The appellant Malik Abdul Aziz ex-PCS Officer was promoted to the rank of Commissioner/Secretary vide Notification dated 24-4-1989 (Annex. E) and appointed the same day as Member of this Tribunal where he continued till his retirement on superannuation taking place on 30-10-1992. While settling his terms and conditions (Annexure H) he claimed to be entitled to all allowances, including in particular the "Secretariat Allowance" and the "Orderly Allowance" as admissible to BS-20 officers of the Punjab Government. However, these were not allowed to him whereupon he filed a representation (Annexure K) which was of course turned down by the impugned order dated 24-5-1993 and hence the instant appeal.
2. The grounds urged in support of the claim were: Firstly; that these allowances or at least one of them, was drawn not only by his predecessor (Ch. Abdul Rashid) but also by his successor (Mr. Aal-e-Ahmed ex-PCS), and in fact by all officers/officials of the Tribunal as a class leaving no room for discriminating against him alone on what might be called " wholly impermissible classification".
Secondly; that by refusing to pay him the allowances qua other civil servants "similarly circumstanced" his Constitutional protection of equality before law was infringed; Thirdly; that after classification of services was done away with by enforcement of the Punjab Civil Servants (Change in Nomenclature of Service and Abolition of Classes) Rules, 1974, there was no authority to resuscitate the so-called "Secretariat Cadre/Services" by the Finance Department's letter dated 17-10-89, or to accord them better treatment by paying them the allowance in question in preference to others; Fourthly; stated the above view was affirmed in PLD 1993 SC 375 by holding that "distinction between the Secretariat staff enbloc and others was abolished when the National Pay Scales were introduced in 1972"; Fifthly; that refusal to pay the Secretariat Allowances to the employees of the Court was set aside by the High Court and the Supreme Court observing; "In spite of the direction given no material has been placed before this Court or was placed before any of the High Courts showing any reason whatsoever for the re-emergence of categories of Secretariat and non-Secretariat employees and for assimilating certain non---Secretariat offices as Secretariat offices for the purpose of this Allowance. In the absence of any reason forthcoming on the record after the enforcement of the Unified Pay Scales to all categories of employees such reversion to old categories would appear to be discriminatory."
Sixthly; that grant of these allowances to the employees of the Punjab Public Service Commission under the orders of the Supreme Court and to the officers/staff of the Secretariat Cadre/service working outside the Secretariat under the Finance Department's letter dated 17-10-1989 read with the one dated 2-3-1986 left behind no moral or legal justification for turning down the appellant's claim; Seventhly; that this Tribunal was a "Special Institution" like the Lahore High Court, the Punjab Public Service Commission and the Staff Training Institute, Lahore as contemplated by the Punjab Government Rules of Business 1974 and that if the last mentioned three institutions were allowed these benefits, there was no earthly reason to single out the staff of the Tribunal for denial thereof; Eighthly; that the appellant was accorded on promotion to BS-20 the status of a Secretary to the Provincial Government and was therefore entitled to the allowances as permissible to such a 'Secretary even though he was posted outside the Secretariat. He found support for this view from the orders whereby Mr. Anis Nagi (ex. -PCS) promoted as Additional Secretary BS-19 was allowed these allowances merely because "Secretariat Status" was conferred upon him; Ninthly; that this Tribunal was an integral part of the SGA& I Department as by various notifications/orders Secretary (Services) was appointed as Authorised Officer or Authority for its staff indicating for all purposes that it was a part of the Secretariat and hence entitled to get the allowances; and Lastly that the SGA& I Department supported his claim but the Finance Department/respondent No.3 arbitrarily turned it down without passing a speaking order smacking mala fides in law and fact.
3. The respondents contested the appeal denying the appellant's right to get the allowances in question. They urged that the appellant was not eligible to get these; that Mr. Aal-e-Ahmed was granted the same through inadvertence but later it was withdrawn; and that no discrimination was done in the matter. They however conceded that classification of services was abolished by the Punjab Civil Servants (Change of Nomenclature of Services and Abolition of Classes) Rules, 1974; and that the employees of the High Court and the Punjab Public Service Commission were allowed this allowance under the orders of the Supreme Court but added that a Review Petition had already been preferred for its cancellation. They further conceded that this Tribunal was a Special Institution like the three others and that though it was a part and parcel of the S&GAD yet it did not form part of the Secretariat. Likewise they asserted that appointment of Secretary (Services) as Authorised Officer or Authority for the staff of this Tribunal did not change its status as a "Special Institution" or convert it into a part of the Secretariat.
4. The question of admissibility of Secretariat allowances to non---secretariat) Officers/stair appears to have been widely settled by the Supreme Court in the judgment reported in PLD 1993 SC 375 (Secretary Finance v. Mubarik Ali Khan). Although the relevant notification dated 8-8-1988 (Annexure B/1 Page 17) intended to confine it only to the "employees of Punjab Government Secretariat, Governor's Secretariat, Chief Minister's Secretariat and Punjab Provincial Assembly Secretariat" yet lately its restrictive character was done away with and the same allowance was permitted not only to the officers/staff of the Board of Revenue but also to those of the remaining three Special Institutions viz. (i) High Court (ii) the Punjab Public Service Commission, and (iii) the Staff Training Institute. There was no denying the fact that in Schedule I attached to the Punjab Government Rules of Business, 1974, the Punjab Service Tribunal was one of those Institutions. It passes one's comprehension as to why, as compared to the remaining three, the Tribunal alone was being treated differently. There should have been some strong reasons to create distinction among the "Special Institutions" themselves for the purposes of granting or refusing them these allowances. Indeed, none was offered here, as even before the Supreme Court whose remarks on the exact point have already been quoted above in para. 2/ante.
5. In fact it was thought that after enforcement of the Punjab Civil Servants (Change of Nomenclature of Services and Abolition of Classes) Rules, 1971, all classes, nomenclatures and distinctions between various services were abolished and instead Unified Grades were introduced with a view perhaps to treat all services alike at least in the matter of status, emoluments, perks and privileges by doing away with the exclusive zones which were hitherto availed by certain segments of the services. Presumably a class--less structure was intended to be created among the civil servants who were till then divided into a few classes being maintained from the colonial days. The Supreme Court noticed, rather with anguish, that after abolishing the old relic of classification of the civil servants, there was no justification for its re---emergence in the, names of Secretariat and non-Secretariat employees much less to favour one and ignore the other. No material was placed before the Supreme Court to justify rebirth of this classification and as a sequel, the Court allowed the allowance in dispute to the employees of the High Court even though they were placed outside the precincts of the Secretariat. The analogy very much applied to the officers/staff of this Tribunal too. As a matter of act, there was conceivably nothing to treat this Tribunal in a different or discriminate way vis-a-vis the High Court in the context of this allowance.
6. Next, the S&GAD supported the appellant's claim two times but the Finance Department in its wisdom did not approve of the idea apparently for some thing none too rational. Their letter dated 2-5-1993 being non-speaking and quite mechanical, was actually bereft of any reason manifestly tending to give, with respect, a flair of likes and dislikes. The law, particularly relating to abolition of classes, would not permit favouring one class and disfavouring another without any logical basis.
Additionally, Articles 4 and 25 of the Constitution did not permit unequal treatment to persons placed in the same or similar situation. The High Court in the case of their own employees (W.P.
No.1624 of 1989) repelled the contention that functions-wise, they were not placed in the same or similar situation as was the staff of the Secretariat. Relying upon an authority of the Indian Origin (AIR 1983 SC 130), and comparing the job specifications of the two establishments, the learned Judge in his elaborate discussion found that difference in the Departments would make no ground to sustain differentiation between the two. It was explained that the doctrine of classification was evolved to sustain a legislation or state action designed to help weaker sections of the society or some such segments as are in need of succour and that therefore it had to rest on the twin tests of reasonable classification and the rational principle correlated to the object sought to be achieved.
The plea canvassed before him that the Secretariat Staff dealt with policy formation did not find favour, and rightly too. If this were the reason, what policy formation the other three "Special Institutions", or for that matter, the Board of Revenue or the office of the Solicitor were dealing with?
In fact by extending these allowances to them, the exclusive claim of the staff initially availing these, was diluted by the Government itself.
7. I feel re-assured that the job specification of this Tribunal is not much different from that of the High Court, and even the Board of Revenue wherein by and large disputed cases are settled. I was not told if any weaker segments working in the Secretariat or those Institutions were sought to be compensated. As regards, providing them incentive to work in the Secretariat, the argument did not appear convincing. A fairly large Cadre of Section Officers was created to work only and only in the Secretariat irrespective of giving them any bait. They had no option to go out of the Secretariat and yet they were paid the allowance as a matter of course. I should say the same reason obtains even with the DMG Officers, who have only a small percentage of field posts, which they invariably occupy for a short spell of their career. The rest of the time they have essentially to remain in the Secretariat either in the Centre or a Province irrespective of any "incentive". This is how one could say that the twin tests, referred to above, were not satisfactorily brought home in order to sustain the differentiation.
8. Counsel canvassed that the position of this Tribunal was quite peculiar and actually there was ample truth in it. Notwithstanding the fact that it was included among the Special Institutions, it was by no means an independent establishment; unlike the Punjab Public Service Commission and the High Court. The absence of its independent status suggested that it remained an integral part and parcel of the S&GAD and hence essentially a part of the Secretariat itself. This view finds support from the fact that the recruitment, postings and transfers of the entire staff were kept by the S&GAD tightly into their own hands including exercising powers under the (E&D) Rules, 1975 in also drawing budget for them. This proposition was not denied by the S&GAD in their comments, which contrarily affirmed their own control over the staff attached to this Tribunal. There was a time when as per Notification No. SOR-III-13-12/78, dated 27th April, 1979, the Chairman and the Registrar of this Tribunal were respectively either the Authority or the Authorised Officer in the matter of exercising powers under the E&D Rules over the staff but this Notification was superseded by yet another one bearing 14-11-1989 bringing about the net result that the into the exclusive administrative control of the S&GAD unlike the High Court and the Punjab Public Service powers of hire and fire as it all vests exclusively in the S&GAD. Why not then assume its total submersion in the S&GAD, or to say the least, that it forms an integral part thereof? Why should we feel why of frankly accepting it? The appellant appeared right in re-calling that his claim for these allowances was supported by the S&GAD probably because in the Tribunal having had no independent administrative existence was like themselves a part of the Secretrait.
9. Last but not the least was the appellant's claim that he was accorded Secretariat status when he was promoted to the rank of Secretary/Commissioner in BS-20 and that this fact by itself entitled him to avail always that status for the purpose of claiming allowances in question. I do not think that this argument will be much enuring because where he was accorded the status of Secretary, he was simultaneously accorded the status of gain-saying the fact that the post of strength of the Secretariat and that it adversely affect his Secretariat' status rendering him ineligible for the allowances. Mr. Nagi's case did not fructify and was therefore of no assistance to the appellant.
Other officers mentioned by the appellant were either of the Secretariat cadre or were paid while working in the Secretariat. Their cases cannot be assimilated to that of the appellant or vice versa.
9-A. As a result the appeal is allowed, the impugned orders are set aside and the appellant is declared to be entitled to Secretariat/Orderly allowances with effect from the date he took over charges Member of the Punjab Service Tribunal.