MUHAMMAD ISMAIL KHASKHELY (MEMBER)---Appellant Mr. Rafiq Inayat Mirza, who was an officer of the Secretariat Group in BPS-22, has preferred this appeal with the following prayer: "direct the Government of Pakistan through the Establishment Division to reimburse to the appellant full expenses of the capital cost, depreciation, registration, POL, service and all other maintenance expenses of his personal car or to provide any other suitable relief, say, a realistic car allowance of Rs.2,000 p.m. In keeping with the present cost of maintenance of a car for six months from January, 1985 to June, 1985."
2. Briefly, the facts of the case are that the appellant was appointed as Officer on Special Duty
(OSD) on 18-6-1984 in the Establishment Division and remained as such till 1-7-1985, whereafter he was posted as Secretary, Ministry of Local Government and Rural Development. He claimed free use of staff car for official as well as private use, under the Rules for the use of Staff Cars, 1980." His request was declined on the ground that he was not entitled to the benefit as he was not `Entitled Officer'. He submitted an appeal to the President on 12-6-1985. He did not receive any reply and after expiry of 90 days waiting period, he filed this appeal on 10-10-1985.
3. This appeal was heard on 31-8-1988 by a Bench consisting of the Chairman (Mr. Justice (Retd.)
Syed Ally Madad Shah) and a Member (Mr. Misbah Ullah Khan) and the judgment was reserved.
The Bench by an interim order dated 12-9-1988 observed that the appellant's case was identical to an earlier Appeal No. 79(R)/83 filed by Mr. Nazir Ahmed Choudhry, which was partly allowed by this Tribunal by judgment dated 23-1-1985. The decision of the Tribunal was appealed against in the Supreme Court by the Federation of Pakistan in Civil Petition for Leave to Appeal No. 230(R)/1985, in which leave to appeal was granted on 14-1-1986. It was, therefore, decided that since the question involved in this appeal was sub judice before the Supreme Court in Mr. Nazir Ahmed Choudhry's case, this Appeal No. 328(R)/85 was kept pending till the decision by the Supreme Court on the appeal filed by Mr. Nazir Ahmed Choudhry.
4. The Hon'ble Supreme Court by judgment dated 27th May, 1989 decided the matter, and the relevant para of the judgment reads as under:-- "10.It was not the case of the respondent nor the learned Tribunal has recorded any finding to the effect that a spare car was available in the Establishment Division but the same was not given to him for private use. In the circumstances all that he was entitled to was the car maintenance allowance. Xxxxxx xx."
5. On the pronouncement of the judgment by the Supreme Court in Mr. Nazir Ahmad Choudhry's case, the appellant submitted a miscellaneous application No. 22/90 seeking permission for amendment of appeal, which was allowed by order dated 3-4-1990. The appellant accordingly submitted amended appeal in which paragraph 3 of the memo of appeal was amended to the extent: "and although a staff car for allocation to appellant was available". It was further prayed that in case, according to the respondents, no staff car was available, then the respondents be directed to produce relevant record before the Tribunal.
6. This appeal finally came up for regular hearing on 2-11-1992, and we have heard the learned counsel for both the parties. The contention of the learned counsel for the appellant is that the appellant, during his posting as OSD in the Establishment Division was an entitled officer borne on the sanctioned strength of the Establishment Division and since he did not draw the car maintenance allowance, he was entitled to the full expenses of the car maintenance of Rs.2,000 p.m. From January, 1985 to June, 1985.
7. On the other hand, the contention of the respondents is that the appellant was not an entitled officer and was not borne on the sanctioned strength of the Establishment Division and since the OSD in the Establishment Division had no official duties to perform, the car could not be provided for private use only.
8. For determination of the issue involved in this appeal, the relevant provisions of the Use of the Staff Cars Rules, 1980 are contained in Rule 2(x) and Rule 5(11) of the Rules and they are reproduced hereinbelow: -- "2(x) `Entitled Officers' means officers of Grade-22 and Additional Secretaries of the Federal Government borne on the sanctioned Establishment of a Division.
5(11) Entitled Officers who forego the car maintenance allowance shall be permitted to free use of staff car for official and private purposes subject to the following conditions:--
(i) Only one staff car shall be used for official as well as private use.
(ii) Such staff car shall not be used during earned leave, leave preparatory to retirement, or any other kind of leave except casual leave and medical leave up to one month.
(iii) xxxx xx
(iv) xxxxxx
9. The admitted facts are that the appellant was a BPS-22 officer of the Secretariat Group and under the Rules of Business, all service matters including disciplinary matters in respect of APUG officers are administered by the Establishment Division. The appellant was posted as OSD in BPS-22 in the Establishment Division and remained as such from 18-6-1984 to 1-7-1985. He was neither suspended nor any disciplinary proceedings were pending against him. As an OSD, he was being paid full emoluments of BPS-22 post and we see no reason how the benefit of the free use of staff car could be denied to him when he was very much a liability of the Establishment Division and there could be no denial to these facts. Whenever an OSD is appointed he is shifted from his posting and joins the Establishment Division. Therefore, the Establishment Division cannot absolve itself of his liability and those of the perquisites, which are attached to an officer of BPS-22. We, therefore, hold that the appellant was an `Entitled Officer', borne on the sanctioned strength of the Establishment Division and was entitled to the free use of staff car for official and private purposes.
The appellant's contention is that there were ten staff cars at the relevant time and the Establishment Division in their written reply have furnished details of staff cars from which we find that a car could be spared and made available to the appellant for official and private use during the relevant period.
10. We, therefore, allow the appeal and direct the Establishment Division to pay to the appellant Rs.2,000 p.m. As car maintenance allowance for six months from January, 1985 to June, 1985. No order is made for costs.