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Civil Appeal No. 2‑P of 1968, decided on 25th March 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 24th October 1966, in Writ Petition No. 243 of 1964).

(a) West Pakistan (Non‑Gazetted)

Civil Services Pay Revision Rules, 1954, r. 4 read with Finance Department Notification No. I (PR) Try/1‑1‑62, dated 1st March 1962, and N.‑W F. P. Treasury Subordinate Service Rules, 1954‑Designation of Head Treasury Clerks as Head Treasury Clerks (Accountants in N.‑W. F. P. Treasury Subordinate Service Rules, 1954‑Signifies that Head Treasury Clerks were in fact Accountants‑Treasury and Accounts Service referred to in Notification No. I (PR) Try/I‑1‑62‑Includes N.‑W. F. P. Treasury Subordinate Service‑Inclusion of Accountant's posts in Schedule to West Pakistan (Non‑Gazetted) Civil Services Pay Revision Rules, 1954 by Notification No. I (PR) Try/1‑1‑62 Entitles person holding post of Head Treasury Clerk under N.‑W. F. P. Treasury Subordinate Service Rules to scale of pay prescribed for Accountants with retrospective elect from 14‑10‑1955 and not from 7‑5‑1962.

(b) West Pakistan (Non‑Gazetted)

Civil Services Pay Revision Rules, 1954, rr. 2, 4 & 18 and Finance Department Notification No. 1 (PR) Try/I‑1‑62 dated 1st March 1962‑Rule 18 empowered Government to add to or modify Schedule appended to West Pakistan (Non‑Gazetted) Civil Services Pay Revision Rules, 1954, and no more‑Note below Notification No. I (PR) Tryll‑1‑62 providing that scale of pay will not have retrospective effect‑Ultra vires of rr. 2 &4 of Rules, 1954.

Arts. 178(3) & 98 Person found entitled under Pay Revision Rules to prescribed scale of pay with effect from a particular date‑Refusal of Government to give him pay in that scale‑Adversely affects such person's remuneration‑Article 178(3) attracted‑Writ petition in matter, held, maintainable.

S. Fakhre Alam, Additional Advocate‑General West Pakistan instructed by Abdul Waheed Khan, Advocate‑on‑Record for Appellant.

Peer Bakhsh Khan, Advocate Supreme Court instructed by Nur Ahmed Khan, Advocate‑ on‑Record for Respondent.

Dates of hearing : 24th and 25th March 1970.

This appeal by special leave, at the instance of the Province of West Pakistan, is from the judgment and order of the High Court of West Pakistan, Peshawar Bench, in Writ Petition No 243 of 1964, whereby the writ petition was accepted and the following declaration was made:

"I, accordingly, accept the writ petition with costs, and give direction that the petitioner would be entitled to the prescribed scale of Accountant with effect from 14‑10‑1955 and not from 7‑5‑1962."

In order to appreciate the controversy, it is necessary to state certain facts which are either admitted or undisputed. S. Abdul Khaliq (respondent herein), who is for the time being Accountant, Hazara Treasury, was appointed as Head Treasury Clerk in the former North‑West Frontier Province on the 9th January 1948 and was confirmed in that post on the 18th October 1948. At that time, there was no separate treasury cadre in that Province and the posts of Head Treasury Clerks were then borne on the District Establishment. The Government of the former North West Frontier Province created a separate treasury cadre on permanent basis with effect from the 15th December, 1950. ‑This cadre included, among others, six Head Treasury Clerks in the scale of Rs. 150‑10‑300. On the 12th May 1954, the North‑West Frontier Province Treasury Subordinate Service Rules; 1954 were framed by which the respondent was governed. According to rule 3 of the said Rules, the North‑West Frontier Province Treasury Subordinate Service consisted of Head Treasury Clerks (Accountants), Senior Treasury Clerks and Junior Treasury Clerks. A similar separate treasury cadre existed also in the former Province of Sind, but there was no such cadre in the former Province of the Punjab. After the establishment of West Pakistan in the year 1955, the pay scales of the gazetted as well as non -gazetted Government servants belonging to different services and holding various posts in the different regions of the Province were unified. For that purpose, two different Pay Revision Rules‑one for the gazetted officers and the other for the non‑gazetted Government servants were promulgated. These were the West Pakistan (Gazetted) Civil Services Pay Revision Rules, 1957 and the West Pakistan (Non‑Gazetted) Civil Services Pay Revision Rules, 1959. Both these Pay Revision Rules were given retros pective effect from the 14th October 1955. In the present case, the West Pakistan (Non‑Gazetted) Civil Services Pay Revision Rules, 1959 alone are relevant, and these Rules are hereinafter called "the Pay Revision Rules". In the Schedule appended to these Rules, there were mentioned various posts in different departments with the scales of pay prescribed therefore. Rule 18 of the said Rules empowered the Government to add to or modify the schedule from time to time. By Notification No. 1 (PR) Try. 1‑1‑62, dated the 1st March 1962, the post of Accountant in the Subordinate Treasury and Accounts Service was included in the said Schedule, prescribing Rs. 200‑15‑350 as its scale of pay. On the 7th May 1962, the Government of West Pakistan created, for the first time, a Subordinate Treasury and Accounts Service for the whole of West Pakistan by framing Rules called the West Pakistan Subordinate Treasury and Accounts Service Rules, 1962. With the creation of this Service, the existing posts of Head Treasury Clerks (Accountants), Senior Treasury Clerks and Junior Treasury Clerks stood abolished and the incumbents of those posts including the respondent were absorbed in this new Service.

The respondent opted for the prescribed scale of pay of Accountant (Rs. 200‑15‑350) on the basis of the Notification of the 1st March 1962, by which the post of Accountant, among other posts, was included in the Schedule of the Pay Revision Rules. His option for the prescribed scale was accepted by the Government, but there arose a dispute as to the date from which the respondent was entitled to claim the prescribed scale of pay. The respondent claimed that the post of Accountant having been included in the Schedule of the Pay Revision Rules and those Rules having retrospective effect from the 14th October 1955, he is entitled to the prescribed scale of pay from the said date. The Government, on the other hand, took the stand that the respon dent is entitled to the prescribed scale of pay with effect from the 7th May 1962 on which date the Subordinate Treasury and Accounts Service for the whole of West Pakistan was created and he was absorbed in that Service.

The date from which the respondent is entitled to the prescribed scale of pay will depend on the provisions of the West Pakistan (Non‑Gazetted) Civil Services Pay Revision Rules, 1959. These are statutory rules and, according to rule 2 thereof, they shall have effect from the 14th October 1955. "Prescribed scale", as defined in rule 3(d), means the scale of pay as prescribed in column 2 of the Schedule appended to the Pay Revision Rules (hereinafter called "the Schedule"). In the original Schedule, the post of Accountant was not included which, however, was included for the first time on the 1st March 1962, by Notification No. I (PR) Try. 1‑1‑62 of the said date. Obviously, this Notification was made pursuant to the power of the Government under rule 18 of the Pay Revision Rules which empowered the Government to add to or modify the Schedule from time to time. Many a post was not included in the original Schedule and it was, there fore, necessary to retain power with the Government in order to include therein such posts as were left out or escaped notice for one reason or the other. The effect of inclusion of the post of Accountant in the Schedule by the Notification of the 1st March 1962 is to be determined having regard to the provisions of rule 4 of those Rules. The said rule 4 runs thus :‑

"Applicability of prescribed scales. The prescribed scales shall apply to all Government servants holding posts included in the Schedule with effect from the 14th October 1955 or later date of appointment except to the extent to which they have the right to opt for existing scales and actually do so or are assumed to have done so."

It is quite clear from this rule that as soon as the post of Accountant was included in the Schedule, the scale of pay prescribed therefore became admissible to the incumbent of that post with effect from the 14th October 1955. Learned Additional Advocate‑General appearing on behalf of the Province of West Pakistan contends that even if rule 4 of the Pay Revision Rules is applicable, the respondent is not entitled to the prescribed scale of pay of Accountant from the 14th October 1955 for the reason that the post which he was holding on the 1st March 1962 was the post of Head Treasury Clerk and not Accountant and that the said post, by virtue of the West Pakistan Subordinate Treasury and Accounts Service Rules, 1962, dated the 7th May 1962, stood abolished and the respondent was absorbed in the said Service for the first time on the 7th May 1962 and this being his fresh appointment to the Service, the prescribed scale is payable to him from the 7th May 1962 and not from any earlier date. This contention does not appear to be sound. The North‑West Frontier Province Treasury Subordinate Service Rules, 1954, were made on the 12th May 1954. Before the said date, the respondent was admittedly holding the post of Head Treasury Clerk. By the North‑West Frontier Province Treasury Subordinate Service Rules, 1954, the Posts of "Head Treasury Clerks" were designated as "Head Treasury Clerks (Accountants)". This means that the Head Treasury Clerks were, in fact, Accountants. Therefore, it is not correct to say that the respondent was not holding the post of Accountant from any date earlier than the 7th May 1962. It is significant that the Notification of the 1st March 1962, by which the Post of Accountant was included in the Schedule of the Pay Revision Rules, is much earlier than the West Pakistan Subordinate Treasury and Accounts Service Rules, 1962. That Notification on which the respondent bases his claim is very pertinent, and it is, accordingly, reproduced below :‑

"Finance Department

Notification

The 1st March 1962.

No. I (PR) Try. 1‑1‑62. The Governor of West Pakistan is pleased to direct that the following shall be added to the Schedule annexed to the West Pakistan (Non‑Gazetted) Civil Service Pay Revision Rules, 1959, published with the Government of West Pakistan Finance Department Notification No. F. D. I. (P. R.) 18‑16/59 (772), dated the 30th May 1959 :‑

Department and designation Prescribed

of posts.

Pay Scale.

Subordinate Treasury and Accounts Service.

Accountant/Sub‑Treasury Officer ... 200‑15‑350

Assistant Accountant ... 150‑10‑300

Accounts Clerks ... 100‑8‑220.

Note.‑The above mentioned pay scale will not have retrospec tive effect and will be applicable to the incumbents with effect from the date of such appointment.

G. D. Memon,

Deputy Secretary (Integration)

to Government."

The "Subordinate Treasury and Accounts Service" referred to in this Notification obviously includes the North‑West Frontier Province Treasury Subordinate Service constituted in 1954, because that Service continued until one single Service for the whole of West Pakistan was made on the 7th May 1962. Accordingly, the post of Accountant and the scale of pay prescribed therefore in the said Notification relates to the post of Head Treasury Clerk (Accountant) held by the respondent. Had there been no post of Accountant till before the 7th May 1962, there was no sense in including that post in the Notification of the 1st March 1962. With the inclusion of the post of Accountant in the, Schedule of the Pay Revision Rules on the 1st March 1962, the respondent as the holder of such post became entitled to the benefit of those Rules according to the express provisions of which the prescribed scale of pay is admissible with effect from the 14th October 1955.

Under rule 5 of the Pay Revision Rules, every Government servant, who was in service of an integrating Unit on the 13th October 1955, shall have the right to opt for the existing scale or the prescribed scale'. This rule, in its application to the case of the respondent, will become nugatory unless the respondent who was admittedly in Government service from before the 13th October 1955, is held to have a right to opt for the prescribed scale of Accountant as introduced by the Notification of the 1st March 1962. The learned Judges of the High Court were; there fore, right in holding that the respondent is entitled to the pres cribed scale of pay of Account from 14th October 1955.

Having drawn our attention to the Note below the Notification of the 1st March 1962, it was contended that the prescribed scale of pay of Accountant was not to take effect retrospectively. The said Notification, as stated earlier, was made pursuant to the power under rule 18 of the Pay Revision Rules. The said rule merely empowered the Government to add to or modify the 1 Schedule of the Pay Revision Rules and to do nothing more.' Hence, the Note below the Notification of the 1st March 1962, providing that the prescribed scale of pay introduced by it will not have retrospective effect, is unauthorized and is also ultra vires the provisions of rules 2 and 4 of the Pay Revision Rules. The Government cannot therefore fall back upon the said Note to deny the respondent the prescribed scale of pay with effect from the 14th October 1955.

It was next contended by the learned Additional advocate General that the respondent's writ petition under Article 98 of the 1962‑Constitution is not maintainable. This point was not agitated before the learned Judges of the High Court. However, the point now raised is that the respondent's alleged entitlement to the prescribed scale of pay is not a term or condition of service that is specified in the 1962‑Constitution and, as such, the writ petition, in view of clause 3(b) of Article 98 of that Constitution, is incompetent. This argument, though apparently attractive does not hold good. Un‑3er clause (3) of Article 178 of the said, Constitution, remuneration of a person in the service of Pakistan is protected and cannot be varied to his disadvantage. When the respondent has been found entitled under the Pay Revision Rules to the prescribed scale of pay of Accountant with effect from the 14th October 1955, the refusal by the Government to give him pay in that scale has adversely affected his remuneration. Accordingly, clause (3) of Article 178 of the said Constitution attracted in this case for which reason the writ petition is competent. In this connection, it was further contended that clause (3) of Article 178 is applicable only in a case where the initial salary of a Government servant is varied to his disadvantage, but does not protect his salary as enhanced from time to time under the rules. This contention has no substance whatever and must be. rejected as untenable.

In the result, the appeal fails and is dismissed with costs.

Appeal dismissed.

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