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Appeal No. 482(R) of 1984, decided on 17th March, 1987.

‑‑Ss.17 & 25‑‑Office Memo. No. F.4(7)‑Reg.7/72 dated 1st January, 1973‑‑Civil Services Regulation, Regln., 8.526‑‑Induction of Army Officer into civil service‑‑Deduction of Army pension from civil pay whether permitted‑‑Rules and office memo. have been given statutory recognition under S.25 of Civil Servants Act, 1974‑‑All the Rules framed before enforcement of Civil Servants Act, held, would be deemed to be the Rules framed under the Act, provided such rules are not inconsistent with provisions of the Act itself‑‑Army pension of retired Army Officer could not be deducted from his pay which he is to draw in a civil post to which he is appointed.

1984 P L C (C.S.) 870 rel.

‑‑S.17‑‑Words "in accordance with the Rules" occurring in S.17 of Civil Servants Act, 1973‑‑Connotation‑‑Words in accordance with the Rules, in S.17 of Civil Servants Act, held, do not refer to such rules which place a clog on the right of a civil servant to get full pay of a post‑‑Such words, however, refer to the Rules made for fixing pay of a civil servant and the pay which is sanctioned from time to time for a particular post.

‑‑S.4‑‑Civil Servants Act (LXXI of 1973), S.17‑‑Army pension of retired Army Officer whether deductible from his pay while appointed to a civil post‑‑Army pension, held, would not be deductible from the pay of Army Officer while appointed to a civil post‑‑Deduction of Army pension from pay of retired Army Officers, while appointed to a civil post was declared to be unlawful act by Service Tribunal in its appellate jurisdiction.

Dr. G.S. Khan for Appellant.

Muhammad Amir Akbar Khan for the State alongwith Aftab Mahmood and Farooq Ahmad Khan.

Date of hearing: 16th. March, 1987.

‑‑This order will also dispose of appeal No. 487 (R)/84 by Muhammad Yaqoob Mohmand Lt.‑Col. (Rtd.), because the question involved in both the appeals is the same, namely whether an Army Officer on induction into civil service after retirement from the Army is entitled to full pay of the Dost to which he is appointed without deduction of the pension.

2. Leaving out the unnecessary details, the facts of the cases are that both the appellants, who retired as Lt‑Col. from the Army, were inducted into civil service. Fazal Akbar was first inducted in Police Group as D.‑I.G. , but thereafter he was taken in the Secretariat Group with effect from 18‑9‑1977. He was ordered to retire from the Army by order dated 13‑11‑1979, with effect from 20‑11‑1979. While fixing his salary in the civil service, his pension amounting to Rs. 1,622 was deducted which action was challenged by him on coming to know of a case decided by this Tribunal in Appeal No. 20(R)/82 by one Khuda Dad Khan, a retired Subedar, wherein the Tribunal had held that the pension of the retired officer of the Army could not be deducted from his pay in the civil post to which he is appointed. After some unsuccessful representations, the claim of the appellant was finally rejected on 14‑11‑1984, and as a result, he was constrained to file the present appeal before us on 5‑12‑1984.

3. Lt. Col. Muhammad Yaqoob Mohmand was retired from the Army on 1‑12‑1977. He was appointed to the Tribal Area Group prior to his retirement. His Army pension was also being deducted from his civil pay and as a result he too made representations and his claim was finally rejected on the same date, i.e. 14‑11‑1984, whereafter the present appeal was filed on 11‑12‑1984.

4. On behalf of the appellants, it was argued that the Army pension could not be deducted from the pay of an officer who has been inducted into civil service for the reason that section 17 of the Civil Servants Act (LXXI of 1973) envisages the payment of full salary of the post. In this connection, reliance was placed on a decision made by this Tribunal in Appeal No.20(R)/82 by one Khuda Dad Khan, who, after retiring as a Junior Commissioned Officer from the Army, was inducted as a Lecturer in the Cantonment Board, and thereafter when the Colleges and the Schools of the Cantonment Boards were taken over by the Ministry of Education, he was made regular employee of the Federal Government. In his case also when the pension was deducted from his salary, he agitated the matter and then filed an appeal before the Tribunal. The Tribunal in its judgment, which is reported as 1984 PLC (C.S.) 870, accepted his claim that his Army pension could not be deducted from his salary. The reasons are given in para. 5 of the order of the Tribunal, which read as follows: ‑

"Be that as it may, however, on merits also it is to be seen that section 17 of the Civil Servants Act, 1973, entitles a civil servant to the pay sanctioned for the post held by him. This is quite obviously a guaranteed and vested right which cannot be curtailed by any Office Memorandum of the Finance Division or for that matter by any Rules even, for an added reason that the theory of State bounty no longer holds the field. Needless to say that on enactment of section 17 ibid 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. This being the legal position, the appellant is entitled as of right to receive the full pay of the civil post being held by him. Simultaneously, he is entitled to his Army pension separately and independent of the remuneration of his civil post. After all the Army pension was granted to him for the services rendered by him in the Army and that has nothing to do with the remuneration due to him for performing the function and discharging the duties of his civil post. The irresistible conclusion would, therefore, be that any deduction on account of his Army pension from the appellant's pay of the civil post being held by him is unwarranted and unlawful."

5. The decision of the Tribunal in Khuda Dad Khan's case was taken in appeal to the Supreme Court by the Federation of Pakistan but the said Court upheld the decision of the Tribunal and dismissed the appeal. The Supreme Court, while not disagreeing with the reasonings of the Tribunal, further observed that when Khuda Dad Khan was first taken in the Cantonment Board service, his pension was not being deducted and that since his appointment under the Federal Government was under the same terms and conditions of service, he was entitled to draw pension in addition to civil pay.

6. It appears that the order of the Supreme Court was examined in the Ministry of Finance as also in the Justice Division. The former was of the view that the decision of the Supreme Court applies to the circumstances of Khuda Dad Khan's case only, who had first been inducted in the service of the Cantonment Board and then was absorbed in the service of the Federal Government on the same terms and conditions which were governing his service in the Cantonment Board. The Ministry of Finance was further of the view that the Tribunal's decision that Army pension could not be deducted from the civil pay on induction of an Army Officer was not approved by the Supreme Court and it decided the case in favour of Khuda Dad Khan for the additional reason aforesaid. The Justice Division, however, opined that the decision of the Tribunal has been approved by the Supreme Court and that it should be followed in other identical cases also. Despite the advice of the Justice Division, the present two appeals were contested and it has been reiterated that the decision of the Supreme Court in Khuda Dad Khan's case was not applicable in the present cases, because no special terms of service were offered to the appellants like the one offered to Khuda Dad Khan on the transfer of his service from the Cantonment Board to the Federal Government.

7. We are unable to accept the contention of the learned counsel for respondents that the Supreme Court has not approved the finding of the Tribunal that because of section 17 of the Civil Servants Act pension earned by an employee from the Army cannot be deducted from his civil pay. It was again agitated that section 17 ibid itself lays down that the pay of the post is to be fixed according to the rules and that since the existing rules i.e. C.S.R. 526 read with Office Memo. No. F.4(7)‑Reg.7/72, dated the 1st January, 1973 govern the cases of the like nature and the said Rule and the Office Memorandum have been given statutory recognition under subsection (2) of section 25 of the Civil Servants Act, 1973, under which all Rules, etc. framed before the enforcement of the Civil Servants Act, are deemed to be the rules made under that Act. This contention would hold good only if the rules in force prior to the enforcement of the Civil Servants Act are not inconsistent with its provisional. The Tribunal's view which was not disapproved by the Supreme Court was that any rule reducing the pay of a civil servant would be ultra vires the provisions of the Act, and as such is not saved thereunder. The learned counsel for respondents again argued that the Rule and Office Memo referred to earlier, are not inconsistent with the provision of section 17 of the Civil Servants Act, because that section itself provides that a civil servant appointed to a post shall be entitled to the pay of the post in accordance with the rules. In our opinion, the words "in accordance with the rues" do not refer to such rules which place a clog on the right of a civil servant to get full pay of a post. These words, in fact, refer to the rules made for fixing the pay of a civil servant and the pay which is sanctioned from time to time for a particular post.

8. For these reasons and for the reasons that the Supreme Court has upheld our decision in the case of Khuda Dad Khan, we are firmly of the view that the Army pension of the appellants cannot be deducted from their pay which they are to draw in the particular civil posts to which they are appointed.

9. The result is that we accept both these appeals and direct that the Army pension of both the appellants should not be deducted from their pay of the posts and any deduction which has already been made, be refunded to them immediately.

10. Parties to bear their own costs and be informed accordingly.

A.A. /368/Lb. /S

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