SAIDUZZAMAN SIDDIQUI, J.---The above Constitutional petition was heard alongwith Civil Petition No. 56 of 1996. However, after hearing these petitions, we disposed of Civil Petition No. 56 of 1996 through a separate judgment as the points arising in Civil Petition No. 56 of 1996 were different from those noted in the admission order of the above petition. This judgment therefore, will govern the disposal of Constitutional Petition No. 20 of 1995 only.
2. The above petition has been filed by an employee of Federal Government, serving in the Ministry of Local Government and Rural Department in BPS-17, under Article 184(3) of the Constitution of Islamic Republic of Pakistan (hereinafter to be called as. 'the Constitution' only) in the nature of a public interest litigation seeking the following relief:-- "In view of above submissions, the petitioner humbly prays that this Honourable Court may be pleased to:
(a) Declare that para.5(i) of the Finance Division's O.M. No.F.1(2)--Imp/94(i), dated 15th June, 1994 as arbitrary and discriminatory, violative of the provisions of the AFsicles 25 and 235 and inconsistent with the provisions of Articles 2A, 4, 8 and 38 of the Constitution and therefore. Is without lawful authority and of no legal effect.
(b) Further declare that the decision of the Government regarding reduction in Personal Allowance of the petitioner and other Government employees working in Federal Secretariat in BPS-17 and above equal to the amount of annual increment from their Salaries/Pays of the month of December, 1994 and onwards is illegal, unlawful and without merit. Therefore, it is set aside and the benefit/amount deducted from their Pays/Salaries/Allowaneces from the month of December, 1994 and onwards, is restored/allowed with effect from 1st December, 1994 with all arrears thereof.
(c) Order the Government to revise and re-issue the Pay Slips for the month of December, 1994 and onwards of the petitioner and of other affected employees of the Federal Secretariat allowing them the amount deducted from their salaries and allowances.
(d) The respondents be directed to stop the deduction from the personal Allowance of the petitioner and other affected employees till the final disposal of the petition, through an interim order.
(e) Grant such other relief as may be deemed to be just and fair in the circumstances of the case alongwith costs."
3. The petition was admitted to regular hearing on 13-6-1995 to consider the following questions of law of public importance with reference to enforcement of fundamental rights guaranteed under Article 25 of the Constitution:-- "Learned Deputy Attorney-General appearing on behalf of the respondents has raised preliminary objection with regard to the maintainability of this petition, which has been filed in this Court directly under Article 184(3) of the Constitution, on the ground that this is not the proper forum for the reason that grievance of the petitioners relates to reduction in allowance which in other words is a matter pertaining to the terms and conditions of service and, therefore, the petitioners should make representation to the Government and if they are not successful in getting relief, they can file service appeals before the Federal Service Tribunal. On the other hand, the contention raised by the petitioners is that the issue involved relates to interpretation of clause 5 of Office Memorandum dated 15th June, 1994 issued by Finance Division (Regulation Wing) which demonstrates discrimination against officers in grade 17 and above in the Federal Secretariat who are entitled to this allowance but the benefit has been - taken away, by issuance of the Office Memorandum mentioned above. In the circumstances, they feel discriminated because this allowance is otherwise allowed to officials/officers below grade 17.
2. So far Article 184(3) of the Constitution is concerned, reliance is placed on three decisions of this Court in which interference is made directly and the petitions have been entertained. The cases are reported in PLD 1993 SC 375, 1994 SCM R 1548 and 1994 SCM R 1341. It is stated by the petitioners that some officers/employees had filed writ petitions in the High Courts for grant of 20% Secretariat Allowance, which have been allowed and not only that there are decisions of this Court on the same point as well in favour of petitioners.
In that context, reference is trade to one such case reported in PLD 1993 SC 375 which is directly on the question of grant of 20% of pay as Secretariat Allowance allowed to the employees of the Lahore High Court.
3. For the reasons stated above, we admit this petition to regular hearing. Let the respondents file their reply in writing. "
4. After admission of the above petition to regular hearing, 1682 employees of Federal Government serving in different divisions, attached departments and autonomous bodies applied to bees made parties to the above petition. However, no specific order appears to have been passed in the case formally impleading them as party to the above petition. At the hearing of the petition quite a large number out of these petitioners were present in Court and they adopted the arguments of the petitioner. We have heard petitioner Muhammad Shabbir Ahmed Nasir, who is appearing in person, and Mr. Mumtaz Ali Mirza the learned Deputy Attorney-General for the respondents at length.
5. The petitioner's main contention in the above case is that para.5 of O.M. No.F.1(2)Imp/94(i)- dated 15-6-1994 is discriminatory inasmuch as the employees of Federal Government, who were serving against the posts in B-17 to B-22 and were paid secretariat allowance, were deprived of the same by gradual adjustment of secretariat allowance against annual increments which became admissible under the revised pay scale from 1-6-1994 until such the the pay of the concerned employee was increased equal to or more than his personal allowance. It is pointed out that under above O.M. The employees serving against the posts in B.1 to B.16 were, however, exempted from the adjustment of the personal allowance received by them in the above manner. It is urged that all the employees of Federal Government formed a specified class and by allowing only some categories of such class to retain the benefit of personal allowance an attempt was made by the Government to create a class within a specified class of personnel which amounted to treating differently people falling within a specified classification. It is also contended by the petitioner that secretariat allowance received by the employees of Federal Government in B-17 to B-22, was later converted into personal-allowance which was treated as part of their pay and therefore, same could not be reduced in view of the protection available under section 17 of the Civil Servants Act, 1973 (hereinafter to be referred as 'the Act' only). The petitioner further contended that pay and allowances of a person serving in connection with the affairs of Federation could only be reduced in terms of Article 235(3) of the Constitution when financial emergency was proclaimed by the President of Pakistan under Article 235(1) ibid. In reply to the above contentions of the petitioner, the learned Deputy Attorney-General contended that the Secretariat Allowance granted to certain specified categories of the employees of Federal Government was not part of their pay but it was an allowance -and as such no statutory protection was available to it. It is contended by the learned Deputy Attorney-General that the secretariat allowance, admissible under O.M.No. 1(32) Imp-II/88 dated 1-7-1988, w.e.f. 1-7-1988 to the Federal Government employees was later withdrawn w.e.f. 11-12-1989 but those who were already receiving this allowance were allowed to retain it as personal allowance subject to certain conditions. It is further contended by the learned Deputy Attorney-General that under Finance Division O.M.
No.F.1(2)Imp/94(i) dated 15-6-1994, Basic Pay Scales and Fringe Benefits of Civil Employees in B.1 to B.22, were revised with effect from 1-6-1994 and as a result of revision of pay scales which allowed 35 % increase in the salaries of Federal Government servants, the personal allowance was abolished and it was gradually merged into the pay. The learned Deputy Attorney-General pointed out that at the the of revision of pay and merger of personal allowance into pay w.e.f. 1-6-1994, the employees were given option either to continue under the old scale of pay and draw secretariat allowance or opt for the new scale of pay plus personal allowance in the manner provided in the O.M. Dated 15-6-1994. In support of his contention that a personal_ allowance paid to an employee is always liable to be adjusted unless otherwise directed by the sanctioning authority, the learned Deputy Attorney-- General relied on Rule 61 of General Rules for Regulating Allowances.
6. Secretariat Allowance equal to 20% of basic pay was sanctioned to all Federal Government employees working in the Federal Secretariat, President's Secretariat, Prime Minister's Secretariat, National Assembly Secretariat and Senate Secretariat with effect from 1-7-1988. This allowance was also payable to employees working in C.B.R., P.T.V. And P.B.C. Vide Finance Division O.M.
No.F7(15)-R/88 (Pt) dated 18-12-1989. The payment of secretariat allowance to new incumbent was discontinued w.e.f. 11-12-1989, however, those who were already receiving this allowance on the above cut of date, were allowed to retain it as a personal pay. By another O.M. No.F.7(15)- R.13/88(Pt.) dated 26-12-1989 of Finance Division, the personal pay mentioned in O.M. Of even number dated 18-12-1989 was clarified as follows:-- "(i) It will not be reduced by any amount by which the recipient's pay may be increased in future on account of increments/revision etc.,
(ii) It will be subject to income-tax and House Rent recovery, (i.e) It will not be treated as part of emoluments for the purposes of calculation of pension and commutation,
(iv) It will be admissible during leave and entire period of leave preparatory to retirement except during extraordinary leave and
(v) It will not remain admissible to the recipients on their transfer from the Secretariat, CBR, PTV and PBC."
O.Ms. No.F.7(15)-R.13/88(Pt) dated 18-12-1989 and 26-12-1989 respectively, were superseded by O.M.
Of even number dated 1-2-1990 which reads as follows:-- "GOVERNMENT OF PAKISTAN FINANCE DIVISION (REGULATION WING)
No.F.7(15)-R.13/88(Pt) Islamabad, the Ist February, 1990.
OFFICE MEMORANDUM SUBJECT: DISCRIMINATION OF SECRETARIAT ALLOWANCE FOR THE CIVIL SERVANTS.
In supersession of this Division's Office Memorandum of even number dated 18th December and 26th December 1989, the undersigned is directed to 'say that the Federal Government has decided that 20% Secretariat Allowance admissible under this Divisions's O.M. No.F.I(32)-Imp.II/88, dated 1 July, 1988 and subsequent amendments made thereto will not be admissible to the new incumbents to the Secretariat, CBR, PTV and PBC etc. With effect from 11-12-1989. However, the existing recipients of the Secretariat Allowance have been allowed to retain it as 'personal allowance' subject to the following conditions:-- (i)- The amount of Secretariat Allowances being drawn by the ' existing recipients on 10-12-1989 would be frozen.
(ii) It will be subject to income-tax and house rent recovery.
(i.e) It will be admissible during leave and entire period of leave preparatory to retirement except during extraordinary leave
(iv) It wound not be admissible during the period of suspension, and,
(v) It will not remain admissible to the recipients on their transfer from the Secretariat, CBR, PTV and PBC etc. (Sd.)
(BASHIR AHMED BHATTI), DEPUTY SECRETARY."
By another O.M. Of Finance Division of even number dated 21-8-1991, O.M. Dated 1-2-1990 was modified and personal allowance paid in lieu of secretariat allowance at the rate of 20% of the pay, was made admissible to the following three categories of employees:-- "(i) Officials already drawing this allowance as a Personal Allowance in accordance with this Division O.M. No.F.7(15)R.13/88(Pt), dated 1st February, 1990.
(ii) Officials who have already drawn Secretariat or Personal Allowance in lieu and have been/are reposted to Secretariat.
(i.e) Officers transferred from Provincial Governments who would have been eligible for this allowance in the Provincial Secretariats."
7. The nomenclature of personal allowance was changed into secretariat allowance once again vide Finance Division O.M. No. F.8(12)R.13/92 (Part-48) dated 18-9-1993 from the date of the issue of the O.M. And its payment was made subject to the conditions mentioned in the said O.M., which reads as follows:-- "Government of Pakistan FINANCE DIVISION (Regulations Wing)
No. F.8(12)R.13/92 (Part-48) Islamabad, the 18th September, 1993 OFFICE MEMORANDUMst SUBJECT: GRANT OF SECRETARIAT ALLOWANCE TO THE EMPLOYEES WORKING IN THE FEDERAL SECRETARIAT.
In pursuance of cabinet decision vide Case No. 179/20/93, dated 7-9-1993 and in partial modification of this Division O.M. No. F.I(32)--Omp.Ll/88, dated 1-7-1988 and subsequent amendments made thereto on the above subject, the President has been pleased to grant Secretariat Allowance -- Rs.20% of pay to all employees of the Federal Secretariat subject to the following conditions with immediate effect and till further orders:--
(a) Secretariat Allowance be limited to all the employees of the Federal Secretariat defined in the Rules of Business as Divisions of the Ministries.
(b) Only offices appearing in the list of Division in the Rules of Business would be eligible. Attached Departments, Subordinate Offices, Corporations, autonomous/semi-autonomous bodies and Institutions such as Commissions, Bureaus etc. Which do not perform Secretariat functions not defined as a 'Division' in the Rules of Business would not be entitled to it.
(c) Those who are transferred out of the Secretariat will cease to be entitled but shall be entitled on reposting to the Secretariat/Division.
(d) Where existing personnel in some organizations outside the purview of sub-para. (a) above are in fact drawing the allowance already will continue to draw the same as Personal Allowance as a special case. They will cease to draw it on their transfer from the said organization. It will not be admissible to any fresh employee in such organizations.
The Personal Allowance, presently drawn by the employees of Federal Secretariat as defined in sub-para. (a) above shall henceforth be called Secretariat Allowance.
(Sd.)
(M. FAIYAZUL HAQ), Section Officer (R.13)."
8. The payment of secretariat allowance was finally abolished under Finance Division O.M. No. F.1(2)-Imp/94(i) dated 15-6-1994 after coming into effect the revision of Basic Pay Scales and Fringe Benefits of civil employees (B.1 to B.22) of the Federal Government. It will be appropriate to reproduce the said O.M. In extenso as the petitioners have challenged the validity of clause 5 of this O.M. The O.M. Reads as follows: -- "Government of Pakistan FINANCE DIVISION (Regulations Wing)
No.F 1(2)-Imp/94(i) Islamabad, the 15th June, 1994 OFFICE MEMORANDUM Subject: Revision of Basic Pay Scales and Fringe Benefits of Civil Employees (B 1-22) of Federal Government (1994).
The President has been pleased to sanction the revision of Basic Pay Scales for the civil employees of the Federal Government B 1-22, paid directly from the civil Estimates and/or from the Defence Estimates as detailed in the following paragraphs.
2. Basic Pay Scales.--The existing and the revised pay scales are detailed in the Annexure to this O.M. The revised pay scales shall replace the existing Pay Scales, 1991, in respect of those employees who give option for these pay scales, in terms of para.6(b) and shall be effective from the first of June, 1994.
3. Initial Fixation of Pay.--The initial fixation of pay of the employees who have been in Government service since before the 1st June, 1994, shall be effected w. e. f. 1-6-1994, as below: --
(i) Employees in BPS-1 to 16.--By allowing an increase at the rate of 35 of the pay actually drawn on 31-5-1994. The pay of the employees will be fixed at the stage equal to or if there be no stage, at the stage next above.
(ii) Employees in BPS. 17 and above.--Initial fixation of pay shall be made by allowing 35% increase on the pay actually drawn on 31-5-1994, in the following to phases:--
(a) 20% of the increase shall be allowed w.e.f. 1-6-1994 by fixing pay in the relevant scale at the stage equal to or if there be no stage, at the stage next above.
(b) The remaining 15% increase shall be allowed on and from 1-6-1995 by refixing pay in the relevant pay scale on 1-6-1994 by allowing 35 % increase over pay drawn on 31-5-1994. The new pay so fixed will be drawn from 1-6-1995 without any arrears.
(c) The annual increment shall continue to be admissible subject to the existing conditions on the 1st of December each year.
(d) The ad hoc increase allowed as detailed below shall cease to be admissible from 1-6-1994:
(i) Ad hoc relief of Rs.100 p.m. Sanctioned vide Finance Division's O.M. No. F. 1(26)-Imp. 11/92 (i) (ii), dated 20-7-1992 and O. M. No. F. I (26) Imp. II/92, dated 16-9-1992.
(ii) Additional Ad hoc relief of Rs.100 p.m. Sanctioned vide O.M. No.F.l(28)-Imp/93 (i) (ii) (i.e) dated 21-8-1993.
(i.e) Additional ad hoc relief of Rs.50 p.m. Sanctioned vide O. M. No. F. 1(9) Imp./94 dated 26th March, 1994.
4. Fixation of Pay.--In cases of promotion from a lower to higher posts/scale before introduction of these scales, the pay of the employees concerned in the revised scale may be fixed and so enhanced that it would not be less than the pay that would have been admissible to him if his promotion to the higher post/scale had taken place after the introduction of these scales.
5. Allowances:
(i) Secretariat Allowance.--With the introduction of new scales of pay, the Secretariat Allowance is abolished w.e.f. 1-6-1994 and the amount actually drawn on 31-5-1994 will be converted into Personal Allowance. Such Personal Allowance in case of Government employees in BPS/17-22 shall be reduced by the amount of annual increments, by which the Government employee's pay may be increased after 1-6-1994, and shall cease as soon as his pay is increased by an amount equal to/or more than his Personal Allowance. Those in BPS 1-16 will be exempted from this adjustment to the extent that their Personal Allowance will not be reduced/adjusted.
(ii) Other allowances, Special Pays etc.--Special Pays and other allowances including House Rent Allowance will be maintained at the level drawn/admissible at the rates as on 31st May, 1994.
6. Option:
(a) All existing Government employees are given option either to draw the existing pay scales plus Secretariat Allowance or the new pay scales 'plus Personal Allowance in the manner as at 5(i) above. Option to retain existing scale with Secretariat Allowance must, however, be given in writing by the employees concerned to the audit office/Drawing . And Disbursing Officer concerned by the 15th July, 1994. Option once exercised shall be final.
(b) An existing Government employee who does not exercise and communicate such option within the prescribed the limit, shall be deemed to have opted to be governed by the new scales and abolition of Secretariat Allowance.
7. Pension and Retirement Benefits.--In the case of persons retiring from 1-6-1994 onwards in BPS 17 to 22, pension will be recalculated on 1-6-1995 on the basis of pay refixed with 35 % increase in the pay in the second phase. New pension will, however, be admissible from 1-6-1995 and no arrears will be admissible.
8. The following relief to the widows, dependents, retarded and incapacitated children and invalid pensioners shall be allowed w.e.f. Ist June, 1994:--
(a) Restoration of commuted value/gratuity portion of families on completion of required period.
(b) Grant of family pension to dependent disabled/retarded children for life without any age limit.
(c) Elimination of second medical board for the invalidated pensioners for eligibility of commutation.
9. Government servants who have retired on or after 1-6-1993, till the introduction of revised pay scales i.e. 1-6-1994, be allowed pension/commutation on the basis of pay that would have been admissible to them, had the pay revision been effected on the date of their retirement, discounted by 12 % . .
10. All existing rules and orders on the subject shall be deemed to have been modified to the extent indicated above. All existing rules and orders not so modified shall continue in force under this scheme.
11. Anomalies.--A Committee will be set up in the Finance Division (Regulations Wing) to resolve the anomalies, if any, arising out of the issue of this order.
(Sd. )
ROMAN ALI MANGI, Joint Secretary (R)."
9. From the facts stated above, it is quite clear that secretariat allowance was not payable to all categories of the Federal Government employs as this A allowance was payable only to those employees of Federal Government who were serving in the Secretariat and other attached departments. No doubt under Finance Division O.M. Dated 18-12-1989 secretariat allowance was stated to have been allowed to be retained by the employees of Federal Government as 'personal pay' w.e.f. 11-12-1989 but this was just a misnomer as within 8 days of issuance of O.M. Dated 18-12- 1989, the Finance Division issued another O.M. Dated 26-12-1989 in which the expression 'personal pay' used in O.M. Dated 18-12-1989 was clarified. This clarification clearly shows that what was described as 'personal pay' was in fact an allowance as this 'personal pay' was not to be treated as part of emolments for the purposes of calculation of pension and commutation, it was not admissible during extraordinary leave and it ceased to be admissible to the recipient on transfer from Secretariat, CBR, PTV and PBC, as the case may , be. In any case vide Finance Division O.M.
Dated 1-2-1990 'personal pay' was specifically converted into 'personal allowance' and there is nothing on record to show that the petitioner at any the challenged the validity of O.Ms. Dated 26- 12-1989 or 1-2-1990.
10. The protection available to the civil servants under the Act is only to the extent of their pay as provided under section 17 of the Act. However, no such protection is available in respect of the allowance paid to a Government servant under the rules framed from the to the. The learned Deputy Attorney --General has invited our attention. To the Regulation 61 of Civil Service Regulations, which reads as follows:-- "61. Unless in any case it is specifically ordered otherwise by the authority sanctioning it, a personal allowance should be reduced by any amount by which the recipient's pay or salary may be increased, and should cease as soon as his pay or salary is increased by an amount equal to his personal allowance."
The petitioner has not challenged the vires of above regulation nor any argument has been advanced before us to show that the above regulation which is saved in terms of section 25(2) of the Act is in any way inconsistent with the provisions of the Act. The above-quoted regulation clearly provides that personal allowance is liable to be reduced by the amount to be received by recipient of such allowance as a result of increase in the salary and it shall cease to be payable as soon as the pay or salary is increased by the amount equal to his personal allowance. It is admitted position before us that under Finance Division O.M. Dated 15-6-1996, whereunder the revised .Basic pay scales of Federal Government employees serving in B.1 to 22 were enforced, the Secretariat Allowance was totally abolished and paragraph 5 of the said O.M. Provided for gradual adjustment of Secretariat Allowance against annual increment due under the revised scheme w.e.f. 1-6-1994 until such the the pay of the concerned employee was increased either equal to or more than the Secretariat Allowance received by him. The adjustment allowed under paragraph 5 of the above O.M. Is totally in accord with the Regulation 61 relied by learned Deputy Attorney -- General. As earlier pointed out by us, the allowances paid to a Government employee are not protected under any statutory provision, therefore, their withdrawal by the Government could not be challenged on any legal plane. In the case before us, it is quite clear that as a result of revision of pay scales of Federal Government employees in BPS 1 to 22, the basic pays were increased by more than the amount of Secretariat Allowance. Since the Government has allowed substantial increase in the basic pay scales of the Government employees which in no case was less than the Secretariat Allowance received by the employee concerned, the abolition of Secretariat Allowance could not be objected to by the concerned Government servant. Apart from paragraph 6 of the above O.M. Clearly allowed an option to the Government servants either to opt under the revised pay scales which allowed them increase of 35 % of the basic pay (which was more than the secretariat allowance received by them) or to continue to draw their pay under the old scheme plus Personal Allowance or Secretariat Allowance which they were receiving on the date of issuance of that O. M. There is nothing on record before us to show that the petitioner or any other employee of the Federal Government who have made application for being joined as party in this petition, had opted for the old scales of pay. Since the petitioner has opted for the revised scales of pay enforced under O.M. Dated 15-6-1994, he could not lay claim to the Secretariat Allowance in terms of option under the said O.M.
11. The petitioner has, however, contended that the Government has meted out discriminatory treatment to the employees serving in BPS 17 to 22 inasmuch as that these employees were deprived of Secretariat Allowance by gradual adjustment of the same against the annual increment due under revised scales of pay w.e.f. 1-6-1994 while Secretariat Allowance paid to the employees serving in BPS 1 to 16 was kept intact. The argument of the petitioner is based on the assumption that all employees of the Federal Government serving in BPS 1 to 22 formed one single class and therefore, by allowing only to some of the employees in that category, the Government acted in a discriminatory manner. We are unable to accept the contention of the petitioner. We have already pointed out that Secretariat Allowance was not payable to all the employees of the Federal Government. This amount was admissible to only those employees of Federal Government who were serving in the Federal Secretariat, attached departments and offices mentioned in O.M.
Dated 1-7-1988. Since Secretariat Allowance was not admissible to all the employees of Federal Government serving in BPS 1 to 22, therefore, contention of the petitioner that all the Federal Government employees serving in BPS 1 to 22 formed one single category does not appear to be correct. The question of reasonable classification came up for consideration before this Court in the case of I.A. Sherwani v. Government of Pakistan (1991 SCM R 1041). It was a case in which the petitioners, who were retried Government servants, claimed that they have been discriminated in payment of pension which was enhanced subsequent to their retirement but they were denied the benefit of enhancement. After reviewing the entire case-law on the subject, the learned Judges in that case formulated the following principles which applied to the cases of reasonable classification:-- , "26. From the above cited cases the following principles of law are I F deducible:--
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that person similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (i.e) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be Constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based---
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification."
12. In the light of the rationale laid down by this Court in I.A. Sherwani's case (supra) the grouping by the Government of its employees serving in BPS 1 to 16 into one category, distinct from the category of those serving in BPS 17 to 22 for the purposes of granting greater monetary benefit to the former category could not be challenged on the grounds of arbitrariness or unreasonable classification. A glance on the old pay scales of employees serving in BPS 1 to 22 will show that there was substantial difference between the minimum and maximum amount of pay drawn by the employees serving in BPS 1 to 16 as compared to those serving in BPS 17 to 22. Therefore, if the Government, decided, while revising upward the pay scales of its employees in BPS 1 to 22, to extend more monetary benefit to the low-paid employees by putting them in a separate category, the classification did not suffer from any infirmity. In our view the categorisation of the employees on the basis of low-paid and high-paid employees was a reasonable classification and did not suffer from any arbitrariness.
13. The petitioner, lastly contended that in view of the provision of Article 2'35 (3) of the Constitution, the pay and allowances of a Federal Government servant could not be reduced except when an emergency is declared by the President in terms of Article 235 (1) of the Constitution. The argument does not appear to be correct. The provision of Article 235 (3) ibid, is in the nature of enabling provision and a directive issued by the President while the emergency declared under Article 235(1) is enforced, is to be given effect to notwithstanding any law protecting the pay and allowances of the Federal Government servants. This provision, -however, does not provide for protection. Of pay and allowances of the employees of Federal Government. The terms and conditions of service of Federal Government employees are regulated under the Act, which has been enacted in exercise of power conferred by Article 240 (a) of the Constitution. As pointed out by us in the preceding discussion, the Act only protects the pay of the Central Government employees. No protection ether under the Act or under the Constitution is available to the allowances payable to the employees of Federal Government. The allowances by their very nature are not of a permanent character and part of the pay and as such are variable. The Government, therefore, has the- right to discontinue or withdraw payment of a particular allowance if the conditions which necessitated payment of such allowance no more exist or ceased to exist. The government in the present case abolished payment of Secretariat Allowance after enforcement of revised pay scales which allowed increase to the pay of Federal Government employees by an amount equal to 35 % of their existing pay which was admittedly more than the amount of Secretariat Allowance received by them. The action 'of the Government abolishing the payment of Secretariat Allowance to its employees, was therefore, not open to any exception, in the circumstances.
14. Before parting with the case, we may also mention here that the petitioner also contended that while fixing the pay in terms of para. 5 of O.M. Dated 15-6-1994, a situation may arise that the pay of an employee in B.16 may increase the pay of an employee in B.17. To resolve anomalies of such nature para. 11 O.M. Dated 15-6-1994 provides for constitution of a Committee to look into such cases. We, therefore, hope that if any such anomaly exists in the enforcement c6f scheme contained in O.M. Dated 15-6-1994, it will be resolved in the spirit of equity and justice by the Committee contemplated under the above O.M. With these observations, the petition is dismissed, with no order as to costs.