FINANCE DIVISION through Secretary Versus MUHAMMAD ASLAM
This matter concerns civil petitions for leave to appeal against a judgment of the Federal Service Tribunal, which held that the respondents, police personnel in the Telecommunication Wing of the Islamabad Capital Police, were entitled to special pay/allowances under paragraph 15 of the Finance Division's Notification dated 4-9-2001. The petitioner argued that the respondents were ineligible for such allowances and contended that the respondents' original appeals before the Tribunal were time-barred. The Supreme Court observed that the petitioner failed to raise the factual premise regarding the nature of the respondents' posts or the limitation issue before the Tribunal. The Court held that since the Department did not raise the limitation point in its parawise comments or during arguments before the Tribunal, it could not be agitated at the appellate stage. Finding no question of law of public importance under Article 212(3) of the Constitution of Pakistan 1973, the Court dismissed the petitions and refused leave to appeal, affirming the Tribunal's decision on the merits.
- Can a plea of limitation be raised for the first time in an appeal before the Supreme Court if it was not raised before the Service Tribunal?
- Does the failure to raise a factual premise in the grounds of a petition preclude the petitioner from arguing it during the hearing?
- What constitutes a question of law of public importance sufficient to warrant interference under Article 212(3) of the Constitution of Pakistan 1973?
- Article 212(3), Constitution of Pakistan 1973
ORDER
1. TASSADUQ HUSSAIN JILLANI, J .---This order shall dispose of Civil Petition Nos. 1158 and 1159 of 2009 as both are directed against the same consolidated judgment.
2. Seeks leave to appeal against the judgment dated 26-3-2009 passed by the Federal Service Tribunal vide which respondents' appeals (Inspector and A.S.-I. working in Telecommunication Wing of the Islamabad Capital Police) were allowed anti it was held that in terms of paragraph 15 of the Notification issued by the Finance Department dated 4-9-2001, they were entitled to the special pay/allowances.
3. Learned Law Officer does not find cavil with the import of paragraph 15 referred to above but submits that the respondents would not be allowed the benefit of the said paragraph as they were not working in the Telecommunication Wing of the Islamabad Capital Police. He further submitted that the appeals filed by the respondents before the Service Tribunal were hopelessly time-barred but the learned Trial Court did not advert to this aspect and allowed the same. He added that the objection with regard to the limitation is a question of law and can be raised at any stage and it was for the Court to decide it in accordance with law declared by this Court.
4. Learned counsel for the respondents No. 1 in both cases have defended the impugned judgment by submitting that respondents have all along been working in the Telecommunication Wing of the Islamabad Capital Police; that the special allowance in question was rightly given to the posts against which respondents were working and they continued to draw the same till the year 2003, which is indicative of the fact that even the departmental construction accorded to the Notification dated 4-9-2001 reflected that the relevant paragraph of the same was 15 so far as the respondents are concerned and not paragraph 9 which learned Law Officer is trying to canvass. He lastly stated at the bar that the respondents have served and still continue to serve in the Telecommunication Wing of the Islamabad Capital Police.
5. We have heard learned Law Officer and learned counsel for the respondents and also have gone through the impugned judgment.
6. The moot point before the learned Tribunal was the import of two paragraphs of the Finance Department's Notification bearing No. F.1(5) Imp/2001 dated 4-9-2001, which reads as follows:--
2. "Government of Pakistan
3. Finance Division
4. (Regulation Wing)
5. * * * * *
6. No. F.1 (5) Imp/2001
7. Islamabad, the 4th September, 2001
OFFICE MEMORANDUM
8. Subject: REVISION OF BASIC PAY SCALES AND FRINGE BENEFITS OF CIVIL EMPLOYEES (BPS 1-22) OF THE FEDERAL GOVERNMENT (2001)
9. The President has been pleased to sanction, with effect from 1st December 2001, a Scheme, as detailed below, of the Basic Pay Scales, Allowances and Pensions, 2001 for the civil employees of the Federal Government in BPS 1 to BPS 22 paid from the civil Estimates and from the Defence Estimate respectively as shown in the following paragraphs.
PART I - BASIC PAY SCALES AND ALLIED MATTERS
2. Basic Pay Scales.-The existing basic pay scales and the revised basis pay scales are shown in Annexure-I to this O.M. The revised basic pay scales shall be effective from 1st December, 2001.
3. Discontinuation of Allowance . The following allowances shall cease to be payable on introduction of the revised pay scales w.e.f. 1-12-2001.
(i) Cost of Living Allowance to BS 1 to BS 22 @ 7% of basic pay.
(ii) Ad hoc relief of Rs. 300/- p.m. and Rs.100 p.m. to BS 1 to 16 (inclusive of BPS- 17 by virtue of Move Over).
(iii) Secretariat / Personal Allowance.
4. Special Additional Allowance .-Special Additional Allowance sanctioned vide Finance Division O.M. No. F.1(7) Imp/99 dated 23rd July, 1999 shall be frozen at the level drawn as on date of issue of this O.M.
5. Initial Fixation of Pay .-(1) Pay of the employees in service on 30-11-2001 shall be fixed at the stage in the revised pay scales which is as many stages above the minimum as the stage occupied by him above the minimum of the 1994 Basic Pay Scale.
5. Pay Fixation on Promotion .- (2) The existing provisions regulating fixation of pay in case of promotion from lower to a higher post shall continue to apply.
6. Selection Grade and Move Over .-Selection Grade in the scheme of Basic Pay Scales and Move Over scheme shall stand discontinued w.e.f. the date of issue of this O.M.
7. Pay Fixation of employees in Selection Grade and those who have Moved over to higher scale .-Pay of an existing employee drawing pay by move over shall be fixed with reference to the pay scale of the post for the time being held by him. In case the employee was drawing pay in a Selection Grade, his pay will be fixed in the Selection Grade pay scale. The stage of fixation will be arrived at after allowing increments on notional basis in the original scale of the post or the Selection Grade, in 1994 Basic Pay Scales, upto the point of existing pay. Pay of the employees will then be fixed at the relevant stage in the revised pay scales 2001.
EXAMPLE - I
10. Assistant, BS-11 Selection Grade, BS-15, Moved Over BS-16 and in receipt of Pay of Rs. 5490 Pay will be fixed in BS-16 i.e. Selection Grade Pay Scale at Rs. 8320 as under:--
11. 1994
12. Stage 15
13. Stage 16
14. Stage 17
15. Stage 18
16. Stage 19
17. Scale
18. 4845
19. 5022
20. 5199
21. 5376
22. 5553
23. 2001 Scale
24. 7260
25. 7525
26. 7790
27. 8055
28. 8320
EXAMPLE - II
29. Pay fixation of an employee in BS-11 who has moved over to BS-14 and is in receipt of basic pay of Rs. 4480/- will be fixed after allowing notional increments in BS-11 of 1994 Basic Pay Scales upto the stage of basic pay drawn. Pay in revised BPS-11 will be fixed at the correspondent stage of Rs. 6790/- as under:
30. BS-11: 1994 Pay Scale
31. Stg 15 3465
32. Stg 16 3581
33. Stg 17 3697
34. Stg 18 3813
35. Stg 19 3292
36. Stg 20 4045
37. Stg 21 4161
38. Stg 22 4277
39. Stg 23 4393
40. Stg 24 4509
41. BS-11: 2001 Pay Scale
42. 5215
43. 5390
44. 5565
45. 5470
46. 5915
47. 6090
48. 6265
49. 6440
50. 6615
51. 6790
EXAMPLE - III
52. Pay fixation of an employee in BS-5 who has moved over to BS-11 and is in receipt of basic pay of Rs. 3465 will be fixed after allowing notional increments in BS-5 of 1994 BPS upto the stage of basic pay drawn. Since basic pay of Rs. 3465 is beyond the 30 stages in notional BS-5, (1994 BPS) and resultantly more than the 30 stage of BPS 2001, therefore, his pay will be fixed at the notional 32nd stage i.e. at Rs. 5300. The difference of Rs. 200 (Rs. 5300-5100) will be personal to him as under:--
53. BS-5
54. Stage-30
55. Stage-31
56. Stage-32
57. 1994
58. 3380
59. 3446
60. 3512
61. BS-5
62. 5100
63. 5200
64. 5300
65. 2001
66. In such cases future increments upto a maximum of 3 years will also be allowed as personal to such employees.
8. Date of Increment .- Annual increment shall continue to be admissible subject to the existing conditions, on the 1st December each year.
9. Special Pays/Allowances for offices :- The Special Pays/ Allowances sanctioned to the offices as percentage of Pay shall be discontinued on the introduction of revised pay scales w.e.f. 1-12-2001 and adjusted in future increments.
10. Advance Increments .- The existing scheme of advance increments is discontinued w.e.f. 1-12-2001. A fresh scheme, if any, will be introduced` in due course.
11. Conveyance Allowance .- The rates of Conveyance Allowance and Motorcycle/Motor car maintenance allowance presently fixed with reference to pay drawn shall be increased and related to Basic Pay Scales as follows:
67. Sr. No
68. Existing
69. Revised
70. (i)
71. Government servants drawing pay in BS-16 (Gazetted) and above and maintaining motor car not registered for commercial purpose. Rs. 355 P .m.
72. BS-16 (Gazetted) & above Rs. 620 P .m.
73. (ii)
74. Government servants drawing pay of Rs. 3240 per month and above other than those at (i) above Rs.193 p.m.
75. BS 11 and above Rs.340 P .m.
76. (iii)
77. Government servants drawing pay of Rs. 1688 p.m. and above but less than Rs. 3240 p.m. and maintaining Motor cycle/Scooter. Rs.130 p.m.
78. BS 1-10 Maintaining Motor Cycle/ Scooter Rs.230 p.m.
79. Others. Rs. 96 per month
80. BS 1-10 Rs.170 p.m.
12. Daily Allowance .- Daily Allowance rates presently fixed with reference to pay drawn shall be increased and related to Basic Pay Scales as under:--
BPS
81. Special Rates Per day (Rs.)
82. Ordinary Rates Per day (Rs.)
83. 1-4
84. 110
85. 80
86. 5-11
87. 120
88. 100
89. 12-16
90. 200
91. 180
92. 17-18
93. 350
94. 320
95. 19-20
96. 450
97. 400
98. 21-22
99. 550
100. 450
13. Medical Allowance .- Medical Allowance to employees in BS 1-16 shall be increased from Rs. 90 p.m. to Rs. 160 p.m.
14. Computer Allowance .- The Computer Allowance shall be increased subject to the existing conditions of admissibility as under:
101. Existing Rate
102. Revised Rate
103. Rs. 500 p.m.
104. Rs. 750 p.m.
105. Rs. 1000 p.m.
106. Rs. 1500 p.m.
15. Special Pays/Allowances .- All the Special Pays and Allowances admissible on certain POSTS as percentage of Pay are revised subject to the following limits:
107. Revised
108. (a)
109. Special Pays/Allowances
110. On existing rates sanctioned 20% and above of subject to a maximum
111. Pay. of Rs.2000 p.m.
112. (b)
113. Special Pays/Allowances sanctioned
114. On existing rates
115. 10% - 19% of Pay. subject to a maximum of Rs.1500 p.m.
116. (c)
117. Special Pays/Allowances sanctioned
118. On existing rates
119. @ 5% - 9% of Pay. subject to a maximum of Rs.1000 p.m.
16. Pension .- The Government has made the following reforms in pension/commutation scheme w.e.f. 1-12-2001 in respect of civil pensioners of Federal Government including civilian paid. from Defence Estimates as well as retired Armed Force Personnel.
(a) Commutation Table shall be replaced by the new Commutation Table at Annexure-II to this Office Memorandum.
(b) Commutation upto 40% of gross pension shall be admissible at the option of the pensioner.
(c) The additional benefit of 2% - 10% for extra years of service after completion of 30 years of qualifying service in respect of Civil Pensioners shall be discontinued.
(d) The increase in pension @ 20% - 25% to Civil Pensioners allowed vide this Division's O.M.No. 4(1)-Reg. 6/99 dated 23-7-1999 shall be discontinued.
(e) The benefit of restoration of surrendered portion of pension in lieu of comutation/gratuity shall be withdrawn.
(f) In future, the increase in pension to the pensioners shall be allowed on net pension instead of gross pension.
(g) All the pensioners shall be allowed an increase in net pension (inclusive of dearness increases allowed in the past) as follows:--
120. `Increase in net pension
121. (i)
122. Pensioners who retired prior to the introduction of 1991 Basic Pay Scales.
123. 15%
124. (ii)
125. Pensioners who retired prior to the introduction of 1994 basic Pay Scales but on or after the Introduction of 1991 Pay Scales.
126. 10%
127. (iii)
128. Pensioners who retired on or after the introduction of 1994 basic Pay Scales and upto the date of introduction of revised Basic Pay Scales of i.e. 1-12-2001.
129. 5%
17. Option : - (a) All the existing civil employees (BPS 1 to 22) of the Federal Government shall within 45 days from the date of issue of this office memorandum, exercise an option in writing, addressed to the Audit Office concerned in the case of employees in BPS 16 and above and to the DDO concerned in the case of employees in BPS 15 and below, either to draw pay in the existing Basic Pay Scales of 1994 or in the Revised Basic Pay Scales and pension/ commutation scheme 2001 as specified in this O.M. Option once exercised shall be final.
(b) An existing employee as aforesaid, who does not exercise and communicate such an option within the specified time limit, shall be deemed to have opted to continue to draw salary in basic pay scales of 1994 and Pension/Commutation as per existing formulae.
18. The government servant who will retire w.e.f. 1-7-2001 shall be given the benefit of revised pay scales on presumptive basis discounted by 5% increase in pension if availed, subject to the condition that all those who may like to avail this benefit should opt for the entire package i.e. revised schemes of Basic Pay Scales as contained in Part-I and revised package of pension as contained in Part-III of this O.M.
19. All existing rules/orders on the subject shall be deemed to have been modified to the extent indicated above. All existing rules/ orders not so modified shall continue in force under this scheme.
20. Anomalies : An Anomalies Committee shall be set up in the Finance Division (Regulations Wing) to resolve the anomalies if any, arising in the implementation of this Office Memorandum.
130. (sd.)
131. (Abdul Rauf Malik)
132. Joint Secretary
133. All Ministries Divisions/Department"
7. According to the Tribunal, the paragraph applicable to the respondents was paragraph 15 which clearly indicates that the special allowance was available to the posts against which respondents were working. Learned Law Officer laboured hard to bring home the point that the respondents were not working against the posts of technical nature and therefore, the technical allowance was not available to them. However, this ground based on factual premise was never raised in the grounds of petition filed before this Court and he has not referred to any other document to support the premise on which he has tried to built-up his case. So far as the question of limitation is concerned, the Department neither took up this point in the parawise comments submitted before the Tribunal nor it was raised during arguments. That being so, the impugned judgment deciding the matter on merits, is unexceptionable. Learned Law Officer has not raised any question of law of public importance within the meaning of Article 212(3) of the Constitution to warrant interference. The petitions lacking in merit are accordingly dismissed and leave refused.
134. M.H./F-11/SC Petition dismissed.