1. ' MUSHTAK ALl KAZI (CHAIRMAN).-The appellant who retired after having served on deputation with the Federal Land Commission as an Inspection Officer, Grade-17, has been allowed pension calculated on his basic pay as Supervising Tapedar in Grade-5. He has accordingly preferred this service appeal.
2. ' The facts in brief are that the appellant was serving in Dadu District as Supervising Taped, Grade- 5 when his services were requisitioned by the Federal Land Commission, Hyderabad under letter, dated 25th December, 1973. The appellant was relieved by the Deputy Commissioner, Dadu on 26th December, 1973 and he joined Federal Land Commission at Hyderabad as Kanungo on 27th December, 1973. This post was later on re-designated as Assistant Inspection Officer, with effect from the date of appellant's taking over charge, in N.P.S. 16 plus Rs, 100 as Special Pay. These orders were communicated from Prime Minister's Secretariat, Rawalpindi and the Deputy Commissioner, Dadu was also informed of the new designation with terms and conditions as to pay etc. By the Federal Land Commission. On 4th September, 1976 the appellant was informed by the Federal Land Commission that his deputation will not be treated as Foreign Service for the purpose of pension.
3. On 30th November, 1976 the appellant was promoted as Inspection Officer in Grade-17 plus Special Pay of Rs, 220. The order was to take effect from 9th May, 1976. On 1st October, 1977 the appellant applied for six months' L. P. R. With effect from 1st October, 1977 and retirement with effect from 1st April 1978. The Land Commission were reluctant to relieve him. However, a notification, dated 31st October, 1978 was issued repatriating the appellant to his parent department. The appellant was relieved by ' Land Commission on 12th December, 1978 and be was retired from Government service under orders of Deputy Commissioner, Dadu with effect from 13th December, 1978 on his own request and having completed 25 years of service for qualifying pension. The pension case of the appellant was referred by the Accountant-General, Sind to the Secretary, Finance Department, as he had raised two objections. Firstly, that three months' notice before retirement had not been given and secondly, with regard to the higher pay liability, the pay drawn by the appellant being in N.P.S. 16 and 17 in the Federal Land Commission. The Secretary, Finance advised the A.G., Sind that the higher pay drawn by the appellant under the Federal Government will not be treated as emoluments for. Purpose of pension. The pension of the appellant was accordingly calculated on the basis of his pay that he would have drawn in Scale-5 for three years preceding his retirement and this pension was accepted by the appellant under protest. Appellant then made a representation to the Senior Member, Board of Revenue, which was rejected and the review petition was also rejected. Appellant preferred appeal to the Chief Secretary and the appellant was informed on 13th November, 1983 that he would be given pension on the basis of his pay in N.P.S.
5. The appellant has accordingly preferred this service appeal.
4. The learned counsel on behalf of the appellant has pointed out that under rule 2.9 of the West Pakistan Civil Services Pension Rules applicable in the Province of Sind, time spent by a Government servant, holding pensionable post on deputation to (1) another Government, (2) foreign service, or (3) service in a temporary or non-pensionable post under the Government, counts for pension as if it were a time spent under the Governments. Regarding the amount of full pension the same is calculated on the average and actual pay drawn during the last three year immediately preceding retirement. Rule 4.4(2) reads as under :- "The term average emoluments of a Government servant means the average of the pay that he drew, or would have drawn had he not been on leave with leave salary or joining time or under suspension which is not adjudged as a penalty during the last three years immediately before his retirement. If during the last three years of his service a Government servant has been absent from duty on leave without pay or has been under suspension as a form of penalty, the period so passed should be disregarded in the calculation of the average emoluments and an equal period before three years should be induced."
5. ' The note at the foot of this section explains that "the term `pay' does not include the pay drawn by a Government servant in foreign service or additional pay for purpose of additional duties of another post". The learned counsel for the appellant has pointed out that in case of the appellant the service on deputation with the Federal Government was not to be regarded as foreign service for the purpose of pension as pet letter of 4th September, 1976 on the question of leave, salary and pension contribution. This letter reads as under :- "It has now been confirmed by the A.G.P.R., Rawalpindi that the officers and staff on deputation to this Commission are not to be treated on foreign service and hence no pension or leave contribution is payable by the Federal Land Commission to the Provincial Government concerned from the Central Revenue.
6. (Sd.)
7. (Finance and Accounts Officer)"
8. ' It has further been pointed out that there was no such condition attached to the appointment orders of the appellant that the promotions etc. Would not entitle him to seniority and other monetary benefits in his parent department. That on the contrary, the orders re-designating his post, the promotion orders and terms and conditions were being communicated to his parent department and no objection, if any, to such promotion were ever received by the Federal Land Commission.
9. Under the pension rules pay drawn by a Government servant on deputation under the Central Government is not excluded from the term 'pay'. B The Establishment Manual, Volume-I issued by the S&GAD, Government of West Pakistan in the year 1964 regarding Organization and Methods contains memorandum of Finance Department regarding fixation of pay of officials on deputation from one department to another. This memorandum is not, however, applicable in cases of deputation from the Provincial Government to the Central Government. The memorandum deals with four categories of inter department deputation including the case of a permanent official being deputed to a temporary post in another department. In such cases the lien of the official is retained in the parent department and he is to be allowed the pay of the post in the parent department plus deputation allowance and he gets promotions in his parent department when they become due. If the official is appointed on permanent basis in the borrowing department then he can draw the pay of the post as prescribed in the borrowing department. It is admitted that the appellant was in temporary service in the borrowing Government. The question of approval of his promotion and pay in the borrowing department was one between the Central Government and the Provincial Government. No instruction or memorandum of the Central Government on this subject has been made available by the counsel on either side. On the analogy of the memorandum issued by the Government of West Pakistan on the subject of inter-departmental transfers on deputation, it was for the Central Government to obtain approval of the Provincial Government regarding fixation of pay etc. The pension rules are, however, silent and according to these rules the pension is to be fixed on the basis of average pay actually drawn during the last three years immediately before the officials' retirement. The learned A.A.-G. Has not been able to show why the actual pay drawn on deputation should not be considered under these rules. Nor has he been able to point out any rule under which the presumptive pay in N.P.S. 5 originally drawn by the official under the Provincial Government should be considered. It may be reiterated that the actual pay drawn on deputation cannot be excluded unless it is pay drawn in foreign service. The service on deputation of the appellant has been definitely shown to be not foreign service for the purposes of pension.
10. ' The learned counsel on behalf of the appellant has filed a judgment of this Tribunal in Appeal No, 180 of 1974 Umer Daraz Ali Shah v. Government of Sind. The contention of the Government in that case was that the officials promotion in the borrowing department had not been confirmed by the lending department and if he continued in the lending department his salary would have been much less. It was held by Mr. Justice (Rtd.) Hamzo Khan Kureshi, Chairman and Mr. Abdul Kadir, Member that pay on deputation was included in the average emoluments actually drawn forming basis for calculation of pension. The appeal was, therefore, allowed. Had the Provincial Government objected to the pay allowed to the appellant on deputation or informed the Central Government that the appellant would not be permitted to claim any benefits on the basis of his terms and conditions in the Central Government, after he is repatriated to parent Government then the case would have been other wise. But in the absence of any such condition of deputation or any objection on the part of the Provincial Government, the ordinary pension rules would apply and under these rules actual emoluments drawn from the basis for calculation of pension. It would thus be unfair to the appellant if he is told that after his special type of hard work under the Central Government for nearly five years, he would be considered to have retired simply as a Supervising Tapedar in Grade-5. If the rules are silent it would be better if such rules are prescribed in consultation with the Central Government. But until that is done the ordinary pension rules will apply. The appellant cannot thus be deprived of the benefit of average emoluments actually drawn by him for three years immediately before the retirement as basis for his pension.
11. ' For the above reasons the appeal is allowed with no order as to costs.