' TASSADUQ HUSSAIN JILLANI, J.---This order shall dispose of Civil Petition Nos. 1158 and 1159 of 2009 as both are directed against the same consolidated judgment.
2. Seeks leave to appeal against the judgment dated 26-3-2009 passed by the Federal Service Tribunal vide which respondents' appeals (Inspector and A.S.-I. Working in Telecommunication Wing of the Islamabad Capital Police) were allowed and it was held that in terms of paragraph 15 of the Notification issued by the Finance Department dated 4-9-2001, they were entitled to the special pay/allowances.
3. Learned Law Officer does not find cavil with the import of paragraph 15 referred to above but submits that the respondents would not be allowed the benefit of the said paragraph as they were not working in the Telecommunication Wing of the Islamabad Capital Police. He further submitted that the appeals filed by the respondents before the Service Tribunal were hopelessly time-barred but the learned Trial Court did not advert to this aspect and allowed the same. He added that the objection with regard to the limitation is a question of law and can be raised at any stage and it was for the Court to decide it in accordance with law declared by this Court.
4. Learned counsel for the respondents No, 1 in both cases have defended the impugned judgment by submitting that respondents have all along been working in the Telecommunication Wing of the Islamabad Capital Police; that the special allowance in question was rightly given to the posts against which respondents were working and they continued to draw the same till the year 2003, which is indicative of the fact that even the departmental construction accorded to the Notification dated 4.9.2001 reflected that the relevant paragraph of the same was 15 so far as the respondents are concerned and not paragraph 9 which learned Law Officer is trying to canvass. He lastly stated at the bar that the respondents have served and still continue to serve in the Telecommunication Wing of the Islamabad Capital Police.
5. We have heard learned Law Officer and learned counsel for the respondents and also have gone through the impugned judgment.
6. The moot point before the learned Tribunal was the import of two paragraphs of the Finance Department's Notification bearing No, F.1(5) Imp/2001 dated 4-9-2001, which reads as follows:-- "Government of Pakistan Finance Division (Regulation Wing)
' No, F.1 (5) Imp/2001 Islamabad, the 4th September, 2001 OFFICE MEMORANDUM ' Subject: REVISION OF BASIC PAY SCALES AND FRINGE BENEFITS OF CIVIL EMPLOYEES (BPS 1-22) OF THE FEDERAL GOVERNMENT (2001)
' The President has been pleased to sanction, with effect from 1st December 2001, a Scheme, as detailed below, of the Basic Pay Scales, Allowances and Pensions, 2001 for the civil employees of the Federal Government in BPS 1 to BPS 22 paid from the civil Estimates and from the Defence Estimate respectively as shown in the following paragraphs.
PART I - BASIC PAY SCALES AND ALLIED MATTERS
2. Basic Pay Scales.-The existing basic pay scales and the revised basis pay scales are shown in Annexure-I to this O.M. The revised basic pay scales shall be effective from 1st December, 2001.
Discontinuation of Allowance.--- the following allowances shall cease to be payable on introduction of the revised pay scales w.e.f, 1-12-2001.
(i) Cost of Living Allowance to BS 1 to BS 22 @ 7% of basic pay.
(ii) Adhob relief of Rs,300/- p.m: and Rs,100 p.m. To BS 1 to 16 (inclusive of BPS- 17 by virtue of Move Over).
(iii) Secretariat / Personal Allowance.
4. Special Additional Allowance.--- Special Additional Allowance sanctioned vide Finance Division O.M. No,F.1(7) Imp/99 dated 23rd July, 1999 shall be frozen at the level drawn as on date of issue of this O.M.
5. Initial Fixation of Pay.--- (1) Pay of the employees in service on 30-11-2001 shall be fixed at the stage in the revised pay scales which is as many stages above the minimum as the stage occupied by him above the minimum of the 1994 Basic Pay Scale.
5. Pay Fixation on Promotion.--- (2) The existing provisions regulating fixation of pay in case of promotion from lower to a higher post shall continue to apply.
6. Selection Grade and Move Over.--- Selection Grade in the scheme of Basic Pay Scales and Move Over scheme shall stand discontinued w.e.f, the date of issue of this O.M.
7. Pay Fixation of employees in Selection Grade and those who have Moved over to higher scale.--- Pay of an existing employee drawing pay by move over shall be fixed with reference to the pay scale of the post for the time being held by him. In case the employee was drawing pay in a Selection Grade, his pay will be fixed in the Selection Grade pay scale. The stage of fixation will be arrived at after allowing increments on national basis in the original scale of the post or the Selection Grade, in 1994 Basic Pay Scales, upto the point of existing pay. Pay of the employees will then be fixed at the relevant stage in the revised pay scales 2001.
EXAMPLE - I ' Assistant, BS-11 Selection Grade, BS-15, Moved Over BS-16 and in receipt of Pay of Rs,5490 Pay will be fixed in BS-16 i.e, Selection Grade Pay Scale at Rs,8320 as under:-- 1994Stage 15Stage 16Stage 17Stage 18Stage 19 Scale4845 5022 5199 5376 5553 2001 Scale7260 7525 7790 8055 8320 EXAMPLE - II ' Pay fixation of an employee in BS-11 who has moved over to BS-14 and is in receipt of basic pay of Rs,4480/- will be fixed after allowing notional increments in BS-11 of 1994 Basic Pay Scales upto the stage of basic pay drawn. Pay in revised BPS-11 will be fixed at the correspondent stage of Rs,6790/- as under: BS-1: Stg Stg StgStgStgStgStgStgStgStg 19 94 Pay15 346516 358117 18 19 20 21 22 23 24 Scale 36973813-329240454161427743934509 BS-1: 5215 539055655470591560906265644066156790 2001 Pay Scale EXAMPLE - III ' Pay fixation of an employee in BS-5 who has moved over to BS-11 and is in receipt of basic pay of Rs,3465 will be fixed after allowing notional increments in BS-5 of 1994 BPS upto the stage of basic pay drawn. Since basic pay of Rs,3465 is beyond the 30 stages in notional BS-5, (1994 BPS) and resultantly more than the 30 stage of BPS 2001, therefore, his pay will be fixed at the notional 32nd stage i.e, at Rs,5300. The difference of Rs,200 (Rs,5300-5100) will be personal to him as under:-- BS-5Stage-30Stage-31Stage-32 19943380 3446 3512 BS-55100 5200 5300 2001 ' In such cases future increments upto a maximum of 3 years will also be allowed as personal to such employees.
8. Date of Increment.- Annual increment shall continue to be admissible subject to the existing conditions, on the 1st December each year.
9. Special Pays/Allowances for offices:- The Special Pays/ Allowances sanctioned to the offices as percentage of Pay shall be discontinued on the introduction of revised pay scales w.e.f, 1-12-2001 and adjusted in future increments.
10. Advance Increments.- The existing scheme of advance increments is discontinued w.e.f, 1-12- 2001. A fresh scheme, if any, will be introduced in due course.
11. Conveyance Allowance.- The rates of Conveyance Allowance and Motorcycle/Motor car maintenance allowance presently fixed with reference to pay drawn shall be increased and related to Basic Pay Scales as follows:
12. Daily Allowance.--- Daily Allowance rates presently fixed with reference to pay drawn shall be increased and related to Basic Pay Scales as under:-- Sr.
NoExisting Revised (i)Government servants drawing pay in BS-16 (Gazetted) and above and maintaining motor car not registered for commercial purpose. Rs.355 p.m.BS-16 (Gazetted) & above Rs.620 P.m.
(ii)Government servants drawing pay of Rs.3240 per month and above other than those at (i) above Rs.193 p.m.BS 11 and above Rs.340 P.m.
(iii)Government' servants drawing pay of Rs.1688 p.m. and above but less than Rs.3240 p.m. and maintaining Motor cycle/Scooter.
Rs.130 p.m.BS 1-10 Maintaining Motor Cycle/Scooter Rs.230 p.m.
Others. Rs.96 per month BS 1-10Rs.170 p.m.
13. Daily Allowance.--- Daily Allowance rates presently fixed with reference to pay drawn shall be increased and related to Basic Pay Scales as under:--
14. Medical Allowance.- Medical Allowance to employees in BS 1-16 shall be increased from Rs.90 p.m. to Rs.160 p.m.
' Existing Rate Revised Rate ' Rs,500 p.m. Rs,750 p.m.
' Rs,1000 p.m. Rs,1500 p.m.
15. Computer Allowance.- The Computer Allowance shall be increased subject to the existing conditions of admissibility as under: Existing RateRevised Rate Rs.500 p.m.Rs.750 p.m.
Rs.1000 p.m.Rs.1500 p.m.
16. Special Pays/Allowances.- All the Special Pays and Allowances admissible on certain POSTS as percentage of Pay are revised subject to the following limits: Revised (a)Special Pays /Allowances sanctioned c 20% and above of Pay.On existing rates subject to a maximum of Rs.2000 p.m.
(b)Special Pays/Allowances sanctioned @ 10% - 19% of Pay.On existing rates subject to a maximum of Rs.1500 p.m.
(c)Special Pays/Allowances sanctioned @ 5% - 9% of Pay.On existing rates subject to a maximum of Rs.1000 p.m.
17. Pension.- The Government has made the following reforms in pension/commutation scheme w.e.f, 1-12-2001 in respect of civil pensioners of Federal Government including civilian paid from Defence Estimates as well as retired Armed Force Personnel.
(a) Commutation Table shall be replaced by the new Commutation Table at Annexure-II to this Office Memorandum.
(b) Commutation upto 40% of gross pension shall be admissible at the option of the pensioner.
(c) The additional benefit of 2% - 10% for extra years of service after completion of 30 years of qualifying service in respect of Civil Pensioners shall be discontinued.
(d) The increase in pension @ 20% - 25% to Civil Pensioners allowed vide this Division's O.M. No, 4(1)-Reg. 6/99 dated 23-7-1999 shall be discontinued.
(e) The benefit of restoration of surrendered portion of pension in lieu of commutation/gratuity shall be withdrawn.
(f) In future, the increase in pension to the pensioners shall be allowed on net pension instead of gross pension.
(g) All the pensioners shall be allowed an increase in net pension (inclusive of dearness increases allowed in the past) as follows:-- Increase in net pension (i)Pensioners who retired prior to the introduction of, 1991 Basic Pay Scales. 15% (ii)Pensioners who retired prior to the introduction of 1994 basic Pay Scales but on or after the Introduction of 1991 Pay Scales.10% (iii)Pensioners who retired on or after the introduction of 1994 basic Pay Scales and upto the date of introduction of revised Basic Pay Scales of i.e. 1-12-2001.5%
18. Option.--- (a) All the existing civil employees (BPS 1 to 22) of the Federal Government shall within 45 days from the date of issue of this office memorandum, exercise an option in writing, addressed to the Audit Office concerned in the case of employees in BPS 16 and above and to the DDO concerned in the case of employees in BPS 15 and below, either to draw pay in the existing Basic Pay Scales of 1994 or in the Revised Basic Pay Scales and pension/commutation scheme 2001 as specified in this O.M. Option once exercised shall be final.
(b) An existing employee as aforesaid, who does not exercise and communicate such an option within the specified time limit, shall be deemed to have opted to continue to draw salary in basic pay scales of 1994 and Pension/Commutation as per existing formulae.
19. The government servant who will retire w.e.f, 1-7-2001 shall be given the benefit of revised pay scales on presumptive basis discounted by 5% increase in pension if availed, subject to the condition that all those who may like to avail this benefit should opt for the entire package i.e, revised schemes of Basic Pay Scales as contained in Part-I and revised package of pension as contained in Part-III of this O.M.
20. All existing rules / orders on the subject shall be deemed to have been modified to the extent indicated above. All existing rules/ orders not so modified shall continue in force under this scheme.
21. Anomalies: An Anomalies Committee shall be set up in the Finance Division (Regulations Wing) to resolve the anomalies if any, arising in the implementation of this Office Memorandum.
(Sd.)
(Abdul Rauf Malik)
Joint Secretary (R)
All Ministries Divisions/Department"
7. According to the Tribunal, the paragraph applicable to the respondents was paragraph 15 which clearly indicates that the special. Allowance was available to the posts against which respondents were working. Learned Law Officer laboured hard to bring home the point that the respondents were not working against the posts of technical nature and therefore, the technical allowance was not available to them. However, this ground based on factual premise was never raised in the grounds of petition filed before this Court and he has not referred to any other document to support the premise on which he has tried to built-up his case. So far as the question of limitation is concerned, the Department neither took up this point in the parawise comments submitted before the Tribunal nor it was raised during arguments. That being so, the impugned judgment deciding the matter on merits, is unexceptionable. Learned Law Officer has not raised any question of law of public importance within the meaning of Article 212(3) of the Constitution to warrant interference.
The petitions lacking in merit are accordingly dismissed and leave refused.