' SAIDUZZAMAN SIDDIQUI, J.---The appellant while serving as Cypher Assistant in the Ministry of Foreign Affairs, Islamabad, was appointed in Pakistan Mission at the Hague. He was relieved from his duties at Islamabad on 10-1-1988, He reached the Hague on 22-1-1988 and after availing 6 days joining time, he reported for duty at the Mission on 28-1-1988. As there was no residential accommodation available for' the appellant and his family, he was advised to stay at Hotel Boulevard. The appellant remained in the hotel for about two months and 4 days. The appellant was entitled to Daily Allowance for a period of 15 days for himself, his wife and three grown up children above the age of 12 years at the rate of US $ 95 amounting to US $ 7,125 in terms of instructions at Serial No,47 (as amended) of Guidance for Missions Abroad Volume-II (Audit), which read as follows:- "Serial No,47.---A Government servant who is unable to find suitable residential accommodation immediately on his arrival at a new post, will be entitled to draw daily allowance in lieu of Foreign Allowance and House Rent Allowance for himself, his wife and children above 12 years at full rate for a period not exceeding 15 days (period of 28 days reduced to 15 days vide Ministry of Foreign Affairs No, Rules-4/11/68, dated 11-12-1971). The rest of the members of his family above the age of 12 months will be entitled to draw daily allowance for the period specified above at one half of the rate. Children up to the age of 12 months will not be entitled to any daily allowance. Private servants of a Government servant for whom fares have been paid by Government, will draw daily allowance at three-eight (3/8) of the full rate for the servant for the period specified above. (Ministry of Foreign Affairs No, Rules-4/15/63, dated 24-2-1964)."
' Out of the above amount of US $ 7,125, the appellant was paid U.S. $ 3,282.15 at the Hague and the balance amount was paid to him after his repatriation to Islamabad. It appears that in addition to Daily Allowance, which was payable under the abovequoted instructions, the appellant was also paid hotel rent for 15 days amounting to U.S. $ 391 in addition to Foreign Allowance drawn by him for the period from 28-1-1988 to 11-2-1988, amounting to U.S. $ 280.35. The appellant admits that in view of the payment of Daily Allowance in terms of the instructions quoted above, he was not entitled to the payment of hotel rent and Foreign Allowance amounting to U.S. $ 671.35. It is an admitted position that on repatriation to Pakistan, the appellant got adjusted $ 671.35 from the balance of $ 3,282.15 which were payable to him on account of balance of 15 days Daily Allowance at the Hague. Accordingly, the amount of U.S. $ 3,171.50 was paid to the appellant after converting it into Pak currency, amounting to Rs,78,965.91. The appellant has, in the meantime, been retired from the Foreign Service and is entitled to pension which has been denied to him for the last about more than 3 years, on account of audit objection raised by the Ministry of Finance. The objections raised by the Ministry of Finance to the payments made to the appellant at the Hague and at Islamabad towards Daily Allowance, are as follows:-- "It was observed that in clear violation of aforesaid orders following payment on account of 15 days D.A. In lieu of House Rent Allowance and Foreign Allowance was made to the official at belated stages.
By Mission Para. 2 of Audit Report1988-92Vr. No.26/90.50% of D.A. in lieu of House Rent Allowance and Foreign Allowance.U.S. $ 3,282.15 By Ministry Para. 3 of Ministrty's Report1992-93Sanction No.Estt.(11-A)
1/44/73, dt. 21-10-1991 Paid.50% of D.A in lieu of. House Rent Allowance and Foreign Allowance.
On 28-10-1991 Vide Cheque No.52137, dt. 28-10-1991U.S. $ 3,171.50 U.S. $ 6,4563.65 ' The payment of 15 days D.A. In lieu of Foreign Allowance and, House Rent Allowance was refused by the Head of Mission on 26-8-1988, 12-2-1990 and again on 19-4-1991. The mysterious circumstances under which the official managed to draw 50% of D.A. For 15 days at Hague after lapse of a period of two and half years are not known to audit. The claim was not only irregular but also time-barred. Mission's authorities were not competent to make payment time-barred T.A./D.A.
Claim of the official. The payment was also against the instructions issued to all the Head of Missions abroad by the D.G. (Ministry), Ministry of Foreign Affairs vide No,Rule-4/13/80, dated 6-11- 1981. Mr. Asghar All was transferred to Ministry of Foreign Affairs, Islamabad in 6/1991. He made a representation for payment of balance 50% of D.A. For 15 days in lieu of House Rent Allowance and Foreign Allowance. His representation was processed vide per para. 233 to refer the case to the Mission for its settlement under the rules. This proposal was approved by the Director, P. II on 15-7-1991 instead of referring the case to the Parep Hague the Section Officer Mrs. Iffit Khalid issued sanction vide No, Estt.(11-A)4-44/73, dated 21-10-1991 allowing Mr. Asghar Ali to draw 15 days' D.A. At full rate from 28-1-1988 to 12-2-1988. This action of Section Officer was not covered by any administrative order of competent Authority."
2. The objections raised regarding belated claim of the appellant, to say the least, are totally frivolous. It is surprising that the Government itself being responsible for the delayed payment of the allowance to the appellant, the lapse on the part of Government is not only callously pressed by the Audit Department to recall the amount already paid to the appellant but is also used as a pretext to withhold the pension of the appellant. The learned Deputy Attorney-General has not been able to show any rule under which the payment made to the appellant could be denied or that the same could be withheld on account of lapse on the part of the Government to pay the same promptly. It is unfortunate that the appellant, who has been retired about 4 years back, is still running to get his pension finalized, on the basis of frivolous objections raised by the Ministry of Finance and its auditors.
3. We, accordingly, allow this appeal, set aside the order of Service Tribunal and hold that the appellant was rightly paid balance of Daily Allowance at Islamabad amounting to Rs,78,965.91, which he was entitled to receive in foreign exchange at the Hague. The Ministry of Finance is further directed to forthwith finalise the pension case of the appellant. We will, however, make no order as to costs as the learned Deputy Attorney-General has adopted a very candid and objective attitude in defending the above appeal.