab vide his order, dated 17th May, 1980 was pleased to accord sanction to the grant of special pay of Rs. 275 p. m to appellant from 6th July, 1979 to 6th October, 1979 and 7th October, 1979 onwards respectively for so long as the latter remained posted in the Headquarter Martial Law, Zone 'A' Punjab.

4. On 13th February, 1980 Headquarter Martial Law Administrator, Zone 'A' (Punjab) vide its letter, dated 4th December, 1980 addressed to Deputy Secretary (C & M) Government of Punjab, Services General Administra tion and Information Department, in which it was indicated that second shift allowance to on‑gazetted civilian staff and special pay civilian officers working in Headquarter Martial Law has been stopped with effect from 15th October, 1980 with the closure of evening shifts. In view of the above, the appellant immediately submitted a representation to the Chief Staff of the Headquarter Martial Law Administrator, Zone 'A', Punjab, requesting him to withdraw the letter. The Martial Law Administrator Zone 'A' (Punjab) vide his letter No. 505/51A/ML, dated 22nd January, 1981 cancelled his previous letter, dated 4th December 1980. In this manner the appellant as well as the other civilian officers continued to receive their special pays which were earlier had been withdrawn with effect from 15th October, 1980. In the month of April, 1981 the appellant received a salary cheque on 2nd May, 1981 which revealed that special pay of Rs. 275 p. m. sanc tioned by the Governor of Punjab had been retrenched by the office of Accountant‑General, Punjab, Lahore. On an enquiry the appellant learnt that the said action had been taken on the behest of Finance Department, dated 15th January, 1981 issued under the signature of Under‑Secretary (PR). The appellant was also asked to refund the allowance so received by him from 15th October, 1980 to 31st March, 1981. The appellant protested against the same to the Accountant‑General and was told to get his case finalized at the salary date, otherwise the recovery of overpayment noted above will be retrenched from the next pay bill. The appellant submitted a detailed representation through proper channel to the Chief Secretary as well as to the Finance Secretary but the Finance Department have regretted to show their inability to agree to the appellant's claim. Hence this appeal.

5. We have heard the appellant in person as well as learned District Attorney assisted by the representative of the Finance Department and have perused the parawise comments so offered by the said Department in defence of the appellant's claim.

6. The appellant has submitted that once he has been granted special pay of Rs. 275 p. m. with effect from 7th October, 1979 by the order of Governor of Punjab, the same could not be withdrawn from him, as a vested legal right had accrued in his favour to receive the same. It has been further argued that Finance Department cannot in any manner cancel or modify a specific order of Governor of Punjab and the action taken by them was absolutely without jurisdiction. He has also challenged the retrospective adverse affect contemplated in Finance Department's memo dated 15th January, 1981 being contrary to law unjust and inoperative in his case. He has made a grievance that Accountant‑General, Punjab, has no jurisdiction to retrench his special pay, which had been granted to him under the orders of the Head of the Province.

7. On the other hand, the stand of the Finance Department is that the said allowance was allowed to the appellant only for performing duties on Martial Law Headquarters in the evening shift. It has been denied by the Finance Department that the grant of this special pay in favour of the appellant can be considered a vested r4ght and once the work for which it has been granted was not being taken from the appellant, the same could be withdrawn. The Department has again taken a stand that once the evening shift has been stopped, therefore, there was no justification for this special pay.

8. We have given our anxious thoughts to the arguments advanced by the parties and consulted the record to resolve this issue. We will, therefore, refer to the documents on record to see whether the special pay sanctioned to the appellant was for his work in the evening shift or the same was attached with the post which he is still holding in the Headquarter Martial Law Zone 'A' Punjab.

9. On 6th of October, 1979 the appellant who was working as Under Secretary (O & M), Government of the Punjab, S & GAD was promoted as Deputy Secretary to the Provincial Government and posted as Officer‑on Special Duty in the same Department. By virtue of this notification, he was required to work as Deputy Secretary (Complaints) in the Headquarter M. L. A., Punjab, vide an order, dated 15th May, 1980. The Governor of the Punjab sanctioned a grant of special pay of Rs. 275 p. m. to the appel lant from 6th July, 1979 to 6th October, 1979 and 7th October, 1.979 onwards, respectively for so long as he remained posted in the Headquarter Martial Law Zone `A' (Punjab). It is also on the record that on 4th of December 1980, Headquarter M. L. A. Zone `A' (Punjab) informed the Deputy Secretary (S B) Government of the Punjab, Lahore, that Second Shift Allowance to non‑gazetted civilian staff and Special Pay of Civilian Officers working in the said Headquarter has been stopped w. e. f. 15th October 1980, with the closure of the evening shift. We also find vide Annexure D/II a letter, dated 22nd January, 1981 from Headquarter Martial Law Zone `A' (Punjab) addressed to Deputy Secretary (SB) in which it was made clear that additional allowance to gazetted civilian staff will remain in field by virtue of their working in Martial Law Headquarter, irrespective Of the' fact whether or not they were working in the second shift. By this letter the Headquarter M. L. A. Zone `A' cancelled their earlier letter dated 4th December, 1980.

9. In view of the above history of this case we are unable to accept the stand of the Finance Department that the special pay of the appellant had been allowed to him by the Governor for performing the cumbersome duty of evening shift. The order of the Governor is absolutely clear on this point in which it has been stated that the allowance has been granted to the appellant by virtue of his pasting in the M. L. A. Headauarter (under lining is ours). If the order of the Governor would have indicated that the allowance sanctioned in favour of the appellant was only for his extra work in the evening shift then of course the action talent by the Finance Department would have been justified. We are fully fortified in our said conclusion when we find this controversy was resolved by the letter of 22nd January, 1981 addressed to Deputy Secretary (SB) S & GAD from Head quarter M. L. A. Zone `A' (Punjab), in which it was made clear that additional allowance was allowed to the gazettes civil staff by virtue of working in Martial Law Headquarter, irrespective of the fact whether the second shift was there or not. By this letter, the earlier letter which would be the base for the action taken by the Finance Department stood, cancelled.

10. In view of above, we have no hesitation to uphold the claim of the appellant that the special pay was sanctioned in his favour by the Governor in lieu of his appointment in the M. L. A. Headquarter. He was entitled to draw the same till he remained at the said post.

11. The result is we accept the appeal and set aside the impugned memo of Finance Department No. FD‑SRI‑6‑36/77(PR), dated 15th January, 1981. The appellant would be entitled to draw the special pay of Rs. 275 and direct the Accountant‑General, Punjab, Lahore, to withdraw pay slip No. GAD‑X/80/M‑1/10/HMi669, dated 8th‑ April, 1981 and his letter No. GAD‑X,/HM/1170, dated 13th June, 1981 and revised pay slip w. e. f. 15th October, 1980 be issued in accordance with our decision. There will be no orders as to costs. M. I. Appeal accepted. ‑ *[Here in italics]