KHUDA DAD KHAN Versus MILITARY ACCOUNTANT-GENERAL
MUHAMMAD IRSHAD KHAN (MEMBER).‑ The relevant background giving rise to the present appeal is that the appellant joined the Army in 1949 and rose upto the position of Junior Commissioned Officer till July, 1967, when he applied for a post of lecturer in Cantonment Board College, Kharian, in response to an advertisement in the newspaper. He was selected for the post and joined his new assignment on the Ist of September, 1967. Thereafter, the institution, in which he was serving, was taken over by the Federal Education Ministry resulting in governmentalizing of his services with effect from I st June, 1975. He then applied to his new employer for counting of his military services towards the civil pension. His request was not acceded to. Aggrieved thereby he filed an appeal, before this Tribunal, being No. 75 (R) of 1979 which was dismissed by it vide its order, dated the 4th December, 1980 holding that his Army services cannot be counted for civil pension. On the other hand. he was being allowed full pay of the civil post held by him in addition to his Army pension until it was ordered in June, 1981 by the Command Controller of Military Account `that the Army pension of the appellant should be deducted from the pay of his civil post with effect from 1st July, 1981 and that the amounts drawn by him on account of the Army pension prior to July, 1981, should be recovered from him. He filed a departmental appeal to the Military Accountant‑General which too was rejected as conveyed to him, vide M. A. G. Office letter, dated 28th December, 1981. He then pre ferred the present appeal on 26th January, 1982 before this Tribunal challenging the legality of the impugned decision on a number of grounds and praying for a direction to the respondents not to deduct his Army pension from his civil pay.
2. A preliminary objection on behalf of the respondent‑department was raised that the appeal is barred by limitation. As stated above, however, the appellant has filed the present appeal within 30 days of the communication of the appellate order to him. The appeal is, therefore, well in time and the objection of the respondent‑department, in this behalf, is overruled.
3. Contesting on merits also it was mainly contended on behalf of the Respondent No. 1, the Military Accountant‑General, that when the facts of non‑deduction of the Army pension from the appellant's pay of his civil post came to the notice of the C. M. A., Rawalpindi, some time in 1981, the appellant's pay was re-fixed with effect from 1st February, 1977 deducting his Army pension from his pay in pursuance of Finance Division O. M. No. F‑4(7)‑Reg. 7/72, dated 1st January, 1973 read with rule 526 of the Civil Service Regulations which reads as under :‑
"526. (a) When a person formerly in military service obtains employment in the civil department after having been granted a military pension, he shall continue to draw his military pension but the authority competent to fix the pay and allowances of the post in which he is re‑employed shall have, power to take into account the amount of pension, including such portion of it as may have been commuted.
(b) A military officer, departmental officer, warrant or non‑commissioned officer or soldier who is granted a pension under military rules while he is in civil employ, shall draw such pension while he is in civil employ, but the authority competent to fix the pay and allowances of the post in civil‑ employ, may, with effect from the date from which the pension is granted, reduce such pay and allowances with reference to such officer or soldier by any amount not exceeding the amount of such pension."
4. A bare perusal of the above provisions makes it abundantly clear that the authority competent to order deduction of his Army Pension is the authority competent to fix the pay and allowances of the Post in civil employment. In other words the order of such deduction could only be issued by his present employer and not by the office of Respondent No. 1. Therefore, the impugned decision, having been taken incompetently and, without any lawful authority, is liable to be struck down on this score alone.
5. Be that as it may, however, on merits also it is to be seen that section 1.7 of the Civil Servants Act, 1973, entitles a civil servant to the pay sanctioned for the post held by him. This is quite obviously guaranteed and vested right which cannot be curtailed by any Office Memorandum of the Finance Division or for that matter by the Rules even, for an added reason that the theory of State bounty no longer holds thee 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 perform ing 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.
6. In view of the foregoing the appeal is accepted, the impugned decision is set aside and it is directed that there shall be no deduction from the present pay of the appellant on account of his Army pension. The amount deducted already, if any, should be refunded to the appellant.
7. There shall be no order as to costs.
A. E. Appeal dismissed.