1985 PLP (C (PLC(CS))

JUSTICE SHAH ABDUR RASHID (CHAIRMAN).‑The appellant, Mr. Nazir Abroad Chaudhry, was a Member of All‑Pakistan Unified Grades in the Secretariat Group, holding the rank and status of Additional Secretary in B‑

21. For the periods 7th June, 1981 to 7th July, 1981 and 16th February, 1982 to 14th September, 1983, he remained posted as. Officer on Special Duty (O.S.D.) in the Establishment Division. From 8th September. 1981 to 15th February, 1982, he remained on leave and medical leave, which was granted to him while he was serving in the Islamic Ideology Council. The appellant was not provided with an official car for official and private use during these three periods. His telephones bills to a large extent remained unpaid. He was also not provided, during these periods, orderly at residence. His grievance is that he should be compensated in this respect.

2. As far as the telephone bills are concerned, counsel for the appel lant on 29th February, 1984 conceded that these bills have either been paid or sanction in respect therefore has been issued and that in this respect, the appellant has no grievance any more.

3. As far as the period from 8th September, 1981 to 15th February, 1982 is concerned, the responsibility for the said period, if any, was that of the Islamic Ideology Council. The appellant having not implea ded the said Council as party, his claim for that period cannot be entertained.

4. We are now left with the periods‑ (a) 7th June, 1981 to 7th July, 1981 ; and (b) 16th February, 1982 to 14th September, 1983‑ During which periods the appellant remained O.S.D. in the Establishment Division, the respondent herein.

5. The learned counsel for respondent has contended that there was no order against the appellant in respect of his claim, which gave him cause of action and, therefore, the appeal is not competent. No doubt, there was no written order, but the stand of the appellant that he had been asking for provision of car and orderly at residence, has to be accepted. When these per-requisites were not granted to him, it was the absence of order amounting to an order which gave the appellant cause of grievance. It is not denied that the appellant also made a departmental' representation to the President in this respect, to which he received no reply and as a last resort filed the present appeal before us.

6. Coming to the merits of the case, we would first take up the claim with respect to orderly at residence. The order in this respect were made by the Establishment Division on 30th April, 1977, vide Office Memoran dum No. 13/4/77. F. 1, and read as under "The undersigned is directed to say that it has been decided that, in view of the nature of their duties and responsibilities, officers in Grade 20 and above may be provided with an orderly at their residence out of the sanctioned strength of peons of the Ministry/Division/Department concerned."

7. The learned counsel for respondent has rightly urged that orderly at residence is to be provided out of the sanctioned strength of peons. In the present case, it was stated at the bar that it was not possible td provide an orderly at residence to the appellant out of the sanctioned strength of the Establishment Division and that orderly was provided to other officers of Grade 20 and above who had more duties to perform and responsibilities to discharge. The appellant, it was stated, was O.S.D. and no work had been assigned to him. In these circumstances, therefore, the claim of the appellant in respect of compensation for failure of the respondent to provide orderly at residence cannot be allowed.

8. We are now left with the appellant's claim for compensation for failure of the respondent to provide a car to him. Rule 2 (x) of the Rules for the Use of Staff Cars 1980 defines "Entitled Officers". It includes Additional Secretaries and officers in B‑

21. The appellant, therefore, while serving as O.S. D. in the Establishment Division during the two periods under consideration, was an "Entitled Officer". Rule 5 (11) ibid provides that the "Entitled Officers", who forego the Car Maintenance Allowance shall be permitted to free use of staff car for official and private purposes, subject to certain conditions. The learned counsel for respondent has argued that since the appellant was not performing any duties and was waiting posting, he was not provided with car and that even otherwise no spare car being available it was not possible to accede to his request. It was further stated that since the appellant had drawn the Car Maintenance Allowance, he was not entitled to the use of staff car for official or private purpose.

9. No doubt, the appellant had drawn the Car Maintenance Allowance, but it appears that this was done only, when the appellant was refused the use of staff car for official and private purposes. It was in way under compulsion that he was made to draw the Car Maintenance Allowance. This fact, therefore, would not come in the way of the appellant if he is otherwise found to be entitled to the use of staff car. As far as the stand taken by the respondent's counsel that no car was available and that the appellant was not performing any duties and as such he was not provided with a car, is of no avail. The use of staff car by "Entitled Officers" is not for official purposes only but is also for private purposes. This in a way, is a perquisite attached to the salary which an "Entitled Officer" can claim as of right. He cannot be compelled to draw Car Maintenance Allowance by refusing to provide him a car. We are, therefore, inclined to hold that the appellant is entitled to claim compensa tion for refusal of the respondent‑department to provide the appellant with a car. The appellant has claimed the cost of P.O.L. only. In our view, he was entitled also to the value of the depreciation of his car and the salary of the driver, if he employed any. The cost of P.O.L. cannot be refused to him. We, therefore, direct that the appellant be paid the cost of P.O.L. incurred by him during the period 7th June, 1981 to 7th July, 1981 and 16th February, 1982 to 14th September, 1981. The appellant should furnish an affidavit in respect of the cost of P.O. L. for this period. It should, however, be stated specifically in the affidavit that the cost worked out by him pertains to the use of the car within the municipal limits of Islamabad and Rawalpindi. The cost of P.O.L. not relatable to the municipal limits is not allowable to the appellant. The Car Maintenance Allowance drawn by the appellant shall also have 'to be deducted from the compensation so worked out. A copy of this order be sent to the A. G. P. R., Islamabad as well. The Establishment Division should take action in making the payment as early as possible, because the appellant has already retired from service.

10. The appeal is accepted to the extent indicated above. A. E. Appeal partly accepted.