' SHUJAAT ALI KHAN, J.--- The petitioner has instituted the instant petition for grant of medical allowance as per Office Memorandum dated 5-7-2010 issued by the Section Officer, Government of Pakistan, Finance Division (Regulation Wing), Islamabad on behalf of the President of the country.
2. Shorn of unnecessary details, the facts, forming factual canvas of the instant petition, are that the petitioner joined Civil Aviation Department, Government of Pakistan, Ministry of Defence in the year 1963. After serving about 19 years in the said department, his services were transferred to the Civil Aviation Authority (hereinafter to be referred as the Authority') in the year 1982. The petitioner retired from service in the month of January, 2000. The President of the country, vide Office Memorandum dated 5-7-2010, fixed the rates of medical allowance for the pensioners. The benefit of said memorandum was not given to the petitioner rather the medical allowance already paid to him was enhanced from Rs,450 to Rs,1000. The petitioner tried his luck before the Wafaqi Mohtasib by filing a complaint in April, 2011 but without any result as the seat of Wafaqi Mohtasib was vacant at that particular time. The petitioner has filed the instant petition for a direction to the respondents for grant of medical allowance as per Office Memorandum dated 5-7-2010.
3. The submissions made by the learned counsel for the petitioner can be summarized in the words that the petitioner being the 'Transferee' employee, his terms and conditions of service, including pensionary benefits, were to be governed under the rules and regulations pertaining to the employees of Civil Aviation Department, Government of Pakistan, Ministry of Defence, Islamabad; that though the Authority is bound to obey the directions issued by the Federal Government but the direction of the government regarding grant of medical allowance according to revised criteria has not been acted upon; that previously, the Authority had been granting benefit of increase in the pension to the persons who retired as 'Transferee employee' but the reasons for non-adoption of Office Memorandum dated 5-7-2010 is beyond the comprehension of a man of prudent mind; that in this era of inflation, Rs,1000 is a meager amount which cannot be considered sufficient to meet with the expenses to be incurred by a retired employee on the purchase of medicines necessary for his sustenance; that pensionary benefits are not given as a bounty rather the same are the right of a government servant and that the petitioner, who on account of his extreme old age is in dire need of certain medicines which he is unable to arrange due to paucity of funds.
Learned counsel, in addition to his oral submissions, has also relied upon the cases of Sufi Ghulam Rasool v. Chief Secretary to Government of the Punjab (2004 PLC (C.S.) 101) and Government of Pakistan v. Rana Shamshad Khan, Assistant Advocate-General Arshad Fahim (C.P No,173 of 2011 decided by the Hon'ble Supreme Court on 1-4-2011).
4. Conversely, learned counsel appearing on behalf of the respondent-CAA submits that the instant petition is not maintainable as the Regulations governing the terms and conditions of services of the employees of the Authority are not Statutory in nature; that according to Chapter- VIII of the Civil Aviation Authority Service Regulations, 2000, the medical facilities to the retired employees are subject to the approval by the Board; that since the employees of the Authority are not civil servants, the benefit of Office Memorandum, in question cannot be extended to them; that after transfer of the petitioner in the Authority in the year 1982, terms and conditions of his service were to be governed according to the Civil Aviation Authority Service Regulations, 2000 instead of law prevalent in his previous Department; that according to Regulation No,9.03 of Chapter-VIII, entitlement of the employees of the Authority regarding allowances and ancillary benefits shall be subject to the approval of the Board, thus no allowance can be granted to any pensioner without prior approval of the Board and that after filing complaint before the Wafaqi Mohtasib, the petitioner was not obliged to institute the present petition.
5. I have given patient hearing to the learned counsel for the parties and have also gone through the documents appended with this petition in addition to the case-law cited at the bar.
6. Firstly, taking up the question as to whether a writ petition by the employees of the Authority qua violation of any term and condition of their service is maintainable or not, I am of the view that the said question has finally been set at rest in the case reported as Civil Aviation Authority v. Javed Ahmad and another (2009 SCMR 956) whereby the apex Court of the country while dealing with the said issue, has inter alia held as under:--- "8. We are mindful to the fact that this Court order, dated 16-10-2008 in C.As. Nos.1555, 1558, 1559, 1560, 1564,1990 and 2734 to 2736 of 2006 has observed that Federal Service Tribunal had taken a different view by entertaining service appeals under the provisions of Removal from Service (Special Powers) Ordinance, 2000 but the fact remains that in this case the Federal Service Tribunal formed another opinion which was conveyed by the Assistant Registrar of Federal Service Tribunal vide letter No,30-6-2006 with the pending service matters which are not covered in the light of the Mubeen-us-Salam's case shall stand abated. Javed Ahmed filed constitutional petition before the High Court as there was no legal remedy under the law after the abatement of his service appeal. The petition filed by Javed Ahmed in the High Court was maintainable under the law as after the abatement and after taking another view by the learned Tribunal by entertaining service appeal involving departmental penalties there was no appropriate remedy under the law available to agitate his grievance and the petition was rightly entertained and disposed of by the learned High Court which was within the jurisdiction of the High Court." (Emphasis provided).
' Further, the said question also came under discussion before the august Supreme Court of Pakistan in the case of Director General Civil Aviation Authority Karachi v. Abdul Touheed Khan (2010 SCMR 468) wherein, while dismissing the civil petition filed by the department, it was held that the constitutional petition filed by the respondent for grant of pensionery benefits before the High Court of Sindh at Karachi was maintainable. If we adjudge the objection raised by the learned counsel for the respondents that instant petition is not maintainable on the touchstone of afore- referred judgments of the apex Court of the country, it leaves no ambiguity that the same is without any substance, therefore, the same is accordingly spurned.
' Considering from another perspective that as the petitioner falls within the category of 'Transferee employee', the embargo of non-maintainability of his Constitutional petition would not come into play as his terms and conditions were to be governed by the Rules and Regulations prevalent in the department wherefrom he was transferred.
7. Admittedly, the petitioner was an employee of the Civil Aviation Department, Government of.
Pakistan, Ministry of Defence, Islamabad. Later on, in the year 1982 his services were transferred to the Authority. The persons who were transferred from other departments to the Authority, were termed as 'Transferee employee'. According to Regulation No,2.75 of Civil Aviation Authority Service Regulations, 2000, the term 'Transferee employee' has been defined as under:--- "Transferee" means an employee who was in the service of Civil Aviation Department on 6th December, 1982 and whose services were transferred to the Authority under the Ordinance."
' From a bare perusal of the afore-quoted regulation, it is abundantly clear that the petitioner falls within the category of 'Transferee employee'.
8. It is important to mention over here that section 14(a) of the Civil Aviation Authority Ordinance, 1982 deals with the perks and privileges of the 'Transferee employee' which for convenience of reference is reproduced herein below:--- "Every Civil Servant employed in the Department immediately before the establishment of the Authority, including a person on deputation to any other organization in Pakistan or abroad but not being a person on deputation to the Department from any other organization shall on such establishment, stand transferred to, and become an employee of the Authority on such terms and conditions as may be prescribed by Regulations: Provided that the pay and allowances, to which such civil servant shall be entitled, shall not be less favourable than those to which he was entitled immediately before such transfer".
(emphasis provided)
'From the bare perusal of the afore-quoted section, it is abundantly clear that a person who was transferred to the Authority after its establishment in the year 1982, was entitled to all the pay and allowances to which he was entitled in his parent department and no less favourable perks were admissible. The said preposition has elucidative been dealt by the Hon'ble Supreme Court of Pakistan in the case reported as Federal Government Employees Housing Foundation 1slamabad v.
Syed Gul Shah (2013 SCMR 1027) in the following words:- "We have particularly noticed that in paragraph No, 1.1 of the Terms and Conditions of the Scheme no mention whatsoever is made to 'civil service' or 'civil servant' and, thus, the entire discussion made by the learned Division Bench of the Islamabad High Court, Islamabad in the impugned judgment regarding the private respondents being civil servants or not has been found by us to be completely beside the point apart from being irrelevant. 1t may be true that a transfer of a civil servant to autonomous/semi-autonomous Government Organizations and Public Sector Corporations under the administrative control of the Federal Government does not affect his terms and conditions of service as a civil servant, as held by this Court in the cases of Pakistan Telecommunication Corporation and another v. Riaz Ahmad and 6 others (PLD 1996 SC 222), Divisional Engineers Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others (1999 PLC (C. S.) 1208), Federal Government Employees Housing Foundation through Director General Islamabad and another v. Muhammad Akram Alizai, Deputy Controller, PBC, Islamabad (PLD 2002 SC 1079) and Abdul Rahim v. Pakistan Broadcastinfl Corporation through Director General and 8 others (1992 SCMR 1213)"
' Insofar as the case, under discussion, is concerned, admittedly the petitioner was an employee of the Civil Aviation Department and his services were transferred to the Authority in the year 1982. As the employees retired from the Departments under the administrative control of the Federal Government are enjoying the benefits of increase in pension and other allowances from time to time, the petitioner is also entitled in this respect. Moreover, petitioner is entitled to the pensionery benefits not less favourable as compared to the pensioners of the Civil Aviation Department.
9. It is also worth mentioning that according to Regulation No,3.38 of the Civil Aviation Authority Service Regulations, 2000, the Rules of the Federal Government relating to the retirement of a government servant from service and admissibility of terminal benefits including pension, gratuity and invalidation etc. Shall also apply to the Authority's Employees. Further, according to Regulation No,4.22(a) of the of the Civil Aviation Authority Service Regulation, 2000, on retirement from service, a 'Transferee employee' shall be entitled to the same benefits and other privileges not less beneficial to him as would have been admissible to him as an employee of the Federal Government. Admittedly, the Office Memorandum, implementation whereof has been sought by the petitioner, has been issued by the President of Pakistan regarding grant of medical allowance to all the civil pensioners of the Federal Government including civilians paid from Defence Estimates and Civil Armed Forces. As the Civil Aviation Department falls within the domain of Federal Government and its employees are enjoying the benefits of the Memorandum in question, the petitioner cannot be deprived of the same merely on the ground that the said Memorandum has not been adopted by the Board of the Authority.
10. It is of quite evident that due to hyperinflation, is not possible for a person especially of the age of the petitioner to arrange for medicines for sustenance and quality of his health in meager amount of Rs,1000 as has been recommended by the Board.
11. The main thrust of the arguments advanced by the learned counsel appearing on behalf of the Authority is that as the Office Memorandum, subject matter of the instant petition, was not adopted by the Board, its benefit cannot be granted to the petitioner, The Authority came into being pursuant to promulgation of Pakistan Civil Aviation Authority Ordinance, 1982. According to sections 7, 12, 14 and 27 whereof, the Civil Aviation Authority Board was empowered to formulate regulations for carrying on business of the Authority including terms and conditions of the employees of the Authority but the said powers cannot be exercised by the Board to frame regulations in violation of the provisions of the Ordinance. According to section 4 of the Pakistan Civil Aviation Authority Ordinance, 1982, all the directions issued by the Federal Government are binding on the Authority and in case of any dispute, decision of the Federal Government is to be considered final. When the said provision is read conjunctively with Regulation No,3.38 where the rules relating to retirement from service including pension, gratuity, invalidation etc. Of the employees of the Federal Government are mutatis mutandis are applicable to the employees of the Authority. In this scenario, refusal of the respondents-CAA to grant benefit of Office Memorandum in question to the petitioner, is not justifiable.
12. As a necessary corollary to the discussion made under the foregoing paragraphs, I have no hesitation in my mind to hold that the petitioner being a 'Transferee employee', is entitled to the benefit of Office Memorandum issued by the Government of Pakistan. Consequently, this petition is accepted and the respondents are directed to pay the petitioner Medical Allowance @ postulated in Office Memorandum dated 5-7-2010 from the date of its issuance after adjusting the amount already paid to the petitioner in lieu of medical allowance. There shall be no order as to costs.