1997 S﷓C M R 1026 (PLP)

7. The nomenclature of personal allowance was changed into secretariat allowance once again vide Finance Division O.M. No. F.8(12)R.13/92 (Part‑48) dated 18‑9‑1993 from the date of the issue of the O.M. and its payment was made subject to the conditions mentioned in the said O.M., which reads as follows:‑‑ FINANCE DIVISION (Regulations Wing) No. F.8(12)R.13/92 (Part‑48) Islamabad, the 18th September, 1993 SUBJECT: GRANT OF SECRETARIAT ALLOWANCE TO THE EMPLOYEES WORKING IN THE FEDERAL SECRETARIAT. In pursuance of cabinet decision vide Case No. 179/20/93, dated 7‑9‑1993 and in partial modification of this Division O.M. No. F.I(32) Omp.ll/88, dated 1‑7‑1988 and subsequent amendments made thereto on the above subject, the President has been pleased to grant Secretariat Allowance Rs.20% of pay to all employees of the Federal Secretariat subject to the following conditions with immediate effect and till further orders:‑‑ (a) Secretariat Allowance be limited to all the employees of the Federal Secretariat defined in the Rules of Business as Divisions of the Ministries. (b) Only offices appearing in the list of Division in the Rules of Business would be eligible. Attached Departments, Subordinate Offices, Corporations, autonomous/semi‑autonomous bodies and Institutions such as Commissions, Bureaus etc. which do not perform Secretariat functions not defined as a 'Division' in the Rules of Business would not be entitled to it. (c) Those who are transferred out of the Secretariat will cease to be entitled but shall be entitled on reposting to the Secretariat/Division. (d) Where existing personnel in some organizations outside the purview of sub‑para. (a) above are in fact drawing the allowance already will continue to draw the same as Personal Allowance as a special case. They will cease to draw it on their transfer from the said organization. It will not be admissible to any fresh employee in such organizations. The Personal Allowance, presently drawn by the employees of Federal Secretariat as defined in sub‑para. (a) above shall henceforth be called Secretariat Allowance. (Sd.) (M. FAIYAZUL HAQ), Section Officer (R.13)."

8. The payment of secretariat allowance was finally abolished under Finance Division O.M. No. F.1(2)‑Imp/94(i) dated 15‑6‑1994 after coming into effect the revision of Basic Pay Scales and Fringe Benefits of civil employees (B.1 to B.22) of the Federal Government. It will be appropriate to reproduce the said O.M. in extenso as the petitioners have challenged the validity of clause 5 of this O.M. The O.M. reads as follows: ‑‑ FINANCE DIVISION (Regulations Wing) No.F 1(2)‑Imp/94(i) Islamabad, the 15th June, 1994 OFFICE MEMORANDUM Subject: Revision of Basic Pay Scales and Fringe Benefits of Civil Employees (B 1‑22) of Federal Government (1994). The President has been pleased to sanction the revision of Basic Pay Scales for the civil employees of the Federal Government B 1‑22, paid directly from the civil Estimates and/or from the Defence Estimates as detailed in the following paragraphs.

2. Basic Pay Scales.‑‑The existing and the revised pay scales are detailed in the Annexure to this O.M. The revised pay scales shall replace the existing Pay Scales, 1991, in respect of those employees who give option for these pay scales, in terms of para.6(b) and shall be effective from the first of June, 1994.

3. Initial Fixation of Pay.‑‑The initial fixation of pay of the employees who have been in Government service since before the 1st June, 1994, shall be effected w. e. f. 1‑6‑1994, as below: ‑‑ (i) Employees in BPS‑1 to 16.‑‑By allowing an increase at the rate of 35 of the pay actually drawn on 31‑5‑1994. The pay of the employees will be fixed at the stage equal to or if there be no stage, at the stage next above. (ii) Employees in BPS. 17 and above.‑‑Initial fixation of pay shall be made by allowing 35% increase on the pay actually drawn on 31‑5‑1994, in the following two phases:‑‑ (a) 20% of the increase shall be allowed w.e.f. 1‑6‑1994 by fixing pay in the relevant scale at the stage equal to or if there be no stage, at the stage next above. (b) The remaining 15% increase shall be allowed on and from 1‑6‑1995 by refixing pay in the relevant pay scale on 1‑6‑1994 by allowing 35 % increase over pay drawn on 31‑5‑1994. The new pay so fixed will be drawn from 1‑6‑1995 without any arrears. (c) The annual increment shall continue to be admissible subject to the existing conditions on the 1st of December each year. (d) The ad hoc increase allowed as detailed below shall cease to be admissible from 1‑6‑1994: (i) Ad hoc relief of Rs.100 p.m. sanctioned vide Finance Division's O.M. No. F. 1(26)‑Imp. 11/92 (i) (ii), dated 20‑7‑1992 and O. M. No. F. I (26) Imp. II/92, dated 16‑9‑1992. (ii) Additional Ad hoc relief of Rs.100 p.m. sanctioned vide O.M. No.F.l(28)‑Imp/93 (i) (ii) (iii) dated 21‑8‑1993. (iii) Additional ad hoc relief of Rs.50 p.m. sanctioned vide O. M. No. F. 1(9) Imp./94 dated 26th March, 1994.

4. Fixation of Pay.‑‑In cases of promotion from a lower to higher posts/scale before introduction of these scales, the pay of the employees concerned in the revised scale may be fixed and so enhanced that it would not be less than the pay that would have been admissible to him if his promotion to the higher post/scale had taken place after the introduction of these scales.

5. Allowances: (i) Secretariat Allowance.‑‑With the introduction of new scales of pay, the Secretariat Allowance is abolished w.e.f. 1‑6‑1994 and the amount actually drawn on 31‑5‑1994 will be converted into Personal Allowance. Such Personal Allowance in case of Government employees in BPS/17‑22 shall be reduced by the amount of annual increments, by which the Government employee's pay may be increased after 1‑6‑1994, and shall cease as soon as his pay is increased by an amount equal to/or more than his Personal Allowance. Those in BPS 1‑16 will be exempted from this adjustment to the extent that their Personal Allowance will not be reduced/adjusted. (ii) Other allowances, Special Pays etc.‑‑Special Pays and other allowances including House Rent Allowance will be maintained at the level drawn/admissible at the rates as on 31st May, 1994.

6. Option: (a) All existing Government employees are given option either to draw the existing pay scales plus Secretariat Allowance or the new pay scales 'plus Personal Allowance in the manner as at 5(i) above. Option to retain existing scale with Secretariat Allowance must, however, be given in writing by the employees concerned to the audit office/Drawing . and Disbursing Officer concerned by the 15th July, 1994. Option once exercised shall be final. (b) An existing Government employee who does not exercise and communicate such option within the prescribed time limit, shall be deemed to have opted to be governed by the new scales and abolition of Secretariat Allowance.

7. Pension and Retirement Benefits.‑‑In the case of persons retiring from 1‑6‑1994 onwards in BPS 17 to 22, pension will be recalculated on 1‑6‑1995 on the basis of pay refixed with 35 % increase in the pay in the second phase. New pension will, however, be admissible from 1‑6‑1995 and no arrears will be admissible.

8. The following relief to the widows, dependents, retarded and incapacitated children and invalid pensioners shall be allowed w.e.f. Ist June, 1994:‑‑ (a) Restoration of commuted value/gratuity portion of families on completion of required period. (b) Grant of family pension to dependent disabled/retarded children for life without any age limit. (c) Elimination of second medical board for the invalidated pensioners for eligibility of commutation.

9. Government servants who have retired on or after 1‑6‑1993, till the introduction of revised pay scales i.e. 1‑6‑1994, be allowed pension/commutation on the basis of pay that would have been admissible to them, had the pay revision been effected on the date of their retirement, discounted by 12 % . .

10. All existing rules and orders on the subject shall be deemed to have been modified to the extent indicated above. All existing rules and orders not so modified shall continue in force under this scheme.

11. Anomalies.‑‑A Committee will be set up in the Finance Division (Regulations Wing) to resolve the anomalies, if any, arising out of the issue of this order. (Sd. ) ROMAN ALI MANGI, Joint Secretary (R)."

9. From the facts stated above, it is quite clear that secretariat allowance was not payable to all categories of the Federal Government employs as this A allowance was payable only to those employees of Federal Government who were serving in the Secretariat and other attached departments. No doubt under Finance Division O.M. dated 18‑12‑1989 secretariat allowance was stated to have been allowed to be retained by the employees of Federal Government as 'personal pay' w.e.f. 11‑12‑1989 but this was just a misnomer as within 8 days of issuance of O.M. dated 18‑12‑1989, the Finance Division issued another O.M. dated 26‑12‑1989 in which the expression 'personal pay' used in O.M. dated 18‑12‑1989 was clarified. This clarification clearly shows that what was described as 'personal pay' was in fact an allowance as this 'personal pay' was not to be treated as part of emolments for the purposes of calculation of pension and commutation, it was not admissible during extraordinary leave and it ceased to be admissible to the recipient on transfer from Secretariat, CBR, PTV and PBC, as the case may , be. In any case vide Finance Division O.M. dated 1‑2‑1990 'personal pay' was specifically converted into 'personal allowance' and there is nothing on record to show that the petitioner at any time challenged the validity of O.Ms. dated 26‑12‑1989 or 1‑2‑1990.

10. The protection available to the civil servants under the Act is only to the extent of their pay as provided under section 17 of the Act. However, no such protection is available in respect of the allowance paid to a Government servant under the rules framed from time to time. The learned Deputy Attorney General has invited our attention. to the Regulation 61 of Civil Service Regulations, which reads as follows:‑‑ "

61. Unless in any case it is specifically ordered otherwise by the authority sanctioning it, a personal allowance should be reduced by any amount by which the recipient's pay or salary may be increased, and should cease as soon as his pay or salary is increased by an amount equal to his personal allowance." The petitioner has not challenged the vires of above regulation nor any argument has been advanced before us to show that the above regulation which is saved in terms of section 25(2) of the Act is in any way inconsistent with the provisions of the Act. The above‑quoted regulation clearly provides that personal allowance is liable to be reduced by the amount to be received by recipient of such allowance as a result of increase in the salary and it shall cease to be payable as soon as the pay or salary is increased by the amount equal to his personal allowance. It is admitted position before us that under Finance Division O.M. dated 15‑6‑1996, whereunder the revised .basic pay scales of Federal Government employees serving in B.1 to 22 were enforced, the Secretariat Allowance was totally abolished and paragraph 5 of the said O.M. provided for gradual adjustment of Secretariat Allowance against annual increment due under the revised scheme w.e.f. 1‑6‑1994 until such time the pay of the concerned employee was increased either equal to or more than the Secretariat Allowance received by him. The adjustment allowed under paragraph 5 of the above O.M. is totally in accord with the Regulation 61 relied by learned Deputy Attorney General. As earlier pointed out by us, the allowances paid to a Government employee are not protected under any statutory provision, therefore, their withdrawal by the Government could not be challenged on any legal plane. In the case before us, it is quite clear that as a result of revision of pay scales of Federal Government employees in BPS 1 to 22, the basic pays were increased by more than the amount of Secretariat Allowance. Since the Government has allowed substantial increase in the basic pay scales of the Government employees which in no case was less than the Secretariat Allowance received by the employee concerned, the abolition of Secretariat Allowance could not be objected to by the concerned Government servant. Apart from paragraph 6 of the above O.M. clearly allowed an option to the Government servants either to opt under the revised pay scales which allowed them increase of 35 % of the basic pay (which was more than the secretariat allowance received by them) or to continue to draw their pay under the old scheme plus Personal Allowance or Secretariat Allowance which they were receiving on the date of issuance of that O. M. There is nothing on record before us to show that the petitioner or any other employee of the Federal Government who have made application for being joined as party in this petition, had opted for the old scales of pay. Since the petitioner has opted for the revised scales of pay enforced under O.M. dated 15‑6‑1994, he could not lay claim to the Secretariat Allowance in terms of option under the said O.M.

11. The petitioner has, however, contended that the Government has meted out discriminatory treatment to the employees serving in BPS 17 to 22 inasmuch as that these employees were deprived of Secretariat Allowance by gradual adjustment of the same against the annual increment due under revised scales of pay w.e.f. 1‑6‑1994 while Secretariat Allowance paid to the employees serving in BPS 1 to 16 was kept intact. The argument of the petitioner is based on the assumption that all employees of the Federal Government serving in BPS 1 to 22 formed one single class and therefore, by allowing only to some of the employees in that category, the Government acted in a discriminatory manner. We are unable to accept the contention of the petitioner. We have already pointed out that Secretariat Allowance was not payable to all the employees of the Federal Government. This amount was admissible to only those employees of Federal Government who were serving in the Federal Secretariat, attached departments and offices mentioned in O.M. dated 1‑7‑1988. Since Secretariat Allowance was not admissible to all the employees of Federal Government serving in BPS 1 to 22, therefore, contention of the petitioner that all the Federal Government employees serving in BPS 1 to 22 formed one single category does not appear to be correct. The question of reasonable classification came up for consideration before this Court in the case of I.A. Sherwani v. Government of Pakistan (1991 SCMR 1041). It was a case in which the petitioners, who were retried Government servants, claimed that they have been discriminated in payment of pension which was enhanced subsequent to their retirement but they were denied the benefit of enhancement. After reviewing the entire case‑law on the subject, the learned Judges in that case formulated the following principles which applied to the cases of reasonable classification:‑‑ , "

26. From the above cited cases the following principles of law are I F deducible:‑‑ (i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that person similarly situated or similarly placed are to be treated alike; (ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes; (iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances; (v) that a law applying to one person or one class of persons may be Constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; (vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; (vii) that in order to make a classification reasonable, it should be based‑‑‑ (a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; (b) that the differentia must have rational nexus to the object sought to be achieved by such classification."

12. In the light of the rationale laid down by this Court in I.A. Sherwani's case (supra) the grouping by the Government of its employees serving in BPS 1 to 16 into one category, distinct from the category of those serving in BPS 17 to 22 for the purposes of granting greater monetary benefit to the former category could not be challenged on the grounds of arbitrariness or unreasonable classification. A glance on the old pay scales of employees serving in BPS 1 to 22 will show that there was substantial difference between the minimum and maximum amount of pay drawn by the employees serving in BPS 1 to 16 as compared to those serving in BPS 17 to

22. Therefore, if the Government, decided, while revising upward the pay scales of its employees in BPS 1 to 22, to extend more monetary benefit to the low‑paid employees by putting them in a separate category, the classification did not suffer from any infirmity. In our view the categorisation of the employees on the basis of low‑paid and high‑paid employees was a reasonable classification and did not suffer from any arbitrariness.

13. The petitioner, lastly contended that in view of the provision of Article 2'35 (3) of the Constitution, the pay and allowances of a Federal Government servant could not be reduced except when an emergency is declared by the President in terms of Article 235 (1) of the Constitution. The argument does not appear to be correct. The provision of Article 235 (3) ibid, is in the nature of enabling provision and a directive issued by the President while the emergency declared under Article 235(1) is enforced, is to be given effect to notwithstanding any law protecting the pay and allowances of the Federal Government servants. This provision, ‑however, does not provide for protection. of pay and allowances of the employees of Federal Government. The terms and conditions of service of Federal Government employees are regulated under the Act, which has been enacted in exercise of power conferred by Article 240 (a) of the Constitution. As pointed out by us in the preceding discussion, the Act only protects the pay of the Central Government employees. No protection ether under the Act or under the Constitution is available to the allowances payable to the employees of Federal Government. The allowances by their very nature are not of a permanent character and part of the pay and as such are variable. The Government, therefore, has the‑ right to discontinue or withdraw payment of a particular allowance if the conditions which necessitated payment of such allowance no more exist or ceased to exist. The government in the present case abolished payment of Secretariat Allowance after enforcement of revised pay scales which allowed increase to the pay of Federal Government employees by an amount equal to 35 % of their existing pay which was admittedly more than the amount of Secretariat Allowance received by them. The action 'of the Government abolishing the payment of Secretariat Allowance to its employees, was therefore, not open to any exception, in the circumstances.

14. Before parting with the case, we may also mention here that the petitioner also contended that while fixing the pay in terms of para. 5 of O.M. dated 15‑6‑1994, a situation may arise that the pay of an employee in B.16 may increase the pay of an employee in B.17. To resolve anomalies of such nature para. 11 O.M. dated 15‑6‑1994 provides for constitution of a Committee to look into such cases. We, therefore, hope that if any such anomaly exists in the enforcement c6f scheme contained in O.M. dated 15‑6‑1994, it will be resolved in the spirit of equity and justice by the Committee contemplated under the above O.M. With these observations, the petition is dismissed, with no order as to costs. M.B.A./M‑3363/S Petition dismissed.