MR. JUSTICE (R) TANVIR BASHIR ANSARI (CHAIRMAN).--- By this common judgment we propose to dispose of the above mentioned appeals as -identical questions of law and facts are involved therein.
2. The Federal Government vide Finance Division's O.M. No,F.1(32)/Imp-11/88, dated 1-7-1988 sanctioned Secretariat Allowance @ 20% of basic pay to the Federal Government employees working in the Federal Civil Secretariat. Later this facility was extended to the employees of the attached departments vide Finance Division's O.M. No,F.8(12)/R, dated 18-9-1993. Secretariat Allowance was later abolished and converted into "Personal Allowance" vide Finance Division's O.M. No,1(2) Imp(94) (1), dated 15-6-1994.
3. The appellants in these appeals are employed in the Military Accountant General Department either as Senior Auditors in BS-14 (Previously BS-11) or Junior Auditors in BS-7 (previously BS-5).
4. Through letter No,749/Estt-IV/C/107/94, dated 28-8-1995, the Auditor General of Pakistan declared that Military Accounts Department in respect of Accounts Group only is a component part of Auditor-General of Pakistan. Otherwise it was an independent department, maintaining accounts relating to defence estimates on behalf of Ministry of Defence and not on behalf of Auditor General of Pakistan. The 20% Secretariat Allowance was not required to be granted by Auditor-General to the employees of Pakistan Military Accounts Department. It was further observed that the Military Accountant-General as the Head of Department if considered appropriate can grant Secretariat Allowance on provisional basis to the employees of his department as other Heads of Departments have done. Earlier the Auditor-General of Pakistan issued letter No,778/Estt.IV/C/104-94, dated 3-11-1994 whereby it was decided that employees of all categories of Pakistan Audit Department except I.D.C. officers are entitled to 20% Secretariat Allowance w,e,f, 1-3-1994 on a provisional basis.
5. The Military Accountant General Rawalpindi, in pursuance of Auditor General of Pakistan's letter dated 28-8-1995 referred to above, allowed Secretariat Allowance @ 20% of pay w,e,f, 1-3-1994 to all employees of Pakistan Military Accounts Department vide letter No,1244/AN/04-XXIX dated 29th October, 1997. It may be mentioned here that although the Secretariat Allowance was made effective from 1-3-1994, the same was actually paid to the employees of the Department of Military Accountant-General w,e,f, 1-10-1997.
6. The appellants felt aggrieved of the non-payment of the Secretariat Allowance/Personal Allowance for the period 1-3-1994 to 30-9-1997. The appellants further claimed that they were entitled to the Secretariat Allowance right from its very inception i,e, 1-7-1988.
7. The appellants submitted departmental representations on or about 13-11-2004 wherein it was submitted that they may be granted the arrears of Secretariat Allowance w,e,f, 1-7-1988 to 1-10- 1997 or at lest w,e,f, 1-3-1994 to 1-10-1997 and that these arrears may also be counted towards pensionary benefits.
8. Meantime the President promulgated the Secretariat Allowance (Rescission of Order etc.)
Ordinance XXII of 2000 on 30-3-2000 whereby Secretariat Allowance/Personal Allowance was abolished altogether with retrospective effect i,e, 1-7-1988. The appellants claim in the departmental representations that the Ordinance No,XXII of 2000 would not curtail or affect the right to claim Secretariat Allowance/ Personal Allowance as the right to the same had accrued before the promulgation of the said Ordinance which could not have retrospective effect. This representation was not responded to. Subsequently the instant appeals were filed in this Tribunal.
9. Rao Fazal Khan Akhtar, the learned counsel for the appellants contends that the status of the Military Accounts Department is that of an attached department of Ministry of Defence and that as such the employees of the M.A.G. Department shall be entitled to the payment of the Secretariat Allowance/Personal Allowance. It is urged that at any rate the Military Accountant General had sanctioned Secretariat Allowance w,e,f, 1-3-1994 to all the employees of the Pakistan Military Accounts Department vide Circular No,1244/AN/04/XXIX dated 29-10-1997. The respondents acted without lawful authority in making the payment of the said allowance only w,e,f, 1-10-1997 and not from the effective date i,e, 1-3-1994. It is contended that there was no legal justification for the respondents to have denied the accrued vested right to the appellant and that by no subsequent legislation could the said right be taken away with retrospective effect.
10. Referring to section 2(1) of the Ordinance XXII of 2000 it is submitted that any order made before the commencement of the Ordinance, shall be deemed to have been validly made. It is contended that the order dated 29th October, 1997 securing the payment of Secretariat Allowance w,e,f, 1-3- 1994 has thus been held to be valid and any violation of the same would not take away the substantive right of the appellants.
11. It is further submitted that even after the promulgation of the said Ordinance of 2000 the Federal Government had allowed the payment of Secretariat Allowance/Personal Allowance upto 1-12- 2001. It is contended that it is ironic that on one hand the Federal Government has released payment of the said allowance after the promulgation of Ordinance XXII of 2000, the same piece of legislation is being construed to take away the rights of the appellants which had accrued and matured much before the coming into force of the said law.
12. Upon the question of retrospectiveity the learned counsel for the appellant has placed reliance on Muhammad Rafique v. Federation of Pakistan PLD 2005 Lah. 150 to submit that only matters of procedure can operate retrospectively so as to be applied to pending matters but an alteration of law will always be effective prospectively if it has the effect of taking away an existing right.
Reliance is also placed on Raja Shoukat Mehmood v. AJ&K Government 2003 PLC (C.S.) 424 (Supreme Court, AJ&K), to emphasise that any change in statute if it deals with procedure could be construed retrospectively otherwise such change cannot be allowed to destroy accrued rights in the light of provisions of section 6 of the General Clauses Act, 1897.
It is urged that if substantive rights have been effected by the change of law, then the law which was previously enforced would apply to the benefit of person to whom any such benefit had accrued at the time when that law was in existence. The learned counsel particularly relied on Secretary to the Government of Pakistan, Ministry of Finance v. Muhammad Hussain Shah and others 2005 SCMR 675, which was a case in relation to the Secretariat Allowance (Rescission of Order etc.) Ordinance, XXII of 2000. In that case a civil servant who was drawing such Personal Allowance was retired before promulgation of the Ordinance XXII of 2000 and it was held by their Lordships of the Supreme that "a vested right had accrued to civil servant at the time of his retirement in terms of un-amended Rule 38(c)(i) of the Civil Service Rules and that such Personal Allowance would be reckoned within calculation of pension of civil servant. In the same context it was held that a notification cannot operate retrospectively, if same affects adversely the interest of any person.
13. The learned counsel further urged that that the appellants could not be penalized by the inaction of public functionaries in respect of their substantive rights. It is elaborated that when the appellants had become entitled to the payment of Secretariat Allowance, the said right would not be taken away by the inaction of the respondents to pay the same to the appellants at the appropriate time. Reliance has been placed on Muhammad Ikram Alvi v. Secretary to the Government of the Punjab Communication and Works Department, Lahore 2004 PLC (C.S.) 59
14. It is further submitted that the dues in respect of the Secretariat Allowance were unambiguous and specific and that there is no dispute about the right of a person and excuses or grounds such as lack of resources or decision by the competent authority not to pay such dues is not a valid ground for their refusal. Reference is made to Illahi Bux v. Sindh Sugar Corporation Limited 2004 PLC (C.S.) 1375.
15. On the other hand Mr. M. Aslam Uns, Advocate controverted the stand of the appellants on legal as well as factual grounds. It is contended that the appellants were in receipt of the Secretariat Allowance/Personal Allowance w. e. f. 1-10-1997. The appellants were never paid the said allowance for the period 1-3-1994 to 30-9-1997. The Secretariat Allowance (Rescission of Orders etc.)
Ordinance No,XXII of 2000 was promulgated on 30-3-2000. According to section 2 (ibid), orders office memoranda, instructions and other instruments whereby the Secretariat Allowance was granted to certain Federal Government employees in the Federal Secretariat, President Secretariat, Prime Minister Secretariat, National Assembly Secretariat. The Senate Secretariat and other organizations of the Federal Government and the order, office memoranda, instructions and other instruments amending the aforesaid orders for the grant of Secretariat Allowance or for its conversion into Personal Allowance were rescinded and shall be deemed always to have been so rescinded on the 1st July, 1988 and no financial benefit whatsoever save and except as provided in subsection 2 shall accrue or deemed to have accrued become payable thereunder. This was to be effective notwithstanding any decision of any Court including a High Court and the Supreme Court.
According to learned counsel the only exception was as contained in subsection (2) (ibid).
According to this provision of law any order or instruction or decision of a Court which had been implemented immediately before the commencement of the Ordinance shall be deemed to have been validly made and any amount paid shall not be recoverable from the recipient of such allowance.
16. It is further urged that this matter came up before the Honourable Supreme Court in Federation of Pakistan v. Gul Alam Khan and others Civil Appeal 1575 of 1998 and other connected cases which were jointly decided on 23-10-2001. Section 2 subsection (2) of the Ordinance XXII of 2000 was considered and it was found that after the rescission of all orders regarding Secretariat Allowance/Personal Allowance w,e,f, 1-7-1988 such allowance after coming into force of the Ordinance XXII of 2000 was not recoverable. The Honourable Supreme Court held as under:-- "In case the Secretariat Allowance payable under the impugned judgment has not been paid, the private respondents will not be entitled to receive the same in view of the above Ordinance."
17. Reliance was further placed upon the judgment dated 10-1-2005 passed by Honourable Supreme Court in Pakistan Broadcasting Corporation and others v. Syed Noor Azhar Jafri Civil Appeals Nos.1508 and 1509 of 1997 and Pakistan Broadcasting Corporation v. Muhammad Suleman Javed and others Civil Appeals Nos.1358 and 1359 of 1999, wherein an identical question was involved. It was found that:- "Thus it is held that after promulgation of the above O.M. dated 15-6-1994 and Ordinance of 2000, the respondents are not entitled to 20% Secretariat Allowance."
18. The Teamed counsel for the respondents has further relied upon the judgment of the Lahore High Court passed in writ petition No,784/90 which was decided on 11-4-2000 i,e, after the promulgation of the Ordinance XXII of 2000. It was found that all the writ petitions had become infructuous in view of section 2 of the Ordinance XXII of 2000 and were thus disposed of as such. It is concluded that the appeals are without merit and are liable to be dismissed.
19. Arguments have been heard and record perused.
20. Secretariat Allowance was allowed in terms of the Finance Division's O.M. No,F.1 (32)/Imp-II/88, dated 1-7-1988 whereby 20% of the basic pay was made admissible to all Federal Government employees in the Federal Secretariat, President's Secretariat, Prime Minister's Secretariat, National Assembly Secretariat and Senate Secretariat. Other terms and conditions for the grant of the said allowance were prescribed therein. Later this facility was extended to the employees of the attached departments vide Finance Division's O.M. No,F.8(12)/R, dated 18-9-1993. The Auditor- General of Pakistan granted Secretariat Allowance to all categories of Pakistan Audit Department employees w,e,f, 1-3-1994 vide letter No,778/Estt IV/C/104-94, dated 3-11-1994. Through subsequent letter No,749/Estt-IV/C/107/94, dated 28-8-1995 issued by the Office of Auditor-General of Pakistan it was clarified that Pakistan Military Accounts Department is a component part of Auditor-General of Pakistan in respect of<u> Accounts Group only. </u>Otherwise it was an independent department maintaining the accounts relating to defence estimates on behalf of Ministry of Defence and not on behalf of the Auditor-General of Pakistan. It was found that 20% Secretariat Allowance was not required to be granted by the Auditor-General to the employees of the Pakistan Military Accounts Department. It was however, suggested that the Military Accountant General as the head of the department may if considers appropriate grant the Secretariat Allowance on provisional basis to the employees of this department.
21. It appears from the record that vide letter dated 29th October, 1997 the Military Accountant- General allowed Secretariat Allowance w,e,f, 1-3-1994 to all the employees of the Pakistan Military Accounts Department.
22. It is pertinent to mention at this stage that vide Finance Division's Regulation Wing's O.M. No,F- 1(2) Imp/94(i) dated 15-6-1994, the Secretariat Allowance was abolished w,e,f, 1-6-1994 and the amount actually drawn on 31-5-1994 was converted into Personal Allowance. As such Personal Allowance was to be paid to the entitled officials in BS-1 to 16 without any adjustment which was to be made in case of Government employees in BS-17 to 22.
23. The principal grievance of the appellants is that despite the order of the Military Accountant- General dated 29th October, 1997 for the grant of Secretariat Allowance w,e,f, 1-3-1994, the said allowance was released to them only w,e,f, 1-10-1997 and not w,e,f, 1-3-1994 as decided by the M.A.G.. It is further contended that within the meaning of Office Memorandum dated 15-6-1994, the appellants were entitled to the conversion of the Secretariat Allowance into the Personal Allowance and paid accordingly.
24. Admittedly, the Secretariat Allowance (Rescission of Order etc.) Ordinance XXII of 2000 was promulgated on 30-3-2000. The Secretariat Allowance/Personal Allowance was abolished all together w,e,f, 1-7-1988. Section 2(1)(2) (ibid) provides as under:--
1. <u>Short Title and commencement.--- (1) This Ordinance may be called as Secretariat Allowance (Rescission of Orders, etc.) Ordinance, 2000.
(2) It shall come into force at once.
2. Rescission of certain orders.--- (1) The orders, office memorandums, instructions and other instruments whereby the Secretariat Allowance was granted to certain Federal Government employees in the Federal Secretariat, President's Secretariat, Prime Minister's Secretariat, National Assembly Secretariat, the Senate Secretariat and other organizations of the Federal Government and the orders, office memorandums, instructions and other instructions amending the aforesaid orders, office memorandums, instructions and other instruments, hereinafter referred to as the orders, converting the Secretariat Allowance into Personal Allowance are hereby rescinded and shall be deemed always to have been so rescinded on the 1st July, 1988, and no financial benefit whatsoever, save and except as provided in subsection (2) shall accrue or deemed to have accrued to become payable thereunder, to the persons employed in the aforesaid secretariats and other organizations of the Federal Government notwithstanding any decision of any Court including a High Court and the Supreme Court.
(2) Any order made, instruction issued, decision of any Court including a High Court or the Supreme Court implemented immediately before the commencement of this Ordinance, shall be deemed to have been validly made issued and implemented and the amount of Secretariat Allowance including Personal Allowance already paid thereunder shall be deemed to have been validly paid and shall not be recoverable from the recipients of such allowances."
There is no denying the fact that the appellants were never paid Secretariat Allowance prior to 1- 10-1997. We do not consider it necessary to delve in any great detail into question whether or not the Military Accounts Department in an attached department of Ministry of Defence or that as such the employees of the M.A.G. Department shall be entitled to the payment of the Secretariat Allowance/Personal Allowance with effect from the date of the inception of these allowances i,e, 1- 7-1988. This is for the reason that section 2(1) of the Ordinance XXII of 2000 clearly stipulates that the orders, office memoranda, instructions and other instruments whereby Secretariat Allowance was granted as well as such orders etc. amending the said orders along with orders converting the Secretariat Allowance into Personal Allowance were specifically rescinded and would be deemed to have been so rescinded on the 1st July, 1988. It was provided that no financial benefits whatsoever save and except as provided in subsection (2) thereof shall become legally payable.
The saving clause only refers to the receipt of the actual amount as Secretariat Allowance/Personal Allowance and that the amount so received shall not be recoverable from the recipients of such Allowance. As it is established that none of the appellants were in receipt of any Secretariat Allowance/Personal Allowance before 30-9-1997, no order for its recovery for any unpaid period can be made in the light of the provisions of section 2(1)(2) of the Ordinance XXII of 2000. Any inaction of the department in making the payment would not be culpable and shall be of no consequence in view of section 2 of the Ordinance of 2000.
25. The letter dated 29-10-1997 making the Secretariat Allowance payable w,e,f, 1-3-1994 would be of no legal effect for the period 1-3-1994 to 1-10-1997 as far as the claim of the appellants is concerned.
26. There is no force in the contention raised by the learned counsel for the appellant that the provision of section 2(1) could not have retrospective effect. It is a cardinal principle of interpretation of statutes that where the legislative enactment itself confers retrospective effect expressly, the retrospectivity is to be given lawful effect. A perusal of section 2 of subsection (1) would show that the said provision of law has been specifically ordained to abolish the Secretariat Allowance ab initio save in those cases where this allowance has in fact been received by the Government servants. Only in such cases the past payment was saved and secured and it was laid down that the same shall not be recovered. This being the intent and purpose of the Ordinance of 2000, there is no room to admit any construction contrary to the intent of the Ordinance.
27. As stated hereinbefore the Secretariat Allowance was abolished vide O.M. No,F.1(2)Imp/94(i) dated 15-6-1994 and was converted into "Personal Allowance" w,e,f, 1-6-1994. This was however, subject to the condition that the said conversion would be effective in accordance with the amount actually drawn as Secretariat Allowance on 31-5-1994. As a necessary. corollary if no Secretariat Allowance was actually drawn on 31-5-1994 it could not be converted into "Personal Allowance" under the said O.M. In this view of the matter also the appellants have no case for the payment of Personal Allowance after 1-6-1994.
28. The matter regarding the interpretation of section 2 (1)(2) of the Ordinance XXII of 2000 came up before Honourable Supreme Court in a number of cases. In the case of Federation of Pakistan v.
Gul Alam Khan and others and similar connected matters (Civil Appeal No,1575 of 1998) decided on 23-10-2001 it was held as under:-- "In case the Secretariat Allowance payable under the impugned judgment has not been paid, the private respondents will not be entitled to receive the same in view of the above Ordinance."
Similarly in the case of Pakistan Broadcasting Corporation and others v. Syed Noor Azhar Jafri, (Civil Appeals Nos.1508 and 1509 of 1997) and Pakistan Broadcasting Corporation v. Muhammad Suleman Javed and others (Civil Appears Nos.1358 and 1359 of 1999) the Honourable Supreme Court found as under:-- "Thus it is held that after promulgation of the above O.M. dated 15-6-1994 and Ordinance of 2000, the respondents are not entitled to 20% Secretariat Allowance."
29. The same question was raised in writ petition No,784 of 1990 which was decided on 11-4-2000 i,e, after the promulgation of the Ordinance XXII of 2000. It was held that the writ petitions had become infructuous in view of section 2 of the Ordinance XXII of 2000 and were thus disposed of as such.
30.The examination of section 2(1)(2) leaves no manner of doubt that the intention of Ordinance XXII of 2000 was to completely abolish the Secretariat Allowance/Personal Allowance from its very inception. The ab initio abolition of the said allowance does not violate any acknowledged principle of law. The general principle of retrospectivity as canvassed by the learned counsel for the appellants are of no avail as express retrospectivity has been provided by the Ordinance itself.
31. For all foregoing reasons, we find no merit in the appeals which are dismissed.
32. No order as to costs.
33. Parties be informed accordingly.