1991 PLP 2284 (SCMR)

SAAD SAOOD JAN, J.‑‑‑These are seven appeals by special leave of this Court from the judgments of the Federal Service Tribunal. These appeals have been heard together as the facts are similar and common questions of law arise for consideration.

2. The respondents in these appeals were members of the Armed Forces and held ranks of or equivalent to Major and above. Except in the case of respondent in Civil Appeal No.96, their services were transferred to civil departments while they were still serving in the Army. Subsequently, they were retired from the Army and permanently inducted in the civil departments. The respondent in Civil Appeal No.96 retired from the Air Force with effect from 12‑9‑1979 and was permanently absorbed in the Foreign Service with effect from 15‑9‑1979. While determining their respective pays in the civil departments, the Accountant‑General deducted the military pensions which they were receiving on account of service in the Armed Forces. They represented against the deductions and claimed that they were entitled to receive the pay of the post they were holding in the civil departments in addition to their military pensions. Their representations bore no fruit. Consequently, they filed appeals before the Federal Service Tribunal. The learned Tribunal upheld their claims and declared that the deductions made from their pays on account of military pension were illegal. Through these appeals the Federal Government has called in question the legality of the judgments of the learned Tribunal.

3. Admittedly, after their induction in civil departments on a permanent basis the respondents are governed by the Civil Servants Act, 1973. Section 17 of the Act states: "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

The expression "in accordance with the rules" is of significance in this section: it makes the entitlement of a civil servant to the pay sanctioned for the post or grade he is holding, subject to the relevant rules. Now, Regulation 526 of the Civil Service Regulations provides: (a) When a person formerly in military service obtains employment in the civil department after having been granted a military pension, he shall continue to draw his military pension, but the authority competent to fix the pay and allowances of the post in which he is re‑employed shall have power to take into account the amount of pension, including such portion of it as may have been commuted. (b) A military officer, departmental officer, warrant or non‑commissioned officer or soldier who is granted a pension under military rules while he is in civil employ, shall draw such pension while he is in civil employ, but the authority competent to fix the pay and allowances of the post in civil employ, may, with effect from the date from which the pension is granted, reduce such pay and allowances with reference to such officer or soldier by any amount not exceeding the amount of such pension." Reading section 17 together with this Regulation it would appear that while determining the regular pays of the respondents for the posts held by them in‑the civil departments, the Accountant‑General was competent to deduct the amount of their military pensions.

4. An argument was raised that Regulation 526 ceased to have effect after the enactment of Civil Servants Act as it was in conflict with the provisions of section

17. It was urged that section 17 created a right in the civil servant to receive the pay sanctioned for the post which he was holding; and as the said regulation detracted from that right it could no longer be treated to have been kept alive by section 25 of the Act which saved all existing rules, except those which were inconsistent with the provisions of the Act. We rind little merit in this contention. As already noticed, under section 17 the entitlement to pay of a civil servant is not an unqualified one. On the other hand its quantum is to be determined by the. relevant rules. In the circumstances Regulation 526 can hardly be treated as inconsistent with section 17.

5. It was contended on behalf of some respondents that the expression "in accordance with the rules" had a restricted meaning inasmuch as it was intended to regulate different special pays and allowances which were included in the definition of the word "pay" as given in section 2(1)(d), Civil Servants Act, and Fundamental Rule 21(a). This contention is devoid of force. It is founded on a mere assumption without support from anything contained in the Act. The word "rules" has been defined in the Act as meaning rules made or deemed to have been made under the Act. In the context of section 17 it has relevance to all such rules which deal with the fixation of the pay of a civil servant. No doubt CSR 526 is one such rule. If the right to pay was an unqualified one, any direction given, consequent upon disciplinary proceedings that a certain amount be deducted from the pay of a civil servant to recoup the loss suffered by the Government as well as the direction that the period of suspension be treated as leave without pay, would become ultra vires of section 17.

6. A note was added to C.S.R. 526 to the effect that the provisions of clause (b) thereof would not apply to officers of the late Indian Political Service. The respondents in Civil Appeals Nos.100 and 683 were appointed to Tribal Areas Group. It was contended on their behalf that by virtue of the said note their cases stood excluded from the operation of clause (b) ibid. This contention is again without any merit. The Indian Political Service was abolished long before the respondents joined the Tribal Areas Group. They were not members of the late Indian Political‑Service. Thus, they cannot take advantage of the said note which in any case has been omitted. 6‑A. In coming to the conclusion that the respondents were entitled to the military pensions in addition to the pay for the posts they were holding in civil departments, the learned Tribunal relied upon three of its earlier judgments reported as Khuda Dad Khan v. Military Accountant‑General 1984 PLC (C.S.) 870, Fazal Akbar v. Accountant‑General Pakistan 1987 PLC (C.S.) 586 and Sufi Abdul Rashid v. Secretary, Ministry of Interior (Appeal No.53(R) of 1985). Khuda Dad Khan was a Subedar in Pakistan Army when he was selected for the post of Lecturer in the Cantonment Board College, Kharian. Later, he was retired from the Army and permanently absorbed in the College. He was being paid the pay of the Lecturer in addition to military pension. Subsequently the College was taken over by the Federal Government. While fixing his pay the Accountant‑General deducted the amount of his military pension. He filed an appeal before the Federal Service Tribunal. The learned Tribunal accepted the appeal holding, inter alia, that he was entitled to full pay of the civil post under section 17, Civil Servants Act, and that any rules or instructions in so far as they were inconsistent with the provisions thereof ceased to operate and could not be availed for taking away a right guaranteed by the statute itself. The Ministry of Education sought leave to appeal from this Court from the judgment of the learned Tribunal. The leave was refused with the following observations:-- "It is not denied before us by the learned Deputy Attorney‑General that the respondent had been before the Governmentalization of the College, in receipt of the pay of his post in the College in addition to his army pension and that the sane was not in contravention of any rule then in force. Apart from the reasons given by the Tribunal, we find that by Letter No.104/57/77‑Min‑II, dated 10th September, 1977, issued by the Cabinet Secretariat, concerning the transfer of control and management of the Cantonment and Garrison Schools and Colleges, the pay of the transferred staff was protected in the following words: . (1)

(c) Terms and conditions of service of the transferred staff.‑‑The transferred staff referred to in sub‑paras. 1(a) and (b) above will continue to be governed by their present terms and conditions of service.' The terms and conditions of service existing at the time of the Governmentalization of the College having been thus protected, the learned Deputy Attorney‑General was unable to show how the respondent could be subjected to rules which would operate in derogation of that protection. No justification has, therefore, been made out for interference with the order of the Tribunal. The petition is dismissed (1984 SCMR 1297)." It was contended on behalf of the respondents that the view of the Tribunal the military pension could not be deducted from the pay of a civil servant without violating the provisions of section 17, Civil Servants Act, already stood approved by this Court. It is difficult to accept this contention. It will be noticed that while refusing leave to the Federation, the Court did not base its judgment upon the provisions of section 17 but on a special condition of service which was guaranteed to Khuda Dad Khan by the order by which his College was transferred to the Federal Government. The order of this Court could, therefore hardly be cited in support of the proposition that section 17 did not permit deduction of military pension from the pay of an ex‑army officer employed in a civil department. The case reported as Fazal Akbar v. Accountant‑General Pakistan PLC 1987 (C.S.) 586 mainly proceeded on the view taken by the Tribunal in Khuda Dad Khan's case although there was an observation to the effect that the words "in accordance with rules" did not refer to such rules as would place a clog on right of civil servant to get full pay of his post. In the case of Sufi Abdul Rashid v. Secretary, Ministry of Interior (Appeal No.53(R) of 1985) of the learned Tribunal reiterated the same view adding that with the enactment of section 17, Civil Servants Act, any rules or instructions in so far as are inconsistent with the provisions thereof (section 17) ceased to operate and could not be availed of for taking away a vested right guaranteed by section 17 itself. As will be noticed our examination of section 17 does not support the construction placed upon it by the learned Tribunal.

7. For the reasons stated above, all these appeals are accepted and the judgments of the learned Tribunal are set aside. There will be no order as to costs. AA./F‑222/S Appeals accepted