' DR. SAJID QURESHI, J.--- Brief facts are that the petitioner was performing his duties in National Construction Limited (NCL) under the administrative control of the Ministry of Housing and Works since 22nd June, 1976, when the services of the petitioner were requisitioned by the Senate Secretariat from Ministry of Housing and Works, Government of Pakistan and terms and conditions of deputation were duly agreed and consented between the incumbent, Senate Secretariat/borrowing and lending department. The services of the petitioner were absorbed with benefits of counting the seniority in his parent department. However, no fresh terms and conditions were settled between the petitioner and the Senate Secretariat/borrowing and lending department and the previous service of the petitioner was also counted, therefore, the petitioner continued to draw his salary as such from the date of his absorption i.e, 29th September, 2003 to the date of promotion as Additional Secretary in BPS-21 on 18th November, 2005. That after promotion as Additional Secretary, the salary of the petitioner was reduced to even less than salary drawn by the petitioner in previous scales i.e, Joint Secretary in BPS-20. Representation was made to AGPR and as a result the actual salary of the petitioner was restored with the advice to the Senate Secretariat to get the said pay protected by the Chairman Senate (competent authority) under section 21-A of the Senate Secretariat (Recruitment) Rules, 1973. To this the respondent No,1 sent a reference on certain points to the Finance Division who replied, to which the petitioner did not agree then the petitioner again filed an department appeal which has not been responded to. A letter was issued to the petitioner to deposit an amount of Rs,2,80,897, (which has been overpaid regarding pay and allowances and which was to be recovered under Rule 215 of the Federal Treasury Rules), in the State Bank of Pakistan. Further, the petitioner was also directed to deposit an amount of Rs,3,97,814 in the office of AGPR on account of C.P. Fund and Rs,4,50,555 on account of pension contribution in the State Bank of Pakistan on the directions of respondent No,1. The petitioner wishes that the previous service may be counted towards pay protection and pensionary benefits.
2. The learned counsel for the petitioner while reiterating the above facts stated that the petitioner's service in the previous organization is counted towards seniority and protection of pay therefore, depriving the petitioner from the protection of pay. It was contended that the employees of the NCL and Senate Secretariat were not civil servants, therefore, any reference to the Civil Servant Act is not applicable as far as the employees of the Senate are concerned. That .The reduction in pay of the petitioner is illegal unlawful and against the decision made by the competent authority when especially the petitioner was already granted the benefit of seniority while counting the previous service rendered by him under the Ministry of Housing and Works (NCL). Further, the learned counsel argued that the action of the department against the petitioner is a violation of principle of locus poenitentiae since the benefit was already granted to the petitioner when he enjoyed upto date promotiofl as Additional Secretary in BPS-21. He relied on Chairman Minimum Wage Board Peshawar v. Fiaz Khan Khattak 1999 SCM R 1004 and Chairman Selection Committee King Edward Medical College v. Wasif Zameer Ahmad 1997 SCM R 15. That according to the Senate Secretariat (Recruitment) Rules, 1973, Rule 13 allows for relaxation of rules in case of hardship in a particular case, and the Chairman Senate is competent to pass any order or relax any conditions if he so desires. It is an established principle of law that discretion should be exercised fairly, justly and equitably to an aggrieved employee, relying on Abdul Hafeez Abbasi v. M.D., PIAC 2002 SCM R 1034.
The learned counsel contended that there has been discrimination since the Chairman Senate had exercised his discretionary powers in other cases, he gave an example of Fazal Dad, Assistant Protocol Officer (then LCD) relying on Abdul Samad v. Federation of Pakistan 2002 SCM R 71 and Engineer Naraindas v. Federation of Pakistan 2002 SCM R 82. The learned counsel further contended that the respondent should not raise technical objection when the question of payment of salary is involved, it is the duty of the Government to pay the salary relying on Amjad Hussain v. Secretary Finance Division 1998 SCM R 1442. Finally, the learned counsel prayed that the writ be issued and the respondent be directed to pay of the petitioner and also count the previous service for the purpose of pension and the amount of Rs,2,80,897 be reimbursed to the petitioner at the earliest.
3. The learned counsel for the respondent stated that the employees of Senate Secretariat are not governed by the Civil Servants Act and are not civil servants being in agreement with the petitioner.
That% the petitioner had drawn pay In NCL which can be protected by the Finance Division but AGPR could not provide any rule and issued a revise pay slip to the petitioner and directed the respondent to recover the overpayment made to the petitioner. The petitioner in the meantime was appointed Additional Secretary BS-21 in the Senate w.e.f, 18-11-2005 and without involving the Senate Secretariat was issued another pay slip allowing him the benefits of his pay in NCL but clearly stated that the revision of pay was purely provisional and was subject to the approval of the Senate Finance Committee or Finance Division. On the absorption in the Senate Secretariat, the petitioner was treated as a fresh appointee in Government service. The learned counsel stated that in the said Senate Secretariat (Recruitment) Rules, 1973, there is no provision to deal with the issue of protection of pay of the employees. When the matter was taken up with the Finance Division, the Finance Division stated that NCL is a company registered in the Securities and Exchange Commission of Pakistan (SECP) under the Companies Law having its own pay scales and service rules. So therefore, the employees are not civil servants and their pay on appointment to a civil post under the Government is not protected under the prescribed policy of the Finance Division.
The Finance Division has clarified that NCL is not a pensionable organization having a contributory provident fund scheme for its retiring employees, therefore, the services rendered in NCL cannot be counted towards pension. The NCL has also clearly stated in writing that there is no pension benefit admissible to employees except the Old Age Pension under the Old Age Benefits Act, 1976. The learned counsel stated that since the services rendered under NCL were not counted towards pension, the Finance Division recommended that the petitioner be compensated through grant of advanced increments and accordingly the Chairman Senate was pleased to grant six premature increments w.e.f, 29-9-2003 (date of",his permanent absorption in (BPS-20) in the Senate Secretariat Due to revision of pay and allowances of AGPR, the rates of pay and allowances of the petitioner were refixed as his entitlement and the said amount of Rs,2,80,896 as worked out as overpayment to the petitioner. It is consented, that the petitioner deposited the amount in the State Bank of Pakistan. There was no dispute upon the depositing of the amount.
4. Arguments heard. Record perused and case-law examined.
5. It is clear that NCL, has a status of a company which is duly registered in the SECP under the Companies Ordinance, 1984, which has its own pay scales and cannot be equated to any Government Service Pay Scares. The petitioner had been working in NCL which although is a company but working under the purview of Ministry of Housing and Works, who decided to request for deputation initially for three years to the. Senate Secretariat. NCL had no objection and the petitioner assumed the charge of DG(PR) BS-20 on 2-6-2003. He was actually then absorbed into the Senate Secretariat w.e.f, 29-9-2003 with the concurrence of NCL and once he was absorbed, AGPR issued a slip fixing his pay at the initial stage. The Finance Division is silent on whether the pay of the petitioner could be protected by the Finance Committee of the Senate or the Finance Division, and instead of answering this question, the Finance Division directed the recovery of the overpayment made to the petitioner. From examining the Senate Secretariat (Recruitment) Rules, 1973, there is no provision which deals with the protection of pay of employees. But in Rule 12 there is a provision, which allows for matters not specifically provided for, which include recruitment policy, rank, status, inter alia, and privileges of the employee for which no provisions have been inserted in these rules, then the employees shall be governed by such rules and orders for the time being enforced and applicable to the employees holding corresponding posts in the Federal Secretariat. Federal Secretariat is defined as Ministries or Divisions of the Federal Government.
However, the rule concludes by giving the Chairman the right to order accordingly. Further, upon examination of Rule 13 if there is a undue hardship clause, he has discretion to dispense or relax the requirements with the approval of the Finance Committee by an order dealing with the case in a just and equitable manner. The representation was made by the petitioner essentially on the points raised above and as a result of this he was compensated in six premature increments. It is clear that the Senate Secretariat is an independent Constitutional body which has been created under Article 87 of the Constitution of Pakistan and is headed by the Chairman Senate. It has his own recruitment rules and does not come under any purview of Ministry or Division (under S.R.0.1561(1)/73 on 23rd out 1973 and the Finance Committee under S.R.0.1738(1)/73 under Senate Rules, 1973 dated 6th December, 1973 (under Article 88 of the Constitution). Similarly the National Assembly Secretariat is a separate independent Constitution body headed by the Speaker of the National Assembly. As such, both bodies are not bound to follow decision by the other body regarding their own employees. Admittedly, there are no pension benefits admissible to employees of NCL except the old age pension as provided under Old Age Benefits Act, 1973, and as integrated above NCL is a registered company having own pay scale and service rules so its employees are not civil servants. The judgment of the Supreme Court passed in C.A. No,804 of 1996 relied on by the petitioner is not applicable in this case being distinguished on facts and merits. Finally under F.4(2)R-96 issued by Finance Division under clause (2), the benefit of protection of pay and the employees of autonomous bodies on their subsequent appointment in Government Service is not admissible as the employees of autonomous bodies are not civil servants with the Civil Servant Act, 1973.
6. In view of the above, it transpires that the employees of NCL are not civil servants and the pay on appointment to a civil post under the Government is not protected under the prescribed policy of the Government circulated like Finance Division Office Memorandum No,F-4(2)/96, dated 12-8-2002, NCL is not a pensionable organization although it does have a contributory provident fund scheme for its retiring employees therefore, the service of the petitioner rendered in NCL cannot be counted towards pension in term of Article 361 of Civil Service Regulations. The overpaid pay and allowances can be recovered from the petitioner under Rule 215 of the Federal Treasury Rules.
7. In view of the above the writ petition is dismissed being devoid of merits. Parties to bear their own costs.