ISLAMIC REPUBLIC OF PAKISTAN THROUGH THE SECRETARY, MINISTRY Of COMMERCE AND LOCAL GOYBRNMEINT (COMMERCE DIVISION), ISLAMABAD vs MAZHAR UL HAQ AND 2 Other

ORDER

1. WAHEEDUDDIN AHMAD, J.-This petition is directed against the Order of the Service Tribunal in Appeal No. 845(K) of 1974. By Order dated 14-1-1977 the learned Tribunal has accepted the appeal of the respondent, and directed that he may be paid the Current Charge Allowance @ 15% of his basic pay.

2. Briefly the facts leading to this petition are that in the year 1953 the respondent was serving as Assistant in the Chief Controller of Imports and Exports Organization. In March 1953, certain officials of the said Organization were directed to discharge the current duties of higher posts on temporary basis. Respondent No. 1, an Assistant, was directed to discharge the current duties of the post of Executive Officer w.e.f. 3-3-1953. Although the C. C. I. & E's. Order dated 3-3-1953 shows that it was a temporary measure, yet it is not disputed that the respondent continued to hold the current duties of Executive Officer from 3-3-1953 to 14-9-1958. This fact is borne out from the notification dated 21- 4-1964 to the effect that respondents Mr. Mazharul Haq held the current charge of the Executive Officer from 3-3-1953 to 14-9-1954. It appears that this notification was cancelled on the pl7a that no post of Executive Officer was available against which the respondent could be accommodated.

3. In 1961 a supernumerary post of Executive Officer was created for the above period with the concurrence of the Financial Adviser concerned. The respondent claimed the current charge allowance from the Department but he was not paid the same. The case of the respondent was referred to the Ministry of Finance (Regulation Wing) but they did not agree to make this payment.

4. They were of the opinion that the additional remunera--petition was not permissible because the combination of the two post was not permissible under the prevalent directions of the Ministry of Finance during 1953-58.

5. The matter was then taken to the Service Tribunal which came to the con--clusion that the case of the respondent is not covered by Fundamental Rule 49. They have also come to the conclusion that during the period 1953, to 1958, according to applicable rules and operative directives, there was no ban on the payment of the current charge allowance. Learned Member No. 1 of the Tribunal further held that the case of the respondent was covered by F. R. 9 (25) and he was entitled to receive additional payment from 3-3-1953 to 14-9-1958 @ 15 % of his basic pay for performing duties of the Executive Officer. According to him, the respondent performed the duties of specially arduous nature with specific addition to responsibility during the above period. The petitioner is aggrieved by this order and seeks permission to file an appeal against it.

6. After hearing the learned counsel for the petitioner, we are satisfied that the order of the Service Tribunal is in accordance with law. The rule apple--cable to the case of the respondent is Fundamental Rule 9(25) which reads as follows :- ---(25) Special pay means an addition, of the nature of pay, to the emolument of a post or of a Government servant granted in consi--deration of

(a) the specially arduous nature of the duties, or

(b) a specific addition to the work or responsibility, or

(c) the un-healthiness of the locality in which the work is performed."

7. As pointed out by the learned Member No. 1 of the Tribunal that a supernumerary post of Executive Officer was created for the period in question. It cannot, therefore, be denied that the respondent was holding an additional charge to his substantive post. In our opinion, he was performing duties of specially arduous nature with specific addition to the responsibility already held by him during 3-3-1953 to 14-9-1953, and therefore, he is clearly entitled to Special Fay as contemplated in the above rule. Mr. Shahid-ul-Haq, the learned counsel for the petitioner contended that the Finance Ministry by O. M. No. 4(6)R. 1/71 dated 23-12-1971, held in abeyance all the provisions in various Rules or general orders w.e.f. 14-12-1971, and, therefore, the respondent is not entitled current charge Allowance. This contention has not impressed us. The period in dispute is from 1953 to 1958.

8. According to the law laid down by this Court, no rule, order or direction, could be made with retrospective effect. Therefore, this direction of the Ministry of Finance cannot be applied to the fact of the present case.