2003 PLP (C (PLC(CS))

IJAZ-UL-HASSAN, J.

Fazli Haq Khan, Nasrullah Khan, Syed Mir Ahmad Shah, Muslim Muhammad, Farman Ali (since dead) and others, petitioners, invoking constitutional jurisdiction of this Court under Article 199, have filed instant writ petition against Government of N.-W.F.P. through Secretary Finance, Peshawar and others, respondents, containing the prayer that the interpretation of the Finance Department of the N.-W.F.P. Notification No.FD(SR.I)6-23/88 dated 30-9-1990 regarding refusal of the payment of 20% Special Allowance to the petitioners, on the ground that it is not applicable to the ministerial, technical and non-technical staff of the Police Department, is erroneous and same be declared as illegal and improper and appropriate orders/instructions be issued to the effect that said Notification is also applicable to the ministerial, technical and non -technical staff of the Police Department on the analogy and practice of the three others Provinces and the Federation, with further directions that arrears of the allowance be paid to the ministerial, technical and non-technical staff of the Police Department, N.-W.F.P. with such other relief deemed proper and appropriate in the circumstances of the case.

2. The petitioners are the staff employed in the ministerial wing of the Police Department of N.-W.F.P. and are covered by the definition of the Police Staff. The Government of Punjab vide orders dated 22-5-1990 sanctioned the grant of an allowance at 20% of the basic pay to the staff working in Telecommunication and Motor Transport Sections of the Punjab Police, in addition to the Special Pay already drawn by the staff. The Government of Sindh, Baluchistan as well as the Federal Government followed the steps and accorded sanction to the grant of Special Pay of 20% to the staff posted in the Police Department. The Government of N.-W.F.P. in the Finance Department vide Notification in question dated 30-9-1990 accorded sanction to the grant of Special pay at 20% of the basic pay to the Police Staff, posted in the Special Branch, Crime Branch, Frontier Armed Reserve, Central Police Offices, Training 'Institutions, Telecommunication, Motor Transport and the staff on the Chief Minister's duty and on the promulgation of the Notification of N.-W.F.P. Government, the said allowance was paid to the ministerial staff of the Police Department also in the same manner as it was paid to the staff in uniform. However, subsequently the same was withdrawn in view of the objection raised by the Accounts Officer, Accountant General, N.-W.F.P. Peshawar vide letter dated 26-12-1990 and endorsed by the Finance Department. The Accountant General N.-W.F.P. vide his letter dated 18-5-1990 also directed that the 20% Special Pay paid to the ministerial staff of the N.-W.F.P. Police Department with effect from 1-9-1990 is to be recovered. A lot of correspondence appears to have been made by Inspector-General Police, N.-W.F.P. Peshawar and the quarter concerned regarding restoration of Special pay but it yielded no result, which necessitated the petitioners to file the petition in hand.

3. In the comments furnished on behalf of respondent No.3 namely Inspector-General of Police, N.-W.F.P., Peshawar; the claim of the petitioners was not seriously denied. However, the remaining respondents in their comments resisted the claim of the petitioners maintaining that they are not entitled for the Special Pay as they are not the members of uniform police, governed under Police Rules. They have a separate cadre, corresponding to ministerial cadres in other departments. The duties and responsibilities of the two are totally different from each other.

4. Shahzada Shahpur Jan, Advocate appeared on behalf of the petitioners whereas Mr. Imtiaz Ali, Additional Advocate General N.-W.F.P. Peshawar represented the State. We have heard in detail the arguments of learned counsel for the parties in the light of the material on file.

5. Learned counsel for the petitioners vehemently contended that refusal on the part of respondents Nos. 1, 2 and 4 to accord payment of 20% Special Allowance to the petitioners is highly discriminatory qua the employees placed in similar situation in other provinces and that the special pay having once been allowed and accorded to the petitioners, could not have been withdrawn unilaterally without any legal justification. The learned counsel reiterated that the amount having been drawn in good faith, cannot be directed to be refunded to the disadvantage of the petitioners. In support of the pleas reliance has been placed on PLD 1993 SC 200 and PLD1998 Karachi 116.

6. The ministerial staff of Police Department are governed by separate Service Rules i.e. N.-W.F.P. Police Department Ministerial Service Rules, 1974. They are not the members of uniform Police governed under police rules. They have a separate cadre corresponding to ministerial cadres in other departments. The duties and responsibilities of the two are entirely different from each other. The Government of N.-W.F.P. has sanctioned special pay .specifically to the police staff and not to other staff of police department. The Notification in question is quite clear and poses no difficulty in its interpretation. The 20% Special Pay has been sanctioned in lieu of special pay/instructional allowance to the police staff who are already drawing the same. The ministerial staff is neither police staff nor they were drawing my special pay, or instructional allowance. The payment was wrongly made by the Administrative Department to the ministerial staff because it was not sanctioned for ministerial staff. The wrong payment made having been brought to the notice of the quarter concerned, the Administrative Department was immediately asked to withhold the payment. We may pause here to mention that the job of the ministerial staff is quite different from the police staff under section 26 of the N.-W.F.P. Civil Servants Act, 1973 read with Rule 11 of the N.-W.F.P. Rules of Business and Finance Department has the authority for making financial rules for its employees. Under section 17 of the Act (ibid) a civil servant is only entitled for the pay sanctioned for the post. The respondents 1, 2 and 4 have not issued any order in violation of the said Act. The term 'Police Staff' has not been misinterpreted by the Finance Department.

7. Adverting to the question of discrimination we find that it is not the right of a Provincial Government employee to demand salary/allowances as available in other provinces because one province can or may have the means to give one concession while other province may not have the same means to provide the similar pay/allowances. Learned counsel for the petitioners has remained unable to show that the petitioners have been discriminated and deprived of the Special Allowance without legal justification and action of respondents Nos. 1, 3 and 4 is not permitted by law. The question of disparity does not arise. This is purely a provincial issue and Provincial Government adopted its own policy within its available means keeping in view financial implications of granting/refusing relief. The quality, quantity and mode of function and duties performed by one class of civil servants, are also given prime consideration while dealing with such-like situations. The case-law cited on behalf of the petitioners is distinguishable and does not promote their case in any manner.

8. For the aforesaid reasons, finding no substance in this writ petition we dismiss the same as non-maintainable and allow the parties to bear their own costs: S.A.K./708/P Petition dismissed.