.ORDER NAZAR MUHAMMAD BALOCH, MEMBER. -Appellant being aggrieved from the original order No. FD(SR- 111)5/22-85, dated 11.1 2001 issued by theRespondent No. 3 and final appellate order bearing No. SO(APLS)-l(S&GAD)3-22-2001, dated 5th December, 2001 of the Respondent No. 1 Chief Secretary Sindh has filed the appeal under Section 4 of the Sindh Service Tribunal's Act, 1973. It has been prayed to set, aside the impugned orders through which the appellant who was drawing orderly allowance while working in the Sindh Secretariat was held not to be entitled for the same while working in the Coastal Development Authority.
2. The facts of the case in brief are that the appellant who being Officer of ex-PCS Cadre of BPS-20 was transferred and posted as Consultant, Coastal Development Authority, Government of Sindh where he assumed charge on 19th May, 2001. The appellant who was being paid orderly allowance was initially prohibited from drawing the orderly allowance on this post but later on the same was allowed to him provisionally by the Office of the Accountant General, Sindh and now he has been required to refund this amount which was provisionally paid to him. Earlier while he was posted as Director General, Environment Protection Agency since 3.2.2001 the payment of orderly allowance was stopped but later on the same was provisionally allowed. The apprehension of the appellant is that orderly allowance drawn by him during his above two postings may be recovered from his.
Pension on the basis of impugned letter No. FD(SR-lll)5/22-85, dated 11.1.2001 issued by the office of the Secretary to Government of Sindh, Finance Department respondent No. 3 which reads as under:-"
(1) It has been reported by various Officers that Officers in BS-20 in different Departments other than Provincial Secretariat are gettingOrderly Allowance alongwith their pay even after their retirement which is violation of the policy/instructions of the Finance Department. Apparently District Accounts Officers/Treasury Officers are also responsible for such violation, where ever same is being committed.
(2) It is, therefore, instructed for strict compliance to the District Accounts Officers and Treasury Officers that no orderly Allowance shall be allowed to BS-20 Officers, other than, who are working in the Sindh Secretariat, as per this Department's circular letter No. FD(SR-lll)5/22- 85, dated 10.2.1986.
Further-more, Orderly Allowance of Officers, other than BS-20 Officers of the Sindh Secretariat may be stopped, forthwith and to recover the amount for the period they have drawn Orderly Allowance while serving outside the Secretariat be effected immediately even from the retired Government servants out of their pension.
"3. The appellant filed appeal against the impugned letter of the Finance Department before the Chief Secretary Sindh respondent No. 1 which was considered and rejected vide letter No. SO.APPLS- l(S&GAD3-22/2001, dated 5.12.2001 mentioning therein that orderly allowance is only admissible to the Officers working in the Sindh Secretariat and the appellant while working in Coastal Development Authority was not entitled for orderly allowance.
4. We have heard Mr. M.M. Aqil Awan learned counsel for the appellant and Mrs. Tabasum Ghazanfar. Assistant Advocate General Sindh for the respondents and have also perused the record.
5. It was argued by the Learned counsel for the appellant that the appellant was paid the orderly allowance from 1994 to June 2001 while posted as Member, SindhService Tribunal, Director General, Provincial Ombudsman and even for the period of 16 months during which he was awaiting posting. That the impugned original letter is unreasonable and discriminatory in nature. Orderly allowances which the appellant was drawing before his posting in the Coastal Development Authority could not be withdrawn, arbitrarily as all persons equally placed are to be treated alike in privileges. Neither the appellant had requested the Government to post him in the Coastal Development Authority nor he was provided services of orderly in that Authority. That from perusal of impugned notification it would appear that no reason has been given for stopping orderly allowances to the Officers of BS-20 on their transfer from the Secretariat. That in the impugned appellate order also no reasoh/justification has been given for rejecting the appeal. He, therefore, argued that both the impugned orders are void, ab initio and against the principles of natural justice which may be set-aside, and, it may be held that the appellant was entitled for orderly allowance even after his transfer from the Sindh Secretariat.
6. The learned A.A.G. Has opposed grant of relief as sought in the appeal and has argued that the Government could grant any allowance to the Officers working in the Secretariat and can withdraw the same when such Officer is posted out of the Secretariat.
7. We have considered the arguments of both the Learned counsels of the parties. We specifically enquired from the Learned A.A.G. Whether orderly allowance is included in pension at the time of retirement to which she replied after confirming from Mr. Iqbaluddin, Section Officer, Finance Department who was present on 24.1.2008 that this allowance is included in pay at the time of calculation of pension. Accordingly if an Officer of BS-20 working in the Secretariat retires in that capacity he will have permanent increase in pension due to adding orderly allowance in the pension whereas the Officer of the same grade if he retires while posted outside Secretariat will have to sustain financialloss on account of drawing pay minus orderly allowance at the time of retirement.
8. Rule 22 of the Sindh Civil Service Rules (The Sindh Civil Services Rules Manual Volume-1 - Rules, Financial Publication of the Government of Sindh printed at the Sindh Government Press, 1976) reads as under:-
(a) A Government servant may be transferred from one post to another; provided that, except:-
(1) on account of inefficiency ormisbehaviour, or
(2) on his written request, a Government servant shall not be transferred substantively to, or, except in a case covered by Rule 609, appointed to officiate in, a post carrying less pay than the pay of the permanent post on which he holds a lien, or would hold a lien had his lien not been suspended under Rule19.
(b) Nothing contained in clause (a) of this rule or in clause (31) of Rule 9 shall operate to prevent the re-transfer of a Government servant to the post on which he would hold a lien, had it not been suspended in accordance with the provisions of clause (a) of Rule 19 or the transfer of a Government servant to a post on mofussil scale of pay in accordance with the provisions of Rule 42.
9. A careful perusal of Rule 22 as reproduced herein above would reveal that government servant is not to be transferred to a post carrying less pay than the pay of the permanent post on which he holds lien. Admittedly the appellant held lien on the post of Secretary/equivalent BS-20 on his promotion and he was posted on this post since 1994 to 2001. He could therefore not be transferred to a post carrying less pay, except on account of inefficiency ormisbehaviour or on his written request, which grounds were not available in the present case.
10. We are also of the considered view that impugned original order dated 11.1.2001 is against the principles of natural justice. No reason has been given for depriving the Officers of BPS-20 from drawing the orderly allowance on their transfer outside the Secretariat and it is neither reasonable classification nor equal treatment. Resultantly both the impugned orders are set aside and it is declared that the Officers of BPS-20 drawing orderly allowance while posted in Secretariat are entitled to draw the same even after their transfer outside the Secretariat unless either the transfer is on account of inefficiency or misbehaviour or on his written request or he is provided services of orderly at the new posting.
11. Hereinabove are the reasons for our short order dated 31.1.2008 allowing the appeal with no order as to costs.