MR. MUHAMMAD MEHMUD ASLAM PIRZADA, CHAIRMAN.- Mubashir Hussain, Superintendent (Retd) has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the Accountant General, Punjab, the Senior Most Staff Officer, Office of Chief Engineer Irrigation, Bahawalpur and Chief Engineer Irrigation, Bahawalpur as respondents. Through this appeal the appellant has prayed that the impugned orders passed by respondents be declared as illegal and void having no effect on the rights of the appellant and declaring the appellant to be entitled to secretariat scales of pay as already fixed by the Department/Accountant General, Punjab, Lahore, and drawn by the appellant till his retirement.
2. The brief facts of the case are that the appellant being an employee of the former Irrigation Department of the Ex-Bahawalpur State was posted as Stenographer in the office of the Chief Engineer-cum -Secretary P.W.D. Ex- Bahawalpur State and became an employee of the West Pakistan Government at the the of integration of one Unit. Ultimately he retired from the post of Superintendent, Office of the Chief Engineer, Irrigation, Bahawalpur Region, with effect from 28.11.1987. The Government of West Pakistan Finance Department vide their policy letter No.1359-FEI- 56 dated 15.12.1956 permitted the grant of Secretariat scales of their unit of origin to the Secretariat employees or the employees of the combined Secretariat-cum-Head of Departments/offices of the Integrating Units, but this letter did not come to the notice of the appellant. The appellant being a confirmed Stenographer in the former Bahawalpur PWD Secretariat w.e.f. 1.3.1952 and fulfilling all the conditions for the Secretariat pay scales as provided in the Finance Department letter No.1359- FEI-56 dated 15.12.1956 was entitled to continue to draw the consolidated pay scales sanctioned for the ministerial establishment of the West Pakistan Secretariat in terms of Item 1 of the said letter.
The Pay scales were revised in the year 1959 and options for the new pay scales were invited. The Bahawalpur Irrigation Region had not taken any action in pursuance of Finance Department letter dated 15.12.1956, nor this letter was in the knowledge of the appellant. The appellant exercised the option according to the prevailing circumstances at that the. The case of secretariat pay scales to the employees of former Bahawalpur PWD Secretariat was decided on 24.12.1965 vide Finance Department No. 13/13-SO-III(E)/64 dated 24.12.1965 and in pursuance of this letter and Secretary to Government of Punjab Irrigation and Power Department letter No.12/13-SO-III(E)/64, dated 20.8.66 in which it had been stated that the officials who were serving in the former Irrigation Secretariat of the former Bahawalpur Government on 13.10.1955 were entitled to the Secretariat pay scales of their unit of origin, the Department/Audit Office fixed the pay of the appellant. As the appellant was serving in the Irrigation Secretariat of the former Bahawalpur State before integration in permanent capacity so protection given to the appellant was effective by making entry in the service book and in consequence thereof the appellant was allowed to draw the pay scale prescribed for the Secretariat employees of the Government of West Pakistan. Certain complaints were made against the appellant and the Accountant General Punjab vide his letter No. Record/BWP/Misc:CD/9057 dated 18.12.1984/20-12.84 made certain queries from the Superintending Engineer, Irrigation, Bahawalpur and also advised certain steps. The appellant feeling apprehended some adverse decisions filed an appeal to the Secretary to Government of the Punjab, Irrigation & Power Department, Lahore and requested for relaxation to re-exercise the option for the existing scales of pay. After receiving refusal from the Finance Department, Government of the Punjab, Lahore, the appellant filed an appeal before the Punjab Service Tribunal which was dismissed being premature. The appellant feeling aggrieved applied for leave to appeal before the Supreme court but the leave to appeal was refused. The Supreme court held in the decision dated 31.7.89 as under:- "It has already been indicated by reciting the facts that by his representation last made, he was seeking relaxation of the Rules and the relaxation having been refused, he cannot claim it as a matter of right. The earlier order is not a determinative order but only asking for certain information from the Department conversing the question of fixation of Pay as such.
In the circumstances no question of law of public importance arises which may require further examination. As and when a final order is passed adverse to terms and conditions of the service of the petitioner, he may seek appropriate redress."
3. In the light of the judgement of the Supreme court it is clear that no final order has been passed by the Department adverse to the terms and conditions of the service of the petitioner. In view of the judgement of the Supreme Court the appellant gave an application to the Chief Engineer, Irrigation Bahawalpur (Respondent No.3) with the request that he may be given pension on the last pay drawn in Secretariat Pay Scales. The Chief Engineer Irrigation took up the matter with the Accountant General Punjab (Respondent No.1) vide his letter No.1/89/1399 dated 14.1.1990 with reference to his letter No. Reorg/BWP/ Misc:CD/9057 dated 20.12.1984 accepting the claim of the appellant, but the Accountant General Punjab did not accept the entitlement of Secretariat Pay scales to the appellant vide his letter No.PF/HM/No.2876 dated 8.4.1990. Resultantly the Senior Most Staff Officer, Office of the Chief Engineer Irrigation, Bahawalpur (Respondent No.2) issued orders of recovery of overpayment on account of Secretariat pay scales amounting to Rs. 1,28,542/77 from pension/gratuity of the appellant vide his NoAI/90/10580-84/P.F dated 17.4.1990. Feeling aggrieved the appellant preferred an appeal to the Chief Engineer Irrigation, Bahawalpur (Respondent No.3) against the orders of Respondent No.2 on 18.4.1990. The Chief Engineer Irrigation (Respondent No.3) rejected the appeal vide his No.1/9011567-71 dated 3.5.1990. Hence this appeal.
4. I have heard the learned counsel for the parties at length and perused the record with the assistance of the representative of the Department with care.
5. During the course of arguments Learned counsel for the appellant has contended that the Accountant General, Punjab, (Respondent No.1) himself admitted in his letter dated 20.12.1984 that the appellant was entitled to the protected Secretariat Pay Scales and on the basis of the said fixation the appellant has been drawing his pay since so fixed. Further argued that there is no fault on the part of the appellant as there was uncertainty with regard to exercising option on the basis of different circular letters which were never circulated to the appellant. However, in view of the last letter the Finance Department West Pakistan dated 24.12.1965 the Secretary to Government of the Punjab, Irrigation and Power Department letter dated 20.8.66 the pay of the appellant was fixed by the Accountant General, Punjab in the Secretariat pay scales and he enjoyed the same. The reliance of Accountant General Punjab Lahore on Finance Department letter No.F.D.I(PR)3-7/59 Vol: III-S.R.II(383)/69 dated 15.4.1969 is absolutely wrong as this being an Executive order could not be effective retrospectively, and the appellant was correctly awarded the secretariat pay scale in accordance with Government instructions much before issue of the above letter. Conversely Learned District Attorney opposed the appeal and argued that the Accountant General, Punjab in his letter dated 20.12.1984 has taken a stand that the appellant after the introduction of West Pakistan Non-Gazetted Civil Service Pay Revision Rules, 1959 effective from 14.10.1955 opted for the prescribed pay scale of West Pakistan and did not retain the scales of his unit of origin and as such he had lost his entitlement regarding protection of Secretariat pay scale in terms of Finance Department letter No.F.D.I.I(PR) 73-75/59 Vol.III/SR-II (383)/69 dated 15.4.1969.
6. I have given my anxious thought to the submissions advanced by the Learned counsel for the parties and find that the view of Accountant General, Punjab, Lahore (Respondent No.1) is not correct in view of the fact that the case of the former Bahawalpur PWD employees for entitlement and allowing the protected Secretariat pay scale was taken up with the Finance Department very late. The Finance department gave sanction for grant of secretariat consolidated pay scales to all such officials who were serving in the former Irrigation Bahawalpur Secretariat vide their No.12/13- SO:III(E)/64 dated 24.12.1965. As the name of the appellant was included in the list approved by the Finance Department, the department as well as the Accountant General, Punjab Lahore fixed/verified the pay of the appellant in the Secretariat Pay Scales and made entries in the Service Book. All this shows that the appellant was correctly given the Secretariat pay scale and any old option should not debar the appellant from his legitimate rights as the same option was also available when the Finance Department accorded sanction in the year 1965, and pay fixed and verified by the Accountant General Punjab, on 8.3.1969. Moreover, the appellant was getting pay in Secretariat pay scale before issuance of the Finance Department letter dated 15.4.1969. Therefore this letter cannot become effective from retrospective date. The observation of respondent No.1 is also not correct in view of the judgement of the Punjab Service Tribunal, Lahore in appeal No.27/689 of 1976 in case of Mr. Abdul Wajid Ghauri, Administrative Officer Bahawalpur Irrigation Zone V/s Chief Engineer, Irrigation Bahawalpur and others. The appellant was correctly awarded the Secretariat pay scale. The appellant being employee of the defunct Bahawalpur State P.W.D.
Secretariat is entitled to the Secretariat scale and the option exercised in 1959 was of no effect whatsoever to the adverse interest of the appellant in view of the instructions contained in letters referred to above, particularly when none of the orders was ever communicated to the appellant, specially in the circumstances when all other colleagues of the appellant have been allowed the Secretariat scales of pay.
7. Viewed in this context the orders bearing Accountant General, Punjab No.Re--Org/BWP/Misc:CD- 905 dated 20.12.1984 and No.PF/HM/2876 dated 8.4.1990, Senior Most Staff Officer Irrigation Bahawalpur No. AI/90/10580- 84/PF dated 17.4.1990 and Chief Engineer Irrigation Bahawalpur No. AI/90/11567-71 dated 3.5.90 are set aside as being illegal and void having no effect on the rights of the appellant and the appellant is legally entitled to the Secretariat scale of pay as already fixed by the Department Accountant General, Punjab, Lahore and drawn by the appellant till his retirement, consequently I accept the appeal with no order as to costs. Parties be informed.