' A.
0. RAZIUR RAHMAN, (MEMBER).-The appellant was a regular officer of the Pakistan Army. He was appointed on staff duty in the Inter-Services Intelligence Directorate from 1957 to 1966. At that time, he was holding the rank of Lt.-Col. Since he had already put in 9 years of service in the Directorate, the Army authorities wanted him to be reverted to the Army according to the normal rules relating to deputation. The then Director of the I. S. I. Directorate, however, was of the view that the appellant was a most suitable officer to head the Joint Intelligence Miscellaneous Section of the I. S. I.
Directorate, there being no other officer with the necessary aptitude and qualifications available.
He wanted to retain this officer in the same post, which he had been holding for 7 years.
Accordingly, on 4th December, 1964 he proposed to the Ministry of Defence, "in the larger interest of the country", that the officer be retired with full benefits and employed as a civilian under special contract. To safeguard the interest of the officer, he recommended the following terms :
(i) Pay including pension to be fixed in the scale of Rs, 2300-50-2500.
(ii) Confirmation in the appointment from the date of employment as a civilian.
(iii) Normal terms and conditions of service as for other permanent class I civilian officers to be applicable.
2. It appears that, although Government agreed to re-employ the officer after his retirement from Military service, they did not agree to the terms proposed and recommended by the Director, I.S.I.
Accordingly, by an order, dated 20th April, 1966 they conveyed the sanction of the President to the re-employment, on contract, of the officer, initially for a period of 10 years, subject to extension, thereafter, upto 55 years of age. His pay was, however, fixed at Rs, 2,260 including his Military pension. The officer continued to work as Head of the J. I. M. Section till 1st March, 1969 when the post of Head J. I. M.. Was re-designated as Director and the appellant was given a special pay of Rs, 150 "for holding the higher rank of Director from this date". However, when the National Pay Scales were introduced on 1st March, 1972 his pay was fixed in Grade-20, as, under the Defence Intelligence Service Rules, 1972, the post of the Director was in the Senior Administrative Grade (Rs, 2,000-100-2,200), which, after introduction, of the National Pay Scales was to be equated with Grade 20. He was, therefore paid accordingly by the Accountant-General. Afterwards, his pay was again revised in 1977, when the National Pay Scales were revised upwards. He continued to draw at these rates till 31st May, 1979 whereafter the C.C.M.A., Rawalpindi decided to recover the amounts paid to the officer in excess of the fixed pay of Rs, 2,260 as laid down in the original letter of appointment and the special pay of Rs, 150 sanctioned with effect from 1st March, 1969. In this manner, a sum of Rs, 66,471 was to be recovered from the officer and, actually, in pursuance of this decision, no payment was made to him against his pay bill for June, 1979 because the entire amount payable to him was adjusted against the said amount of Rs, 66,471 and, in order to recover the entire amount stated to have been over-paid, similar adjustments would have been made again in subsequent bills also. The appellant, therefore, represented the matter before Secretary, Ministry of Defence, who decided, by his order, dated 20th September, 1979 that the recovery of the said amount be waived and that, with effect from the date of detection of the overpayment, the officer be brought back to the original fixed pay of Rs, 2,260. Being dissatisfied with this decision, the appellant represented the matter before the President by a petition dated 20th October, 1981 but, having received no reply thereto, he came up in appeal before the Tribunal on 1st February, 1982 after waiting for the statutory period of 90 days. The appeal was admitted for regular hearing on 21st March, 1981 and, having been heard on 1st September, 1982 it is being disposed of by this order.
3. We have heard both the parties in great detail and perused the relevant documents. Although, in the written objections filed by the respondent-department, the point was raised that the appeal was barred by limitation, on the ground that while the impugned order was passed, on 20th September, 1979 the departmental representation was made on 20th October, 1981 and this appeal filed on 1st February, 1982 that is after a lapse of more than 2 years, this objection was not pressed at the time of hearing, presumably, because the matter relates to a continuing wrong. The appeal was, therefore, considered on merit and is being disposed of as such.
4. The crux of the matter, so far as the appellant's case is concerned, is that the revision of his emoluments, made by the C.C.M.A. In June, 1979, was not justified, because, firstly his pay had been refixed after the introduction of the National Scales Pay in 1972 and, subsequently, in 1977 and, secondly, with his promotion to the rank of Director (Grade-20), he could not be restricted to the pay stipulated for him in the original letter of his re-employment in Civil, after his retirement from the Army in 1966. Apart from these reasons, the most important aspect of the case, to which our attention was drawn, is that the very initial fixation of his pay, at Rs, 2,260, was unjustified and unfair, not only because it was inadequate but also because it was not in accordance with the recommendations made by the then Director, I. S. I. The appellant pointed out that the fixed pay mentioned in the order of his re-employment had not protected his interest, as promised to him by the Director and, therefore, he represented against this on a number of occasions but without any result. However, when the National Scales of Pay were introduced, after he had been promoted as Director, his pay was actually fixed in Grade-20, in accordance with the formula laid down for the scale, under the scheme of the National Scales of Pay, and he rightly continued to draw his emoluments in accordance with this conversion, till it was withdrawn with retrospective effect by the C.C.M.A. In this connection, he produced a comparative statement of the pay and allowances admissible to him and other officers of his own rank, as well as of his subordinates, from which it is seen that, although he was holding the post of Director in Grade-20, the total emoluments allowed to him after the revision of his emoluments by the C.C.M.A., was not only much lower than that of other officers of his own rank but even lower than that of his subordinates down to as many as 3 grades. Thus, while his total monthly entitlements, inclusive of his Military pension amounted to only Rs, 2,585, those of other Directors were Rs, 4,895 of his Deputy Directors Rs, 4,060 of his Assistant Directors Rs, 3,715 and of his Intelligence Officers Rs, 3,180. This, according to the appellant, was not only anomalous but also extremely humiliating. We also are of the view that it was a most embarrasing situation for the appellant and neither commensurate with nature of his job and its responsibilities nor in keeping with the rightful claim of an officer who had retired as far back as 1966, as a Senior Lt.-Col. And had been re-employed, in the national interest, on a very sensitive job.
For such an officer, holding a Grade-20 job, to be paid (inclusive of his Military pension) Rs, 600 less than his own subordinate in Grade-17 looks nothing short of a mockery. The comparative statement is reproduced below : {{TABLE TEXT}} Grade Maxi- Int/ LCA Dear- Conve- Enter- Senior mum Spec. Ness yance tain- Post Basic Pay Allow.
Allow. Ment Allo- Total Pay Allow. Wance 1 2 3 4 5 6 7 8 9 Director 20 3,600 - 200 250 285 360 200 4,895 Dy. Director 19 3,050 275 200 250 285 - 4,060 Assistant Director 18 2,650 330 200 250 285 - - 3,715 I.
0. 17 2,250 220 200 225 285 - 3,180 Director - 2,260 150 - 175 - - - 2,585 Fateh Khan (Inclusive of Pension) {{TABLE TEXT}}
5. Against the above, the departmental position is that, whatever the recommendations of the then Director, I. S. I. Government had agreed only to a fixed salary of Rs, 2,260 per month for the appellant, on his re-employment in civil on contract, and, since he had accepted the same by joining the post and receiving the same salary, till it was enhanced wrongly by the C.C.M.A., on the introduction of the National Scales of Pay, the appellant was bound by the contract accepted by him and he could not legally make any claim to any further amount. While, from the strictly legal point of view, the appellant cannot demand any amount more than the fixed salary of Rs, 2,260 two important points must be considered. Firstly, when at the time of his re-employment, he was allowed the fixed pay of Rs, 2,260 inclusive of Military pension, his pension amounted to only Rs, 600 and it was felt, perhaps rightly, that a sum of Rs, 1,660 which was being paid to him, in addition to his pension, was sufficient remuneration for the work assigned to him. But with the rapid progress of inflation and huge escalation in the cost of living, wages and salaries were also enhanced very considerably and, as indicated by the chart produced by the appellant, even persons holding the rank of Lt.-Col., the post from which the appellant retired were now drawing almost twice the salary that was being paid to the appellant, on the basis of his last pay at the time of retirement.
Moreover, with the increase in the pension, alongwith the increase in the salaries, the appellant's pension also rose from the original Rs, 600 to Rs, 1,430 with the result that, while his salary, inclusive of Military pension, remained fixed at Rs, 2,260 with the increase in the Military pension, his actual remuneration for the job assigned to him was now only about Rs, 800 which is less than the maximum of Grade-11, after the revision of the National Pay Scales in 1977.
6. In our, opinion, while the appellant cannot, strictly from the legal point of view, demand a higher salary than 2,260, in view of the acceptance by him of the terms and conditions of his re- employment on contract, he cannot also legally be compelled to deduct, from this amount, his pension at the enhanced rate. If, legally speaking, he cannot claim more salary than that laid down in his contract, the Government also cannot deduct from this salary a higher pension than the one which he was getting at the time of his re-employment. Thus, since he was getting pension at the rate of Rs, 60 per month at the time of his re-employment, in spite of the enhancement in his pension on account of the revision order, he is entitled to draw, as his pay in the new appointment, at the rate of Rs, 2260 minus only Rs, 600 and no more. On this ground, we allow the appeal and order that his emoluments from the date of his re-employment should be calculated and paid to him on this basis. Since, however, on account of a mistake in the office of the C.C.M.A., he was paid, upto a certain date, at the rate calculated on the basis of fixation of his pay in National Pay Scale 20, the excess amount, if any, paid to him during that period, whose recovery has already been waived by the Secretary, Ministry of Defence, shall not be recovered from him.
7. Before closing, we would also like to point out that the very basis of the fixation of pay on re- employment of the officer, after his retirement from Military, was faulty, inasmuch as, in spite of the fact that he had been retired in order to avail of his knowledge, experience and ability as an officer of the I. S.
1. Directorate, at the comparatively young age of 44 years, it would be unjust and unfair to pin him down to a salary at a fixed amount for the rest of his career, i. e. Upto superannuation at the age of
60. The non-acceptance by Government of the recommendations made by the Director, I.S.I. In 1966, is clearly unfair and iniquitous and we would recommend that the matter may be placed before the President for remedial action under section 23 of the Civil Servants Act, 1973. For this purpose, a copy of this order should be sent to the C.
0. S. To the President.
8. In this connection, it would be relevant to mention that even the C.C.M.A., who had deducted the over-payment made by his office, had, in his memo on the subject, dated 7th June, 1977 addressed to the Director-General, I.S.I., indicated that the service terms and conditions of the contract could be altered by the Government. Considering the extraordinary nature of the case, we would strongly recommend such a revision.
9. With the above orders and recommendations, the appeal is allowed.
10. No order as to costs.