2018 PLP (C (PLC(CS)N)

ABDUL SHAKOOR, J.

Through the instant petition, being filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed by petitioner Hafiz Sadiq Khan has prayed to: "(a) Declare that the petitioner is entitled to the benefit of pay protection and re-fixation of his pay on his appointment as Deputy Director (Finance)/Deputy Treasurer (BPS-18) through proper channel; and (b) Issue a writ of mandamus to the respondents jointly and severally to re-fix the pay of the petitioner in BPS-18 w.e.f. 01.5.2008 after allowing him the benefit of pay protection under the rules in vogue (c) Any other relief which this Hon'ble Court may deem fit and necessary in circumstances of the case".

2. Brief facts of the case as spelt out from the writ petition are, that initially the petitioner was serving as Divisional Accountant BPS-17 in Bannu Development Authority, Bannu; meanwhile in year 2005-06, the University of Science and Technology was established, which required services of experienced hands, so services of the petitioner were placed at the disposal of said University for his posting as Assistant Director Finance in his own pay and scale on deputation basis for a period of three years vide order dated 16.9.2006 of Secretary to Government of NWFP Local Government Election and Rural Development and the petitioner was serving as such when the UST Bannu through an advertisement in daily Aaj (Peshawar) dated 28.5.2007, invited applications for appointment of Deputy Director Finance/Deputy Treasurer (BPS-18). The petitioner being qualified for the same, applied through proper channel, which was processed through letter dated 09.6.2007 and consequent upon recommendation by the Internal Selection Committee, he was appointed on the subject post vide appointment letter dated 22.4.2008. The petitioner after having been relieved from previous department vide letter/order dated 16.7.2008, joined his new assignment w.e.f. 30.4.2008. It was astonishing to the petitioner that he had drawn basic pay in BPS-17 @ Rs.13,745/- per month (excluding usual allowances) for the month of April, 2008 from the UST, Bannu, but his basic pay (excluding allowances) for the month of May, 2008 in BPS-18 was reduced from Rs.13,745/-per month to Rs.10,760/- per month, despite the fact that he had performed duties and responsibilities of greater importance in BPS-18 during May, 2008 than those of BPS-17 in the month of April, 2008 and such reduction was not only contrary to the fundamental right enshrined in Article 3 of the Constitution, but the relevant rules/laws governing the subject. The petitioner preferred application dated 07.8.2008 for re-fixation of his pay, followed by reminder, which was processed by Resident Assistant Director (Audit) vide Para: 159 of Note Sheet dated 23.7.2009 and Para: 167 of the Note Sheet dated 12.8.2009, however, he was informed by the Registrar Office vide letter dated 31.8.2009 that his request for 're-fixation of pay could not be acceded to. The petitioner thereafter preferred an appeal dated 29.9.2009, but the same was not left undecided by the Syndicate of UST, Bannu vide its meeting held on 16.12.2010, whereafter the petitioner preferred another appeal before Senate of the University on 31.12.2010, which was not placed before the Senate of University in its 5th meeting convened on 03.5.2012, whereas the other officers/staff was granted the pay protection/fixation in the next higher scales, as mentioned in the writ petition. Therefore, the petitioner was constrained to file the instant writ petition.

3. In his comments, the respondent urged that according to FR-22 last pay drawn is admissible to a civil servant only if he has been appointed on substantive post in substantive capacity and was serving previously on a substantive post in substantive capacity. In support of above the respondent has referred to the case of Dr. Zaigham Qadeer, who returned back to his parent department for availing promotion as he had lien on his post in his parent department; that RAD had misconceived the case as he did not examine the case in the light of FR-22, which clearly postulates the condition of lien in his previous post for grant of pay protection and that the petitioner was an employee of the Bannu Development Authority which is a project working under local Government Elections and Rural Development Department. It is further in the comments that appeal of the petitioner will be placed before the Senate of the University as and when the meeting of the Senate is convened as approved by the Vice-Chancellor on 03.02.2011. Reliance was mainly placed on FR-22(2)(a).

4. We have heard the learned counsel for the parties and have carefully perused the file with their valuable assistance.

5. For resolution of the controversy in hand, we would first like to reproduce Section 46-C of University of Science and Technology, Bannu (Amendment) Act, 2006 (NWFP Act No.V of 2006), which reads as under:- "46-C. Power to require officers, teachers or employees to serve under Government or any other Organization.

(1) Notwithstanding anything contained in this Act: (a) The Senate may, after consultation with the Syndicate and in the public interest, direct that any officer, University Teacher or other employee of the University shall serve in any post under Government or any other university or any educational of research institution and such direction shall be binding on the officer, teacher or other employee concerned; and (b) The Senate may on the advice of the Syndicate, direct any post in the University to be filled by appointing an employee of Government or any other university or an educational or research institution. (2) Where any appointment or transfer has been made under this section, the terms and conditions of service of the appointee or transferee shall not be less favourable than those admissible to him immediately before such appointment or transfer and he shall be entitled to all benefits of his post of service."

6. Admittedly, the petitioner was appointed as Deputy Director Finance vide letter dated 22.4.2008, which reads that "Consequent upon the recommendations of the Internal Selection Committee of University of Science and Technology, Bannu, in its meeting held on April 10, 2008, the Vice-Chancellor has been pleased to appoint you as Deputy Director Finance in BPS-18 plus usual allowances as admissible under the rules, on regular basis, subject to the approval by the statutory authorities of UST Bannu.

7. The contention raised by the respondent for refusal to pay the petitioner what he had been drawing prior to joining his new assignment, is not tenable in terms of subsection (2) of Section 46-C of University of Science and Technology, Bannu (Amendment) Act, 2006 (NWFP Act No.V of 2006). The language employed in the said section is clear than crystal in showing that where any appointment or transfer is made, the terms and conditions of service of the appointee shall not be less favourable than admissible to him immediately before such appointment or transfer and he shall be entitled to all benefits of his post of service. The position emerging in view of ibid section precludes the respondents to refuse the petitioner the re-fixation of his salary in terms of that what he had been drawing before his appointment as Deputy Director Finance (BPS-18) in his previous department on any ground or pretext such as FR-22.

8. It is well settled principle of administration of justice that when the organization or institution has its own statutory rules for catering to certain eventuality, then it cannot use the general law as shield for denying or refusing the person entitled for the relief under its own Rules.

9. Having thus viewed, we allow this petition and direct the respondents to re-fix salary of the petitioner in terms what he had been drawing before joining the present post, w.e.f. joining/resuming the office as Deputy Director Finance in BPS-18 ZC/292/P Petition allowed.