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Petitioner: Lt. Col. (R.) ABDUL WAJID MALIK VS Respondent: GOVERNMENT OF THE PUNJABHonorable Justice Javed Iqbal,Nemo
2007 P L C (C.S.) 617
[Supreme Court of Pakistan]
Present: Javed Iqbal and Ch. Ijaz Ahmed, JJ
Lt. Col. (R.) ABDUL WAJID MALIK
Versus
GOVERNMENT OF THE PUNJAB and another
Civil Petition No.1215-L of 2005, decided on 14th February, 2006.
(On appeal from the Judgment, dated 26-4-2005 of the Punjab Service Tribunal, Lahore, passed in Appeal No.1206 of 2004).
(a) Civil service---
----Post, upgradation of---Perks and privileges---Entitlement to---Principles---Civil servant has absolutely no right to claim for benefits such as pay, allowances, perks and privileges and pensionary benefits due to upgradation of post, which can only be conferred in case of promotion of the civil servant to higher grade.
(b) Punjab Service Tribunal Act (IX of 1974)---
----S. 4---Constitution of Pakistan (1973), Art.212(3)---Service benefits---Officer on Special Duty (OSD)---Grievance of civil servant was that while posted as OSD, he was not paid extra benefits in shape of deputation allowance, POL charges and residential telephone facility charges---Appeal filed by civil servant was dismissed by Service Tribunal---Validity---No deputation allowance, POL charges and residential telephone facility charges were specified for the post of OSD---Such claim was made in oblivion of the fact that during his posting as OSD no official duty whatsoever was assigned to him and in absence whereof POL and residential telephone facility charges could not be paid as there was no purpose of such payment---Civil servant failed to furnish any reason on the basis of whereof such extra burden on Government exchequer could be justified, when no official duty was assigned to him---No legal right was available to civil servant to have claimed such benefits---Question of infringement of any vested right did not arise---Government employee appointed to a post or grade would be entitled to pay sanctioned for such post---Employee posted as OSD could only claim the sanctioned pay for the post and not other benefits which were not sanctioned for such post---No illegality or irregularity was pointed out by civil servant in the judgment passed by Service Tribunal---No question of law of public importance was involved in the matter---Service Tribunal had travelled in the straight furrow of detached and objective thinking and there was no deflection on account of personal bias or ill-will---Leave to appeal was refused.
Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Anisuddin v. Secretary to Government of Sindh, Excise and Taxation Department 1984 PLC (C.S.) 304; Muhammad Aslam v. Auditor-General of Pakistan 1995 PLC (C.S.) 1178 and Pakistan v. Mrs. A.V. Issacs PLD 1970 SC 415 distinguished.
(c) Words and phrases---
----"Legal right"---Meaning---Legal right is that which is not only recognizable but also enforceable.
Piran Ditta v. Noor Muhammad PLD 1966 Kar. 618 rel.
(d) Civil service---
----Age of superannuation---Notification of retirement, non-issuance of---Effect---Civil servant retired on attaining the age of superannuation and issuance of notification regarding retirement had no substantial bearing on the date of retirement---Where competent authority failed to notify the fact of retirement in gazette, such failure did not render retirement without lawful authority.
Muhammad Aslam Khan v. Government of Punjab PLD 1973 Lah. 120 rel.
(e) Civil service---
----Officer on Special Duty (OSD)---Concept---Ordinarily, a Government employee should not be posted as OSD except under compelling circumstances, exigency of service and in public interest but tenure of such posting should not be more than thirty days---Being purely administrative matter, it falls within the jurisdictional domain of competent authority to exercise its right in the interest of public but it must not be lost sight of that the posting of an employee as OSD would also be an extra burden on government exchequer, as such employee receives salary without rendering any service which cannot be afforded.
Shah Nawaz Marri v. Government of Balochistan 2000 PLC (C.S.) 533 rel.
(f) Civil service---
----Posting---Principles---Question of posting exclusively falls within the jurisdictional domain of competent authority but such discretion must not be exercised in an arbitrary or fanciful manner but judiciously and in accordance with settled norms of justice, equity and fairplay---Government was duty bound that while exercising" such discretion, requirement of job, nature of duties, requisite capabilities and know-how for its performance, qualifications of incumbent, seniority position, general reputation and Annual Confidential Reports must be considered and there should be no extraneous consideration and political pressure.
Shah Nawaz Marri v. Government of Balochistan 2000 PLC (C.S.) 533 ref.
Petitioner in person.
Nemo for Respondents.
Date of hearing: 14th February, 2006.
JUDGMENT
JAVED IQBAL, J.---This petition for leave to appeal is directed against the judgment, dated 26-4-2005 whereby the appeal preferred on behalf of the petitioner has been dismissed and order, dated 22-5-2004 has been kept intact whereby the claim of the petitioner for grant of different benefits/deputation allowance/payment of residential telephone charges, POL charges and grant of BS-21 during the period the petitioner remained posted as OSD in S&GAD and also the period beyond the date of superannuation and calculation of pension on the basis of pay fixed for BS-21 has been rejected.
2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect "that after his retirement from the Army, sought induction/absorption against a civil post under the Provincial Government. He was first re-employed on contract as Director (Protocol) and soon thereafter absorbed as D.G./BS-20 O&M Wing, S&GAD in relaxation of Punjab Secretariat (Miscellaneous Posts) Recruitment Rules, 1986 and rule 3(1)(i) of the Punjab Public Service Commission (Functions) Rules 1978 w.e.f. 10-6-1992. Simultaneously, he was posted as D.G. Gujranwala Development Authority on deputation where he remained posted as such up to 20-8-1993, when he was transferred and directed to report to S&GAD, where he was posted as Officer on Special Duty (OSD). Appellant remained posted as OSD in S&GAD from 21-8-1993 to 5-11-1995. In this capacity, the appellant was allowed pay and allowances in BS-20. The appellant was posted as Managing Director, Punjab Road Transport Corporation, Lahore (M.D. PRTC) on 6-11-1995. He remained posted as such on deputation (the post being under autonomous body) till 9-4-1996, when apparently, on administrative grounds, he was called back and posted as OSD. The appellant challenged the orders of repatriation from deputation in this Tribunal through Service Appeal No.508 of 1996. The Tribunal through interim orders dated 26-5-1996 suspended the operation of the impugned repatriation order, dated 9-4-1996. However, another development took place in the meantime. The absorption of the appellant, under the Provincial Government as D.G. O&M was rescinded through Notification dated 3-6-1996. In consequence thereof, the Service Appeal No.508 of 1996 of the appellant filed in this Tribunal became infructuous. Moreover, the appellant turned his attention to writ petition which he had filed to challenge the orders of termination of his services/absorption. His writ petition ultimately succeeded and the Government of Punjab through Notification dated 2-6-1998, reinstated the appellant from the date his services were terminated i.e. 3-6-1996. Through the same Notification (dated 2-6-1998), the appellant was treated as OSD in S&GAD w.e.f. 3-6-1996/onwards for the purpose of drawal of pay and allowances. The appellant did not challenge the part of this notification relating to his posting as OSD and drew pay and allowances in his position as OSD without demur. The appellant, while still posted as OSD, attained the age of superannuation on 11-4-2002. However, notification regarding his retirement on superannuation w.e.f. 11-4-2002 (A.N.) was issued on 12-7-2002. The appellant then made a representation to the Secretary Services, S&GAD claiming the following benefits:--
(1) Encashment of residential telephone bills during the period of posting as OSD.
(2) Payment of POL charges as according to the appellant he was entitled to staff car as OSD.
(3) Treatment of the period from 3-6-1996 to 2-6-1998 when he remained out of service as the period of duty and payment of full back-benefits accordingly.
(4) Pay in BS-21 w.e.f. 23-10-2001/onwards on the ground that post of D.G. O&M stood upgraded to BS-21 although the post was occupied by another officer, Mr. Riaz Ahmad.
(5) Payment of pay and allowances in BS-21 beyond the age of superannuation up to 12-7-2002 when his retirement was notified.
(6) Calculation and payment of retirement benefits on the basis of pay in BS-21.
As decision on his representation was not made within statutory period, the appellant filed Service Appeal No.2659 of 2003. During hearing of the appeal, the Departmental Representative produced a copy of brief order dated 23-2-2004 passed by Secretary (Service) S&GAD, according to which the representation dated 28-7-2003 of the appellant claiming the above referred benefits/amenities was rejected as being against rules/policy. Through order, dated 11-3-2004, Service Appeal No.2659 of 2003 filed by the appellant was disposed of by the Tribunal with the direction to Secretary (Services) that representation of the appellant shall be deemed to be pending and the same shall be decided, after hearing the appellant, by giving reasons through a speaking order, within 60 days. The said authority/Secretary Services, in compliance with the orders of this Tribunal, granted personal hearing to the appellant and passed a speaking order, dated 22-5-2004 and rejected the representation of the appellant giving reasons. Being aggrieved the petitioner preferred an appeal before the learned Punjab Service Tribunal which has been dismissed, hence this petition.
3. The petitioner argued his case in an exhaustive manner and contended that the concept of OSD is alien to service laws and does not find mention anywhere in the Punjab Civil Servants Act, 1974 and Rules made thereunder hence his posting as OSD was ab initio void and illegal. It is urged with vehemence that the judgment impugned is based on bias as certain extraneous considerations prevailed upon the learned Tribunal while drawing the conclusion which culminated into dismissal of his appeal such as the question of absorption which was not in question before the learned Tribunal. It is argued that the learned Tribunal should have not adjudicated his appeal as according to the Chairman he approached his cousin and on this score the judgment impugned is liable to be set aside. It is next contended that the post of OSD cannot be equated to that of a regular post as has been determined by the learned Tribunal. It is contended emphatically that C.M. 1938 of 2005 moved by the petitioner under section 12(2), C.P.C. for recalling the impugned judgment due to bias and misrepresentation should have not been dismissed in limine for want of jurisdiction which could not have been considered as a review petition. The petitioner has pressed time and again that he is entitled to get all benefits as prayed for in the appeal dismissed by the learned Tribunal. In order to substantiate his viewpoint reference has been made to the following authorities:
Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Anisuddin v. Secretary to Government of Sindh, Excise and Taxation Department 1984 PLC (C.S.) 304; Muhammad Aslam v. Auditor-General of Pakistan (1995) PLC (C.S.) 1178; Pakistan v. Mrs. A.V. Issacs PLD 1970 SC 415.
4. We have carefully examined the contentions as portraited at bar by the petitioner in the light of relevant provisions of law and record of the case. We have also examined the judgment impugned with care and caution. The grievance of the petitioner mainly revolves around following points:--
"(a) Deputation Allowance plus POL and residence telephone facility charges from 3-6-1996 - 4-11-1998.
(b)" POL and residence telephone facility charges from 21-8-1993, 4-11-1995 and from 5-11-1998 - 12-7-2002 (the petitioner was made to serve beyond 12-4-2002 - date of superannuation).
(c) Benefits of upgradation (BS-21) of post of D.G. O&M from 23-10-2001 - 12-7-2002.
(d) Difference of pensionary benefits in upgraded post (BS-21) of D.G. O&M from 12-4-2002 onwards.
(3) Pay and allowances inclusive of all perks and privileges in BS-21 from 12-4-2002 - 12-7-2002.
Cost may also kindly be allowed."
5. The petitioner was at the outset asked as to whether he was ever promoted in grade-21, the answer was in negative. How the petitioner could have claimed the benefits of upgradation of the post of DG O&M from BS-20 to BS-21 merely on (the ground that the post was upgraded because upgradation of the post simpliciter does not confer any right on the petitioner qua benefit of upgradation because he was never promoted against the upgraded post. In such view of the matter the petitioner has absolutely no right to claim for the benefits such as pay, allowances, perks and privileges and pensionary benefits due to the upgradation of the post of DG O&M which could only have been conferred in case of promotion of the petitioner from BS-20 to BS-21 and admittedly the petitioner was not promoted in BS-21. We have also adverted to the question of deputation allowance plus POL and residential telephone facility charges from 3-6-1996 to 4-11-1998 while the petitioner was serving as OSD. It would not be out of place to mention here that no deputation allowance, POL charges and residential telephone facility charges were specified for the post of OSD. The said claim seems to have been made in oblivion of the fact that during his posting as OSD no official duty whatsoever was assigned to him and in absence whereof how the POL and residential telephone facility charges can be paid and for what purpose it should have been paid. No reasoning could be furnished on the basis whereof such an extra burden on Government exchequer could be justified when no official duty whatsoever was assigned to the petitioner. No legal right whatsoever was available to the petitioner to have claimed the above mentioned benefits. It is well-settled by now that a legal right is that which is not only recognizable but enforceable. In case Piran Ditta v. Noor Muhammad PLD 1966 Kar. 618 it has been observed on the question of `legal right' as under:---
"A legal right is less abstract than the conception which is represented by the unqualified word `right', because the unqualified word includes both juristic and legal conception. The juristic conceptions have their source in and pertain to what is idealistic, or to the world order as a whole, or to the social order in principle. They come out of what Prof. Roscoe Pond has called "culoudcuckootown"; while legal conceptions and legal rights pertain to an actual legal order. These two kinds may sometimes fall far apart because while the former belongs to the science of law, the latter belongs to a particular system of law. Hence jurists may hold different ideas as to them without affecting the law. The two kinds of conceptions meet when the provisions of a particular legal system need to be better understood by breaking them up, like a beam of light, into the waves of thought by passing them, as it were, through the prism of jurisprudence. The diffraction that is achieved is both realistic and colourful."
6. On the touchstone of the criterion as referred hereinabove, we have no hesitation in our mind to hold that no legal right whatsoever, was available to the petitioner hence the question of its infringement does not arise as pressed time and again by the petitioner. There is no cavil with the prop6gition that a Government employee appointed to a post or grade shall be entitled to the pay sanctioned for such post. An employee posted as OSD can only claim the sanctioned pay for the post and not the other benefits which are not sanctioned for such post.
7. We have also considered the question of "bias" as alleged against the learned Tribunal which could not be substantiated by leading any cogent and concrete evidence by the petitioner who forgot that he had approached the learned Chairman through his cousin to exert influence which speaks a volume about his conduct.
8. The representations of petitioner, dated 28-7-2003 and 23-5-2004 have been decided judiciously and in accordance with law, decision whereof was communicated to the petitioner by means of Letter No.SI.2-6/89(P-II), dated 22-5-2004 which is reproduced hereinbelow for ready reference:--
Most urgent No.SI.2-689(P/II) Court case Government of the Punjab Services and General Administration Department Section (Services-I) Lahore the 22nd May, 2004
To
Lt. Col. (Retd.) Abdul Wajid Malik, Resident of Apartment No.31/E, Bridge Colony, Lahore Cantt.
Subject: Appeal No.2659 of 2003 titled Abdul Wajid Malik Lt.-Col. (Retd.) v. Chief Secretary etc.
Kindly refer to the subject noted above.
(2) The Chairman, Punjab Service Tribunal passed the judgment/order dated 11-3-2004, in Appeal No.2659 of 2003 titled Abdul Wajid Malik v. Chief Secretary, Punjab etc. operative part of which is reproduced hereunder:--
"I have redressed myself to the arguments raised by the appellant present in person. Since no order is on the record, I am at a loss to comprehend the matter in issue and the absence of reasons for disallowing the relief to the appellant has added fuel to the fire, as no head or tail can be made about the matter in issue. The order handed over to the Court is certainly perfunctory in form and passed in a slipshod manner. No reasons have been given by the appellate authority in rejecting the claim of the appellant, thus making the matter more confounded. It is the requirement of section 24-A of ate General Clauses Act that the appellate authority shall hear the appellant, record reasons and thereafter through a speaking order decide the matter. The mandate of law has been flagrantly flouted. The case is remitted to the Secretary (Services), Government of the Punjab, S&GAD, with the direction that the representation shall be deemed to be pending and after hearing the appellant by giving reasons, he should dispose of the representation through a speaking order within sixty days from the date he receives the order of this Tribunal. Appellant shall be at liberty to agitate his grievances afresh if the relief is refused to him by the authority."
The abovesaid judgment of PST' was received in the office of Chief Secretary, Punjab on 24-3-2004 which means that the last date of disposing of your representation dated 28-7-2003 is 23-5-2004.
(3) As per directions of the Punjab Service Tribunal as detailed in para.2 above, Mr. Anwar Ahmad Khan, Secretary (Services) S&GAD Department, Government of the Punjab afforded an opportunity of personal hearing to you on 5-5-2004 at 11-00 a.m. The following were also present in your personal hearing:--
(i) Deputy Secretary (Services), S&GAD Department
(ii) Deputy Secretary (Motor Transport), S&GAD Department
(iii) Under Secretary (Services-I), S&GAD Department
(iv) Motor Transport Officer, S&GAD Department
(v) Section Officer (Accounts), S&GAD Department
(4) After consulting record of the Department and keeping in view rules/policy of the Punjab Government, Mr. Anwar Ahmad Khan, Hearing Officer in the capacity of Secretary (Services) S&GAD Department, Government of the Punjab has regretted your requests made in representation dated 28-7-2003 and another representation dated 5-5-2004 which was handed over during the course of personal hearing, due to the following reasons:---
(a) Your tenure as Managing Director, Punjab Transport Corporation, Lahore was fixed as under, according to terms and conditions issued in consultation with Finance Department:
"(14) Tenure: The tenure of the deputation shall be three years w.e.f. 5-11-1995 (F.N.) But the Government has the right to call him back as and when required".
Therefore, you are not entitled to be posed as M.D. PRTC for a nixed tenure of three years, on deputation basis and to draw pay and allowances attached with the said slot.
(b) From 21-8-1993 to 4-11-1995 and from 3-6-1996 to 12-4-2002, you remained OSD in S&GAD Department. Under the Policy of Government of the Punjab, an OSD is not entitled to draw POL and residential telephone facility.
(c) The post of Director-General (O&M), S&GAD Department is actually sanctioned in BS-20. The said slot was upgraded to BS-21 as personal to Mr. Riaz Ahmad, in order to enable him to draw his pay and allowances after his promotion to BS-21. On shifting of Mr. Riaz Ahmad, the post of D.G. (O&M), S&GAD downgraded automatically to its original status i.e. BS-20. Moreover, two persons cannot draw pay and allowances against one post.
(d) Pensionary benefits are granted in the scale in which a Government servant retires. You were drawing pay in BS-20 at the time of retirement from Government service and were never promoted to BS-21. Therefore, you are not entitled to draw pensionary benefits in BS-21.
(e) Rule 12(1)(ii) of the Punjab Civil Servants Act, 1974 provides that a civil servant shall retire from service on the completion of sixtieth year of his age. As per record of this Department, your date of birth is 12-4-1942 and you retired from Government service on 11-4-2002 (A.N.) on attaining the age of superannuation. After retirement on superannuation, you were entitled to draw pension instead of pay and allowances.
(Sd.) Shahid Adil), Under Secretary (Services-I)
c.c. The Registrar, Punjab Services Tribunal, Lahore, with reference to his Letter No.PST/Registrar/2004/LHR/999, dated 20-3-2004.
9. No illegality or irregularity could be pointed out by the petitioner that how the conclusion, as arrived at by the Department was not in accordance with law or which particular provision of the Service Law or rules made thereunder have been violated.
10. We have also dealt with the question of retirement. It is an admitted feature of the case that retirement notification in case of petitioner was issued a bit late but it hardly matters. A civil servant stands retired on attaining the age of superannuation and the issuance of notification qua retirement has no substantial bearing on the date of retirement. Where the competent authority failed to notify the fact of retirement in the gazette such failure did not render retirement without lawful authority. In this regard reference can be made to Muhammad Aslam Khan v. Government of Punjab PLD 1973 Lah. 120.
11. We have also examined the case-law as cited by the petitioner in support of his contention. We have examined the case reported in Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 which mainly deals with the appointment of Judges and is not relevant to the case of petitioner. The case reported in Anisuddin v. Secretary to Government of Sindh, Excise and Taxation Department 1984 PLC (C.S.) 304 cannot be made applicable to the case of petitioner being not relevant. The dictum as laid down in the case Muhammad Aslam v. Auditor-General of Pakistan 1995 PLC (C.S.) 1178 is also not applicable. We have also perused the judgment reported in case Pakistan v. Mrs. A.V. Issacs PLD 1970 SC 415 which deals with the well-entrenched legal proposition that a civil servant has and always had a right to recover from the State salary already approved and due to him but here at this juncture it is to be noted that the salary of petitioner was never stopped but his main grievance is that the privileges, perks and allowances and pensionary benefits attached with the post of BS-21 should be allowed to him in spite of the fact that he was never promoted to BS-21. In such view of the matter the above-mentioned case-law would not be applicable being distinguishable.
12. We have also examined the concept of OSD in depth. It is well-settled by now that ordinarily a Government employee should not be posted as OSD except under the compelling circumstances, exigency of service and in the public interest but the tenure of such posting should not be more than thirty days. We are conscious of the fact that being purely administrative matter it falls within the jurisdictional domain of Competent Authority to exercise its right in the interest of the public but it must not be lost sight of that the posting of an employee as OSD would also he an extra burden on Government exchequer but such an employee receives salary without rendering any service which cannot be afforded. The concept of OSD was discussed in case reported in Shah Nawaz Marri v. Government of Balochistan 2000 PLC (C.S.) 533, relevant portion…
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