Through this writ-petition Sarfraz Khan petitioner, who during the pendency of the petition died and is now represented by his L.Rs,, has prayed for the issuance of an appropriate writ directing the respondents to grant him special pay/allowance for holding the additional charges of Accountant/Office Superintendent in Municipal Committee, Nawanshehr.
2. The brief facts, giving rise to this writ-petition, are that the petitioner was initially appointed as Octroi Moharrir by an office order, dated 28.2.1966 in the Town Committee of Nawanshehr (Respondent No, 1) Later on, he was promoted as Octroi Superintendent by an order dated 4.4.1985.
By an office order dated 2.2.1995, he was asked to also perform the duties of office superintendent in addition to his duties. In the meantime, Muhammad Rustam Accountant of the .Committee stood retired vide order dated 13.3.2001 and on the recommendation of the Administrator vide letter dated 12.2.2001, the petitioner was allowed to hold the additional charge of the post of Accountant without any remuneration vide order dated 13.3.2001. The case of the petitioner is that under the law, he is entitled to the grant of special pay/allowance for holding the additional charges but inspite of recommendations by Respondent No, 1, Respondents Nos, 2 to 4 have refused to allow the same to him.
3. We have heard Sardar Lal Khan Anwar, Advocate for the petitioner and Abdul Sattar Khan, Advocate for Respondent No, 1 and Qari Abdul Rashid, DAG for Respondent No, 2 and have also perused the record.
4. The rules governing the grant of special pay/allowance for holding additional .charge. is contained in RR. 49 and further rules framed/directions issues thereunder by the competent authorities from time to time. Rule F.R. 49 reads:-- "F.R.
49. A local Government may appoint one Government servant to hold substantively as a temporary measure, or to official in, two or more independent posts at one time. In such cases his pay is regulated as follows--
(a) the highest pay, to which he would be entitled if his appointment to one of the posts stood alone, may be drawn on account of his tenure of that post;
(b) for each other post he draws such reasonably pay in no case exceeding half the presumptive pay (excluding overseas pay) of the post, as the local Government may fix; and
(c) if compensatory or sumptuary allowance are attached to one or more of the posts, he draws such compensatory or sumptuary allowances as the local Government may fixed, provided that such allowances shall not exceed the total of the compensatory and sumptuary allowance attached to all the posts."
5. Some of the relevant decisions made by the Government under this Rule are:-- "Government decisions.
(1)
1. The President has been pleased to decide-
(a) that combination of appointments in terms of F.R. 49 should be made as temporary measure and should not ordinarily be made for a period of more than 6 months; and
(b) ...........................................
2. In order to comply with the decision mentioned in para 1(a) above, necessary measures to fill up a post on a whole-time basis should be taken as soon as it falls vacant and every possible effort should be made to make a whole-time appointment within the period of six months. If, in any case, it .is necessary to continue the full additional charge or current charge arrangement beyond this period, the case should be referred to the Ministry of Finance stating the steps taken to fill the post on a whole-time basis, the reasons why it was not possible to appoint a whole-time officer within the prescribed period and giving full justification for further continuance of the temporary arrangement.
4. (1)
(G.P., M.F., P.M.No,F.4(46)-RII(III)/56, dated the 26th October, 1957).
(2) ..................................
F.R. 49 would also not be applicable when the work of another officer holding lower. or higher post is covered or looked after by another officer in the same officer or establishment. In cases of this kind the officer cannot function both in higher and lower capacities and in actual practice work is disposed of by him once for all at the level of his authority., There is no specific appointment to the higher or lower post resulting in "combination of appointments" within the Meanings of F.R. 49.
These orders have been issued in consultation with the Comptroller and Auditor General.
(G.P., M.F., O.M. No, F. 1(1)-RI(RWP)62, dated the 21st April, 1962.)
(3)
2.
(ii)
(iii)Immediately on the expiry of the period of six months of the full additional charge under (ii) above of a particular vacant post, the post shall be treated as having been abolished and its duties automatically becoming part of the normal duties of the other existing posts of the same category in the Division/Department concerned. The post so treated as abolished shall not be revived without the concurrence of the Financial Adviser concerned who will not accept such proposal unless-- (a)it is established to his satisfaction that the work of the abolished post was incapable of being carried on by redistribution among the other Government servants; and (b)a Government servant will be available for posting against the post without having recourse to arrangements mentioned as ( above.
6. By a letter dated 12.8.1997, the Government of N.W.F.P. in the Finance Department has issued detailed instructions on the subject presumably under F.R. 49 which is reproduced below for the sake of convenience: No, FD (Sr-D3-19/92 Government of N.W.F.P. Finance Department Dated Peshawar,, the 12.8.199 From: The Secretary to Government of N.W.F.P. Finance Department, Peshawar.
To,
1. All Administrative Secretaries to Govt: of NWFP; 2 The Senior Member, Board of Revenue, NWFP, Peshawar; 3.The Secretary, Provincial Assembly, NWFP, Peshawar; 4.All Heads of Attached Departments in NWFP; 5.The Secretary to Governor, NWFP Peshawar;
6. The Secretary to Chief Minister, NWFP Peshawar; 7 All Commissioners/Deputy Commissioners/Political Agent District & Sessions Judges, in NWFP;
8. The Registrar, Peshawar High Court, Peshawar;
9. The Secretary; Public Service Commission, NWFP Peshawar;
10. The Registrar, Service Tribunal, NWFP, Peshawar;
11. The Secretary, Board of Revenue, NWFP, Peshawar. Subject: ENTRUSTMENT OF ADDITIONAL CHARGE AN GRANT OF EXTRA REMUNERATION FOR HOLDING ADDITIONAL CHARGE OF POSTS. UNDER F.R. 49.
Sir, I am directed to refer to the subject noted above and to say that it has been observed that the instructions regarding entrustment of additional charge of posts and grant of extra remuneration issued from time to time are not strictly adhered to. This not only results in unnecessary extra expenditure, exchange of correspondence between the Finance Department and the Administrative Departments concerned but the Government Servants concerned are also placed in difficulties.
2, With a view to stream-lining the cases of additional charge and payment of extra remuneration the following consolidated instructions are issued:--
(i) DISTRIBUTION OF WORK OF A VACANT POST.
The work of a vacant post, as far as possible, be distributed among more than one Govt. Servant of the same status and designation available in the Department/Office.
(ii) ADDITIONAL CHARGE ARRANGEMENT.
Where the distribution of the work among more than one Government Servant is not feasible, the charge of the vacant post may be entrusted in its entirety, to another Government Servant in an equivalent scale/status. This arrangement should not be made for a period less than one month and should not exceed three months and it should be allowed with specific approval of the Secretaries/Heads of the attached Departments/Heads of Department not below BPS-20. However, it may be extended by another three months with the approval of next higher authority.
Immediately, on the expiry of six months of the full additional charge of the particular vacant post, the post shall be treated as having been abolished and its duties automatically becoming part of the normal duties of the other existing posts of the same category in the department concerned.
The post so treated as abolished shall not be revived without the concurrence of the Finance Department.
(iii)PRIOR APPROVAL OF THE FINANCE DEPARTMENT.
(a) Before making full additional charge arrangement prior approval of the Finance Department may be obtained;
(b) Where it is not possible to obtain prior approval of Finance Department for cogent reasons, the proposal should be initiated immediately after making such arrangement and in any case not later than ten days from the date of making such arrangement. In such cases detailed reasons for which prior approval of;
(c) Finance Department could not be obtained may invariably be given. However, Finance Department reserves the right to accept or reject the reasons advanced by the department concerned after examination of the case on merits.
(iv) ADDITIONAL REMUNERATION Additional charge/Dual charge allowance shall be sanctioned by the Finance Department at a uniform rate of 20% of basic pay not exceeding Rs, 800/- P.M. subject to fulfillment of the above conditions.
3. I am to request that the above instructions may be brought to the notice of all concerned for strict compliance. Your Obedient servant, Sd/- (MUHAMMAD SULTAN) Additional Finance Secretary-V Endst: No, FD(SR-I)3-19/92 Dated Peshawar, the 12.8.1997. Copy forwarded for information to:--
1. All the Heads of Autonomous and Semi-Autonomous Bodies in NWFP.
2. The Secretary Finance Department, Government of the Punjab, Sindh and Baluchistan, Lahore, Karachi and Quetta,
3. The Secretary Finance Department, Azad Government of the State of Jammu and Kashmir Muzaffarabad, Sd/- (Sultan Mahmood Khattak)
Deputy Secretary (Regulation)
Endst: No, FD(SR-I)3-19/92 Dated Peshawar, the 12.8.1997. Copy forwarded to:--
1. The Accountant General, NWFP, Peshawar,
2. All District/Agency Accounts Officers in NWFP,
3. The 'Treasury Officer, Peshawar,
4. The P.S. to Secretary, P.As. to Additional Secretaries/Deputy Secretaries in Finance Department,
5. All Section Officers/Budget Officers in Finance Department,
6. The Director, Local Fund Audit, NWFP, Peshawar, Sd/- (Muhammad Khan) Section Officer (SR-I).
7. From a bare perusal of the provisions of FR-49, the decisions made by the Federal Government and the instructions issued by the Government of N.W.F.P. thereunder and as reproduced earlier, it is clear that these, inter-alia, provide that:--
(i) Additional charge can be allowed only to an office of equal grade/status;
(ii) The period of additional charge shall not be less than one month and more than three months;
(iii) The additional .charge can be allowed only with the approval of Secretary of the Department/Head of the attached Department not below the rank of an officer of Grade-20.
(iv) The Additional charge can be extended in exceptional circumstances for another three months but in no case, it shall exceed six months and the extension can be allowed only with the approval of next higher authority;
(v) For making the full arrangement for additional charge, prior approval of the Finance Department is to be obtained. However, where it is not possible proposal for such appointment shall be initiated immediately but not less than 10 days for which cogent reasons are to be given; and (vi)On expiry of six months, the post the additional charge of which has. been given to another officer will stand abolished and the work of the post is to be distributed equally amongst other officers of the Department.
8. However, in the present case, we see that neither the petitioner was in the same grade of which he was given the additional charge of Office Superintendent/Accountant because reportedly the petitioner was in BPS-6 while the posts of Office Superintendent/Accountant stand in BPS-11 nor prior or even any. subsequent approval of the Finance Department was ' obtained. Besides, from the perusal of the record, we find that the additional charge of Office Superintendent was given to the petitioner from 21.2.1995 and it is reported that he continued the additional charge till 1.9.2001 in utter violation of the foregoing rules or in other words for more than 6 months and on expiry of the same, the post automatically stood abolished for which no allowance could be claimed. Moreover, while allowing him the additional charge of the post of Accountant, it was clearly provided in the order dated 19.3.2001 that the petitioner will hold such charge without any remuneration and, while operating the charge, he accepted this condition but inspite of that he has come to the Court for the relief claimed. He is, therefore, estopped by this conduct to sue the respondents.
8A. We may clarify here that in its comments, Respondent No, 1 has taken the plea that FR. 49 is not applicable to the case of the petitioner because he was not a Government servant but an employee of, Local Government. However, at the time of the arguments, the learned counsel for Respondent No, 1 himself placed reliance on the foregoing provision and we think he has rightly done so in view of R. 11 of the N.W.F.P. Local Council Service Rules 1980, which reads: "Matter not specifically provided for.--In all other matters not specially provided for in these rules, the employees shall be governed by such rules and orders which are for the time being in force and applicable to persons holding corresponding posts in Government service subject to such modification as the Local Council may, with the prior approval of Government specify.
We are neither aware of any rules on the subject made by the Local Government nor any such rules were brought to our notice, as such, F.R. 49, further -rules made or instructions issued thereunder are applicable to the employees of the Local Government.
9. For the foregoing reasons, this writ-petition is without any merit and is hereby dismissed.
However, we leave the parties to bear their own costs.