Muhammad Azam Khan, C.J.--The respondents filed Appeal No, 267 in the Service Tribunal on 1st April, 2011 against the letters dated 30th December, 2010 and 21st January, 2011, issued by the office of Accountant-General and Finance Department respectively, alleging therein that they are permanent employees/officers of different cadres in Azad Jammu and Kashmir Legislative Assembly Secretariat. Being civil servants they are legally entitled to get all the benefits including special pay, relief allowances and salary packages extended by the Government from time to time in favour of civil servants. Azad Government of the State of Jammu and Kashmir granted Secretariat Allowance @ 20% of basic pay to all the employees including the employees of the Legislative Assembly Secretariat vide notification dated 30th August, 1988. It was alleged that AJ&K Government later on granted special allowance @ 20% of basic pay in favour of employees of Civil Secretariat from BPS-1 to 21 vide Notification No, FDR/2850-960 issued on 27th September, 2010. On 30th December, 2010, the office of Accountant-General addressed a letter to Additional Secretary Finance seeking clarification whether Special Allowance in the light of notification dated 27th September, 2010 is admissible to the employees of nine departments mentioned therein including the AJ&K Legislative Assembly Secretariat. The letter was replied by Section Officer, Finance Department, on 21st January, 2011, whereby it was clarified that the Special Allowance is admissible only to the employees of Civil Secretariat and the employees of ather departments, which are either special institutions or attached departments, are not entitled to the same. The respondents through appeal, filed before the Service Tribunal, prayed for setting aside the letters dated 30th December, 2010 and 21st January, 2011 being contrary to law, rules, policy and statutory justice. It was further prayed that the appellants therein may kindly be declared entitled to receive the allowance granted under notification dated 27th September, 2010. After necessary proceedings, the Service Tribunal accepted the appeal vide judgment dated 20th July, 2011, with the observation that the appellants, respondents herein, are entitled to get Special Allowance @ 20% of the basic pay under notification dated 20th September, 2010 and the letters dated 30th December, 2010 and 21st January, 2011 were set aside.
2. The appellants filed P.L.A. in this Court. Leave was granted on 13th October, 2011 to consider the points; (i) whether the aforesaid letters are final orders or not; (ii) whether the order passed by the Service Tribunal is without jurisdiction; (iii) whether the impugned order is passed on misconception and (iv) what is the effect of judgment of this Court passed in a case reported as Azad Govt. and another vs. Abdul Kabir Qureshi and others [1994 SCR 402] on the present case.
3. Mr. Asghar Ali Malik, the learned counsel for the appellants, argued that the letters challenged before the Service Tribunal are not final orders. An appeal before the Service Tribunal is competent only when a final order is passed, therefore, the very appeal before the Service Tribunal was not maintainable. The learned counsel contended that under Section 4 of the AJ&K Service Tribunals Act, 1975, the Service Tribunal has jurisdiction only to entertain an appeal from the final order passed by the authority. In the instant case no final order was passed by the authority. The office of Accountant-General addressed a letter to Finance Department for clarification of notification issued on 27th September, 2010. The appeal was not maintainable and the same was liable to be dismissed.' The learned counsel submitted that in Entry No, 14, Column No, 5, under the Head of Special Institutions/ Autonomous Bodies of Schedule I of the Azad Jammu and Kashmir Rules of Business, 1985, the Legislative Assembly is a special institution of the Law Department. It is not part of Civil Secretariat. The Secretariat has been defined in Rule 2(xx) of Part-A of the aforesaid Rules of 1985. The Legislative Assembly is not a part of Civil Secretariat, therefore, the respondents are not entitled to Special Allowance granted to the employees of the Civil Secretariat. The respondents have not challenged the notification dated 27th September, 2010 and without challenging the same they cannot get its benefit.
4. While controverting the arguments, Mr. Abdul Rasheed Abbasi, the learned counsel for the respondents, argued that the judgment of the Service Tribunal is perfectly legal. The Legislative Assembly is defined in Section 30 of the AJ&K Interim Constitution A 1974. The Constitution provides that there shall be a Secretariat of the Legislative Assembly. No other Secretariat is defined in the Constitution and whenever there is a conflict between the provisions of the Constitution and the subordinate law, the constitutional provisions shall override the ordinary law. The learned counsel referred to Rule 2(xx) of Part-A of the AJ&K Rules of Business, 1985, for the purpose of explaining the word "Secretariat" and argued that it means "the Departments of the Government when referred to collectively". The learned counsel also referred to Rule 2(iii) of the Rules of Business for the purpose of explaining "attached department". He argued that the employees of attached departments are entitled for Special Allowance in the similar manner as it is admissible to other employees of the Secretariat. He referred to the judgment of this Court reported as Azad Gout. and another us. Abdul Kabir Qureshi and others [1994 SCR 402].
The learned counsel referred to para 6 of the memo. of appeal in the Service Tribunal and argued that the respondents therein admitted the claim of appellants therein, therefore, the instant appeal merits dismissal. The learned counsel further argued that the notification, whereby Special Allowance has been granted to civil servants working in Civil Secretariat including the employees of the Legislative Assembly is discriminatory to their extent. The respondents challenged the same in the Service Tribunal. The learned counsel lastly argued that it is a celebrated principle of interpretation of statutes that the interpretation which is beneficial be adopted. He referred to the cases reported as LA Sherwani and others vs. Govt. of Pakistan through Secretary Finance Division Islamabad and others [1991 SCMR 1041], Govt. of Pakistan through Ministry of Finance vs. M. I.
Cheema and others [PU 1992 SC " 393], The Accountant General and others vs. Zaman Hussain Khan [1993 SCR 259], Govt. of Punjab through Secretary, Finance Department, Lahore vs. Mubarak Ali Khan and 8 others [PLJ 1993 SC 322], Maj. Rtd. Tanvir Ahmed vs. Govt. of Pakistan through Secretary Establishment Division Rawalpindi and others [1993 PLC (CS) 322], Azad Govt. and another vs. Abdul Kabir Qureshi and others [1994 SCR Abdul02],b Aziz Malik vs. Chief Secretary Govt. of Punjab [1994 PLC (CS) 1134], Ch. Nazir Ahmed and others vs. Secretary to Govt. of Punjab and others [1995 PLC (CS) 365].
5. We have heard the learned counsel for the parties and perused the record.
6. The record reveals that Azad Government of the State of Jammu and. Kashmir issued a notification on 27th September, 2010, whereby the Government granted Special Allowance @' 20% of the basic pay in favour of the employees of BPS-1 to 21 working/posted in AJ&K Civil Secretariat w,e,f, 1st July, 2010. In para 2 of the aforesaid notification, it was provided that Special Allowance will not be admissible to the given categories of employees. We deem it proper to reproduce the notification dated 27th September, 2010 which is as under:-- "NOTIFICATION: No, FDR/2850-960/2010.--The President Azad Jammu and Kashmir has been pleased to grant Special Allowance @ 20% of basic pay in favour of the employees of AJ&K Civil Secretariat (BS-1 to BS-21), working/posted in the AJ&K Civil Secretariat. The allowance will be admissible from 1.7.2010.
The said allowance will not be treated as a part of emoluments for, the purpose of calculation of pension/ commutation/ recovery of house rent.
2. Special Allowance will not be admissible to the following:--
(i) The officers/officials of AJ&K Civil Secretariat Departments, on deputation or posted by transfer outside the Secretariat including attached departments and Autonomous Bodies.
(ii) Secretariat employees during extraordinary leave, study leave, long leave for more than 120 days, Training Abroad or under suspension.
(iii) The officers (belonging to judiciary), deputed/posted in the Law or any other department in the AJ&K Civil Secretariat who are in receipt of Judicial Allowance.
(iv) The 'Administrative Secretaries (BS-20 and above), who . have been already allowed Special Allowance @ 20% vide notification No, FDR/14171-15220/2009 dated 20.6.2009.
(v) The officers/officials of AJ&K Civil Secretariat while posted in other departments in the Secretariat who are in receipt of department specific allowance.
(vi) The officers/officials of Non-Secretariat offices deputed to work in the AJ&K Civil Secretariat if already in receipt of department specific allowance.
3. The officers/officials of the AJ&K Civil Secretariat, while posted in the President's Secretariat and Prime Minister's Secretariat, who are entitled . to President's Secretariat Allowance and Prime Minister's Secretariat Allowance may opt for either Special Allowance @ 20% admissible vide this notification or President's Secretariat Allowance/ Prime Minster's Secretariat Allowance already admissible to them."
A perusal of notification makes it abundantly clear that special allowance @ 20% of basic pay has been granted in favour of employees of Civil Secretariat w,e,f, 1st July, 2010. It was clearly provided in the notification that the said 'allowance will not be treated as a part of emoluments for the purpose of "calculation of pension/commutation/ recovery of house rent. Para 2' of the notification provides the list of different categories of civil servants to whom Special allowance is not admissible This list includes Attached Departments. Azad Jammu and Kashmir Legislative Assembly is one of the attached Departments of the Law Department. . Even the officers/officials of the AJ&K Civil secretariat who are on deputation or posted by transfer outside the Secretariat including the attached departments or autonomous bodies were declared not entitled to receive the same. An analysis of the notification makes it clear that special allowance @ 20% of the basic pay was admissible only to the employees of Civil Secretariat. It was not admissible to the employees of the AJ&K Legislative Assembly.
7. The office of Accountant General addressed a letter to Additional Secretary Finance on 30th December, 2010 for clarification of notification dated 27th September, 2010 on the ground that nine departments including the Legislative Assembly are demanding special allowance. The letter is as under:-- Sub. GRANT OF SPECIAL ALLOWANCE (a), 20% OF BASIC PAY.
Kindly refer to the subject cited above.
2. It is submitted that vide Notification issued under No, FDR/12850-960/2010 dated September 27, 2010, the competent authority has been pleased to grant of Special Allowance @ 20% of Basic Pay in favor of employees of AJ&K Civil Secretariat (BS-1 to BS-21) working/posted in the AJ&K Civil Secretariat with effect from 01.07.2010.
3. The following departments are demanding to make the payment on account of Special Allowance. 20% of the basic pay in light of above mentioned notification:
1. Legislative Assembly.
2. Election Commission.
3. Stamps.
4. Local Fund Audit.
5. Kashmir Institute of Public Administration (KIPA).
6. Environmental Protection Agency (EPA).
7. Service Tribunal.
Public Service Commission.
9. Ombudsman (Mohtasib).
It is, therefore, requested that this office may kindly be guided whether the employees posted in the above mentioned departments are entitled to grant of special allowance in light of notification dated 27.09.2010 or not.'
The Finance Department replied through letter dated 21st January, 2011, which is as under:-- {{URUD TEXT}} A perusal of, both the letters reveals that none of these is a final order. The letter dated 30th December, 2010 is written by the office of Accountant-General seeking clarification from the office of Finance Department. The letter dated 21st January, 2011 is reply to the letter dated 30th December, 2010 wherein it is stated that the notification dated 27th September, 2010 is self- speaking. Special allowance is admissible only to the employees working in AJ&K Civil Secretariat.
The employees of attached departments, special institutions are not employees of Civil Secretariat They are not entitled to the same in the light of notification dated 27th September, 2010. Special allowance was granted by the Government through Notification No, FDR/12850-960 on 27th September, 2010. The respondents can claim any right only from the said notification. Both the letters dated 30th December, 2010 and 21st January, 2011 are not final orders.
8. Section 4 of the AJ&K Service Tribunals Act, 1975 postulates that any civil servant aggrieved by any final order whether original or appellate made by the departmental authority, in respect of any of the terms and conditions of service, may within 90 days of the communication of such order to him prefer an appeal to the Tribunal The appeal before the Service Tribunal is competent only if a final order has been passed by the authority, whether it is original or appellate order. This Court in a case reported as Zahid Hussain vs. Accountant General and another [2009 SCR 6] has held as under:-- "6. We have heard the learned counsel for the parties and perused the relevant record and have given our utmost ponder to the respective arguments advanced by the learned counsel for the parties. The primary question which requires determination in the instant case is whether the appeal before the Service Tribunal was filed against the final order of departmental authority? In the instant case, as is evident from the record, the appeal was filed against a letter issued by the Accounts Officer of, the office of Accountant General. It was reply of letter, which was written to the appellant in consequence of order passed by the departmental authority in the year 2000, therefore, it could not be said that this letter was a final order of the departmental authority. As this letter was written by Accounts Officer, who is not at all the departmental authority of the department, therefore, in the light of Section 4 of the Service Tribunals Act, the appeal was not maintainable before the Service Tribunal. It would also not be out of place to mention -here that the basic 'order, whereby the order regarding payment of advance increments was withdrawn, has not been challenged by the appellant before the Service Tribunal. It was enjoined upon the appellant to challenge the basic order, whereby the advance increments were withdrawn, therefore, the appeal was not maintainable on this score."
In the instant case no final order adversely affecting the terms and conditions of service of present respondents was passed vide letters dated 30th December, 2010 and 21st January, 2011. These are not final orders. These could not be challenged by way of appeal before the Service Tribunal. The appellants, respondents herein, have not challenged the notification dated 27th September, 2010, whereby it was declared that the special allowance @ 20% of basic pay will not be admissible to the employees of attached departments.
9. Leave was granted to consider the effect of Full Court judgment of this Court in the case titled Azad Govt. and another vs. Abdul Kabir Qureshi and others [1994 SCR 402]. The proposition before the Court in the said case was that AJ&K Government vide Notification No, FD/R/13672-13772/88 dated 30.8.1988 issued on 13th August, 1998 granted Secretariat Allowance to certain employees of the Civil Secretariat while excluding the employees of the other departments. Abdul Kabir Qureshi and others, who were employees of AJ&K High Court filed a writ petition in the AJ&K High Court challenging the action of the Government, whereby Secretariat allowance was granted to the employees of Secretariat, while they were deprived of the same, in a discriminatory manner. The employees of the attached department are entitled to the same. The notification is discriminatory and violative of 'Fundamental- Right No,
15. The writ petition was accepted and the petitioners therein were declared entitled to Secretariat allowance, and writ of mandamus was issued. The Government filed- an appeal by way of leave in this Court on. the ground that the writ petition was not maintainable. The matter relates to terms and conditions of service. Only the Service Tribunal has jurisdiction to adjudicate upon the matter. It was resolved that the matter of grant of Secretariat Allowance does not fall within the expression "terms and conditions of service" as defined in Section 3 of the Civil Servants, Act. It was observed at page 408 and 409 of the report as under: "The next question which needs resolution is as to whether the matter of grant of Secretariat Allowance would fall within the ambit of expression 'terms and conditions' of service of the respondents within the meanings of Section 3 of the Civil Servants Act. Under Section 3 of the Civil Servants Act, 1976, the terms and conditions of a civil servant would be as determined under the said Act or the Rules framed thereunder. Section 3 of the Civil Servants Act is reproduced below: "Terms and Conditions.--The terms and conditions of service of a civil servant shall be as, provided in this Act and the rules."
It is evident from the above provision that. if a matter is not covered by the Act or rules framed thereunder, that cannot be regarded a term or condition of the service of a civil servant within the meaning of the Act. The perusal of the provisions contained in Civil Servants Act, 1976 and the rules framed thereunder are indicative of the fact that no such allowance as Secretariat Allowance has been envisaged as a term and condition of service of a civil servant. The learned counsel for the appellants maintained that the allowance in question is a part of pay as defined under Section 2(g) of the Civil Servants Act, 1976 and, thus, would be a term and condition of the respondents within the meaning of Section 3 of the Civil Servants Act. For the sake of convenience, the definition of word 'pay' as given in Section 2(g) is as under:-- Pay' means the amount drawn monthly by a civil servant as pay and includes technical pay, personal pay and any other emoluments declared as pay by the prescribed authority.'
The learned counsel for the appellants maintained that as `emoluments' are part of pay, the allowance- in question, being an emolument, would form part of pay. However, the bare reading of the definition of word 'pay' reproduced above makes it clear that only those emoluments would be part of pay which have been declared by the prescribed authority as such and not otherwise. In the instant case as the Secretariat Allowance has not been declared as 'pay' by a prescribed authority, it cannot be regarded that it is 'pay' and thus is covered by the phrase 'terms and conditions' within the meanings of Civil Servants Act. The dictionary meaning of the word 'emolument' which includes any profit or compensation received for services would not bring the allowance in question within the ambit of 'pay' because where law itself gives special meaning to a particular expression or phrase, the dictionary meaning cannot be looked into. The authorities cited at Bar. referred to above, are distinguishable and not helpful to resolve the point in question. Hence the contention of the learned counsel for the appellant that Secretarial Allowance relates to the terms and conditions of service of the respondents and thus the matter was in the exclusive jurisdiction of the"
Service Tribunal is not correct and is hereby repelled."
We respectfully follow the view formed by full Court in the above referred judgment. The special allowance is not part of terms and conditions of service, hence no terms and conditions of service are adversely affected by the letters impugned before the Service Tribunal.
9. Since we have reached the conclusion that the letters dated 30th December, 2010 and 21st January, 2011 were not final orders passed by the departmental authority, the special allowance is not part of pay and the terms and conditions of service of the respondents are not adversely affected through above mentioned letters, therefore, the appeal in the Service Tribunal was not maintainable. It was liable to be dismissed. The other points viz. (i) whether the employees of the Assembly Secretariat can be treated as employees of Civil Secretariat (ii) discriminatory nature of notification dated 27th September, 2010 and (iii) adoption of such interpretation which is beneficial, remain merely of academic nature, therefore, need not be resolved.
10.The case law referred to by the learned counsel for the respondents relates to definition of the word "Secretariat", discriminatory nature of notification and adoption of beneficial interpretation, therefore, need not be discussed.
11.The result of above discussion is that the appeal is accepted. The judgment of the Service Tribunal dated 20.7.2011 is set aside and the appeal filed in the Service Tribunal is dismissed being not competent.