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Writ Petition No. 617‑S of 1969, heard on 11th June 1969.
West Pakistan (Gazetted) Civil Services (Pay Revision) Rules, 1964, Sched., Part I, Item No. 7 [as amended by Notification No. FD‑PC (III‑Gaz.‑17/64‑1074/64, dated 25‑9‑1964] ‑Officer of West Pakistan Health Services Class I, posted as Section Officer in Secretariat‑‑Entitled to non‑practising allowance of Rs. 200 p.m. in addition to Secretariat pay permissible under Rules‑Executive order cannot override Rules framed by Governor particularly when Rules are later in point of time‑Order reducing non practising allowance to Rs. 100 p.m. in circumstances, held, without lawful authority.
M. Ismail Bhatti for Appellant.
Raja Said Akbar, A.‑G. West Pakistan with Anwar‑, Beg S. O., Finance Department for Respondents
Date of hearing : 11th June 1969.
‑Doctor Faiz Ali Shah, the peti tioner, is a member of the West Pakistan Health Services Class, I. He started his career as a Commissioned Officer in July 1943 when he was inducted into the Indian Medical Service. He was transferred to the 1. A. M. C. when the IMS was abolished. He entered civil employ as a member of the Punjab Civil Medical Service in October 1947. He was pro moted to the West Pakistan Health Service Class I, in December 1956. He now holds a degree of Master of Science in Industrial Medicine from the United States of America. He was transferred to the Secretariat in 1962 and has eversince been serving as Section Officer in the Health Department of the Secretariat. Besides his pay, he was drawing its. 200 per month as non‑practising allowance. The same has now been reduced to Rs. 100 per month by an order of the Governor of West Pakistan issued on 25th September 1962. He made several representations against it, and the matter was even otherwise considered at Secretariat level because it affected not only the petitioner but also others. Having failed to convince the Authorities, he has per force knocked the doors of this Court under Article 98 of the Constitution.
2. A notice having been issued to the respondents, they have filed a written‑statement today denying the right of the petitioner to receive Rs. 200 p.m. as non‑practising allowance.
3. Annexure A' is a copy of a Notification issued by the Government of West Pakistan in the Finance Department bearing No. 39‑PR, 57, dated 25th February 1957. Schedule I of this Notification shows that members of the West Pakistan Health Service Class I were entitled to a non‑practising allowance of Rs. 200 per month while occupying the pots mentioned in it. The petitioner did for some time draw a non‑practising allowance of Rs. 200 per month as Principal Medical Officer, Industrial Hygiene and before that as District Health Officer, both of which posts have been mentioned in the Schedule, refer red to above.
4. The West Pakistan (Gazetted) Civil Services (Pay Revision) Rules, 1964, were promulgated by the Governor in exercise of powers conferred by clause (2) of Articles 178 and 179‑ of the Constitution of 1962. The Health Department is dealt with in Part I of the Schedule attached to it. Item No. 7 deals with the West Pakistan Health Service Class I. It was originally sub‑divided into three categories, the first consisting of an Assistant Director of Health, the second of Principal Medical Officers, Civil Surgeons and District Health Officer, and the third of Chief Nursing Superintendent. In the case of the first two categories, a sum of Rs. 200 per month was allowed as non‑practising allowance. The third .was not, however, entitled to any such allowance.
5. Item No. 7 of these Rules was amended by a Notification of the Finance Department, No. FD‑PC(III Gaz‑17‑64‑1074‑64, dated 25th September 1964 and the existing Item No. 7, referred to above, was deleted and the following was substituted in its place :‑
| "7. West Pakistan 750‑75‑1,500 plus Health Services Technical Pay f Class, I Rs. 100 per mensem to medical graduates plug non‑practising allow ance Rs. 200 per mensem where private practice is not allowed." |
It is not denied that the aforesaid Rules are now in force as amended by this Notification. It is also not denied that the petitioner belongs to the West Pakistan Health Service Class, I. By virtue of this rule, therefore, he, being a Medical Graduate, is entitled to a non‑practising allowance of Rs. 200 per mensem since as a Section Officer in the Secretariat he is not allowed private practice. The impugned order of the Governor dated 25‑9‑1962 cannot override Rules framed by him particularly when they came later in point of time.
6. It was contended before us that the petitioner was also drawing a sum of Rs. 220 per month as Secretariat Pay and if he was also given a non‑practising allowance of Rs. 200 he would be getting Rs. 420 over and above his basic salary. This, to say the least, is no argument in support of the stand taken by the Government. It is common knowledge that Secretariat Pay is admissible to all persons belonging to non -Secretariat Service as and when they are posted to the Secretariat. If, for example, a member of the Provincial Service were to occupy the post of action Officer, of which the peti tioner is an incumbent at the moment, the P. C. S. Officer would be entitled to this Rs. 220 p.m. as Secretariat Pay. This is not denied by the Government. The amount of Rs.200 is allowed to members of the West Pakistan Health Service Class I as non‑practising allowance because they ari deprived of earning a much bigger amount by taking to pro fessional practice during their leisure hours. This allowance cannot be confused with the Secretariat Pay, referred to above, and has, in fact, no relevancy to the point which arises in this case for determination.
7. The conclusion that we have arrived at, therefore, is that the petitioner is entitled as a member of the West Pakistani Health Service Class I, to‑
(i) his basic salary admissible to him as a member of " the Health Service Class I ;
(ii) Rs. 220 per month as Secretariat Pay also known as Special Pay; and
(iii) to Rs. 200 per month as non‑practising allowance as 4 provided by Item No. 7 of Part I of the Schedule to the West Pakistan (Gazetted) Civil Services (Pay Revision) Rules, 1964, as amended by the Notification dated 25th September 1964, reproduced in extenso above.
8. The impugned order is declared to be without lawful authority. The impugned order is, in fact, no longer operative having been impliedly repealed by the amendment of the West Pakistan (Gazetted) Civil Services (Pay Revision) Rules. 1964 on 25th September 1964 whereby the petitioner by virtue of being, member of the West Pakistan Health Service Class I, became entitled to Rs. 200 as non‑practising allowance.
9. The Government shall now therefore take necessary steps to pay to the petitioner the aforesaid amount of Rs. 200 per month as non‑practising allowance from the date that it has not been paid to him.
10. The petition is accepted with costs.
A. E. Petition accepted.
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