' SAIDUZZAMAN SIDDIQUI, C.J.---This judgment will govern disposal of Civil Appeal No, 65-Q of 1994 and Civil Petition No,8-Q of 1996 as the questions of law and facts arising in these cases are similar.
2. Leave was granted in Civil Appeal No, 65-Q of 1994 by this Court to consider the following contention:-- "2.The grievance of Mr. Tahir Muhammad Khan, learned counsel for the petitioners, is that his clients are entitled to payment of 20% Secretariat Allowance which is being paid to their counterparts in other Provinces; besides the same allowance is paid to employees of other departments. It is contended that as his clients were not drawing the secretariat allowance on 31st May, 1994, they will not be extended the same benefit by the Finance Act of 1994.
3. Since the point raised needs consideration, we are, therefore, inclined to grant leave. As the counterparts of the petitioners are already getting 20% Secretariat Allowance, we are, therefore, inclined to give interim relief to the petitioners drawing 20% secretariat allowance from 31st May, 1994 till the disposal of the case subject to the condition that in case the Court finally holds that the petitioners are not entitled to payment of Secretariat Allowance, the same will be recovered from them.
' Appellants in Civil Appeal No, 65-Q of 1994 are the employees of Geological Survey of Pakistan which is an attached department of Ministry of Petroleum and Natural Resources. These appellants are employees from BPS-1 to BPS-21. Similarly, the petitioners in Civil Petition No, 8-Q of 1996 are employees of National Savings Organization which is an attached department of the Finance Division and they are also serving in different pay scales. The contentions of the learned counsel for appellants in Civil Appeal No, 65-Q of 1994 are that the secretariat allowance which was granted by the Government from 1-7-1988 is also payable to them from that date. It was contended by the learned counsel in the abo.Ve cases that the employes serving in similar condition in their departments have already been allowed secretariat allowance under various decisions of the Court including this Court. As the claim of appellants and petitioners was not accepted by the concerned departments, they filed constitution petition before the High Court of Balochistan at Quetta claiming that they were entitled to 20% Secretariat Allowance w.e.f, 1-7-1988. The learned Judges of the High Court after hearing the appellants' counsel and the learned Deputy Attorney- General/Advocate-General, declined to grant relief to the appellants for the following reasons:--- "We have carefully examined all aspects of the case. It is quite apparent that Secretariat Allowance which is to be separately paid to special class of employees has been made part and parcel of the salary. Memorandum, dated 15th June, 1994 issued by Finance Division merely regulates pay- scales of the employees of Federal Government and does not advance claim put forth in this petition. Since Secretariat Allowance has completely ceased to exist and stands merged into salary of Government Employees, therefore, same cannot be indirectly claimed by invoking Constitutional jurisdiction of this Court. Thus, under changed situation on the promulgation of Finance Act 1994, dictum of afore-quoted judgment, is of no help to petitioners.
' For the foregoing reasons in our opinion petition is not maintainable. Same is consequently dismissed in limine."
' The question of payment of Secretariat Allowance to the Government employees serving in different departments has been agitated in number of cases before this Court. In the case of Government of Punjab v. Mubarik Ali Khan (PLD 1993 SC 375) leave to appeal was granted by this Court against the decisions of Lahore High Court and High Court of Balochistan to examine whether the orders passed by the Lahore High Court and High Court of Balochistan granting 20% Secretariat Allowance to the employees of Lahore High Court and High Court of Balochistan were legally sustainable. The bench of this Court consisting of 5 learned Judges after examining the various provisions regulating the terms and conditions of service of Government employees made the following observations:-- "There were certain posts and certain officers who were compensated separately. Non-Secretariat Officers appointed Deputy Secretary were allowed Special Pay of Rs,400 w.e.f, 1-7-1983. It was extended in 1985 to make it 20% to Deputy Secretaries and equivalent in Federal Secretariat including President/Prime Minister/National Assembly and Senate Secretariats with effect from 1-11- 1985. In 1987, recommendations were made by the National Pay Commission but the Government did not accept it and froze 20% Special Allowance of existing Deputy Secretaries and equivalent in secretariats and for future this allowance was allowed at the fixed rate of Rs,300 p.m. With effect from 1-7-1987. All this is culled out from the material provided by the Government of Pakistan in Government of Pakistan through Secretary, Ministry of Finance, Islamabad v. M.I. Cheema and others (Civil Appeal No, 16 of 1992, decided on 29-6-1992) 1992 SCM R 1852, where a specific direction was given to the following effect on the day leave was granted in the case:--- ' The Advocate-General, Punjab and the Deputy Attorney-General for Pakistan should be called upon to file a self-contained exhaustive note supported by all the official instructions that have issued during the last fifty years, if not more, with regard to the Secretariat and non-Secretariat Scales of Pay from time to time, within one month, to be available to the parties before hearing of the appeals.'
19. 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 non-Secretariat employees and for assimilating certain non-Secretariat Offices as 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.
20. The legal question that in the matter of pension and pay no such discrimination can take place has been answered by this Court in I.A. Sherwani and others v. Government of Pakistan through Secretary, Finance Division and others (1991 SCM R 1041). The factual question of equivalence of the duties, responsibilities, confidentialities etc. Is ordinarily not a fit subject for adjudication by the High Court but has to be determined initially by a full fledged exercise to be undertaken by the National Pay Commission, as such. For the employees of the High Court the position is far better. The employees of the Federal Shariat Court and the Supreme Court of Pakistan have been allowed such an Allowance. The High Court employees perform almost identical functions as do the employees of these two other Courts perform. The employees of all the three Courts have been dealt with constitutionally by the same provision reproduced above. In the circumstances, the High Court's employees cannot be discriminated against. The necessary provision of Secretary/Personal Allowance had to be made in respect of such employees as was made in the case of the Federal Shariat Court and the Supreme Court employees."
' The learned Deputy Attorney-General has also placed before us a copy of the order passed by a learned Division Bench of Peshawar High Court in large number of writ petitions filed by employees of various Government departments. The operative part of the order reads as follows:-- "5. After hearing the arguments of the learned counsel for the parties and going through the above-quoted judgments of the apex Court of the country, we are of the opinion that the petitioners' cases are similar to those who have already been allowed 20% Special/Secretariat Allowance in view of the aforesaid judgments of the August Supreme Court of Pakistan.
Consequently. These writ petitions are allowed and the petitioners are held entitled to the Special/Secretariat Allowance accordingly. No order as to costs."
' The learned Deputy Attorney-General has not been able to point out any distinction on which the appellants in Civil Appeal No,65-Q of 1994 and Civil Petition No, 8-Q of 1996 could be denied payment of secretariat allowance from the date pit was made applicable to the persons serving in the Secretariat. The learned Deputy Attorney-General, however, very vehemently contended that since secretariat allowance has been discontinued w.e.f, 1-6-1994, the same cannot be now ordered to be paid to them. In this connection, the learned Deputy Attorney-General relied on the following observations made by a Full Bench of this Court in the case of Muhammad Shabbir Ahmed Nasir v. Secretary Finance Division (1997 SCM R 1026):-- '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 time 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 0.M."
' The learned counsel for the appellants and the petitioners do not dispute that in view of the decision of this Court in the case of Muhammad Shabbir Ahmed Nasir v. Secretary Finance Division (supra) they cannot claim payment of secretariat allowance in accordance with O.M. Dated 15-6- 1996 as held in the above cited case. We are, therefore, inclined to hold that the appellants in Civil Appeal No, 65-Q of 1994 and petitioners in Civil Petition No,8-Q of 1996 are entitled to the payment of Secretariat Allowance w.e.f, 1-7-1988 till 31-5-1994. However, if they have received payment of secretariat allowance after 31-5-1994 under interim orders of this Court or any other Court the same is liable to be adjusted towards the secretariat allowance so payable to them. As from 1-6- 1994 the payment of secretariat allowance will be governed in terms of O.M. Dated 15-6-1996 as held in the case of Muhammad Shabbir Ahmed Nasir v. Secretary Finance Division (supra). Civil Appeal No,65-Q of 1994 and Civil Petition No,8-Q of 1996, which is converted into appeal, accordingly stand disposed of in terms of the above order. There will, however, be no order as to costs in the circumstances of the cases.