1978 PLP [C (PLC(CS))

Aftab Kizilbash for Appellant (in Appeal No. 52 of 1974). Shamsul Arfeen Qureshi for Appellant (in Appeal No. 91 of 1974). Fazal Hussain Mirza, Asstt. A.‑G. for Respondents (in both the Appeals). HAMZO KHAN M. KURESHI (CHAIRMAN).--These two appeals are filed by two Professors of Medical Colleges working under the Health Department of Government of Sind. They involve common questions of Law and facts hence they would be disposed of by this Single Judgment. The appellant in the first appeal. Dr. Shahinuhah Hussain Zaidi was a Professor of Physiology in Dow Medical College, Karachi while the appellant in second appeal, Dr. A. Sale, m Khan, was Professor of Pathology in Liaquat Medical College. Hyderabad. In September 1966 the pay of both the appellants was refixed and reduced by respondent No. 3 in the light of amendment in the Pay Revision Rules of 1957, introduced by the order of the Governor of West Pakistan dated 9‑6‑

58. The existing pay of both the appellants was reduced by Ra. 200 p.m. by the impugned order dated 12‑9‑66 pasted by respondent No.

3. This amount was held to be the Non‑Practising Allowance (NPA) wrongly included in their pay from 14‑10‑

55. They were also directed to refund the overdrawn amounts of Rs. 12,950.67 and Rs. 17493.87 respectively. Both the appellants challenged the above order of the Accountant‑General and filed Civil Suits. Dr. Zaidi filed the Civil Suit No. 2123 o f 1968 at Karachi which abated .on 6‑5‑74 when the provisions of Article 212(2) were extended to this Tribunal. He has filed the present appeal. On 15‑6‑

74. Dr. Sakem Khan filed the Civil Suit at Hyderabad which abated on 1‑8‑74 and he filed the present appeal on 5‑8‑

74. Both the appeals are within time. Their case is that the existing pay drawn by them was their "substantive" pay which was not inclusive of the Non‑Practising Allowance (NPA) hence the amendment made by the Governor on 9th June 1958 was not a applicable to them. They claim protection of section 8 of the Establishment of West Pakistan Act, 1955 which lays down that the terms and conditions of service could not be made less favourable or altered to the disadvantage of a Civil servant after 14‑10‑

55. They allege that the Notification dated 9.6‑58 issued by the Governor of West Pakistan was illegal and in excess of his authority being in contravention of the statutory guarantees given to the Civil Servants. They assert that they had drawn their original pay with increments regularly for over 7 years after the above‑said order of the Governor and that their substantive pay could not be reduced in 1966 without notice to them. They claim that the order of the respondents reducing their substantive pay was illegal, void and inoperative and should be set aside. Dr. Saleem Khan claims that his substantive pay at the time of integration viz on 14‑10‑55 teas Rs. 1250 p.m. in the time Scale of Rs. 1250‑50‑15 0 whereas the substantive pay of Dr. Zaidi on the above date was Ra. 1300 p.m. in the same scale. In the said scale it was laid down that they were not allowed private practice. This pay scale was revised in 1957 to Rs. 1000‑53‑1250/EB‑50‑1500 "plus‑practising allowance of Rs. 200 p.m ". Both the appellants opted for the new scale with a clear understanding that their basic pay being drawn by them would not be affected. However, in September 1966 their existing pay was refixed by the impugned order deducting from it Rs. 200 p.m. as non‑practising allowance right from 14‑10‑

55. The respondents have contested both the appeals. Their case is that the pay of the appellants as Professors fixed in 1954 was "inclusive" of the non‑practising allowance hence the said allowance was deducted from their pay when it was refixed in 1966 accordingly to the notification of the Governor issued in June 1958. They state that the Governor was competent to amend the pay rules of 1957 and he was within his powers to issue the said notification. The learned A.A.-G. concedes that the substantive pay of a Civil Servant could not be reduced to his disadvantage as it was guaranteed by the establishment of West Pakistan Act, 1955 but asserts that in this particular case tire pay of the appellant was "inclusive" of the non practicing allowance hence it could be deducted while refixing their pay ceding to the notification of the Governor issued in June 1958. He admits that the appellants had drawn their original pay with due increments for over 7 years even after the abovesaid notification issued by Governor. It is a matter of record that the pay of the appe113nts was not reduced by the respondents while fixing it recording to the pay revision Rules of 1957. It was far the first time reduced in 1966. It is admitted position that no notice was issued to the appellants before reducing their pay nor was their option obtained in the light of the notification of the Goes Tim Notification reads as under:-- "Where the pay of an officer drawing pay in an existing scale fixed on on the consideration that no private practice is allowed, is refixed in the revised scale it should be done after deducting no practising allowance now sanctioned for the post from his present pay and there after fixed 'in the revised scale on the basis of reduced pay in accordance with Rules." The learned A. A.‑G. requested for time to produce the Government notification that the pay of the appellants at the time of Integration viz. on 14‑10‑55 war inclusive of the non‑practising allowance. He was given six hearings, comprising of six and half months, for that purpose but he made a statement on 23‑9‑76 that such notification was not available with the Department concerned. We are thus left with a simple point to be whether the pay of the appellants on 14‑10‑55 was "inclusive" of the non‑practising allowance. If no, their substantive pay could not be reduced in 1966 by deducting the said allowance from it. In that case the notification of the Governor issued on 9-6‑58 would not be applicable to the case of the appellants. According to the notification of Sind Government dated 17th January 1953 (on record) the scale of pay allowed to a Professor in a Medical College was 1100‑40‑1340, "private practice not allowed". In 1954 this scale was admittedly revised to "1200‑50‑1500, private practice not allowed". It is nowhere shown in these notifications that the above scale was "inclusive" of the non‑practising allowance. Both the notifications only show that" Private practice was not allowed. This does not mean that the abole said pay scale included the non‑practising allowance. Admittedly the "pay" and "allowance" are two separate' things and separately defined in the Sind Service Rules, Vol.

1. Allowance is never included in the regular scale of pay. It is separately added to the pay of a particular Civil Servant or a class of Civil Servants. Under the notification issued by tae Government of Sind, the appellants were awarded a particular scale of pay with a condition that they were not allowed private practice. The scales prescribed in 1953 and 1954 did not show that it was inclusive of the non. Practising allowance of Rs. 200 as it is specifically mentioned in the pay scale prescribed in the year 1957 which shows that the sale was Rs. 1000‑50‑1250/EB‑50‑1500 "plus Rs. 200 NPA". Clear distinction has been made only in 1957 and not before it. Therefore the contention of the respondents that the pay scale of the appellants on 14‑10‑55 also a included the non‑practising allowance has no force. It was the pay sale prescribed for the pat which did not include any allowance. We bare on record the appointment order of Dr. Saleem Khan. It is dated 1‑9‑

54. He was appointed as Professor of Pathology at L.M.C., Hyderabad with effect from 23rd Autott 1954 F. N. One of the conditions of his service mentioned in the order reads as under : "(1) That he will be allowed starting pay of Rs. 1200 p.m. in the pay scale of Rs. 1200‑‑‑50‑1500 (private practice not allowed, plus and allowances admissible under the Rules." This order does not in any manner indicate that the above scale was "inclusive" of the N. P. A. It dearly shows that the appellant mew be entitled to the scale mentioned therein but he could not be allowed private practice. There is no allegation that the appellant had violated the above condition. It Is stated by the Advocate of appellant Dr. Zaidi that his appointment order as Professor of Physiology issued in 1952 was also on exactly the same lines. 7his is not denied by the respondents in their written statement nor contradicted by the learned Assistant Advocate General in his arguments. It is thus clear that the pay drawn by both the appellants on 14‑10‑55 and thereafter was according to the pay scale mentioned in their appointment order and it being not inclusive of the non‑practising allowance could not be reduced to their disadvantage. There is no mention anywhere in the appointment orders of the appellants that the pay scale allowed to them also included the non‑practising allowance. Than was therefore no reason to reduce their substantive pay by Rs 200 p.m. at deduction for non‑practising allowance from 114‑10‑55 on wards. The notification Issued by the Governor of West Pakistan in June 1958 was not applicable to the appellants because their scale of pay in 1954 was not fixed on the consideration of non‑practising allowance. It was a regal scale of pay and it could not be reduced in 1966 on accounts of guarantees given by the statu'ory provisions of law The appellants have produced the West Pakistan Civil hit issued in 1962. In the column of emoluments it is shown that Dr. Zaidi was drawing Rs. 1500 p.m. whereas Dr. Saleem Khan was drawing Re. 1,450 p.m. Nowhere is it shown in this list that these emoluments were inclusive of any allowance. It was the substantive pay of the appellants which could not be reduced by deducting the NPA from it. We have therefore come to the conclusion that the Impugned order dated 12‑9-66 is illegal and inoperative and must be set aside. We accordingly allow both the appeals but leave each party to bear his own costs. Copy of this Judgment to be kept on the files of other appeals also. Appeals allowed.