Law:

Section:

2017 P L C (C.S.) 1418

SINDH HIGH COURT, LARKANA BENCH

Constt. Petitions Nos. D-655 and D-656 of 2014, decision date: 20-04-2017, heard on: 22-02-2017.

PRESENT:
NAZAR AKBAR, JUSTICE
MUHAMMAD SALEEM JESSAR, JUSTICE

RAB NAWAZ OTHERS
VS
PROVINCE OF SINDH THROUGH SECRETARY EDUCATION AND LITERACY DEPARTMENT OTHERS

Petitioners Nos.1, 2 and 8 in Person (in Constt. Petition No. 656 of 2014).
Abdul Hamid Bhurgri, Addl. A.G. assisted by Mrs. Kalpana Devi, Asstt. A.G. for Respondents.

THIS JUDGMENT PASSED BY: MUHAMMAD SALEEM JESSAR, JUSTICE:---.--- 





By this common judgment we propose to dispose of both the petitions, as common question of law and facts are involved in these petitions.



2. The case of petitioners in Constt. Petition No. D-655/2014 is that petitioner No. 1 Rab Nawaz Tunio was appoint as Lecturer in BPS-17 on 27.3.1974 and on reaching maximum pay scale was given move over in BPS-18 on 01.07.1983, then he reached to maximum scale on 01.12.1987 and the respondents had not allowed him annual increments in the years 1988, 1989 and 1990; subsequently he was promoted in BPS-18 on 01.07.1991, when the scales were revised in year 1991, therefore his pay was re-fixed and annual increment in BPS-18 was given to him for 1991. He reached to maximum scale in BPS-18, therefore, he was awarded move over in BPS-19. Again he reached to maximum scale of BPS-19 on 01.12.1997 and his next increment was due on 01.12.1998, which was not given to him. Later, his move-over was regularized as duly promoted to BPS-19. The respondents denied him move over to BPS-20 and allowed him personal pay as per new policy of the Government at the rate of Rs.385/- per month, which was equal to annual increment. As such due to non releasing of annual increment of BPS-18 for three years i.e. 1988, 1989 and 1990 and one increment of BPS-19 in the year 1988, his pensionary benefits were affected adversely.



3. Petitioner No. 2 Ghulam Mustafa was appointed as Lecture in year 1978, and when he reached to maximum scale of BPS-17 he was given move over to BPS-18 in 01.12.1989 and was regularly promoted to BPS-18 on 01.07.1991, and on reaching maximum scale of BPS-18 he was awarded mover over to BPS-19 w.e.f. 01.12.1992 and when he reached to maximum pay scale w.e.f. 01.12.1997, his increments were stopped for three years i.e. 1998, 1999 and 2000 and subsequently in 2001 mover over was given to employees was withdrawn as such petitioner No. 2 was again treated as officer of BPS-18, where his pay was re-fixed accordingly and he was not found entitled for further increments because of closer of his maximum scale, as such he did not receive increment for year 2001. However, in 2002 scales were revised and petitioner was promoted to BPS-19 in 2002, therefore, his increment in grade BPS-19 started from 2002 and again reached to maximum scale in year 2005, thereafter the respondents instead of awarding grade 20 gave him personal pay for Rs.565/- per month, which was equal to the increment of BPS-19. As such due to non-payment of four increments in BPS-19, the pensionary benefits of the petitioner were calculated excluding the increments for said year. Therefore, in absence of incriminates from his service benefits for every months, every year and even after retirement were adversely affected though he is entitled to be dealt with equally, but he has been discriminated.



4. Petitioner No. 3 Abdul Karim was appointed as Lecturer on 10.12.1976 and when he reached to maximum scale of BPS-17 he was awarded mover over by the respondents w.e.f. 01.07.1983 and he again reached to maximum scale of BPS-18 on 01.12.1987, therefore, he was not given annual increments for years 1988, 1989 and 1990. Then the petitioner was promoted to BPS-18 in 1991 and his pay was re-fixed in same grade as per new scales, therefore, he received annual increment for the year 1992 and when he reached to maximum scale BPS-18, he was awarded move over to BPS-19, whereas he again reached to maximum pay scale of BPS-19 on 01.12.1997, he was not paid annual increments for years 1998, 1999 and 2000, thereby he was not given three increments of BPS-18 and three increments of BPS-19, which has adversely affected his monthly, yearly and further pensionary benefits.



5. The case of petitioners in Constt. Petition No. D-656/2014 is that petitioner No. 1 Muhammad Mithal was appointed as SET/HST on 20.01.1971; subsequently he was allowed selection grade BPS-17 on 02.12.1988. Thereafter, he was promoted in BPS-1 on regular basis w.e.f. 31.5.1994 and then was awarded BPS-18 by way of move over on 01.12.1995 and then was promoted in BPS-18 w.e.f. 31.5.2001 and lastly retired from services on 12.07.2002. However, when he was in BPS-17, his annual increment was due on 01.12.1994, but same was not given to him for the reason that he was reached on maximum stage/scale; subsequently when he reached in maximum scale of BPS-18 on 01.12.1997 his annual increments were due on 01.12.1998 to 2000 but he has not been given annual increments by the respondents for three years i.e. 1998, 1999 and 2000, thereafter the respondents allowed regular promotion to him in BPS-18 on 31.05.2001 and in the meantime the government revised pay scales therefore pay of petitioner was re-fixed and as per new scales he was drawing increments of BPS-18 till his retirement, which had taken place w.e.f. 12.7.2002, the respondents have not yet given him one increment of BPS-17 and three increments of BPS-18, which has affected his pensionary benefits, so also monthly pension.



6. Petitioner No. 2 Abdul Rauf in C.P. No. D - 656 of 2014 was appointed as Assistant Master on 13.11.1964; subsequently he was promoted as C.T Teacher on 15.12.1966, again was promoted as Senior School Teacher (untrained) on 21.10.1969, thereafter he was promoted as Senior English Teacher/HST (trained) on 18.10.1970 and he was awarded BPS-17 (non-gazetted) on 02.12.1986 which subsequently was regularized by regular promotion and same grade on 15.4.1993 and was posted as Head Master and when he reached to maximum pay scale of BPS-17 on 15.4.1993 his annual increment was due on 01.12.1993, which was not given to him due to maximum scale he was awarded i.e. BPS-18 by way of move over on 01.12.1994 but again in same grade when he reached to maximum pay of BPS-18 on 01.12.1996, neither he was promoted nor was upgraded by way of move over nor respondents gave him annual increments for years 1997, 1998 and 1999. The respondents instead of releasing his annual increments awarded his regular promotion in BPS-18 on 13.3.2000 but he has already reached to maximum pay scale again, therefore respondents gave him BPS-19 through move over on 01.12.2000 and subsequently the respondents changed their policy and all the officers, who were working on the basis of move over in senior pay scale, the respondents withdrawn their mover over and they were directed to continue their official grade as result whereof the petitioner become officer of BPSD-18; however on 02.12.2002 he was given BPS-19 on the acting charge basis and in the meantime, district Kamber-Shahdadkot @ Kamber came into existence, thereafter, he served remaining portion of service and was posted as District Officer (Elementary) on 01.6.2005 and lastly on attaining age of superannuation was retired w.e.f. 01.4.2006 but while calculating the pensionary benefits of the respondents have not included/ calculated one increment of BPS-17 due on 01.12.1993 and three increments for years 1997-1998 and 1999 though petitioner is not at any fault and such act of the respondents has affected pensionary benefits as well as his monthly pension.



7. Petitioner No. 3 Qalandar Bux in C.P. No. D-656 of 2014 was appointed as Junior School Teacher on 04.11.1964; subsequently he was promoted as High School Teacher on 20.01.1977, then was allowed selection grade BPS-17 on 14.3.1990 and thereafter instead promoting him in BPS-17 on regular basis, the respondents allowed him move over in BPS-18 on 01.12.1995 as he reached on maximum scale of BPS-17. However, to regularize the promotion steps the respondents promoted him in BPS-17 on 08.12.1998 when petitioner was again reached on maximum pay scale of BPS-18 in year 1998 and then has not been given annual increments for the years 1999 and 2000 and meantime when the government revised the pay scales in year 2001, his pay was re-fixed on the basis of new pay scales and onwards annual increments were given to him he was lastly promoted in BPS-18 on 31.5.2005 and thereafter retired from his services on 07.8.2005 but the respondents have not yet given annual increments to petitioner for years 1999 and 2000, which has adversely affected pensionary benefits for no fault on the part of petitioner and respondents cannot deny the annual increments to petitioner for technical reasons.



8. Petitioner No. 4 Jamil Ahmed in C.P.No. D-656 of 2014 is that he was appointed as HST on 15.6.1971 and ultimately was awarded selection grade in BPS-17 and then was given regular promotion in BPS-17 on 20.4.1993 and when he reached to maximum pay scale of BPS-17 he was given move over in BPS-18 on 01.12.1995 and again when reached maximum pay scale BPS-18 and his annual increment was due on 01.12.1998, same was not given to him and due to such reason the second increment in BPS-18 was again due on 01.12.1999 but again annual increment was not given to him and thereafter he was allowed regular promotion in BPS-18 on 13.3.2000 and his 3rd increment was due on 01.12.2000 but same was again not given to him but he was allowed mover over in BPS-19 w.e.f. 01.12.2000. However, in 2001 when Government revered pay scales, pay of petitioner was re-fixed as per new pay scale and then onwards annual increments were given to him and subsequently he was allowed regular promotion in BPS-19 on 28.5.2008 and he retired from services on 22.12.2008 and at the time of his retirement the annual increments for years 1998 and 1999 have affected his pensionary benefits, so also monthly pension.



9. Petitioner No. 5 Muhammad Azam in C.P. No. D-656 of 2014 was appointed as HST on 16.10.1968; ultimately he was given selection grade-17 on 30.10.1988 and regular promotion in same grade on 10.10.1992 and when he reached to the maximum pay scale in BPS-17 he was allowed move over in BPS-18 on 01.12.1993. On 01.12.1995 he reached to maximum pay scale of BPS-18 and his annual increment was due on 01.12.1995 but same was not given to him for years 1996, 1997, 1998 and 1999; however he was promoted to BPS-18 on regular basis w.e.f. 13.3.2000 and then in 2001 when pay scales were revised his pay was re-fixed and was drawing onwards increments from 2001. Lastly, he was promoted in BPS-19 on 08.5.2008 and retired from service on 14.6.2009. However, the respondents while calculating his pensionary benefits have deprived him for his annual increments for four years, which affected his pensionary benefits and monthly pension.



10. The case of petitioner No. 6 Ali Hassan in C.P.No. D-656 of 2014 is that, initially he was appointed as Junior Clerk on 25.9.1962; subsequently was appointed as HST on 13.8.1973 but his service was calculated for purpose of pensionary benefits. However he was given selection grade on 15.3.1990 and regular promotion in BPS-17 was given to him on 12.4.1995 when he reached to maximum pay scale, therefore, he was allowed mover over in BPS-18 on 01.12.1995; subsequently in BPS-18 he reached to maximum scale of 18 grade on 01.12.1998 when his annual increment was due on 01.12.1999 and then on 01.12.2000 same was not given to him; however he was promoted in BPS-18 on regular basis on 30.5.2001 and retired on 22.6.2001 in same grade, as such he claims two increments for years 1999 and 2000 and recalculation of pensionary benefits for past and future.



11. The petitioner No. 8 Ali Akbar in C.P.No. D-656 of 2014 was appointed on 29.10.1964; subsequently was appointed as HST with length of service protection for the purpose of pensionary benefits and ultimately the respondents awarded him regular promotion in BPS-17 on 12.4.1995, when he reached at maximum pay scale of BPS-17 he was allowed move over in BPS-18 w.e.f. 01.12.1995. During his service in BPS-18 he reached at the maximum scale on 01.12.1998 and his annul increment was due on 01.12.1999, which was neither given to him nor was promoted for next higher grade till he expired during service on 05.2.2001, as result thereof two increments for years 1999 and 2000 were not given to him, which have affected pensionary benefits of his widow and children.



12. We have heard the petitioners in person; learned Addl. A.G. on behalf of respondents and have perused the material made available before us.



13. The petitioners contended that due to non-payment of four increments in BPS-19 the pensionary benefits of the petitioners were calculated excluding the increments for said years and occurred benefits for every month, every year and after retirement though they were entitled to be dealt with equally but were discriminated. The petitioners approached to District Accounts Officer, who advised them to contact Secretary to Government of Sindh, Finance Department for redress of their grievance. The petitioners submitted respective applications along with their requisite documents to the Secretary, Finance Department, but till filing of the present petitions, their applications have not been entertained. The petitioners further argued that respondents always denied the right of increments to the petitioners by referring 3rd paragraph of notification dated 28.3.2001; copy of said notification is annexed with the file as annexure-"A" at page 17. It would be conducive to reproduce contents of the notification, which reads as under:



No. FD (SR-I)-3 (2)/2000



Government of Sindh

Finance Department

Karachi, dated the 28-03-2001.







From: Fazal-ur-Rehman,

Secretary to Government of Sindh.



To,



1. The Chief Secretary to Government of Sindh.

2. The Additional Chief Secretary (Dev.) to Government of Sindh.

3. The Senior Member, Board of Revenue, Sindh.

4. All Administrative Secretaries to Government of Sindh.

5. The Secretary to Governor Sindh, Karachi.

6. The Secretary to Provincial Assembly Sindh.

7. All Commissioners in Sindh.

8. All Heads of Attached Departments in Sindh.

9. The Registrar, High Court of Sindh, Karachi.

10. All Regional Heads of Departments, Sindh.

11. All District and Sessions Judges in Sindh.

12. All Deputy Commissioners in Sindh.

13. The Registrar, Sindh Service Tribunal, Karachi.

14. The Secretary, Sindh Public Service Commission, Hyderabad.



Subject: GRANT OF USUAL INCREMENT IN THE YEAR OF RETIREMENT.



Sir,



I am directed to refer to the subject noted above and to state that under Rule-11 of the Sindh Non-Gazetted Civil Service National Scale of Pay 1972 and Rule-7 of Sindh Gazetted Civil Service National Scale of Pay Rules, 1974, annual increment falling due on the 1st day of December following the completion of at least six months service; Civil Servants retiring from service between 2nd June and 30th November were not entitled to the benefit of annual increment.



2. It has been decided that a retiring civil servant shall be entitled to the usual annual increment, for the purpose of calculation of his pension only, on completion of six months service in the year of his retirement, irrespective of due date of 1st December following the completion of six months.



3. The above decision shall be effective from the calendar year 1998. No claim of pension/ commutation prior to 01.06.1998 will be entertained.



Your obedient servant



Sd/-

(Tahir Khushid)

Deputy Secretary (SR-I)

For Secretary to Government of Sindh



14. The petitioners further submitted that the respondent No. 2 vide his letter dated 06.3.2008 circulated to all heads of departments to the effect that the Government of Sindh has been pleased to withdraw/cancel para 3 of the said notification (ibid) and no specific condition in respect of release of increments for specific period/periods has been provided. The copy of the said circular is available at annexure-"B" page 25, which reads as under:



No. FD (SR-I)-3 (2)/2000



Government of Sindh

Finance Department

Karachi, dated the 6-03-2008.



From:



MUMTAZ-UR-REHMAN,

Secretary to Government of Sindh.



To,



1. The Additional Chief Secretary to Government of Sindh (All).

2. The Senior Member, Board of Revenue, Sindh.

3. Administrative Secretaries to Govt. of Sindh (All).

4. The Members, Board of Revenue, Sindh (All).

5. The Principal Secretary to Governor Sindh, Karachi.

6. The Secretary to Chief Minister, Sindh, Karachi.

7. The Secretary to Provincial Assembly Sindh, Karachi.

8. The Heads of attached Departments Sindh (All).

9. The Regional Heads of Department, Sindh.

10. The District and Sessions Judges, Sindh (All).

11. The Registrar, High Court of Sindh, Karachi.

12. The District Coordination Officer in Sindh (All).

13. The Registrar, Sindh Public Service Commission, Hyderabad.

14. The Secretary Provincial Ombudsman Secretariat, Sindh, Karachi.

15. The Registrar, Sindh Service Tribunal, Karachi.

16. The Deputy Secretary (Staff) to Chief Secretary, Sindh, Karachi.



Subject: GRANT OF USUAL INCREMENT IN THE YEAR OF RETIREMENT.



I am directed to refer to this department's circular of even number dated 28.03.2001 and to state that the Government of Sindh, Finance Department has been pleased to withdraw/ cancel para-3 of the circular referred above.



Sd/-

(Makhdoom Shakeel-uz-Zaman)

Deputy Secretary (SR.II)

For Secretary to Government of Sindh



15. Subsequently, the respondent No. 2 issued an Office Memorandum dated 21.11.2006, copy of which is available as annexure "C" at page 29 of the petition by referring following paragraph:



Government of Sindh

Finance Department.



No. FD/SR-I/1(123)/06



OFFICE MEMORANDUM.



Subject: REMOVAL OF ANOMALIES.



I am directed to refer this department's O.M. No. FD(SR-I)1-32/05, dated 14th July, 2005 and to state Anomaly Committee constituted under Finance Division, Government of Pakistan has examined the two Anomalies in Pay Revision Rules, 2005 and given its recommendations. In the light of the recommendations, the following decisions/ clarifications are issued for guidance/ necessary action:
























 

16. The petitioners further submitted that above clarification made by the respondent No. 2 are not supported by law and its creation is of their sweet will; therefore is discriminatory and has infringed upon the valuable rights of the employees/ civil servants, hence same being un constitutional and is in violation of constitutional provisions, as such bar is derogatory and is not tenable. They further submitted that the respondent No. 2 again issued office memorandum dated 24.7.2007, stating therein that annual increments sanctioned as personal pay w.e.f. 01.12.2005, to be treated as part of pay of scales of government servants for all purposes, as such there is no bar to allow annual increments w.e.f. 01.12.2006 and 01.12.2007 subject to prescribed conditiors so long the employee remains in existing pay scale. Per their arguments such office memorandum is also unsupported by the law, discriminatory and is derogatory, therefore, is ultra vires and is liable to be struck down. Photocopy of such memorandum dated 24.7.2007 has been annexed with the petition as annexure "D" at page 33. They further stated that every civil servant on completion of his service at the end of every calendar year become entitled to earn one annual increment as matter of right and if he reaches on maximum pay scale, he had been granted move over to next higher scale, so that he may have annual benefit of increment. The respondents/ government stopped granting move over to the employees, resultantly the employees/ civil servants protested by making representation and then the government allowed them annual increments by naming it as personal pay for all purposes including pensionary benefit. While granting benefit of increments the respondents have imposed a bar that same can only be granted from 01.12.2005 and denied to those who had attained maximum of pay scale prior to 01.12.2005 and in this way they are being victimized for no fault on their part and thereby the employees are suffering due to poor performance of government functionaries. As such action of the respondents tantamount to punishment to the civil servants, for which there is no compensation. They further submitted that denial of increment by the respondents is in violation of the fundamental rights of the employees as annual increment is not a bounty of State but is a vested right of the employee, which cannot be denied. Therefore, the petitioners have impugned the memorandum dated 21.11.2006 and 24.7.2007, praying that they being illegal, in excess of authority and unconstitutional may be quashed. Finding no fruitful response from the respondents and availing all the opportunities having no alternate or efficacious remedy, the petitioners have filed instant petition before this Court for seeking following relief: 



 

(a) Declare that the impugned office memorandum dated 21.11.2006 and 24.7.2007 are illegal, unsupported by law, in excess of authority, ultra vires and discriminatory, thus are unconstitutional and in operative.