1993 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN): ‑‑Appellant Mr. Safir Ahmed Khan, a retired Meteorologist, has preferred this appeal for determination of his pension.

2. The appellant was appointed as Professional Assistant in the Pakistan Meteorological Department on 3‑4‑1954. He was promoted as an Assistant Meteorologist on 6‑1‑1962. He was seconded to serve with the Pakistan Air Force, on deputation, with effect from 11‑8‑1965. He was appointed there as Commissioned Pilot Officer. He was promoted as a Flying Officer in 1967. He earned further promotion as Flight Lieutenant in 1968. He earned yet another promotion as a temporary Squadron Leader in 1974 and was later made substantive Squadron Leader with effect from 11‑1‑1977 and continued serving as such until he was reverted to his parent department as a Meteorologist with effect from 16‑7‑1988. He retired on superannuation on 10‑8‑1988. His pension was calculated at Rs.3,130 on the basis of last pay drawn. Finding the pension so determined as less beneficial, he made representation dated 26‑9‑1989 for re‑determination of his pension on the average of the pay drawn by him during the preceding 12 months. Getting no response to his representation, he preferred this appeal on 21‑1‑1990 for re‑determination of his pension.

3. The appellant has based his claim on Finance Division Office Memorandum No. F.10(4)‑Reg.(6)/86, dated 1‑7‑1986, which is reproduced below:‑‑ Subject:‑‑‑ Calculation of pension on last pay/Emoluments drawn. The undersigned is directed to state that under the existing rules, pension is calculated on the average emoluments drawn during the last 36/12 months of service. The President has been pleased to decide that w.e.f. 1st July, 1986, the pension of a civil servant who shall retire on or after this date shall be calculated at the existing rate on last pay/emoluments drawn provided the post has been held by him on a regular basis. Otherwise pension shall be calculated on average emoluments as admissible prior to the issue of this Office Memorandum. (2) The existing employees shall have the option to have their pension calculated either on the basis of last pay/emoluments drawn or on 12 months average emoluments whichever is more beneficial to them. No option will, however, be available to persons entering service on or after 1st July, 1986 and in their case pension shall be calculated at the prescribed rate on last pay/emoluments drawn.". The appellant has stated that he had exercised option under the aforesaid Office Memorandum for calculation of his pension on the basis of last 12 months average pay drawn by him as per letter dated 12‑10‑1988. The option exercised by him is contained in paragraph 2 of the letter which reads as under:‑‑ "

2. Under the provision of Government of Pakistan, Finance Division (Regulation Wing) No. F.10(4)Reg.(6)/86, dated Islamabad, the 1st July, 1986 paragraph‑2, I am entitled for pension to be calculated on the basis of last 12 .months average pay if beneficial to me and as such my average pay for the last 12 months actually drawn by me (from 10‑8‑1987 to 9‑8‑1988) Civil as well as Military, will be Rs.5,357.69 per month and my pension will be computed as Rs.3,750.38. Allowing 9% on' this for my four years service beyond 30 years it will come to Rs.4,050.38 per month." According to the appellant, he had last drawn his pay, on deputation, at Rs.5,155 exclusive of the allowances, and the last pay drawn by him as a Meteorologist in the Meteorological Department on the eve of his retirement was Rs.4,

007. His grievance is that instead of calculating the pension on the average of the pay drawn by him during the preceding 12 months, his pension was calculated on the basis of the pay last drawn by him as a Meteorologist and he has been put to loss.

4. The respondents have resisted the appeal. Their contention is that on reversion of the appellant from Pakistan Air Force on 16‑7‑1988, his pay was fixed as a Meteorologist at Rs.4,007 and the pay last drawn by him was that much viz. Rs.4,007 and his pension was correctly calculated on the last pay drawn by him. According to them, the pension of the, appellant was to be calculated on the basis of last pay drawn by him or on the average of his pay for 12 months against his substantive appointment, whichever was more favourable to him, and incidentally the pay last drawn by him was equal to the average of his 12 months pay on the permanent appointment as the Meteorologist and his pension was calculated accordingly and no loss was sustained by him.

5. The learned counsel for the appellant urged that pension of the appellant was to be calculated on the pay he had drawn over for 12 months immediately preceding the date of his retirement i.e. the pay he had drawn while serving with the Pakistan Air Force and the pay he drew in the Meteorological Department on his reversion to that department during the 12 months preceding his retirement and by actual calculation, his average pay would have been more than Rs.4,007 and his pension should have been calculated accordingly on the basis of Office Memorandum dated 1‑7‑1986. He placed reliance on the provisions of FR‑9(20) and CSR‑486 and

490. On the other hand, the learned counsel for the respondents contended that the pension of the appellant was to be determined on the basis of the pay last drawn by him in the Meteorological Department in view of paragraph 13 of the terms and conditions laid down in the instructions for grant of Short Service Commission in the Meteorological Branch of the Royal Pakistan Air Force to Government servants holding civil appointments in the Pakistan Meteorological Department and his pension was calculated accordingly.

6. Undisputedly, the appellant served with the Pakistan Air Force on secondment for a long period from 11‑8‑1965 to 15‑7‑1988 and earned promotions and reverted to his parent department on the verge of his retirement on superannuation and actually retired from service on 10‑8‑1988. He had last drawn his pay with the Pakistan Air Force at Rs.5,155, besides allowances, and his pay on his repatriation to the parent department, was fixed at Rs.4,

007. Obviously, the pay fixed in his parent department on his repatriation was much less than that he had last drawn with the Pakistan Air Force. There is no dispute that the pension of the appellant was to be determined in accordance with the Finance Division O.M. dated 1‑7‑1986, reproduced above. Since he had opted for drawing his pension in accordance with the existing orders, i.e. on the average of pay of preceding 12 months, his pension had to be determined accordingly. However, there is dispute as to which pay of the appellant for the 12 months preceding his retirement was to constitute the base for calculation of his pension. In other words, whether the pay actually drawn by him during the preceding 12 months during his service with the Pakistan Air Force and the parent department was to form the basis, or whether the pay he would have drawn during the preceding 12 months in his parent department had' he not remained outside his parent department on secondment. This question finds answer in paragraph 13 of the instruction for grant of Short Service Commission in the Meteorological Branch of RPAF to Government servants holding civil appointments in the Pakistan Meteorological Department, reproduced below:‑‑ "

13. Retention of lien.‑‑‑During the period of their employment with the RPAF they will be allowed to retain a lien on their permanent civil appointment under the normal rules; their RPAF service will count towards increments of civil pay, promotion and pension or gratuity (as the case may be) in their parent department. The necessary contributions in respect of pension will be paid to the parent civil department concerned by the Defence Service Estimates, in the manner indicated in the Fundamental Rules, unless orders to the contrary exist in any case or class of cases." It is quite clear that the service of the appellant during his secondment to the Pakistan Air Force was to be counted as his service in the parent department for the purposes of increments in civil pay, promotion, pension and gratuity and his pay on his secondment to the Pakistan Air Force did not count for the determination of his pension and/or gratuity etc. It is, therefore, not necessary to advert to the provisions of CSR 486 or

490. It would be worthwhile to mention here that the appellant was given pro forma promotion from the post of Assistant Meteorologist to that of the Meteorologist (Grade‑17) along-with some other colleagues vide office order dated 11‑8‑1977. It follows that the pension of the appellant was to be calculated on his presumptive pay he had drawn during the 12 months preceding his date of retirement on superannuation as if he had served in the parent department. During the course of arguments, the learned counsel for the appellant and even the appellant himself stated that in case his pension was to be calculated on the basis of the pay he had drawn in his parent department during the preceding 12 months, his pay had to be re‑calculated while giving him benefit of move‑over he was entitled to on having reached the maximum presumptive pay in Grade‑17 on 1‑7‑1983 as per letter dated 26‑5‑1987 issued from the office of the Accountant‑General, Pakistan Revenue (Sub‑Office), Quetta, a copy whereof has been filed at the hearing of the appeal. There can be no two opinions that the pay of the appellant in the civil employment shall have to be determined in accordance with the relevant rules as if he had not gone outside the department to serve on secondment, including the benefit of move‑over if found entitled to. This argument was made as an alternative to the assertion of the appellant that his pension should have been calculated on the pay he had actually drawn during 12 months preceding the date of retirement wherever he was. As discussed above the appellant was and is entitled to get the pension on the emoluments counting for pension he had drawn during the period of 12 months preceding the date of his retirement on superannuation as if he had not gone on secondment and had served in the parent department until his retirement.

7. In the result, the appeal is allowed to the extent that the pension of the appellant shall be determined on recalculation of his pay as if he had continued serving in the parent department until his retirement and working it out on the average of the pay he had drawn as such during the 12 months preceding the date of his retirement, while giving due consideration to his plea for allowing him move‑over also to NPS‑18 with effect from 1‑7‑1983. A.A./671/Sr.F Appeal accepted.