1. JUSTICE (RETD.) MUNAWARALI KHAN (CHAIRMAN).--- The appellant, Mr. A. Rashid khan Sherwani, started his Government service, as Secretariat employee in the capacity of Section Officer, after clearing the combined competitive Examination for P.C.S. (Executive Branch) and Section Officers held in 1966 He was subsequently promoted first, as Deputy Secretary, then as Additional Secretary and finally to BPS-20 (Secretary's pay scale). Following his last-mentioned promotion he was posted outside the Secretariat for the first time 3- Member, Sindh Service Tribunal. As a Secretariat Officer he was, inter alia, entitled to get secretariat allowance @ 20% of his basic salary. However, on taking over the charge in the Service Tribunal, the Accountant-General, Sindh declined to pay him the said allowance. He took up the matter with the Chief Secretary and made three representations one after the other. The appellant was ultimately intimated by the S&GAD vide its letter, dated 21st April, 1993 in reply to his last representation, dated 4-1-1993 that the Finance Department had expressed its inability to accept his request with regard to grant of Secretariat allowance. A copy of the Finance Department's letter in this regard was also enclosed with the S&GAD 's aforesaid intimation. Dissatisfied with the above reply the appellant preferred departmental appeal to the Chief Minister. As the said appeal remained undecided until after expiry of 90 days, the appellant filed the present service appeal on 14-9-1993.
2. The appellant being un represented, we heard him personally. We also heard the learned AA.-G. On behalf of the official respondents and went through all the relevant documents.
3. On careful perusal of the written statement, it is found that following admissions have been made with regard to the appellant's case: (1)That the appellant was basically a Secretariat Officer and that Secretariat Officers are not posted outside the Secretariat and that he enjoyed first two promotions as Deputy Secretary and Additional Secretary in the Secretariat but on his promotion to BPS-20, he was posted outside the Secretariat as Member, Sindh Service Tribunal (vide paras. 3 and 7 of memo. Of appeal read with paras. 2 and 4 of the written statement).
4. (2)That the appellants posting outside the Secretariat was not at the option of the appellant but in the interest of Government work (vide para. 8 of the memo. Of appeal read with para. 4 of the written statement.
5. (3)That the appellant continued to remain posted as Member, Sindh Service Tribunal, despite the Finance Department's advice that the Secretariat Officer should not be posted outside the Secretariat to save them from financial loss (vide paras. 10 and 12 of the memo. Of appeal read with paras. 6 and 8 of the written statement).
6. (4)That the appellant's junior Mr. Maqbool Hussain Musavi, also a Secretariat employee, after his promotion to BPS-20 was posted in the Secretariat and he continued to draw the Secretariat allowance with the result that his emoluments became more than the emoluments of the appellant (vide para. 13 of memo. Of appeal read with para. 9 of the written statement).
7. The appellant's case as has been established from the above admissions is that he was basically a Secretariat employee who began his service as Section Officer and earned and enjoyed two subsequent promotions as Deputy Secretary and Additional Secretary also in the Secretariat.
8. Furthermore, his emoluments during the period of his service in the Secretariat, inter alia, included Secretariat allowance which was however, stopped following his promotion to BPS-20 and posting outside the Secretariat. It is also clear that his posting outside the Secretariat was not of his choice but was made in the interest of Government work.
9. The only point for our determination was whether the appellant was entitled to get Secretariat allowance even on his posting outside the Secretariat. In this connection, our attention was invited by the learned AA.--G. To the Finance Department's Circular Letter No.FD-SRI-2(15)/88, dated 20th September, 1988, which shows that the Secretariat allowance was admissible to all those employees who were working in the Sindh Secretariat. Obviously such employees included not only the employees who originally belonged to the Secretariat but also the employees who were deputed to work there. Normally the first category of employees are not posted outside the Secretariat. As per F.D. 's U.O. No. FD.(SR-1)2(24)/84 (pt.III), dated 28-11-1992, "the facility of Secretariat allowance cannot be extended in respect of Secretariat officers who are posted outside the Secretariat". However, in the same U.O. Letter, the FD advised the S&GAD that "... It may consider adopting a policy whereby officers belonging to Secretariat cadre are not posted outside the Secretariat to save them from financial loss unless the officers themselves opt to go outside the secretariat for their own reasons." The F.D. 's above circular of 28-11-1992 appears to be self- contradictory. On one hand the F.D. Has refused to pay Secretariat allowance to Secretariat officers if they are posted outside the Secretariat and on the other hand it has expressed its concern about the financial loss to be caused to the said employees in case of their posting outside the Secretariat and has sought to prevent such loss by advising the S&GAD to refrain from posting such employees outside the Secretariat. This clearly shows that the F.D. Was mindful that the denial of the Secretariat allowance to the Secretariat employees posted outside the Secretariat would reduce their emoluments, which include the Secretariat allowance, to their disadvantage and thereby violation of fundamental service rule would be made. We are also inclined to the thinking that Secretariat allowance is an essential part of the emoluments payable to Secretariat employees and therefore, it has got to be paid to them regardless of the place of their posting. In our opinion non-payment of the Secretariat allowance to the said employees on their posting outside the Secretariat would have the effect of varying their emoluments to their disadvantage which is not permitted by law. In the instant case we have come across the appellant's letter dated 14th January, 1992 addressed to the Chief Secretary wherein he had requested him that he being a Secretariat employee, should either be posted in the Secretariat or in the alternative he should be paid the Secretariat allowance. We are sorry to note that his such request went unheeded. Instead he was informed about F.D. 's regrets of its inability to accept his request for payment of the Secretariat allowance. As soon as the F.D. 's views came to the notice of the S&GAD immediate steps should have been taken for posting the appellant in the Secretariat. But if his posting outside the Secretariat was considered in the interest of the Government work, the F.D. Should have been prevailed upon to pay him the said allowance. It may be pertinent to refer section 10 of the Sindh Civil Servants Act, 1973. It reads as under:-- "10. Every civil servant shall be liable to serve anywhere within or outside the Province in any post under Government, Federal Government, or any Provincial Government or local authority or corporation or body set up or established by any such Government: Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region: Provided further that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to service."
10. It is clear from the above section that a civil servant is 'liable to transfer anywhere within or outside the province but subject to the condition mentioned in the proviso hereinabove that if he is required to serve outside his cadre, the terms and conditions of his service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to service. The word `pay' used in the above section has been defined in clause (e) of section 2 of the above Act which obviously includes the allowance of the nature of the Secretariat allowance. In the instant case the appellant belonging to Secretariat cadre, was posted outside that cadre as Member, Sindh Service Tribunal. His case was, therefore, covered by the its payable to him as Secretariat employee could not be varied to his disadvantage consequent upon his posting outside the Secretariat as Member, Sindh Service Tribunal.
11. The upshot of the above discussion is that the appeal must succeed. Consequently it is allowed with no order as to costs and the impugned order is hereby set aside.