' CH. A. RAHMAN KHAN (MEMBER).--Syed Abid All Kausar and three (3) others, the appellants, ex- Head Clerks, Inspectorate of Technical Development (I.T.D.) have preferred this joint appeal against the impugned order, dated 5-5-1987 whereby merger of personal pay of Rs,25 per mensum for the purpose of pension had been finally refused by Finance Division, (Regulations Wing).
2. Briefly, the facts of the case are that the appellants, initially joined service as civilian Lower Division Clerks in the Indian Army in the post 31 scale i,e, Rs,45-5-80. However, on the somatization of the cadre, the appellants were absorbed in the civilian Organization of I.T.D. Under G.H.Q. From where they retired as Head Clerks on attaining the age of superannuation.
3. It was contended by the appellants in person that during the course of their service all the appellants elected for the following pay scales introduced at various intervals as well:--
(i) Unified scales of pay w,e,f, 1st September, 1944.
(ii) Prescribed scale of pay w,e,f, 1st January, 1949.
(iii) Revised prescribed scale of pay w,e,f, 1st December, 1962.
' It was submitted that as part of the revised prescribed pay scale in 1962 the appellants were granted Rs,25 per month w,e,f, 1st July, 1962 as additional relief like other Government servants which was to continue upto pay of Rs,600 per month and or until absorbed in future increases.
However, it was contended that the appellants were allowed to revert to post 31 scale of pay on being confirmed with retrospective effect from 15th August, 1947 vide Government of Pakistan, Ministry of Defence (Army Branch) letter, dated 25th September, 1969. It was further submitted that the appellants continued to draw the amounts of additional relief of Rs,25 per month till their superannuation as part of personal pay vide Ministry of Finance (Implementation Unit) O.M.
No,PYNG.1(2)/IMP/63, dated 13th March, 1964.
4. It was strongly contended that this additional relief as admissible was later termed 'as personal concession' by the Military Accountant General vide his letter, dated 13th December, 1971 but classified as personal pay on equitable grounds on the recommendation of the Law Division and in consequence allowed to count as part of emoluments for calculation of pension in a number of identical cases of pensioners. It was contended that every time when an individual's case was referred to the Government of Pakistan for counting of additional relief for the purpose of average emoluments for pension, it was decided in the favour of the individual. The cases of following four
(4) individuals who had identical cases which were duly sanctioned by the Government are cited below:--
(1) Mr. Bagh Muhammad Ex Head Clerk of Inspectorate of Electronics and Instruments.
(2)Mr. Muhammad Ishaq Khan Ex-UDC, 502 Central Workshop, E.M.E.
(3)Mr. Abdul Hafeez Khan Ex-U.D.C. Army Stores, Inspection Depot.
(4)Mr. Aziz Ullah Aziz Ex-U.D.C., Army Stores, Inspection Depot.
' The extract of one of the identical letters No, 1157/1182/CP-111/380/D-2(B)/74, dated 19th January, 1974, Government of Pakistan, Ministry of Defence (Army Branch) conveying the relevant sanction in this regard is reproduced below:-- ' Subject:-Counting of Additional Relief for the purpose of Average Emoluments for Pension Mr. Bagh Muhammad, Head Clerk of Inspectorate of Electronics and Instruments, Chaldala.
' Sir, ' I am directed to convey the sanction of the President to the counting of element of additional relief of Rs,25 p.m. Sanctioned vide Ministry of Finance No, F.7(p)-R-I(RWP)/62, dated 22nd August, 1962 drawn as a personal concession in addition to pay in post 31 Scale of pay by Mr. Bagh Muhammad, Head Clerk of Inspectorate of Electronics and Instruments, Chaklala, as part of emoluments for the purpose of pension in terms of Art. 486, C.S.R.
2. This issue with the concurrence of Ministry of Finance (Finance Division) vide their U.O. No, 1256- R6/73, dated the 21st November, 1973." xx xxx xx xxx xxx ' However, when on the instructions of Controller of Accounts (Military Pensions), Lahore, the consolidated case for the four (4) appellants was initiated quoting the precedence according to which Government sanction was granted in individual cases, the Finance Division, Respondent No, 1, termed the said amount of additional relief as a 'Grace' and thereby turned down the request for obtaining requisite sanction in their case vide the impugned order. It was strongly contended that the impugned order is wholly contradictory, discriminative, arbitrary and unlawful. It was the vested right of the appellants to seek the grant of financial benefits already allowed in a number of cases.
This, therefore, amounts to infringement of fundamental rights of the individuals as held in Constitution of Pakistan. It was, therefore, strongly contended that the impugned order may be set aside and the appellants be allowed to count the additional relief of Rs,25 per month for calculation of their pension with back benefits.
5. It was contended by the learned counsel for the State that the additional relief @ 10% of basic pay to the maximum of Rs,25 per month was sanctioned as interim measure to all civil employees with effect from 1-7-1962. It was further decided that in the case of staff brought on to Revised Prescribed Scales, this additional relief was absorbed in the pay fixed in these scales and as such it was withdrawn as a separate item with effect from 1-12-1962. However, in the case of Government servants who elected to retain their own pre-31/Post-31 Scales it was decided not to allow any percentage increase in their scales. As such this additional relief could not be merged in the pay drawn by them with effect from 1-12-1962. In view of the hardship involved to the individuals, it was, however, decided that the amount of additional relief last drawn by such Government servants may be allowed to be drawn as 'personal' to them with the condition that no part of this relief would be treated as pay vide Finance Division's O.M.No,7(9) RI(RWP)/62, dated 22-8-1962. Since the additional relief in question was not to form part of their employments reckoning for pension in the case of those Government servants who on the introduction of Revised Prescribed Scales with effect from 1-12-1962 had elected to retain their Pre-31 Scales, this relief was allowed to such Government servants as a matter of 'Grace' only. It was, therefore, contended that there was no justification for allowing any further benefit such as to be reckoned for the calculation of pensions to the appellants. It was further decided that no general orders in this regard as suggested would be issued. In view of this, it was contended that the impugned order may be upheld as justifiable and legal.
6. We have carefully perused the record produced before us. We are of the view that the respondent department has in a number of individual cases, accorded sanction for reckoning the additional relief of Rs,25 per month for purposes of pension. No explanation has come forth from the respondents to justify the exception made in any of the cases. This decision of the respondent department is, in our opinion, in contravention of the policy laid down on the subject. We, therefore, cannot avoid the irresistible conclusion, that this action is, indeed, of discriminatory nature which renders it void and unlawful. There is no apparent ground to deny the benefits to the appellants who are low paid ex-Government servants. In any case in view of the present rate of inflation, it is a paltry sum and it will be only appropriate to allow this additional relief to be reckoned for pension in the case of the appellants as well. We, therefore, direct that in the case of all the four (4) appellants, this additional relief of Rs,25 per month, which they were drawing at the time of their superannuation, shall be allowed to be reckoned as part of their emoluments for pension with back benefits. .
7 No order as to costs.
8. Parties are informed.