2000 PLP 1864 (SCMR)

CH. MUHAMMAD ARIF, J.

A brief resume of the facts leading to the instant appeal with leave of this Court is that appellant Nafees Ahmed, a former employee of the State Bank of Pakistan, was appointed as Data Processing Officer through the Federal Public Service Commission on 26-6-1989 in the Federal Bureau of Statistics, Statistics Division. His joining the Bureau came about after he had served the State Bank of Pakistan as Statistical Officer between 25-6-1986 and 26-6-1989. The Bureau directed him to obtain his LPC from the State Bank of Pakistan, which he did on 31-8-1989. His pay was fixed at Rs.2,530 i.e. 2,065 plus 3 increments by the Bureau. He continued drawing his salary at the rate of Rs.2,530 w.e.f. 10-7-1989 till January, 1990 when, all of a sudden, his salary was reduced to the minimum pay of Data Processing Officer i.e. Grade-17

2. In addition to agitating the matter about the reduction of his pay through prolonged correspondence with the Audit-Authority the appellant also requested for counting the earlier period of his employment rendered to his previous employer/SBP towards future pension .in which behalf support was sought from Finance Division O.M., dated 22-10-1985. As regards his pay, the appellant was informed that the pay drawn by him while in service of SBP, could not be protected. However, he was advised to approach SBP regarding. the period that he served there, directly. On approaching SBP for making proportionate payments to the Accountant-General towards his future pensionary benefits for the period that he had rendered service to them, the appellant was advised that his request was not acceptable to them as the Ministry of Finance does not agree thereto.

3. It was in the above scenario that the appellant brought his Appeal No.205(L) of 1995 before the Federal Service Tribunal, hereinafter referred to as the Tribunal, on 18-5-1995. The Tribunal proceeded with making the order in appeal by holding that (i) Finance Division O.M., dated 22-10-1985 does not contain any clause protecting pay of a person working in an autonomous body; (ii) the issuance of LPC by SBP and action taken thereon by the respondents was the result of some mistake which was rectified on recognizing the actual position; (iii) the formal policy of the Government is ' not to protect the salary of a person working as a regular employee in an autonomous body as he is not a 'civil servant'; (iv) appellant's appointment letter, dated 26-6-1989 merely mentions his grade i.e. BPS-17 and it does not mention that he was given any advance increments which he claims and (v) that the previous employer of the appellant' refused to pay their share towards pensionary benefits with the result that he cannot count that service to the benefit of his future service.

4. Leave was granted on 23-1-1996, as below:-- ....Learned counsel argues that there was no lawful authority vested in the -department to reduce his salary without giving him show-cause notice because he had a vested right to receive the said salary. According to him, the petitioner was condemned unheard which action on the part of the respondents could not be sustained in law. Learned counsel adds that previous service of the petitioner would also be counted towards the grant of pensionary benefits to him

5. Mr. Hafiz Tariq Naseem, learned Advocate Supreme Court, appearing in support of this petition, has criticised the judgment in appeal whole hogg. According to him, his client was assured of the twin-benefits of protection of (1) his pay and (2) counting his servies with SBP towards his future pensionary benefits. The precise plea was that the very fact that after receiving LPC and fixing the salary of the appellant in the Bureau at Rs.2,530, which course continued between on 10-7-1989 and January 1990, the respondents were not left with any locus poenitentiae to undo the said position on the ground and that too without affording him any opportunity of hearing. Learned counsel also referred to pages 54, 55 a-d 60 of the Paper Book to contend that M/s. (1) Dr. Muhammad Ashraf Le,, rer in Chemistry F.G. College for Men II-9 Islamabad, (2) Abdul Karim, Judicial Assistant cum-Court Associate (B-15) Supreme Court of Pakistan and (3) Mr. M. Sadiq Malik, Lecturer BPS-17 in Azad Jammu and Kashmir University were allowed pay protection as also counting of their past services. The treatment meted out to the appellant by the respondents is, to say the least discriminatory and without any support from the letter or spirit of the law. According to the learned counsel, the correspondence between the Government of Pakistan Federal Bureau of Statistics and the Governor State Bank of Pakistan on the subject of fixation of basic pay in respect of the appellant, copies whereof are available of pages 41 to 42 (26-9-1992), 43 (18-9-1992), 44 (13-6-1993), 45 (27-6-1993) and 46 to 47 (27-6-1993) of the Paper Book, clearly clinches the matter in controversy in his favour. Learned counsel concluded his arguments by referring to Rule 9.6(v) of Chapter IX titled 'Pensionary Rules' of 'Hand Book for Drawing and Disbursing Officers' issued by the O & M Division Public Administration Research Centre, 1982 as also to Civil Service Regulation No.418 (b) to contend that (i) effective service rendered the appellant in an autonomous body is treated .as effective service rendered in a post of Government service and (ii) the fact that appellant resigned his earlier appointment to take up the present assignment " ... is not a resignation of a public service", respectively.

6. Mr. Sheikh Anwar-ul-Haq, learned D.A.-G. for Pakistan, supported the impugned judgment, with the argument that the Tribunal was operating with its jurisdiction while resolving the dispute against the appellant. He referred to page 4 of the memo. of petition as also to paras. 8, 9 and 10 of the judgment in appeal, in substantiation of his plea that the Tribunal has rightly disallowed the appeal before it.

7. We have considered the arguments advanced at the Bar by the learned counsel for the appellant as also the learned Law Officer in support of their respective cases. It would be advantageous to reproduce: (1) Rule 9.6 (v) ibid and (11) CSR 418 (b) ibid which read, thus, respectively:-- (I) Rule 9.6.--. "(i) .......................... "(ii).......................... "(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . "(iv)........................... "(v) Only the service paid from the General Revenues qualifies for pension. Foreign service also counts for pension, provided the pension contribution was paid as required under the rules. The effective service rendered by a Government servant in an autonomous or semi-autonomous body, in a post appointment to which is, by law, required to be made, and the salary of which is required to be fixed by the Federal Government or a Provincial Government is treated as effective service rendered in a post in Government service." (II) CSR 418: "(a) (b) Resignation of an appointment to take up another appointment, service in which counts, is not a resignation of the public service." A perusal of the above Rule and CSR clearly brings it to the fore that the protection given to the pay of a civil servant as also the counting of the period spent by a civil servant in his earlier appointment with an autonomous body towards his pensionary benefits, do advance the case of the appellant.

8. Even the plea of the appellant that the respondent-authorities were not left with any power to undo the then existing situation on the ground in relation to his pay, is not without substance. This correspondence between the respondents and the S.B.P. referred to in para 2 above also helps the appellant to the hilt. Admittedly, the appellant was asked to submit his Last Pay Certificate from the State Bank of Pakistan and, after obtaining the requisite document in that.regard, the respondent-authorities had fixed his pay at Rs.2,530 which figure represents the minimum pay of BPS-17 plus three increments and were not left with any locus poenitentiae to undo the same and that too without hearing the appellant. Appellant's failure to obtain relief from the respondents continued up to level of the Tribunal and, as observed above, the Tribunal was content with perusing his appointment letter, dated 26-6-1989 and observing that only a mention to BPS-17 has been made therein and that with regard to advance increments nothing finds intention therein. This observation may be true but, when read in conjunction with what happened after the appellant took over his assignment with the Bureau, we are left in no manner of doubt to conclude' that the judgment in appeal cannot be sustained.

9. The respondent-authorities are bound to follow the law in relation to the above facts of the claim of the appellant i.e. (1) protection of his pay and (2) counting of his period of service with S.B.P. towards pensionary benefits. Failure on the part of the Tribunal to act in accordance with the law on the subject cannot but be reversed with a direction to the respondent to fix the salary of the appellant at Rs.2,530 commencing vide order, date 14-11-1999 and July, 1989. Order accordingly.

10. The above are the reasons for our short order of even date which reads thus:-- "For the reasons to be recorded later on the appeal is allowed. The Tribunal's judgment is set aside. The respondents are directed to fix the salary as was originally fixed i.e. Rs.2,530, at the time of joining of his service as Data Processing Officer." Q.M.H./M.A.K./N-14/S Appeal allowed.