' JAVED IQBAL, J.--- This appeal with leave of the Court is directed against the judgment dated 11-7- 2000 whereby the appeal preferred on behalf of appellant has been dismissed.
2. The leave granting order, dated 10-1-2002 is reproduced hereinbelow to appreciate the legal and factual aspects of the controversy:-- "The question whether full special pay allowed to a civil servant, while holding additional charge of higher post, is to be treated as emoluments for the purpose of pension and interpretation of Article 486, C.S.R. Made by Ministry of Finance and Auditor-General of Pakistan vide their letters, dated 17- 7-1986 and 9-9-1996 respectively, is correct, is a question of law of public importance as it will have the consequence of affecting all the civil servants in general, therefore, leave is granted to consider the same."
3. Heard Abdul Aziz Butt (petitioner) in person who mainly argued that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is urged with vehemence that Article 486 of the C.S.R. Has been misinterpreted and misconstrued by the learned Service Tribunal causing serious prejudice. It is next contended that no deletion, insertion or amendment could have been made in Article 486 of the C.S.R. Either by the Finance Division or by the Auditor-General of Pakistan to the disadvantage of the appellant. It is also pointed out that no gazette notification amending Article 486 of the C.S.R.
Was ever issued and the Finance Division's O.M. Dated 17-7-1986 duly clarified by the Auditor- General of Pakistan by means of letter dated 9-9-1996 cannot be equated to that of an amendment. It is also contended that the benefit given to Government employees by virtue of the provisions as contained in Article 486 of C.S.R. Cannot be curtailed.
4. Mr. Nasir Saeed Sheikh, learned Deputy Attorney-General appeared on behalf of the Federation of Pakistan strenuously controverted the view-point as canvassed by the appellant and supported the judgment impugned for the reasons enumerated therein with the further submission that the additional charge was held by the appellant on current charge basis just for a short span of time i,e, three months and twenty-five days and therefore, the special pay amounting to Rs,800 cannot be incorporated towards his pension forever. It is also pointed out that the policy as framed by the Finance Division and clarified by the Auditor-General of Pakistan is in consonance with Article 486 of the C.S.R. It is also mentioned that the appellant had opted for his pay pursuant to Letter No,F.10(4)-Reg.(6)/86, dated 1-7-1986 and no "U" turn could be taken by the appellant at this belated stage.
5. We have carefully examined the respective contentions as agitated on behalf of the appellant in the light of relevant provisions of law and rules made thereunder. The point which needs determination is whether full special pay allowed to civil servant while holding additional charge of higher post is to be treated as emolument for the purpose of pension or otherwise? A careful scrutiny of the entire record would reveal that the formula which has been adopted i,e, that the special pay drawn, the period will be divided by twelve months to get the average determination for the purpose of pension, is conformity with Article 486 of the C.S.R. And O.M. No,F.10(4)-Reg.
(6)/86, dated 17-7-1986 of Finance Division (Regulation Wing-II) and the letter of Auditor General of Pakistan bearing No,391.Reg-II/Pen/1-94C, dated 9-9-1996. It is worth-mentioning that the Finance Division Government of Pakistan is competent to clarify or interpret Article 486 of the C.S.R. Being the Competent Division. The clarification as made by the Finance Division is not in contradiction of the provisions as contained in Article 486 of the C.S.R. Besides that the Auditor-General of Pakistan has duly clarified that special pay drawn during previous twelve months will be averaged out and counted towards pensionable emoluments. The significant feature of the case is that the appellant had held the current charge of higher post for a short span of time i,e, three months and twenty- five days and therefore, special pay attached with the higher post cannot be counted towards his pension as it does not appeal to logic and reason. It may be kept in view that the appellant was holding the charge of higher post on current charge basis and he was never promoted against the higher post. Had he been promoted the position would have been different.
6. We have also examined Letter No,F.10(4)-Reg(6)/86,- dated 1-7-1986 which is reproduced hereinbelow for ready reference: "No,F.10(4)Reg(6)/86 Government of Pakistan Finance Division (Regulation Wing-II)
' Islamabad, ihe 1st July, 1986 OFFICE MEMORANDUM ' Subject: Calculation of Pension on last pay/emoluments drawn.
' The undersigned is directed to state that under the existing rules, pension is calculated on the average emoluments drawn during the last 36/12 months of service. The President has been pleased to decide that w,e,f, 1-7-1986 the pension of a civil servant who shall retire on or after this date shall be calculated at the existing rate on last pay/emoluments drawn provided the post has been held by him on a regular basis. Otherwise, pension shall be calculated on average emoluments as admissible prior to the issue of this office memorandum.
(2) The existing employees shall have the option to have their pension calculated either on the basis of last pay/emoluments drawn or on 12 months average emoluments whichever is more beneficial to them. No option will, however, be available to persons entering service on or after 1-7- 1986 and in their case pension shall be calculated at the prescribed rate on last pay/emoluments drawn.
(Ikram H. Ghauri), Section Officer."
7. A bare perusal of the said letter would reveal that the pension of a civil servant shall be calculated at the existing rate on last pay/emolument drawn provided the post has been held by him on a regular basis. As pointed out earlier that the appellant had never held the additional charge on regular basis. Besides that the appellant had also opted for pension pursuant to the above mentioned letter and 'option certificate' is reproduced hereinbelow for ready reference:-- "Option Certificate
(1) In terms of Finance Division (Regulation Wing-II), O.M. No, F. 10(4)-Reg(6)/86, dated 1st July, 1986, I opt for calculation of my pension on the basis of last pay/emoluments.
(2) In pursuance of Finance Division (Regulation Wing-II), 0.M. F.10(3)-Reg(6)/86(10, dated 1st July, 1986, I opt for commutation of 50% of my gross pension.
(Sd.) Signature Name and Designation No,052 Abdul Aziz Butt Branch/Dte G-II(CIV)
Dated July, 1990 Countersignature.
(Sd.) G-III(CIV) Munsif Khan."
8. From whatever angle Article 486 of the C.S.R., O.M. No,F.10(4)-Reg(6)/86, dated 1-7-1986 of Finance Division (Regulation Wing-II) and the letter of Auditor-General of Pakistan bearing No,391.Reg-II/Pen/1-94C, dated 9-9-1996 may be interpreted no benefit can be accrued to the appellant. The learned Federal Service Tribunal has examined the controversy with diligent application of mind by scrutinizing the entire record in depth in the judgment impugned, relevant portion whereof is reproduced hereinbelow for ready reference:-- "(5) The appellant in substance wants that this Tribunal should strike down the above mentioned letters dated 17-7-1986 and 9-9-1996 and under Article 486 C.S.R. Full amount of Rs,800 drawn as special pay from 26-6-1990 to 14-10-1990 be included in the pay drawn by the appellant for the purpose of payment of pension and commutation. We are unable to strike down the aforementioned letters for the reasons that in the O.M. Dated 17-7-1986 issued by the Finance Division, Regulation Wing, it is clearly laid down that "such special pays drawn will be divided by 12 months for ascertaining the average in terms of Article 486 C.S.R." This letter is a letter of Government of Pakistan, Finance Division, Regulation-II which is referred before for the sake of convenience. The further letter, dated 9-9-1996 of the Office of the Auditor-General of Pakistan is also referred for the sake of convenience. The above letters clearly pointed out that special pay drawn during the previous period will be divided by 12 months for ascertaining the average and will be counted towards pension emoluments. We do not find any inconsistency with the above letters and Article 486 C.S.R. And, therefore, the appeal of the appellant for including the full Special Pay of Rs,800 is misconceived and the appeal is dismissed."
' No illegality or irregularity could be pointed out by the appellant warranting interference in the judgment impugned. The appeal being devoid of merit is dismissed.