ABDUL RAZZAQ A. THAHIM (CHAIRMAN): --The relevant facts for the disposal of this appeal are that the appellant joined service as Intelligence Officer with effect from 24-3-1965 under the Directorate General of ISI, ministry of Defence. In March, 1984, while the appellant was working as Assistant Director (B-18) and drawing special pay of Rs.330, he was transferred and posted as Section Officer, Ministry of Finance under section 10 of the Civil Servants Act, 1973 where he joined on 27-5-1984. According to the terms and conditions settled vide letter dated 9th August, 1984, issued by the Establishment Division, he was entitled to the same pay, special pay and allowances to which he was entitled in ISI under the prescribed rules. He continued to draw special pay of Rs.330 as Section Officer. He was permanently inducted into Office Management Group as Section Officer, in the public interest, vide notification dated 18th February, 1989 issued by the Establishment Division. The appellant reached maximum of BPS-19 on 1-12-1989 and had become due for move- over to BPS-20. However, he was promoted as Deputy Secretary (BPS-19) vide Notification dated 30-7-1990 with effect from 31-5-1990. By this time, the appellant had also reached the maximum of BPS-19 and had become due for - move-over in BPS-20 with effect from 1-12-1990 which was allowed. He made representation on 11-6-1991 to the Secretary, Finance Division, with the following prayer: " ....In view of the above position, it is requested that the special pay of Rs.330 p.m. Which Was attached to the post of Assistant Director held by me in ISI and which was protected, by the Establishment Division with the approval of the Finance Division's O.M. No. 623-R-3/84, dated 2-8- 1984 may kindly be treated as part of pay for the purpose of fixation of pay with effect from 1-12- 1990, the date on which I have been allowed move-over in BPS-20 on the basis of my promotion to the post of Deputy Secretary (BPS-19)."
His representation was responded and was informed vide letter dated 3-9-1991 whereby he was allowed to continue the admissibility of special pay drawn on the post of Deputy Secretary (BPS-19) as well as during move-over to BPS-20. However, merger of special pay of Rs. 330 p.m. Being special pay four purpose of fixation is not possible under the rules and has not been agreed to. He did not snake any representation or appeal to the Prime Minister but instead made another representation to the Additional Secretary (Regulation) Finance Division for treating his special pay as part of pay. The Ministry of Finance vide their letter dated 20th November, 1993 addressed to the AGPR, Islamabad, asked them to discontinue the admissibility of special pay of Mr. Javed Iqbal from 23-11-1987, but this letter, as admitted by the respondents, was not in respect of the appellant but there was another Mr. Javed Iqbal who was also Section Officer, and this letter has no relevancy. However, the appellant on the basis of this confusion again made a representation or, 9-12-1993 to the Secretary, Finance Division. The Finance Division vide their letter dated 29th December, 1993 addressed to AGPR, Islamabad and copy endorsed to the appellant, decided that the benefit of special pay would not be admissible to the appellant with effect from 1989 and that special pay would not be included in his pension. It was further decided that the recovery of the over-payment made to the appellant so far on account of special pay had been waived off, as a special case. Being aggrieved with this order, the appellant filed appeal before the Prime Minister of Pakistan on 8-1-1994 with the prayer to restore to special pay of Rs.330 p.m. From 1-12-1990 as part of pay to move-over to BPS-20.
2. We have heard the appellant at length. He has argued that once pay allowed cannot be discontinued and under SR 486 it is to be treated as part of pay and is reckoned for the purpose of pension. It is argued that withdrawal of special pay is illegal, mala fide and contrary to the rules. He has also quoted some instances whereby the Finance Division allowed such concession to certain officers.
3. The comments have been filed by the Finance Division and we have heard Mr. M. Javid Aziz Sandhu, the learned Standing Counsel for the respondents. He has vehemently resisted the appeal and submitted drat the appellant was wrongly allowed special pay even on his promotion as Deputy Secretary which was not attached to that post under the rules and as such this being an illegal action, was withdrawn, and looking to the fact that he was retiring from service, the recovery which was to be affected had been waived of. It is argued that special pay of Rs.330 was only attached to the appellant's position as long as he was to remain on deputation, and thereafter it was not admissible and had rightly been discontinued.
4. Consequent to his r deputation to the Federal Government, the following terms and conditions as regards pay of the appellant were notified by the Establishment Division vide their letter No.4/75/...OMG-II, dated the 9th August, 1984 addressed to AGPR: "1.Pay.--We will be entitled to the same pay, special pay and allowances to which he would have been entitled in I.S.I. Dte under the prescribed rule but for his deputation."
At the time of his deputation to the Federal Government, the appellant was drawing pay in BPS-18 plus special pay of Rs.330. He was permanently inducted in the Office Management Group vide Notification dated 18th February, 1989 and he ceased to be an officer of the 1SI Directorate and became regular member of the Office Management Group. He was regularly promoted as Deputy Secretary (BPS-19) with effect from 31-5-1990 vide Notification dated 30-7-1990. According to the terms and conditions of his deputation, he was entitled to pay of BPS-18 plus special pay of Rs.330 which he was drawing at the time of his deputation till his deputation was over viz. 18th February, 1989, the date when he was inducted permanently into the Office Management Group and had ceased to be a member of the ISI Dte, and from this date onward he had no locus standi to claim the benefit of special pay of Rs.330, which stood automatically vanished with his becoming a regular member of the Group. Even if the appellant was allowed to continue to draw the special pay of Rs.330 it was without any legal force and illegal, and was open to revocation at any moment as no question of locus poenitentiae arises in such cases being illegal order. The Finance' Division, therefore, rightly decided that from induction into the Office Management Group, the appellant would not be entitled to draw special pay of Rs.330, with effect from 1989 onwards, as this special pay was not admissible to Section Officers of Office Management Group and it could not be included in his pension. The competent authority in his discretion waived off the recovery of the over-payment on account of special circumstances. As such, the appellant has no case on merits.
5. The appeal also fails on the point of limitation. According to appellant, he made a representation on 11-6-1991 to the Secretary, Finance Division, with the following prayer: " ....That the special pay of Rs.330 attached to the post of Assistant Director in ISI Dte may be treated as part of pay for the purpose of fixation of pay with effect from 1-12-1990, the date on which he had been allowed move-over in BPS-20 on the basis bf the promotions to the post of Deputy Secretary (BPS-19)."
The matter vas considered by the Regulation Wing in the Finance Division and vide note dated 3-9- 1991 it had been decided to continue the admissibility of special pay drawn on the post of Deputy Secretary (BPS-19) as well as during move-over in BPS-20; but his request for merger of special pay for the purpose of fixation was not agreed to. This gave the appellant a cause of grievance, and it was incumbent upon him to have filed appeal to the Prime Minister against the order of the Finance Secretary, but he failed to comply with the rules and instead made another representation and that too to the Additional Secretary Finance, who was a subordinate authority, and he did it at is own risk and cost. However, after a lapse of more than two years, he made yet another representation again to the Secretary, Finance Division on 9-12-1993 for the same relief and cause of action, which stood decided on 3-9-1991. The matter was again considered and the appellant iii reply was informed on 29-12-1993 the same decision already conveyed to him but additionally it was decided to waive off the recovery of the over-payment drawn by the appellant. The appellant treating this letter as original order, preferred appeal to the Prime Minister on 8-1-1994, and this exercise was in futility, as under the rules there is only one appeal provided and that has to be made within thirty days of the adverse order made against a civil servant. This appeal filed long after the prescribed period of limitation is patently time-barred and there is no justification for condonation of such a long delay. Moreover there is no application under section 5 of Limitation Act for condonation of delay.
6. The appeal fails on merits and also on the point of limitation and is accordingly dismissed with costs.