1999 PLP (C (PLC(CS))

NOOR MUHAMMAD MAGSI (MEMBER).‑‑‑The brief facts leading to the present appeal are that the appellant was posted as Joint Secretary (Regulation‑1) in the Ministry of Finance and vide an Office Order dated 18‑10‑1993 another post of Joint Secretary (Regulation‑11) was abolished and the assignment of the said Wing was entrusted to the appellant. Thus, both the Wings of the Regulation Section were merged together and the appellant worked as Joint Secretary, Regulation with effect from 18‑10‑1993 to 25‑8‑1994. On 13‑12‑1994 the appellant requested the respondents for the grant of special pay in terms of Fundamental Rule 9(25)(b) on account of additional work performed by him. This appeal dated 13‑12‑1994 was rejected on 22‑1‑1995. Thereafter, the appellant again filed a representation on 8‑2‑1995 with the same request. This request was also rejected vide letter dated 18‑6‑1995. Hence this appeal.

2. The respondents contested the appeal. Written objections were filed by the respondents stating that Fundamental Rule 9(25) was meant for holding additional charge and not for increase of work in any form. It was further alleged that the Regulation II Wing was abolished with the approval of the competent Authority on the recommendation of Economy commission and thereafter, there was only one Wing dealing with Regulations in the Ministry of Finance and not two wings so as to justify the claim of the appellant for looking after the work of the second Wing. The respondents finally concluded the re‑distribution of work was done even handedly without any favour or discrimination to any civil servant. 3.The appellant has mainly relied on Fundamental Rule 9(25)(b) which is quoted here in below for ready reference: "F.R. 9(25).‑‑‑'Special Pay'‑‑means an addition, of the nature of pay, to the emoluments of a post or of a Government servant, granted in consideration of:‑‑ (a) the specially arduous nature of the work, or (b) a specific addition to the work or responsibility; or (c) the un-healthiness of the locality in which the work is performed." Replying on the said rule the appellant demands the payment of special pay @ 20% of his pay for the period he had held the said assignment.

4. It may be mentioned that under the rules governing the terms and conditions of civil servant every effort appears to have been made to protect not only the tenure and vested terms and conditions of the civil servant but also the prospects of future career, welfare and even the minor compensatory details are taken care of. In addition to the defining portion consisting of rule 9 in the Fundamental Rules (wherein sub‑rule (25) provides for the compensation by way of special pay to the civil servant who is supposed to perform arduous and hazardous or additional responsibilities) there have been provisions where the civil servants are adequately compensated either by special pay, special allowances, additional charge allowances, or even honouraria for performing extra job requiring more time and energy. Even the slightest burden or inconvenience is compensated. The rules never provide the discretion to the administrative agencies to drastically reduce the strength at its whims and wishes and place the extraordinary burden on the other civil servants. Throughout the set of rules and statutes dealing with the affairs of the civil servants, we have not come across any autocratic and arbitrary provision authorising the administration to abolish the posts and place the burden of abolished posts on the other civil servants. The rules provide for smooth workable scheme whereby the vacant posts are allowed to be kept on additional charge with other officers, who are thereby compensated either by special pay or by additional charge allowance and after the expiry of certain period i.e. six months at the most, the said post stands abolished and the job description of the said post is transferred as permanent assignment to the other incumbent who had been looking after the post for the said described period.

5. The abolition of even a single post has a lot of connected issues for example the performance of job assigned to such abolished post, the payment of special pay or allowance there for, the future of the incumbent thereby declared surplus by abolition of post, absorption of such surplus staff, fixation of seniority, loss of promotion prospects to other civil servants so declared surplus or so re‑absorbed and the revival of the abolished posts, etc. etc. All these issues have to be taken care of by appropriate legislation. The abolition of even a single post has so many repercussions whereas in the instant case; it appears that, scores of posts have been abolished by administrative orders, without any legislation or even subordinate legislation, creating numerous problems for the civil servant affected thereby directly or? remotely.

6. Thus, we are of the view that the administrative agencies cannot abolish the posts by one stroke of pen. Some procedure has to be followed and some provisions have to be made for such eventuality to cater for the affected civil servants as well as those who have been put under burden due to such abolition of posts. It appears that the scene of rules has provided systematic transition in case the abolition of certain posts is considered necessary. The incumbent of such posts are gradually posted away and the posts thereby becoming vacant are placed on additional charge with equal or junior incumbent. They are paid special pay or additional charge allowance for a specified period and after three to six months‑the period matures and the work of the said post stands redistributed to the other posts and incumbents and. thus, by a process of withering away the posts, intended to be abolished, are gradually deleted without any grievances for any of the civil servants. 7.It has argued on behalf of the respondents that the appellant was not burdened with additional work of another Wing but merely by redistribution of work there was some slight increase in the job which does not justify the payment of special pay. We are not convinced with the argument for the reason that it was not a mere redistribution of work but it was the transfer of the entire load of Regulation Wing II to the Regulation Wing I. The redistribution is an internal adjustment whereby some additional burden of one job is distributed among one or many posts, and thereby the work is increased by a small percentage whereas in the instant case the assignment of the job held by the appellant was increased by 100% because admittedly no one else was given even a slightest portion of, assignment previously handled by Regulation II. Therefore, it was not a distribution but it was the transfer of full charge of an individual Wing.

8. Fundamental Rule 9(25) read with F.R. 49 provides for the special pay at least for the period of six months as per O.M. No.F4(46)‑E.11 (111)/56, dated 26‑10‑1957 wherein it was provided that ‑‑ "the President has been pleased to decide that combination of appointment in terms of Fundamental Rule 49 should be made as a temporary measure and should not ordinarily be made for a period A of more than six months."

9. In the light of the above discussion, we hold the appellant entitled to the special pay for a period of six months @ 20% of his pay for holding additional charge of Regulation Wing II as per Fundamental Rule 49 read with Fundamental Rule 9(25)(b).

10. No order as to cost.

11. Parties be informed.??????????? H.B.T./244/Sr.F?????????????????????????????????????????????????????????????????????????????????? Appeal allowed.