1996 PLP (C (PLC(CS))

MUHAMMAD RAZA KHAN (MEMBER).‑‑‑The appellant, after serving for more than 40 years under the Ministry of Industries, has retired on 1‑11‑1995 from the Office of Controller of Inspections, Lahore. He joined the service in 1954 as L.D.C. and was finally promoted as Superintendent on 1‑5‑1986. Prior to his promotion as Superintendent he was holding the post of Assistant In charge and since no scale of pay was mentioned in the order whereby he was appointed as Superintendent, he drew his pay in the scale of Assistant In charge despite his promotion. In 1992 the respondent No. 3 issued an Office Memorandum whereby BPS‑10 was stated to be the scale of pay for the post of Superintendent in the Office of Controller of Inspections whereas the Superintendents working in the Ministries and Divisions were granted BPS‑

16. The appellant agitated the matter asking for removal of the anomaly and for grant of BPS-16 as was admissible to other Superintendents of Department of Supplies. Ultimately vide order dated 6‑11‑1994 the respondent No. 1 issued an order to the effect of the Offices of Department of Supplies have been declared to be regional offices and it was further directed that the appellant may be placed in BPS‑16 with effect from 1‑5‑1986 and consequently the required notification was issued on 20‑11‑1994 and the appellant drew his pay in BPS-16 from 1‑6‑1994 to 30‑6‑1995 whereas the claim for payment of arrears of the difference in pay was held in abeyance due to paucity of funds. On 18‑5‑1994 another notification was issued for placing 33% of the posts of Superintendents (BPS‑16) in BPS‑17 and the appellant also applied for the same on 23‑5‑1995. His representation was not accepted. In .the meanwhile on 21‑5‑1995 the respondent No. 3 issued another Memorandum stating that the matter was being reconsidered in the Ministry of Finance. On 22‑6‑1995 the orders granting BPS‑16 to the appellant was withdrawn. Thus the respondents Nos. 1 and 3, by their orders dated 21:5‑1995 and 6‑6‑1995, withdrew the orders whereby BPS‑16 was allowed to the appellant and consequently vide an order dated 22-6‑1995. The Notification dated 4‑12‑1994 was cancelled As a result of these withdrawals the appellant was reverted to BPS‑13, which was earlier awarded to him as move‑over from BPS‑

10. Vide yet another order dated 5‑7‑1995 the amount of difference of pay between BPS‑13 and BPS‑16 was ordered to be recovered from the appellant for the period from 1‑6‑1994 to 30‑6‑1995. The appellant filed a departmental representation on 18‑7‑1995 against the withdrawal of said orders and the recovery. This representation has not been responded as yet. The appellant by this appeal not only prays for the restoration of his BPS‑16 but also requests for the arrears with effect from 1986 as well as the Selection Grade in BPS‑17 with effect from 18‑5‑1995 when he has become eligible.

2. The respondents contested the case mainly on the ground that the appellant belongs to the Subordinate Office and, therefore, in accordance with the scheme of National Scale of Pay introduced with effect from 1‑3‑1972, the post of Superintendent as well as the Assistant In-charge in the Subordinate Offices were placed in BPS‑10 whereas the Superintendents in the Attached Department and the Divisions have been allowed BPS‑16, with further concession of Selection Grade to BPS‑17 of 33% of posts of Superintendents It. was further added that the status of a Subordinate Office can be changed to that of the Attached Department only in terms of rule 12 of the Rules of Business by Finance Division i.e. respondent No. 2 and in the instant case since there was no approval of the respondent No. 2 for the change of the status of the Department or even for the up-gradation of the post for which no budget allocation was made in the higher scale, the respondent No. 2 in compliance with its assigned duties interfered and got the notification issued by the respondent No. 3 cancelled. Comments of the respondents were perused and parties were heard.

3. In this case the solitary issue relates to the determination of status of the Office of Controller of Inspections, Lahore. Apparently, the prevailing scheme was that the Controller of Inspection at Lahore, Karachi, etc. were presumed to be subordinate Offices whereas the Offices of the Director ‑Disposal and the Director‑General Department of Supplies were the Attached Departments of the Industries Division. It appear that the Offices of the Department of Supplies situated at Karachi, Lahore, Islamabad and Bonn (Germany) were treated to be' subordinate Offices of the Industries Division and there had been correspondence between the Industries Division and Finance Division for a couple of years and finally the "competent Authority" vide Notification dated 6‑11‑1994 declared the said offices as the Regional Offices, and therefore, part and parcel of the Department of Supplies. Hence the status of Attached Department was automatically extended to such offices which were otherwise treated as subordinate Offices. The respondent No. 2, felt aggrieved by the said decision of "competent Authority" and ultimately succeeded in getting the said notification cancelled.

4. Under the Rules of Business; 1973 various units of the Federal Government have been categorised as Division, Attached 'Department and Subordinate Offices. Later on through Revised System of Budget Control issued by the Finance Division certain financial powers were delegated to the Heads of Divisions, Attached Departments and Subordinate Offices.

5. The distinction between the Attached Department and the subordinate Office has remained an intricate issue in the Establishment Division for quite a long time as reported at Sl. No. 14 (page 7‑84) of the Establishment Manual (1992 Edition). In para. 3 thereof it is stated: "While it is admitted that no exact line of demarcation can be drawn between an Attached Department and Subordinate Office a distinction does exist the Attached Departments work directly and in close consultation with Ministries of the Central Government, whereas Subordinate Offices are generally not in close touch with the latter." Thus, the status of a Department as an Attached Department or a Subordinate Office was not to be determined from the declaration or up-gradation as such by any Division, rather the status of various agencies will be determined on the basis of functions performed by them and the chain of command including the element of administrative and financial autonomy vested in each of them. If the Department of Supplies centrally exercises certain functions and the Offices of Controller of Inspections at various cities are the part and parcel of the Department of Supplies with unified administrative command, budgetary grants and exercise of powers, such Offices in various cities will be definitely offices subordinate to the Department of. Supplies but they will not be called the Subordinate Offices as per Rules of Business or the Notification of the Finance Division for Budgetary Control. However, if the Office of Controller of Inspection in various cities exercise their power independently with no direct control by the Department of Supplies and they are sh6wn to be autonomous in their budgetary grants and internal administration then they will be Subordinate Offices.

6. Vide an official publication pertaining to the function performed by various agencies of the Federal Government published and circulated by the Press Information Department as reproduced herein below:‑‑ "The Department of Supplies is an attached department of the Ministry of Industries and acts as a Centralised Purchase Inspection and Disposal Agency of the Central Government The Department is headed by a Director‑General who is assisted by a Deputy Director‑General and is manned with highly qualified and experienced technical hands and staff members. It has four wings namely (a) Supply Wing consisting of three Directorates and three Sections thereof, (b) Administration and Co ordination Wing consisting of one Directorate and five Sections thereof, (c) Disposal Wing with Headquarters at Karachi and Regional Office at Islamabad, (d) Inspection Wing with Headquarters at Karachi and field at Lahore, Karachi and Bonn." The official representatives of the 'respondents, whose able and brilliant assistance is acknowledged, have also supplied an "Organisational Chart of the Department of Supplies" showing four Wings working directly' under the Director‑General and, for the purposes of the matter in hand, the Inspection Wing of the Department of Supplies is supervised by Director, Inspection with Controllers of Inspections and Deputy Director of Inspection as its Sections. Thus, the Controller of Inspection or, for that matter, the Inspection Wing is Commanded by a central authority i.e. the D.‑G. Department of Supplies and as such the Inspection Wing will not be autonomous as a whole and its sections will not be autonomous as separate Subordinate Offices, rather they will be working as Regional Offices of an Attached Department and must be treated as a part and parcel of the said Attached Department with all consequential benefits thereto. Wings, Sections, Branches or Regional Offices of an Organisation cannot be treated as autonomous units, rather they are integral and indivisible parts of the same Central Organisation.

7. Article 25 of the Constitution of Islamic Republic of Pakistan does not allow discrimination to prevail. If similar functions are performed by two officials in the same capacity but in various offices, they cannot be discriminated in terms of their pay, promotion and other benefits. Even if there is‑water‑tight compartmentalization between Subordinate Offices and the Attached Departments, the officials working in various sections and performing similar jobs cannot be put to suffer the discriminative and arbitrary effect of the unrealistic and unconstitutional rules and instructions particularly when the Pay Commissions and Administrative Reforms Committees have successively recommended the removal of this discriminative anomaly.

8. In the light of the above observation and without prejudice to the conclusions recorded hereafter, there is another factor. The appellant who served for almost half a century, is .denied the benefit of nominal promotion and financial benefit to the extent of Rs.12,000 only. (which is otherwise based on a legal and valid order of the respondents Nos. 1 and 3). The said payment cannot be recovered on the principle of locus poententiae. The recovery could not be made particularly when the appellant was duly promoted to a higher assignment nine years earlier and was allowed financial benefit for one year only.

9. The result is that the appeal is partially accepted, and the appellant is held entitled to the benefit of salary, fixation and Selection Grade as admissible I to the Superintendent (B‑16) in the Attached Departments of the Federal Government. The recovery, if made, shall be refunded. The prayer with regard to the arrears of difference of pay with effect from 1986 to 1994 is dismissed as time‑barred, however, he will be entitled to the benefit of pay fixation with, effect from 1986 for the purpose of pension.

10. No order as to costs. Parties be informed. H.B.T./30/Sr.F Order accordingly.