2011 SCMR 1537 (PLP)

MIAN SAQIB NISAR, J.

The petitioners are the ex-civil servants from Punjab. According to their case, they during their service and even after retirement were entitled to and so received the secretariat allowance by virtue of the Punjab. Secretariat Allowance letter No.FD.PC-2-1/88 dated 8-8-1988, however under the Punjab Secretariat Allowance (Withdrawal) Act 1997 (the Act), the allowance was withdrawn; the petitioners still claiming entitlement on the main plea that they having retired before the aforesaid Act, thus have a vested right to receive it as a part of their pension, therefore they finally approached the Punjab Service Tribunal for the redressal of their grievance, but could not succeed through the impugned judgment dated 19-4-2010.

2. Learned counsel for the petitioners by relying upon a judgment reported as Federation of Pakistan through Secretary, Ministry of Finance v. M. Asghar Ali and others (2003 SCMR 1798) has argued that qua such an allowance in relation to the civil servants of the Federal Government, it has been found that notwithstanding the withdrawal, the retired employees shall remain entitled to the allowance, on the touchstone of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. This judgment, according to the learned counsel, is aptly applicable to their case.

3. Heard. The grant of secretariat allowance was through the executive order i.e. vide letter mentioned above. However, subsequently, the aforesaid through a Provincial Act was withdrawn. The relevant Section in this behalf reads as under:-- "Withdrawal of Secretariat Allowance.

(1) Government of Punjab Finance Departments letter No. FD. PC-2-1 /88 dated 8-8-1988 hereinafter referred to as the said letter which provided for the payment of an allowance called Secretariat Allowance @20% of the basic pay to all employees in the Punjab Government Secretariat, Governor's Secretariat, Chief Minister's Secretariat and Punjab Provincial Assembly Secretariat being discriminatory shall be deemed never to have been issued. (2) The said letter shall be deemed not to have created any right in favour of any person and the Government was not liable to pay Secretariat Allowance on the basis of the said letter. (3) Notwithstanding the provisions of subsections (1) and (2), the allowance already paid to any person under the said letter shall be deemed to have been validly paid and shall not be recovered from him by the Government."

4. The examination of the aforesaid provisions makes it abundantly clear that in view of its discriminatory in nature, the allowance which was awarded through an executive order was done away with by a legislative enactment. It has been ordained in the Act obviously about the letter that it "shall be deemed never to have been issued". Besides, it is B also postulated in the Section that the aforesaid letter shall be deemed not to have created any right in favour of any person and the Government was not liable to pay the secretariat allowance on that count, however, the payments which had already been made were only saved. It is settled law that the legislature has the authority to take away, or affect any vested right of a person retrospectively and the instant Act is a valid example thereof.

5. We are not convinced that such withdrawal would not be relevant for petitioners and they shall still be entitled to receive the benefit of the allowance towards their pension, because prior to the Act their right to receive pension on the basis of the allowance had accrued and matured. From the clear language of the section reproduced above, we are of the candid view that the effect of the executive order granting the allowance was completely done away with.

6. We are also not persuaded, if in the instant case the provisions of Article 25 of the Constitution have been violated for the reason that after the Act all and sundry, covered by the letter, who could receive the benefit of allowance thereunder ceased to do so under the Act notwithstanding being in service or having retired. The argument that certain serving employees even after the Act were paid the allowance and thus same treatment should be meted to the petitioners, suffice it to say that an illegality in this regard cannot be made the standard for applying the rule of equality.

7. In the light of what has been discussed above, these petitions have no merits and are hereby dismissed. Leave to appeal declined. S.A.K./Y-1/SC Leave refused.