SHAH ABDUR RASHID (CHAIRMAN).-The appellant Mian Mumtaz Abdullah was promoted to grade 20 of the National Pay Scales and posted as officer on Special Duty in the Finance Division. On 28th November, 1975 he was appointed Joint Secretary in the same Division and in the same grade. On 4th December, 1975 his services were placed at the disposal of Agriculture Development Bank of Pakistan whose Chairman has been impleaded as respondent No. 3 in this appeal. It is not disputed that the service in the said Bank is a "Foreign Service" within the meaning of Fundamental Rule 9(7).
2. Appellant's case is that on his appointment to the foreign service, he was entitled to deputation pay equal to 20% of his basic pay subject to the condition that the pay plus deputation pay would not exceed the pay admissible to him on promotion to the next higher grade. His grievance is that in spite of this condition relating to the deputation pay, he had not only been deprived of the deputation pay but it has been ordered by the res--pondent No. 2, Secretary, Finance Division, that any deputation pay which he had drawn should be covered from him. It is, however, pertinent to note that by a subsequent order deputation pay was allowed to the appel--lant from 5th April, 1977 when amendment was carried cut in the relevant office Memorandum by Office Memorandum No. F.19(3)/RI.72, dated 13th July, 1976 laying down the guidelines for grant of deputation pay in foreign service.
3. The appellant has based his claim on .The strength of Office Memorundum No. F.19(3)RI/72 dated 1st August, 1973 based on the order of the President providing that a person sent on deputation to Foreign Service in Pakistan, in addition to the emoluments that would have been admissible from time to time in Government service but for the deputation, may be allowed deputation pay which would be equal to 20% of the basic pay subject to the condition that total pay inclusive of the deputation pay would not exceed the pay that would be admissible to him on promotion to the next higher grade in the ordinary line of his service in the Govern--ment.
4. The Office Memorandum was amended by another Office Memoran--dum of the same number dated 1st March, 1975 whereby a clog was placed by way of proviso for condition entitling the drawing of the deputation pay. This proviso reads as follow :- "Provided further that where a Government Servant has been trans--ferred on deputation to foreign service immediately on promotion, without having worked on the post or cadre of post to which he had been promoted, he shall not be entitled to any deputation pay."
This proviso does not cover the case of the appellant because he was already working in grade 20 before his deputation to the Foreign Service.
5. The proviso was, however, amended by Office Memorandum No. F.19(3)/RI/72, dated 13th July, 1976 laying down the following con--ditions in para. 2 thereof :-
(i) The deputation pay in the above guide-lines, shall not be admissible in the case of officers in grade-22.
(ii) In the case of other officers also the above deputation pay may be allowed only after the officer concerned has completed or is deemed to have completed two years continuous service in the grade in which, but for his deputation to foreign service, he would have been employed under the Government."
Condition (ii) was subsequently amended on 10th May, 1977 and the period of two years was reduced to one year.
6. Respondent's case is that the Office Memorandum of 1st August, 1973 on which the appellant has relied has no force of rule or law but provides only a guideline for allowing deputation pay and that in spite of these guide-lines, the lending department and the borrowing office have right to change the terms and conditions of deputation from time to time. It was further stated that the appellant was allowed deputation hay when he completed two years of service in grade 20 and his representation that he should be allowed deputation pay after completing one year of service was not accepted because the order reducing the period from two to one year was not retrospective and was applicable only after the issuance of the order reducing the period to one year.
7. We have heard the learned counsel for the appellant as well as the learned counsel for the respondents Nos. 1 and 2 at length. The stand taken on behalf of respondents Nos. 1 and 2 is that the Office Memorandum dated 1st August, 1973 only lays down guidelines for allowing deputation pay and that no Government servant transferred to Foreign Service could as of right, claim deputation pay on the strength of the said Office Memo--randum. It appears that this has been the stand of the Ministry of Finance throughout because on October 25, 1973 they had clarified that tie Office Memorandum dated 1st August, 1973 does not constitute any new rule and that the instructions are only by way of guidelines under the existing rules. This clarification in our view does nor affect the original Office Memorandum because that was issued under the orders of the President who was the rule making authority in respect of the persons serving in connection with the affairs of the State and his orders could not be amended by the Ministry itself. Moreover the Office Memorandum itself in para 3 provided that the instructions would replace the corresponding provisions in the existing rules/orders and will apply to all future cases including those whose terms and conditions of deputation have not been sanctioned by the Foreign Service Deputation Terms Committee. It is not a case of respondents Nos. 1 and 2 that the Foreign Service Deputation Terms Committee had at any time determined the terms of deputation of the appellant. The Office, Memorandum of 1st August, 1973 as it stood on 4th December, .1975 is, therefore, duly applicable to the case of the, appellant on the basis of which he was entitled to deputation pay in accor--dance with clause (a) of para. 1 of the Office Memorandum. Any further amendments made in the Office Memorandum would not affect the right of the appellant if they are to his disadvantage. Needless to say that the law does not envisage discrimination between various persons standing on the same footing.
8. In view of the above discussions, therefore, it is clear that the action of the respondents disallowing the deputation pay to the appellant from the date of his deputation to Agricultural Development Bank of Pakistan is illegal. They are directed to allow deputation pay to the appellant with effect from 4th December, 1975 the date on which he was sent to the said Bank in Foreign Service.