2008 PLP (C (PLC(CS))

QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).

Appellant is present. Advocate for the parties are also present. Heard the arguments of the learned counsel for the parties and perused the record.

2. The learned counsel for the appellant stated that the appellant had been serving in BS-16 in Ministry of Information and Media Development as Programme Manager, when he was declared surplus and subsequently he was given an appointment in the Pakistan Railways as Senior Auditor in BS-11 vide order, dated 17-10-2002. The learned counsel for the appellant argued that under section 11 of the Civil Servants Act of 1973 and FR-22-A, the pay drawn by the appellant in BS-16 was protected but the respondents have violated the said provisions of law by not fixing the pay of the appellant in accordance with section 11 of Civil Servants Act of 1973 and FR-22-A. In this connection, the learned counsel for the appellant had drawn our attention to Last Pay Certificate (L.P.C.) of the appellant (Annexure "A/12), whereby the appellant had lastly drawn the following pay in BS-16:-- Particulars Rate Substantive pay 7050 House Allowance 563 Conveyance allowance 634 8,247 The learned counsel then referred us to pay fixation statement of the appellant dated 15-1-2003 (Annexure "A/13") issued by Accounts Officer/Adorn., Pakistan Railway Karachi, whereby the pay of the appellant was fixed to the detriment of the appellant as under:--

1. Pay as 5.11.2002 BS-16 7050

2. Pay fixed as on 5-11-2002 absorbed BS-11 6965+85 PP

3. Annual increment on BS-11 1-12-2002 7140 The learned counsel vehemently argued that it was clear from the L.P.C. and the pay fixation statement that the appellant was made to sustain a loss of Rs.1197. The learned counsel for the appellant, therefore, urged that the respondents be directed to protect the last-drawn pay of the appellant in 'BS-16 in accordance with law and re-fix the same accordingly.

3. The learned counsel for the respondents contended that there being no, post of BS-16 with the respondent Pakistan Railways, the appellant was offered a post of BS-11, which he voluntarily accepted, vide his affidavit dated 7-11-2002, therefore, he was entitled to the pay in accordance with BS-11, but he conceded that the substantive pay of the appellant would not be, less than the pay he had been drawing in BS-1.6, that keeping this principle in view, the respondent Pakistan Railways had already fixed the pay of the appellant in BS-11 in accordance with what he had been drawing in BS-16 as substantive pay, vide letter, dated 15-1-2003 (Annexure "A/13"). Learned counsel for the respondents further stated that the appellant was, therefore, not entitled to the amount, as claimed by him.

4. We have carefully considered the above arguments of both sides. We think, it would be advantageous to reproduce hereinbelow the affidavit of the appellant whereby he voluntarily accepted the post in BS-11 as also section 11A of the Civil Servants Act of 1973 and FR 22-A(1)(ii):

Affidavit I, Rawat Ali son of Karim Bux, do hereby accept the following terms and conditions for my posting/absorption in Pakistan Railway Accounts Department. (1) I will stand junior to all the existing Senior Auditors working in this Department on the date I report for duty in this office. (2) I will be' liable to, be posted in any office of Railway Accounts Department. (3) I will be treated a%s2n probation for a period of six months or till I qualify the training course-IV from Railway Accounts Training Centre, Walton, Lahore which will be later. In case I fail to pass the said training course, inquiry report in case of my unsatisfactory performance I will be liable to be reverted to Establishment Division in the surplus pool. (4) I will be allowed substantive pay in B-11 the term of para. F. R.22(ii). (5) My services rendered in' my parent department will be counted for the purpose of pension, pay and leave only. (6) I will be considered for the payment of pension commutation subject to receipt of proportionate share of pension from my parent department." "11A. Absorption of civil servants rendered surplus.

Notwithstanding anything contained in this Act, the rules, agreement, contract or the terms and conditions of service, a civil servant who is rendered surplus as a result of re-organization or abolition of a Division, department, office or abolition of a post in pursuance of any Government decision may be appointed to a post, carrying basic pay scale equal to the. post held by him before Such appointment, if he possesses the qualifications and fulfils other conditions applicable to that post: Provided that where no equivalent post is available he may be offered a lower post in such manner, and subject to such conditions, as may be prescribed and where such civil servant is appointed to a lower post the pay being drawn by him in the higher post immediately preceding his appointment to a lower post shall remain protected:" "F.R.22-A. The initial substantive pay of a government, servant who is appointed substantively to a post on a time-scale of pay which has been reduced for reasons other than a diminution in the duties or responsibilities attached to posts thereon and who is not entitled to draw pay on the time-scale as it stood prior to reduction, is regulated by rule 22 provided both in cases covered by clause (a) of that rule and in cases, other than those of re-employment after resignation from the public service, or after removal from the public service for inefficiency, misconduct or as disciplinary measure, covered by clause (b) that if he either

(1)

(i)

(ii) a permanent or temporary post on the same time-scale as the unreduced time-scale of the post, or (iii)

Relevant portion of F.R.22(ii), referred to in above F.R.22-A is 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)

(i)

(ii) when appointment to the new post does not involve such assumption, he will draw his 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 that 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; (iii)

" A perusal of the affidavit would show that the appellant had himself voluntarily accepted the lower post in BS-ii and fixation of his pay in BS-11. There is nothing on record to show that he was compelled to accept a lower post in BS-11 instead of a post in BS-16. So far as the question of protection of his last drown pay of BS-16 is concerned, the learned counsel for the respondents has not disputed it. He has rather conceded to it. He argued that under FR-22, it was the substantive pay of the appellant which had to be protected and that had been done by the respondent through their pay fixation statement, referred to above, therefore, the appellant was not entitled to the amount claimed by him.

5. The pay fixation statement dated 15-1-2003 (Annexure "A/13") shows that the difference to pay of Rs.85 between the substantive pay of the appellant in BS-11 and BS-16 had already been allowed by the respondents to the appellant as per pay fixation statement. However, the House Allowance and Conveyance Allowance have not been included in the substantive pay in the pay fixation statement. We have to observe that the appellant would be entitled to House Allowance and Conveyance Allowance in his present post of BS-11 also, therefore, there will not be much difference/loss to the appellant as shown by him, as such, quantum of loss shown by the appellant is exaggerated. Both the learned counsel for the parties have not shown us if the House Allowance and Conveyance Allowance formed part of substantive pay to be protected under FR-22. If these allowances form part of the substantive pay, the appellant shall also be entitled to the difference of these allowances in the two scales.

6. Since the appellant had voluntarily accepted a post in BS-11 and his substantive pay had already been protected by the respondents, this appeal is disposed of with directions to the respondents to re-consider the case of difference of House Allowance and Conveyance Allowance of the appellant in accordance with the relevant rules/directives of the Government, in the light of what has been stated above.

7. Announced in open Court.

8. No order as to costs.

9. Copies of this judgment be sent to the parties under registered cover and to the relevant quarters as per Rule 21 of the Service Tribunals (Procedure) Rules, 1974. H.B.T./29/FST Order accordingly.