JAWAD-UL-HASSAN, MEMBER-J --- Through the instant appeal, the appellant has invoked the jurisdiction of this Tribunal under Section 4 of the Punjab Service Tribunals Act, 1974 seeking the following relief:-- "It is, therefore, most respectfully prayed that the instant appeal may graciously be accepted, impugned orders dated 19.11.2012 and 24.9.2014 may kindly be set aside by declaring the same as null, void ab initio and unlawful having no effect on the rights of the appellant.
It is further prayed that the respondents may graciously be directed to release the one additional running basic pay i,e, Special Allowance 100% of the appellant since the date of freezing the said allowance i,e, July, 2011."
Any other relief which this Honourable Court deems appropriate may also be awarded to the appellant"
2. Epigrammatically stated the facts of the case for disposal of the -instant appeal are that the appellant was appointed as Traffic Warden (BS-14) in the City Traffic Police, Lahore vide order dated 28.7.2006 bearing No,. 22611-19/CT by the Chief Traffic Officer, City Traffic Police, Lahore.
Before issuance of such appointment letter, a letter of offer for the, appointment of traffic warden in BS-14 in City Traffic Police; Lahore was issued vide No, 5122 dated 26.7.2006 on behalf of the DIG Traffic, Punjab, Lahore, The offer of appointment was. made inter alia on the following terms:-- (1) You will draw pay in BPS-14 with other emoluments at par with Punjab Highway Patrol , Police i,e, one additional basic pay plus 20 days fixed D.A. and other allowances sanctioned by the Government from time to time.
The appellant kept on receiving the said emolument i,e, Additional Basic Pay plus 20 days fixed D.A. till 30.6.2011. Thereafter, the said additional basic pay was frozen at the level of admissibility in view of a notification No, FD.PC.2- 1/2011, dated 11.7.2011 which violated the terms and conditions of appointment of the appellant. The Police Department enhanced the salary of the police in 2009 but the same was not allowed to Traffic. Warden due to additional pay in question. Likewise, the Govt. of the Punjab enhanced 50% salary of all Govt. employees in the year 2010 but such benefit was not extended to the appellant for the same reasons i,e, one additional basic pay as special allowance 100%. The appellant and others being aggrieved by such frozen additional pay in question filed a departmental appeal to the Secretary Finance. Department as well as Chief Traffic Officer, Lahore.
When such representation was not decided a writ petition No, 25717/2012 was filed before the Honourable Lahore High Court, Lahore wherein vide order dated 15.10.2012 the respondents therein i,e, Finance Secretary was directed to decide the representation/appeal of the appellant and others within 15 days. As a result thereof, the Finance Secretary vide impugned. order dated 19.11.2012 rejected the said representation declaring that they are not entitled for defreezing the amount of special pay which was frozen w,e,f, 1.7.2011 across the board. This order was called in question in service appeal No, 998/2013 before this. Tribunal which was disposed of vide order dated 24.4.2013 with the observation that the departmental appellate remedy was not availed against the said, order. The direction was issued to file a departmental appeal before the Chief Secretary. Thereafter a departmental appeal was filed before the Chief Secretary by the appellant and other 11 T.Ws. which was rejected by the Chief Secretary vide impugned order dated 24.9.2014, hence this appeal. During the course of arguments of this appeal, the Tribunal vide order dated 4.7.2016 specially directed the Dy. Secretary Finance Department, D.R. to explain what pay was fixed at the time of the appointment of the T.Ws and at the time of creation of the posts of T.Ws. In view of intricate question of law, regarding pay and emoluments as contained in the offer letter of the appellant Mian Inam-ul-Haq, Advocate who had service experience in such matter was appointed as amicus curiae to assist this Tribunal in the matter.
3. Learned counsel for the appellant contended that emoluments in question were part and parcel of the terms and conditions of offer of appointment. Such additional pay was being given to the appellant and other TWs in view of 'offer letter and the respondents had no jurisdiction to freeze such part of pay. Such additional pay and emoluments were being paid legally and was not liable to be withheld in any manner whatsoever.
4. Learned amicus curiae explained that special pay and special allowances were frozen at the level of its admissibility as on 30.6.2011 vide Finance Department's circular dated 19.11.2012, He referred to 2.44 of the CSR Punjab Volume I. According to him the emoluments at par with the Punjab Highway Patrol i,e, one additional basic pay plus 20 days fixed D.A. was settled at the time of appointment of the appellant and it was the part of the pay. Such emoluments were granted as additional pay. Stated that in terms of 2.44 of CSR it is treated always specially classed pay and Govt. had no authority to withdraw the pay as it was fixed initially by the authority itself.
5. As against above the learned D.A. assisted by the Dy. Secretary Finance, Mr. Tariq Mirza stated that the emoluments of one additional basic pay plus 20 days fixed D.A. as mentioned in the letter of offer of appointment in clause-II was actually a special pay and allowance which Govt. has the authority to freeze because the same was not part of the pay. They referred to circular of Finance Department dated 11.07.2011 item No, 9 and argued. away that all special pays, special -allowances were frozen by the government at the level of its admissibility as on 30 6.2011.
6. Arguments heard and record perused.
7. For and foremost is that the emoluments of one additional basic pay plus 20 days fixed D.A. as mentioned in the letter of offer of appointment dated 26.7.2006 bearing No, 5122 was part of pay or not. At the cost of repetition the condition No, 2 as mentioned in the letter of offer of appointment is reproduced verbatim:--- "You will draw pay in BPS-14 with other emoluments at par with Punjab Highway Patrol Police i,e, one additional basic pay plus 20 fixed D.A. and other allowances sanctioned by the Government from time to time."
The tenor and recital of above clause suggest that emoluments of one additional basic pay plus 20 days fixed D.A. were offered in the manner as being given at the time to the officials of Punjab Highway Patrol Police. The word "i,e," is putting the intention of the competent authority to fix the pay at the time of induction of the appellant into service as T.W. The emolument was expressed clearly. Had intention of the competent authority to treat or grant such emolument in question as "special pay" or allowance, the same should have been clearly mentioned in the letter of offer of appointment. The authority did not use the words special pay with regard to such emolument.
Section 16 of Punjab Civil Servants Act, 1974 protects the appellant as his pay was fixed as it was sanctioned accordingly. As it has happened in case of the appellant when he joined the service.
The withholding of such emoluments violates Section 16 of the Act ibid which has rendered the impugned order a nullity in the eye of law. The department could not identify or point out the provision which authorizes the Finance Department to freeze the pay. The pay has been defined in rule 2.44 of CSR Volume I. The same is being reproduced as ready reference:--- "2.44(a) Pay means the amount drawn monthly by a Government servant as:--- (i) the pay, other than special pay or pay granted in view of this personal qualifications, which has been sanctioned for a post held by him, substantively or in an officiating capacity or to which he is entitled by reason of his position in a came, and
(ii) overseas pay, technical pay, special pay and personal pay and
(iii) any other emoluments which may be specially classed as pay by the competent authority."
The definition of pay ibid clearly and expressly reflects that the pay which was sanctioned for a post and other emoluments which may be specially classed by the competent authority. The competent authority at the time of appointment in clause 2 in letter of offer of appointment specially classed the emoluments which were given to Punjab Highway Patrol Police i,e, one additional basic pay plus 20 days fixed D.A. Such pay was part and parcel of the pay substantively fixed. The word one additional pay as used in clause No, 2 of letter of offer of appointment was illustrative and conveyed the meaning of such emolument as defined in sub-rule (iii) of Rule 2.44(a) of CSR, Volume I. (Part-I). The word "addition" can be safely inferred as additional pay as integral part of pay as defined in rule ibid. The said word means the act, process or result of adding something OR combination of two or more numbers in such a way as to obtain their sum.
8. The circular of Finance Department No, FD.PC.2-1/2011, dated 11.7.2011 actually relates to revision of basic pay scale and allowance and pension of civil servant of the Punjab Government. Its item No, 9 relates to special pay and allowance according to which all special pays, special allowances or the allowance admissible as percentage of any pay were frozen at the level of ,its admissibility as on 30.6.2011. The Secretary Finance and Chief Secretary (respondents) have erred while treating the emoluments which were part and parcel of the pay as special pay or special allowance. According to rule 2.52 of CSR, Volume I (Ch.II) special pay is no doubt an addition which is always granted in consideration of specially arduous duty or specific addition to work or responsibility or the unhealthiness of locality in which the work is performed. Note No, 1 of rule 2.52 of CSR Volume I (Ch.11) explains that reasons for grant of special pay should be recorded in sanctioning order so that their classification may be duly watched in audit. It further reflects that in cases in which official record in an open letter is considered undesirable it should be possible to communicate the reasons confidentially to the Accountant General. Had emoluments as embodied in clause 2 of letter of offer been the special pay it should have been mentioned in such letter by the competent authority who appointed the appellant. Likewise, no record was produced by the Finance Department that the authority confidentially sent the letter of special pay to the IGP to substantiate that the intention of the authority was to treat such emoluments as special pay. Actually and factually -no special pay was fixed in the style of one additional basic pay plus 20 days fixed D.A. rather it was part of the pay fixed at the time of appointment of the appellant by the authority. The Finance Department as well as Chief Secretary both fell in legal error to treat the same as special pay. The provisions of circular dated 11.7.2011 relating to freezing the special pay and special allowances are only applicable to the special pays and allowance but not to the pay fixed at the time of induction of the appellant as Traffic Warden. In Secretary Railways Board's, Ministry of Islamabad's case (see PLD 2000 Supreme Court 61) the honourable Supreme Court of Pakistan held that the basic pay scale which was allowed to the respondents by the competent authority could not be modified or changed to his disadvantage, merely on the basis of advice from the Finance Division. Both the respondents did not take into account the relevant provisions of CSR as discussed above for the redressal of the appellant and others.
9. The upshot of above discussion is that the respondents committed a serious legal mistake to consider the pay of the appellant in question as "special pay" and also incorrectly and superficially made applicable the circular No, FD.PC.2-1/2011, dated 11.7.2011 which resulted in miscarriage of justice.
10.In the light of what has been discussed supra the appeal is accepted and the impugned orders are set aside with the direction to the respondents to restore and release the emoluments in terms of clause 2 of offer of letter of appointment (No, 5122 dated 26.7.2006) i,e, one additional basic pay plus 20 days fixed D.A. w,e,f, date it was frozen and also to pay the arrears thereof accordingly. A formal notification fie also issued in this regard. The relevant staff of this Tribunal in view of rule 21 of the PST (Procedure) Rules, 1975 is directed to furnish/send the copy of this judgment to the competent authority within 15 days from the date of receipt of this order in the concerned branch.