AMJAD HUSSAIN vs SECRETARY, FINANCE DIVISION, MINISTRY OF FINANCE, ISLAMABAD and 2 others
This is an appeal with leave against the judgment of the Federal Service Tribunal, which had dismissed the appellant's claim for fixation and protection of his salary under Fundamental Rule 22, clause A(i) upon his appointment from an Assistant Director (BS-17) in the Pakistan Council of Research in Water Resources to Assistant Scientific Advisor (BS-18) in the Ministry of Science and Technology. The core legal question was whether an employee of a body created by the Government through a resolution retains the status of a civil servant and is entitled to protection of pay drawn in the parent department upon fresh appointment in the Federal Government. The Supreme Court allowed the appeal and set aside the Tribunal's judgment, holding that the appellant retained his status as a civil servant and was entitled to invoke Fundamental Rule 22(A)(i) for salary protection, and that the Government cannot deny rightful salary on technical grounds such as limitation when dealing with a civil servant's remuneration. The key principle laid down is that employees of government-created bodies retain civil servant status, qualify for pay protection under Fundamental Rule 22, and technical objections regarding limitation cannot defeat legitimate salary claims.
- Whether an employee of a body created by the Government through a resolution is entitled to protection of pay under Fundamental Rule 22 upon appointment to a post in the Federal Government?
- Can the Government deny the rightful salary of a civil servant on technical grounds such as limitation?
- Does an employee of the Pakistan Council of Research in Water Resources qualify for pay protection upon recruitment in a Federal Ministry?
- Fundamental Rule 22, clause A(i)
1. ' AJMAL. MIAN, C.J.---This is an appeal with the leave of this Court against the judgment dated 3-5- 1995 passed by the learned Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeal No,33(R) of 1994 filed by the appellant for claiming fixation and protection of his salary under Fundamental Rule 22, clause A(i), dismissing the same.
2. ' The brief facts are that the appellant was working as an Assistant Director in BS-17 in the Pakistan Council of Research in Water Resources when he applied for the post of Assistant Scientific Advisor BS-18 in the Ministry of Science and Technology. It appears that on the recommendation of Federal Service Commission he was appointed as Assistant Scientific Adyisor vide Notification dated 9-12- 1990 issued by the Ministry, of Science and Technology and was placed on probation for a period go one year with effect from 24-11-1990 is initial pay was fixed in BS-18 at Rs,2,..710 whereas he was drawing Rs,3,150 per month in BS-17 in his parent department. He applied to the Ministry of Science and Technology for re-fixation of his pay protecting his earlier pay in BS-17, but the same was declined on the ground that the employees of autonomous body did not qualify for protection of pay on their recruitment in the Federal Government as his above appointment was treated as fresh appointment. Eventually, he filed an appeal before the Tribunal which also failed. Thereupon, the appellant filed petition for leave to appeal, which was granted to consider, whether the appellant was entitled to protection of his above pay particularly keeping in view the cases of other employees similarly placed, namely, Ayyaz, Hamid, Muhammad Saleem, Dr. Abdul Ghani, M.M.
3. Zaffar and Dr. Iltaf which were differently treated and they were given protection to salaries which they were drawing in their parent department.
4. ' In support of the above appeal the appellant has appeared in person and vehemently contended that in view of the judgments of this Court inter alia in the cases of Mrs. M.N. Arshad and others v.
5. Mrs. Naeem Khan and others (PLD 1990 SC 612), Chairman, Pakistan Broadcasting Corporation, Islamabad v. Nasir Ahmad and others (1995 SCM R 1593), Dr. Rashid Anwar v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (1996 SCM R 1572) and in ,recent unreported order dated 3-3-1998 in Civil Petition No, 1134 of 1997 (Secretary, Ministry of Science and Technology and another v. Nasrullah Khan and another), it has now been well-settled that the employees of a body created by the Government through a resolution retain their status as civil servants and that the learned Tribunal erred in holding that the appellant was an employee of an autonomous body and was not entitled to invoke the above Fundamental Rule 22(A)(i).
6. ' Mr. Tanvir Bashir Ansari, learned counsel for the respondents is unable to controvert the above legal position. However, he submitted that the appellant's appeal before the Tribunal was barred by time and there was no plausible reason for the delay as he deliberately wasted time or acted negligently inasmuch as after the dismissal of the departmental appeal, the appellant approached the Ombudsman's office and then filed a review.
7. In our view, the respondents should not raise such technical objection when the question of payment of salary of a civil servant is involved. The salary, which a civil servant is entitled to, cannot be denied on any technical ground. 'On the other hand, it is the duty of the Government to pay the salary as per rules. Since the status of the appellant remained as that of a civil servant in view of the above judgments rendered by this Court, he was entitled to invoke Fundamental Rule 22(A)(i) for protection of his salary which he was drawing in his parent department.
8. ' In this view of the matter, the appeal is allowed, the judgment of the Tribunal is set aside and the respondents are directed to re-fix the salary as above from the date on which the appellant was entitled to draw. There will be no order as to costs.