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Civil Petition No. 693‑R of 1983, decided on 27th May, 1984.

(From the judgment of the Federal Service Tribunal dated 23‑10‑1983 passed in Appeal No.20 (R) of 1982).

‑‑‑S.17‑‑Cabinet Secretariat Letter No. 104/57/77‑Min‑I1, dated 10th September, 1977‑‑Appointment 9f a lecturer before nationalization of Colleges‑‑Lecturer receiving his pay in College in addition to his army pension which was not in' contravention of Rules then in force‑‑Pay of such lecturer, held, protected by Government of Pakistan, Cabinet Secretariat Letter No. 104/57/77‑Min‑II, dated 10th September, 1977‑ Terms and conditions existing at time of nationalization of college having been protected could not be subjected to Rules which operate in deroga tion of such protection. ‑‑[Civil services].

Munir A. Sheikh, Deputy Attorney‑General instructed by Ch. Akhtar Ali, Advovate‑on‑Record for Petitioners.

A. Hakeem Khan, Senior Advocate Supreme Court instructed by Muhammad Aslam Jan, Advocate‑on‑Record for Respondent.

Date of hearing: 27th May, 1984.

‑‑ Respondent Khuda Dad Khan, a Junior Commissioned Officer (Subedar), upon his selection for the post of Lecturer, Cantonment Board College, Kharian, joined the post on 1st September, 1967 and started drawing pay of that post. On this appoint ment he was not discharged from the Army but was transferred to its reserve establishment from 20th November, 1967. Later, in 1968,,4he was granted army pension with effect from 20th November, 1967. However, he applied for counting his Army service towards civil pension and expressed his readiness to forego the army pension but this was turned down. An appeal before the Federal Service Tribunal in this regard also failed on 4th December, 1980. He thus continued to draw army pension in addition to the pay of the post in the College. Meanwhile, the College was in pursuance of the direction contained in the Ministry of Education's letter No. P.1‑9/75‑C, dated 26th May, 1975 taken over by the Federal Government, with effect from 1st June, 1975. In. 1981, the Military Accountant‑General ordered that the army pension should be deducted from the pay of his civil post with effect from 1st June, 1981 and the amounts drawn by him on account of such pension prior to that date be recovered from him. The appeal which the respondent ultimately brought before the Tribunal against the order of the Military Accountant‑General was allowed by the impugned order, dated 23rd October, 1983. The reasons which prevailed with the Tribunal were that under Finance Division 0. M. No. F. 4(7)‑Reg. 7/72, dated 1st January, 1973 the competent authority to fix the pay and allowances of the civil post is the present employer and not the Military Accountant, General, that the respondent was entitled to full pay of the civil post under section 17 of the Civil Servants Act and that "any rules or instructions in so far as inconsistent with the provision thereof (section 17) ceased to operate and cannot be availed of for taking away a vested right guaranteed by section 17 itself". Aggrieved, the Federation, the Ministry of Education and the Military Accountant‑General have moved this petition for leave to appeal.

2. It is not denied before us by the learned Deputy Attorney‑General that the respondent had been before the governmentalization of the College, in receipt of the pay of his post in the College in addition to his army pension, and that the same was not in contravention of any rule then in force. Apart from the reasons given by the Tribunal, we find that by. letter No. 104/57/77‑Min‑II, dated 10th September, 1977, issued by the Cabinet Secretariat, concerning the transfer of control and management of the Cantonment and Garrison Schools and Colleges, the pay of the transferred staff was protected in the following words.

1.************************************************

(c) Terms and conditions of service of the transferred staff. --

The transferred staff re erred to in sub‑pares. 1(a) and (b) above will continue to be governed by their present terms and conditions of service.

The terms and conditions of service existing at the time of the governmentalization of the College having been thus protected, the learned Deputy Attorney‑General was unable to show how the respondent could be subjected to rules, which would operate in derogation of that protection. No justification has, therefore, been made out for interference with the order of the Tribunal. The petition is dismissed.

M . Z . M . Petition dismissed.

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