1. HAMZO KHAN M. KURESHI (CHAIRMAN).-This appeal is directed against the order of the Commissioner, Khairpur Division dated 22-12-1971, calling upon the appellant to refund Rs. 3172 45 overpaid to him towards pension, gratuity and commutation and also reducing his pension by Rs.
17. 50 per month on the ground that he was not entitled to pension on the "special pay" drawn by him during the last three years of the service as he was on "foreign service" in the Agricultural Development Corporation (A. D. C.), Guddu Barrage, Sukkur. The order of the Commissioner was based on the letter of the Comptroller of Sind (as he then was) dated 14-12-1971. The Comptroller stated that it was through oversight that the special pay of the appellant was taken into account while calculating his admissible pension and etc. The appellant in order to stop immediate action against him bad filed a Civil Suit in the Distt: Court Larkana which abated on 22-6-1974 due to change of law hence he filed the present appeal on 29-7-1974.
2. The brief facts of the case are that the appellant was employed in Revenue Department Sind since 1935. He was working as Mukhtiarkar in 1962 when his services were placed at the disposal of Agricultural Develop--ment Corporation (A. D. C.) for employment as Assistant Colonization Officer, Guddu Barrage vide Commissioner's Notification dated 31st July, 1962. By the order of the Governor of West Pakistan he was paid a special pay at the late of Rs. 55 per month which be used to draw in addition to his substantive pay. He retired from service on 26-4-1967. His pension was calculated by the Camptroller at Rs. 444 per month which was duly sanctioned by the Commissioner, Khairpur. He was granted gratuity at that rate. Later on he got commuted a part of this gross pension. He was drawing this pension from April, 1967 to November, 1971 when the Comptroller and consequently the Commissioner of Khairpur passed the impugned order asking him to refund Rs.
3. 3172.45 as he was considered to be on "foreign service" while serving in the Agricultural Development Corporation, Guddu Barrage. The Comptroller decided that the amount of Rs. 55 per month drawn by the appellant in Agricultural Development Corpora ion was his "deputation allowance" and not a "special pay". He further held that the deputation allowance would not have been admissible to the appellant if he had not gone to foreign service in Agricultural Development Corporation and had remained in his parent department. The appellant contends that the amount of Rs. 55 per month paid to him was "special pay" as sanctioned by the Governor of West Pakistan vide the order of the Finance Department West Pakistan, Lahore dated 9th February, 1962 (document No. 6 on record). The appellant further contends that he was not on deputation to a foreign service because it was earlier stated by the Comptroller Southern Area West Pakistan, vide his letter dated 2-3-1964 that according to the West Pakistan Finance Department letter dated 5- 4-1960 it was clearly field that "the Government Servants transferred to the Guddu Project are not to be treated as deputationist". The appellant alleges that he was neither on deputation to a foreign service nor was he getting Rs. 55 per month as "deputation allowance" but he was getting it as "special pay" as per order of the Governor of West Pakistan dated 9-2-1962. He conduct that the order of the Comptroller Sind and the Commissioner Khairpur Division was illegal, void and inoperative and may be set aside and the respondents be restrained from recovery of the said amount from him or deduct anything from his pension already sanctioned to him.
4. The respondents have filed their written statement on 2-10-1974 and have contested the appeal.
5. Their contention is that the appellant was on "deputation" to the Agricultural Development Corporation and that he used to get Rs. 55 as "special pay" while he was serving in A. D. C. Which according to them was a "foreign service". They allege that the special pay drawn by the appellant from Agricultural Development Corporation would not count towards his pension because it was not paid to him from General Revenues of the Province but by Agricultural Development Corporation with whom he was on deputation. They assert that the higher pension was granted to the appellant due to the oversight of the Comptroller of Accounts in Sind, who had wrongly included the amount of special pay towards his admissible pension but when the mistake was detected by the Comptroller after four years he passed the impugned order and asked the appellant to refund the amount and ordered deduction of Rs. 17.50 per month from his pension. It is an admitted position that the Agricultural Development Corporation had paid the leave and pension contributions to the Comptroller for the appellant as per letters dated 6-10-1966 and 4-2- 1967, produced by the Assistant Advocate General himself.
6. During the course of arguments the appellant produced a letter addressed by Mr. R. A. Akhund, Finance Secretary, Government of Sind, to all the Administrative Secretaries and the Heads of Attached Departments in Sind and others. This later is dated 12-4-1974 and according to the appellant, is a complete answer to the objections raised by the respondents.
7. From the pleadings of the parties the following to issues become necessary for the decision of this Tribunal:-
(1) Whether Agricultural Development Corporation (A. D. C. Was a "Foreign Service" for the appellant?
(2) Whether pay includes a "special pay" and would count towards admissible pension?
8. Our findings on point No. 1 are in the negative and on point No. 2 in the affirmative.
9. Point No. 1.-We agree with the appellant that the letter of Finance Secretary, Sind dated 12-4-1974 is a complete answer to the contentions of the respondents. It lays down as under:- "The Autonomous Bodies namely WAPDA and Agricultural Development Corporation worked as "Functional Agencies" on behalf of the Provincial Government only and that all the finances required for the execution of these projects were provided by the Provincial Government and it was decided that such Government Servants/Employees shall not be treated as on transfer to "foreign service" as defined in Rule 9 (20) of Sind Civil Service Rules Manual, Volume I. They shall be deemed to have rendered services under the Provincial government."
10. The letter further lays down that "since the employees of the Provincial Irrigation and other Government Departments, who have served in Kotri and Guddu Barrage Project areas are not to be treated on deputation to "foreign service", it will not be necessary to recover any leave salary and pension contributions from the Wapda/Defunct Agricultural Development Corporation or its successor body in respect of the service rendered by such employees in the Kotri/Guddu Barrage Projects areas. This letter further shows that "all the liabilities of Agricultural Development Corporation and Wapda were classified as liabilities of the Provincial Government provided they related to the services rendered in the area now forming the part of Sind Province."
11. The above letter of the Finance Secretary is not superseded in spite of the reference made by Deputy Accountant General vide his letter dated 31-3-1975, produced by the learned Assistant Advocate General. This letter lays down in clear terms that the Government Servants/Employees transferred to Agricultural Development Corporation shall not be treated as on "Deputa--tion" to "Foreign Service" but they shall be deemed to have rendered service under the Provincial Government. It is also clear from the letter of the Comptroller Southern Area Karachi dated 2-3-64 that according to the orders of the Government in Finance Deptt: "the Government Servants transferred to the Guddu Barrage Project are not to be treated as deputationist". It is also clear from the letter dated 11th April, 1974, received from the learned Assistant Advocate General in reply to the letter of the Deputy Accountant General dated 31-3-1975 that the Provincial Government Employees who were working in West Pakistan Agricultural Development Corporation or WAPDA or Guddu Barrage Projects were not to be treated as on "foreign service". From all the above documents it is abundantly clear that the Agricultural Development Corporation was not 9 "foreign service" for the Government employees whose services were transferred to it from other departments.
12. Point No. 2.-It is admitted by the respondent in his written statement that the appellant used to get "Special Play" at the rate of Rs. 55 per month while he was serving in the Agricultural Development Corporation, Guddu Barrage but since the special pay was not paid from the General Revenue of the Province it would not count towards the appellant's pension because it was considered as "foreign service". It has been held above that Agricul--tural Development Corporation was not a foreign service. It was only the functional agency of the Provincial Government. The letter of the Finance Secretary Sind dated 12-4-1974 clearly shows that "all the finances required for execution of those projects were provided by the Provincial Government". Therefore the contention of the respondent that special pay drawn by the appellant from Agricultural Development Corporation would not count towards his pension because it was not paid from the General Revenues of the Province, is of no avail to them. The services of the appellant in A. D. C. Would be termed as Government Service and he would be entitled to all such benefits.
13. Since the special pay to the appellant during his service in Agricultural Development Corporation is an admitted fact, the point for consideration now is whether this special pay would count towards his pension. Pensionable pay, according to rule 9 (41) of Sind Civil Service Rules Manual, Volume I is defined as under:- "Pensionable pay means the average pay earned by a Government Servant during his last three years of service and includes payments from General Revenue and fees. If such payments or fees are received in the shape of a fixed addition to a monthly pay and allowances as part of the authorized remuneration of a post".
14. The latter of the Finance Department dated 12-4-1974 Cleary indicates that "all the finances required for execution of these projects (Agricultural Development Corporation and WAPDA) were provided by the Provincial Government". This means that the payment of special pay was given to the appellant from the General Revenues of the Provinces because Agricultural Development Corporation was merely a functional agent of the Provincial Government. The special pay to the appellant was sanctioned by the Governor of West Pakistan vide his Notification dated 9th February, 1962.
15. According to rule 9 (39), "Pay" means the amount drawn monthly by a Government servant as
(i) The pay other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for the post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre; and
(ii) Overseas pay, technical pay "special pay" and personal pay: and (i.e) Any other emoluments which may be specially classed as pay by the Government.
16. The above definition clearly shows that special pay is included in the pay of a Civil Servant. What is excluded in para (i) of above sub-rule is the special pay or pay granted in view of his personal qualifications. It is not the cage of the respondent, that the appellant has got his special pay in view of his personal qualifications. He was granted the special pay by the Governor in consideration of arduous nature of his duties and additional responsibilities. The "special pay" is also included in "Pay" vide section 21 (e) of Sind Civil Servants Act, 1973. This subsection 2 (e) lays down that "Pay" means the amount drawn monthly by a Civil Servant as pay and includes technical pay, special pay, personal pay and any other emoluments declared by the prescribed authority to be pay". This latest definition of pay is consistent with the definition given in rule 9 (39) of Sind Civil Service Rules Manual Volume-I. It is thus clear that the special pay is included in the "pay" of a Civil Servant. Since the pensionable pay means the average pay earned by a Government servant during his last three years of service and the special pay is included in the "pay" of a Civil Servant, it (special pay) would be calculated towards his pension. Therefore, the special Day learned by the appellant during the last three years of his service in Agricultural Development Corporation was rightly calculated for the purpose of his pension by the Comtproller in 1967. The subsequent letter of the Comptroller on which the Commissioner of Khairpur Division has based his order for refund of the amount of Rs. 3172.45 and deduction of Rs. 17.50 from the original amount of pension was therefore misconceived, illegal and inoperative. The appellant would continue to get the same pension which was granted to him by the Comptroller in 1967.
17. In the result we allow the appeal and set aside the order of the respondents and declare that the appellant was not liable to refund any amount to the Government nor would any amount be deducted from his already sanctioned pension because the "special pay" received by the appellant from Agricultural Development Corporation would count towards his admissible pension.
18. The appellant presses for costs throughout the litigation but we do not award him the same because the advice of the Comptroller and the order of the Commissioner, Khairpur Division were the result of mis--conception of legal position and not due to airy prejudice or mala fides. Each party is therefore left to bear his own costs.