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Appeal No.4(R) of 1984, decided on 5th June, 1986.

‑‑‑Application‑‑Decision of a Court is meant to apply to the facts of a particular case in which it was given and can have but little weight in a case of which facts are different.

P L D 1983 S C 126 ref.

‑‑‑Art. 240‑‑Service of persons in connection with affairs of Federation‑‑‑ Conditions of service, determination of‑‑Conditions of service of persons or posts in connection with affairs of Federation, held, could be determined by an Act of parliament.

‑‑‑Ss. 3 & 17‑‑Civil servants‑‑Fixation of pay scales‑‑None except President of Pakistan or his delegates, if specifically authorized for the purpose, held, would be competent to lay down terms and conditions of service for civil servants, consistent with provisions of civil servants Act, 1973, including those relating to pay, allowance and other fringe benefits‑‑Fixation of pay scales is within competency of President in exercise of his rule‑making powers.

‑‑‑Art. 3‑‑Fundamental principle, "from each according to his ability, to each according to his work" enunciated.

Article 3 of the Constitution makes it incumbent to ensure elimination of all forms of exploitation and gradual fulfilment of the fundamental principle, "from each according to his ability to each according to his work". The civil servants have, therefore, to be paid remuneration for their services. What remuneration such as pay, allowances and other fringe benefits should be allowed to them is not laid down in the Civil Servants Act. Provision in this respect has to be made by way of rules by the President of Pakistan for determination of remuneration for a particular category of a civil servant. Of course, while doing so matters relating to availability of manpower for ordinary as well as technical and specialized cadres, their working and economic conditions and financial resources have to be taken into consideration. Occasions may arise due to financial stringency or some unforeseen circumstances at national level when the State may not be in a position to pay in accordance with the present sanctioned scale of pay. The President would then be perfectly competent and justified as a matter of policy in sanctioning lesser pay scales under the authority conferred on him by the different provisions of law‑‑None else except the President is competent to sanction the scales of pay in exercise of his rule‑making powers. The Tribunal has no jurisdiction to sanction or revise the scales of pay for any category of civil servants.

‑‑S.4‑‑Civil Servants Act (LXXI of 1973), Ss.3 & 17‑‑Appeal before Service Tribunal against fixation of pay scale‑‑Competency‑‑Fixation of pay scale of civil servants being within exclusive jurisdiction of President of Pakistan, no appeal, held, would lie before Service Tribunal against such fixation of pay scale.

Abdul Hakeem Khan for Appellant.

Sardar Muhammad Amir Akbar Khan for State.

Date of hearing: 3rd November, 1985.

‑‑This judgment shall also dispose of 72 others identical Appeals Nos. 7 to 68(R) of 1984 and Nos. 77 to 86‑R of 1984 as common questions of law and facts arise in them.

2. These appeals have been filed against O.M. No. F.1(1)Imp/83 of Finance Division of Government of Pakistan dated 18‑8‑1983 by which the President of Pakistan sanctioned a new scheme, with effect from 1‑7‑1983, of Basic Scales of Pay, Allowances and Fringe Benefits, for Civil employees of the Federal Government whereby the then existing Revised National Scales of Pay were replaced by the new pay scales, known as Basic Scales of pay as shown in the schedule annexed to the said O.M. besides some other changes.

3. The appellants who are Assistants of Ministries and Organizations of the Federal Government have been fixed in Basic Scale of Pay (B‑11) of Rs.700‑35‑1400 in terms of para. (3) of the new scheme, corresponding to Revised National Pay Scale No.11 of Rs.430‑24‑550/28‑830‑30‑980, held by them before the introduction of Scheme.

4. Under para. 7(A)(a) of the new Scheme the Basic Pay Scales indicated in Annexure II to the impugned O.M. were allowed in case of certain posts. Steno typists and Stenographers in Government departments and organizations find a place in said Annexure‑II. Stenotypists who were in NPS‑8 of Rs.370‑16‑514/18‑640‑22‑750 have been allowed B‑12 of Rs.750‑40‑1,550. Stenographers who were in NPS‑11 of Rs.430‑24‑550/28‑830‑30‑980 have been allowed B‑15 of Rs.900‑55‑2000 with 25 posts as selection grade in B‑16 of Rs.1,050‑80‑2,250.

5. A look at the comparative table of pay scales since 1949, as admissible from time to time to the Assistants, Stenographers and Stenotypists have shown that Stenographers have been in lower pay scales as compared with those of Assistants prior to 1962, whereafter they were brought at par with them, whereas the Stenotypists have always been in pay scales lower to theirs till the introduction of Basic Pay Scales.

6. The higher pay scales now allowed to Stenographers and Stenotypists have been made a cause of grievance by the appellants, who claim that by allowing higher pay scales to Stenographers and Stenotypist in the Scheme of Basic Pay Scale their dignity, status and emoluments, have been lowered down from those of Stenographers and Stenotypists by placing the Assistants in Scale 11 and giving Scale No. 15 and 12 to stenographers and Senotypists respectively and thereby the Assistants have been down graded and an anamoly has been created by adversely affecting their terms and conditions of service whereby the Assistants, as a class, have been relegated to a such junior position and have been made to suffer from a recurring loss for all times to come. It was urged that the Assistant as a class enjoyed the right of higher scale of pay than the Stenographers prior to enforcement of Civil Servants Act, 1973 whereafter their terms and conditions were to be governed by the said Act which has not in any way empowered the respondents to alter their salary as compared to Stenographers. It was further argued that the Scheme of Basic Pay Scale contained in the impugned OM. is not only unjust, discriminatory and illegal but also is violative of the constitutional provisions because the rights of drawing higher scale of pay than the Stenographers and Stenotypists were constitutionally vested in them. They pray to be placed at par in pay scales with Stenographers, if not higher.

7. Preliminary objections to the jurisdiction of this Tribunal and maintainability of the appeal have been raised on behalf of the respondents besides contesting the appeal on merit. It has been urged by their counsel Sardar M. Amir Akbar Khan that the decision of the Government in the impugned O.M. is a policy decision and this Tribunal under section 4 of the Federal Service Tribunals Act, 1973 has no jurisdiction to interfere with or modify such a policy decision of the Government. It was further argued that determination by the Government of a scale of pay and other emoluments for a particular category of civil servants is not a condition of service so as to attract interference by this Tribunal. It is non‑compliance of laid down conditions of service by the departmental authorities which calls for action by this Tribunal to set right a wrong done to a civil servant.

8. On merits the case of the respondents, briefly speaking is that before the issue of the impugned O.M. a committee, popularly known as Pay Committee was set up by the President to make their recommendations on pay and allowances for various services after considering various factors. This Committee made their recommendations after due deliberations, which were considered at Presidential level and then a final decision was made as to what scales of pay are sanctioned for various categories of civil servants by the President, which saw light in the shape of impugned OM. An extract from a speach of Finance Minister made on the floor of Majlis‑e‑Shoora was placed on record by the respondents, herein the policy decision of the Government in respect of placing the posts of Assistants, Stenotypists and Stenographers in B‑11, B‑12 and B‑15 respectively was explained. The respondents have placed on record also the charter of duties of assistants as defined under rule 9 of the Secretariat Instructions (1981‑reprint) and those of personal Assistants, Stenographers and Stenotypists as defined in the Establishment Divisions Office Memorandum No.1/60‑XXIII, dated 4th February, 1960 and further clarified vide Establishment Manual Vol.II against S.No.32, Chapter XV pages 148, 149, which according to the learned counsel, go to show that they are entirely of different nature and cannot be compared with each other except that the duties of Assistants are of routine nature but those of Stenographers and Stenotypists are of a specialized nature. As explained by the Finance Minister, Stenographers, and Stenotypists of required competency were not easily available for Government job thus, causing efficiency difficulties in carrying out their public responsibilities in higher tiers of service who normally deal with policy matters. It was with a view to attract and retain competent persons of this category in Government service that higher pay scale have been sanctioned for them, and thus, a conscious decision has been taken in ‑this respect in public interest as a matter of policy.

9. To meet the objection about jurisdiction as also on merits reliance was placed by the appellants on P L D 1983 S C 126, wherein the decision of Punjab Service Tribunal, allowing Readers of the High Court Grade‑16, which had been denied to them to bring them at par with the Readers of the Board of Revenue, was upheld by the Supreme Court. A perusal of judgment of the Punjab Service Tribunal in that case has revealed that the appellants in that case, the Readers of the Lahore High Court had been agitating for their upgradation from NPS‑11 to NPS‑16 and the High Court had recommended their case. The Provincial Government in the Services and General Administration Department as well‑recommended for their upgradation from NPS‑11 to NPS‑16. Both the recommendations were, however, not acceded to by the Secretary Finance of the Provincial Government, who only allowed them NPS‑12. Significantly the appellant in that case (the Readers of the High Court) were not contesting the case on the basis of upgradation of Private Secretaries and Judgment Writers (Stenographers) of the Lahore High Court, but made a grievance that it would be an act of great injustice if the status in the NPS of the Readers of the High Court is not brought at par with the Readers of the Board of Revenue. Also in the operative portion of the decision of the Punjab Service Tribunal it was directed that "the post of Reader of the High Court be upgraded to NPS 16 to bring them at par at least with the Readers of the Member Board of Revenue, while, the appellants in the present case, Assistants in the Ministeries and Organizations of the Federal Government are contesting on the basis of upgradation of other categories of the employees viz. the Stenotypists and Stenographers in Government Departments and Organizations. In our view, therefore, the facts of the present case are different and distinguishable from that case. It is cardinal principle of interpretation of judicial decisions that a decision of Court is meant to apply to the facts of a particular case in which it was given and can have but little weight in a case of which facts are different. The decision of the Supreme Court reported in P L D 1983 SC 126 is, therefore, of no help to the appellants. Even otherwise the question of jurisdiction of the Tribunal on the ground raised before us was not allowed to be raised by the Supreme Court in that case having been raised for the first time before them as it was not raised or argued before the Punjab Service Tribunal. The Supreme Court thus, has not enunciated any law on the point. We have, therefore, to examine its validity ourselves.

10. Article 290 of the Constitution of 1973 says that conditions of service of persons or posts in connection with the affairs of the Federation should be determined by an Act of the Parliament. The Civil Servants Act of 1973 is such an Act which deals with the terms and conditions of service of civil servants of the Federal Government. Section 3 of this Act reads:‑

"The terms and conditions of service of a civil servant shall be as provided in this Act and rules."

Section 25(1) of this Act reads:‑

"The President or any person authorised by the President in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act."

Portion of section 17 of the Act relevant for the proposition before us reads:

"A civil servant appointed to a post or grade shall be entitled, in accordance with rules, to the pay sanctioned for such post or grade."

The above provisions clearly show that none except the President or his delegatee, if specifically authorised for the purpose, is competent to lay down terms and conditions of service for civil servants, of course, consistent with the provisions of the Act, including those relating to pay, allowances and other fringe benefits. Fixation of pay scales is, thus to be done by the President in exercise of his rule‑making powers.

11. Article 3 of the Constitution makes it incumbent to ensure elimination of all forms of exploitation and gradual fulfilment of the fundamental principle, "from each according to his ability to each according to his work". The civil servants have therefore, to be paid remuneration for their services. What remuneration such as pay, allowances and other fringe benefits should be allowed to them is not laid down in the Civil Servants Act. Provision in this respect has to be made by way of rules by the resident of Pakistan for determination of remuneration for a particular category of a civil servant, of course, while doing so matters relating to availability of man power for ordinary as well as technical and specialized cadres, their working and economic conditions and financial resources have to be taken into consideration. It may be stated that occasions may arise due to financial stringency or some unforeseen circumstances at national level when the State may not be in a position to pay in accordance with the present sanctioned scales of pay. The President would then be perfectly competent and justified as a matter of policy in sanctioning lesser pay scales under the authority conferred on him by the different provisions of law discussed earlier in this judgment. The obvious conclusion would therefore, be that none else except the President is competent to sanction the scales of pay in exercise of his rule‑making powers. This Tribunal has no jurisdiction to sanction or revise the scales of pay for any category of civil servants. The appellants in this case thus, actually want this Tribunal to allow them to be paid their pay in accordance with the pay scales sanctioned for selection grade Stenographers, but not for them when they pray that they be allowed B‑16. It is, therefore, not any violation of conditions and terms of their service which has given them any cause for grievance but why others have given better pay, which as we have shown was a policy decision to be regulated by Rules. They are thus, demanding of the Tribunal something which it has not jurisdiction to grant. They are unable to show that any laid down conditions of service legally available to them have been denied

to them. The impugned O.M. having been competently issued in exercise of the rule‑making powers cannot be assailed before this Tribunal on the grounds taken by the appellants. We are also not impressed by the contention of the appellants that by the impugned O.M. they were reduced in rank. Quite obviously, by the impugned O.M. emoluments of the appellants were not reduced, rather, were increased. We, therefore uphold the objection raised in connection with the jurisdiction of the Tribunal in the matter before us on behalf of the respondents.

12. In view of our finding that we lack jurisdiction in the matter we need not discuss other points raised on behalf of the parties. In the result the appeal being incompetent is dismissed as such with no order as to costs.

A.A./358/Lb./S

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