' IRSHAD HASAN KHAN, J.---This judgment shall dispose of Civil Petitions Nos. 228-K/1997, 246-K/1997 to 298-K/1997, 304-K/1997 and 306-K/1997 to 308-K/1997, involving common questions of law and fact arising out of a consolidated judgment of the Federal Service Tribunal, Islamabad, passed in Misc. Petition No,34/1993 in Appeal No,164(K) of 1993, dated 26-5-1997.
2. The petitioners Muhammad Mujeebullah Siddiqui and 56 others are employees of the Income Tax Appellate Tribunal. The Secretary, Ministry of Finance, Government of Pakistan, Islamabad, respondent No,4 herein, issued an Office Memorandum No,1/32-IMP.II/83, dated 1-7-1988, whereby the Secretariat Allowance was granted to the Federal Government employees in the Federal Secretariat, President's Secretariat, Prime Minister's Secretariat, National Assembly Secretariat and Senate Secretariat equivalent to 20% of the Basic Pay with effect from 1-7-1988.
3. The grievance of the petitioners is that the Secretariat Allowance was also granted to the employees of the Central Board of Revenue including Pakistan Television Corporation, Pakistan Broadcasting Corporation, Capital Development Authority, High Courts, Supreme Court and Service Tribunals but they have been deprived of the said allowance.
4. Seventy-two employees of the Income Tax Appellate Tribunal including the petitioners, approached the Federal Service Tribunal, Islamabad, Camp at Karachi (hereinafter referred to as the Tribunal) vide Appeals Nos.164(K)/93 to 167(K)/93, 174(K)/93 to 240(K)/93 and 270(K)/93, instituted during the month of November and December, 1993 for redress of their aforesaid grievance. The appeals were disposed of by order dated 12-2-1995 in the following terms: "To resolve this controversy on the basis of which the employees of ITAT have been deprived of the benefit of Secretariat Allowance, and particularly in the circumstances that this benefit has been granted by the Hon'ble Supreme Court to the employees of the Federal and Provincial Service Tribunals, therefore, we are of the view that there should be no distinction or discrimination in the case of the appellants and remand the case to the Secretary, Law and Justice Division to consider the case and pass appropriate order in the appellant's appeal, within a period of two months. In case the grievance of the appellants is not redressed, they will be at liberty to approach the Tribunal in accordance with law. All the 72 appeals stand disposed of in the above terms."
4. Mr. Sirajul Haq, A.S.C., learned counsel for the petitioners contended that the Ministry of Law, Justice and Parliamentary Affairs, did not implement the remand order passed by the Tribunal.
Consequently, they moved a Misc. Application for the implementation of the remand order of the Tribunal dated 12-2-1995 (supra). In consequence, the Tribunal vide order dated 6-8-1996 passed in Misc. Petition No,34 of 1995 again directed the Secretary, Law, Justice and Parliamentary Affairs to pass appropriate orders as to the entitlement of the employees of the Income Tax Appellate Tribunal for grant of Secretariat Allowance. Pursuant to the said direction, the Law and Justice Division referred the matter for opinion to the Finance Division and the latter had already expressed its opinion vide letter dated 20-1-1997 stating therein that the benefit of Secretariat Allowance has been given only to those who were petitioners in the High Court or Supreme Court under the orders of these Courts. The employees of the Income Tax Appellate Tribunal were not petitioners in matters pending before said Courts, therefore, they were not allowed Secretariat Allowance and as such no discrimination has been made in the case of employees of the Income Tax Appellate Tribunal. The petitioners, therefore, moved another Misc. Application before the Service Tribunal for implementation of the Tribunal's judgment dated 12-2-1995. The Tribunal disposed of the aforesaid Misc. Application vide impugned order dated 26-5-1996 in the following terms:- "The above reproduction show that the matter was referred to the Law and Justice Division for taking a decision within a period of two months and although final decision has not so far been communicated but the above reply dated 19-5-1997 coupled with the O.M. Dated 20-1-1997 amounts to a decision of the case in consequence of the judgment dated 12-2-1995 in the above said appeal. Since the case was remanded for a decision and the said decision is deemed to have been communicated, therefore, the judgment stands implemented. The appellants at liberty to seek remedy if so advised in accordance with the terms with the same judgment."
' Mr. Sirajul Haq, vehemently contended that the members and the staff of the Income Tax Appellate Tribunal are discharging their duties under the administrative control of the Ministry of Justice and Parliamentary Affairs, who are availing the benefit of Secretarial Allowance, therefore, they are also entitled to the same benefit. In support of contention he has relied upon the judgment of a Single Judge of the Lahore High Court in the case of Mubarak Ali Khan v. Government of the Punjab (1990 CLC 136), wherein, one of us (Irshad Hasan Khan, J.) was the author. It was held in that case that the employees of the High Court were entitled to the benefit of Secretariat Allowance.
' The learned counsel for the petitioners heavily relied on following passages in the said judgment:- -
(I) "Having studied the case-law, the phrase "equal protection of law" envisaged by Article 25 of the Constitution means that no person or class of persons shall be denied the same protection of laws which is enjoyed by persons or other class of persons in like circumstances in respect of their life, liberty or property, or pursuit of happiness. The persons similarly situated or in similar circumstances are to be treated in the same manner. The equality clause forbids class legislation, but does not forbid classification which rests upon reasonable classification. It does not mean that the laws must be general in character and universal in application and the State does not have the power to distinguish or classify persons or things for the purpose of Legislation."
(II) "There is no force in the stand taken by the Provincial Government as reflected in the statement dated 23-10-1989 of the learned Advocate-General that they are unable to grant the impugned allowance to the petitioners in view of the financial constraints. Suffice it to say that protection of Article 121 of the Constitution is available to the petitioners, which inter alia provides that the administrative expenses, including the remuneration payable to officers and servants of the High Court shall be expenditure charged upon the Provincial Consolidated Fund. This being so, the impugned allowance having been found admissible to the officers and servants of the High Court, it becomes a charge on the Provincial Consolidated Fund."
' The aforesaid judgment was assailed through an Intra-Court Appeal No,189 of 1989 before a Division Bench of the Lahore High Court, on which, one of us, Khalil-ur-Rehman Khan, J., was also a Member. The Intra-Court Appeal was, however, dismissed.
5. Appeal filed by the Government of the Punjab and two petitions for leave to appeal filed by the Provinces of Balochistan and N.-W.F.P. Respectively were vide judgment titled Government of Punjab v. Mubarak Ali Khan (PLD 1993 SC 375) also dismissed. Reliance was also placed on para. 19 of the said report, which reads thus:-- "In spite of the direction given no material has been placed before this Court or was placed before any of the High Courts showing any reason whatsoever for the re-emergence of categories of Secretariat and nun-Secretariat employees and for assimilating certain Secretariat and non- Secretariat Offices for the purpose of this Allowance. In the absence of any reason forthcoming on the record after the enforcement of the Unified Pay Scales to all categories of employees, such a reversion to old categories would appear to be discriminatory."
' Reference was also made to an unreported judgment of the Peshawar High Court, Peshawar passed in Writ Petition No,1012 of 1994, Amir Sultan and 23 others v. Government-of Pakistan through Secretary, Ministry of Finance, Islamabad and another, whereby the learned Division Bench of the Peshawar High Court also allowed the writ petition granting 20% Secretariat Allowance to some of the employees of the Income Tax Appellate Tribunal, Peshawar, who are not parties in these petitions. Another unreported case titled Government of Sindh through Chief Secretary, Sindh, Karachi v. Manzoor Hussain and others C.P. No,200-K/1993), was referred, wherein this Court declined to grant leave to appeal against the judgment, dated 5-4-1993 passed by a Division Bench of the High Court in Constitutional Petition No,D-1715 of 1991, whereby the officials/officers and functionaries of High Court of Sindh were found entitled to Secretariat Allowance.
6. We have heard the learned counsel for the petitioners as well as the petitioners who have adopted the submissions made by Mr. Sirajul Haq. The petitioners through their respective miscellaneous petitions were seeking implementation of the judgment, dated 12-2-1995 (supra) passed by the Tribunal. We have gone through the aforesaid judgment with the assistance of the learned counsel for the petitioners and do not find any direction contained therein for the grant of Secretariat Allowance to the Petitioners. On the contrary, the Tribunal merely remanded the case to the Secretary, Law and Justice Division for appropriate orders. The observations made in the judgment of the Tribunal, that there should be no distinction or discrimination in the case of the appellants, in that, the benefit of Secretariat Allowance had been granted to the employees of the Supreme Court as well as that of the Federal and Provincial Service Tribunals, do not have the force of a decision. The learned counsel for the petitioners was unable to point out that in the operative part of the judgment, the benefit of Secretariat Allowance was conceded to the petitioners.
7. There is another circumstance for declining leave to appeal to the petitioners, inasmuch as, the Secretariat Allowance was made admissible to only those employees of Federal Government who were serving in the Federal Secretariat, attached departments and other offices mentioned in O.M.
No,F.1(32)-Imp-H/88, dated 1-7-1988. Thereafter, through Finance Division's O.M. No,F.7(15)-R/88(Pt), dated 18-12-1989, the payment of Secretariat Allowance to new incumbents was discontinued with effect from 11-12-1989 but those who were already receiving the same were allowed to retain it as a personal pay. The petitioners voiced their grievance for grant of Secretariat Allowance for the first time in 1993, although the scheme for grant of Secretariat Allowance already stood abolished with effect from 18-12-1989. Thus, visualized, the applications representations of the petitioners for the grant of Secretariat Allowance in 1993 were not competent being hit by the doctrine of past and closed transaction. Furthermore, the revised pay scale of Civil Employees of Federal Government in B-1 to B-22 were notified through Finance Division's O.M. No,F.1(2) Imp/94 (i), dated 15-6-1994 effective from 1-6-1994. The employees were given option to opt for the new scales. The Secretariat Allowance was merged in the new revised scales. It is not the case of the petitioners that they did not opt for the new pay scales. The petitioners are, therefore, not entitled to the Secretariat Allowance.
8. The judgments cited by the learned counsel for the petitioners are distinguishable and not applicable to facts and circumstances of the present case, inasmuch as, as stated earlier, these petitions are hit by the doctrine of past and closed transaction.
9. Be that as it may, the controversy raised herein stands concluded by the latest judgment of this Court in the case of Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad (1997 SCM R 1026). Paragraph 13 of the said report reads:- "The petitioner, lastly contended that in view of the provision of Article 235(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 allowance 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 either 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 allowanc 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 in 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".
' Also refer to an unreported judgment of this Court in Najabat Hussain and others v. Secretary Establishment, Islamabad, (C.P. No,56 of 1996), wherein similar views were expressed while declining leave to appeal against the decision of the Tribunal. In the case of Brig. (Retd.) Abdur Rashid v. Secretary, Establishment Division (1991 SCM R 1288), this Court held:--- "An allowance is payable upon its being made applicable to a particular class of persons. In the instant case, it is an admitted position that the allowance in question has not been made payable to the personnel attached to the Central Board of Film Censors. In this view of the matter, there has not been any violation of the terms of the service. No provision of any law or any statutory rule has been pointed out by Mr. Ansari whereby it has been provided that if a particular allowance is made payable to a particular class of civil servants, the other civil servants would also be entitled to such allowance. In the absence of any such provision, the petitioner could not have maintained a service appeal before the Tribunal. The petitioner has, therefore, no merits. Leave is accordingly refused.
10. In view of the above, we find no reason to interfere with the impugned decision of the learned Federal Service Tribunal. The petitions are, accordingly, dismissed and leave is refused.