Protection of Pay of Contract Employment Period dated 11.11.2024
OFFICE MEMORANDUM
Subject: Protection of Pay
I am directed to enclose herewith the letter of the Section Officer (SR-II), Government of the Punjab, Finance Department vide No.FD.SR-II/9-35/2021 (Vol-II) dated: 05.11.2024, on the subject cited above, along-with the judgment of Supreme Court of Pakistan dated: 08.07.2024, for information and implementation in letter and spirit.
I am directed to refer to the subject cited above and stated that the contract employees of Higher Education Department & School Education Department who were appointed on contract basis since, 2002 and their services were regularized during the years 2009, 2013 and under the Punjab Regularization of Service Act, 2018. Their pay was fixed on initial of the Basic Pay Scale and increments earned during the contract period were converted into Personal Allowance.
The said employees challenged their protection of pay from time to time in Lahore High Court, Lahore and Punjab Service Tribunal with the prayer that their pay may be re-fixed from the dates of their contract appointments and increments earned during the contract period may be included part of their pay. A one of the case titled “Ms. Parveen Shad and 36 others” filed vide appeal No. 3719/2015. The Punjab Service Tribunal accepted their appeals vide judgment dated 16.04.2018, declaring the appellants entitled to the benefit of pay protection / increments from the dates of their initial appointments as contract employees.
2. Another Appeal No.5002/2021 of Syed Kashif Ali Raza, was also decided by the PST against Order dated 01.03.2022.
3. Against the Order of PST 16.04.2018 in Appeal No.3719/2015 School Education Department / Finance Department filed CPLA in the Supreme Court of Pakistan. The Hon’ble Supreme Court of Pakistan dismissed the CPLA vide Order dated 08.02.2021.
4. In pursuance of judgment dated 08.02.2021 School Education Department and Finance Department filed Review Petition against the impugned judgments of Supreme Court of Pakistan dated 08.02.2021 as well as Punjab Service Tribunal Orders dated 16.04.2018 & 01.03.2022 in the Hon’ble Supreme Court of Pakistan. The Hon’ble Supreme Court of Pakistan allowed the review petition vide judgment dated 08.07.2024. The operative part of the judgment of Hon’ble Supreme Court of Pakistan is reproduced as under:
“It is pointed out that several employees had approached the Punjab Service Tribunal and their grievance was decided through consolidated judgment dated 16.04.2018 but the said judgment was challenged by the Punjab Government in one Civil Petition, which was dismissed. A number of respondents were not heard, therefore, vide orders dated 12.03.2024 and 30.04.2024 of this Court notices were issued to the said respondents. The respondents have been duly represented through their counsel and some of them appeared in person to defend the civil review petition.
For what has been discussed above, we recall our order dated 08.02.2021 and allow the titled civil review petition. As a consequence, the impugned judgment of the Punjab Service Tribunal dated 16.04.2018 is also set aside. The respondents are entitled to the benefit of the increments earned by them during contractual service, which will be treated as Personal Allowance as per clause 6 of the Notification dated 19.10.2009.“
C.P.L.A.1197-L/2022:
For the above reasons, the impugned order dated 01.03.2021 passed in Appeal No.5002/2021 by the Punjab Service Tribunal is set aside. Resultantly, this petition is converted into appeal and allowed.
5. I am, therefore, directed to enclose judgment of Supreme Court of Pakistan dated 08.07.2024 with the request to circulate all the District Accounts Officers & Accountant General Punjab for information and implementation in letter and spirit.
Syed Mansoor Ali Shah, J. – C.M.A.1867/2024 and C.M.A.2583/2024 IN C.R.P.30-L/2021:
Through these applications the applicants seek implement as party in the titled civil review petition No.30-L/2021. For the reasons given therein, the said applications are allowed.
C.R.P.30-L/2021:
2. The question of law before us in the order under review concerns employees appointed on contract basis and subsequently regularized in service: whether benefits/increments earned during the contractual period of service become part and parcel of the pay of the post at the time of regularization. In the first round we held vide order dated 08.02.2021 that the said benefits/increments will become part and parcel of the salary and pay scale.
Titled civil review petition has been filed by the Government of the Punjab against the said order. Learned Additional Advocate General, Punjab (representing the petitioner) pointed out that Clause 6 of the Notification dated 19.10.2009 issued by the School Education Department, Government of the Punjab has been misinterpreted and the question of regularization as held by this Court in various judgments has not been correctly appreciated and placed reliance on Vice Chancellor Agriculture University, Peshawar and others v. Muhammad Shafiq and others (2024 SCMR 527), Deputy Director Food Faisalabad Division, Faisalabad and others v. Muhammad Tauqir Shah and others (2021 SCMR 760) and Province of Punjab through Secretary Livestock an Dairy Development Department, Government of the Punjab, Lahore and others v. Dr. javed Iqbal and others (2021 SCMR 767).
3. Learned law officer argued that against the original post of Elementary School Teacher (“EST”) (Science-Math) as well as, Secondary School Teacher (“SST”), the respondents were appointed on contract basis, and in order to identify that they were appointed on contract basis, the respondents were designated as Science and Math Teachers (“SMT”) and Senior Science and Math Teachers (“SSMT”) and they were to be paid a lump sum salary and their tenure of appointment was initially for a period of one year, which could be extended on the basis of good performance.
The contract appointment of the respondents continued for a period of good nine years starting from the year 2000. In the year 2007 certain increments were given to the respondents under the contract. Subsequently, their services were regularized as EST/SST, however as per Clause 6 of the Notification dated 19.10.2009 issued by the School Education Department, Government of the Punjab, the increments earned by the respondents during their contractual services were recognized and converted into Personal Allowance, which was paid to the employees in addition to the pay of the post of EST and SST.
It is submitted that the claim of the respondents that the said Personal Allowance may be made part and parcel of the pay of the post of EST and SST, is erroneous, in as much as, this Court has already held that regularization is a fresh appointment and takes effect from the date of regularization.
Therefore, the pay of the respondents for the post of EST and SST is to be fixed at the initial stage of the respective pay scale at the date of their regularization. The period of their contractual appointments has nothing to do with the pay of the posts of EST and SST, the respondents have been appointed afresh from the date of regularization, however, considering that the respondents earned certain increments during the contractual period the said amount had been protected and has been converted into Personal Allowance, which shall be paid to the respondents, for the period, as long as, they remain as EST and SST.
4. Learned counsel for the respondents on the other hand submits that the allowance in question has to be part and parcel of the pay and to be included for calculation of pension at the time of retirement.
5. We have heard the arguments of learned counsel for the parties and gone through the record with their able assistance. It has now been settled by this Court that regularization has to be with immediate effect and that regularization means fresh appointment to the post in question. See Vice Chancellor Agriculture University, Peshawar and others v. Muhammad Shafiq and others (2024 SCMR 527), Deputy Director Food Faisalabad Division, Faisalabad and others v. Muhammad Tauqir Shah and others (2021 SCMR 760) and Province of Punjab through Secretary Livestock and Dairy Development Department, Government of the Punjab, Lahore and others v. Dr. Javed Iqbal and others (2021 SCMR 767).
In this case, the respondents who were working as contractual employees against the post of EST/SST, stood regularized in the year 2009 as EST/SST as such their pay is of the pay scale of the post in question on the date of their regularization. However, since they were working for the last nine years on contract basis against the said posts and any increments or benefits given to them under the contract can best be given to them as personal allowance so that their position in any manner is not affected and they are not deprived of benefits given to them over the years under the contractual services.
As per clause 6 of the Notification dated 19.10.2009, the said benefits were protected and the said benefit was converted into Personal Allowance, which shall continue to be paid to the respondents along with the pay of their pay scale but the same will not become part of the emoluments for the purposes of their pension.
6. It is pointed out that several employees had approached the Punjab Service Tribunal and their grievance was decided through consolidated judgment dated 16.04.2018 but the said judgment was challenged by the Punjab Government in one Civil Petition, which was dismissed. A number of respondents were not heard, therefore, vide orders dated 12.03.2024 and 30.04.2024 of this Court notices were issued to the said respondents. The respondents have been duly represented through their counsel and some of them appeared in person to defend the civil review petition.
7. For what has been discussed above, we recall our order dated 08.02.2021 and allow the titled civil review petition. As a consequence, the impugned judgment of the Punjab Service Tribunal dated 16.04.2018 is also set aside. The respondents are entitled to the benefit of the increments earned by them during contractual service, which will be treated as Personal Allowance as per clause 6 of the Notification dated 19.10.2009.
C.P.L.A.1197-L/2022:
For the above reasons, the impugned order dated 01.03.2021 passed in Appeal No.5002/2021 by the Punjab Service Tribunal is set aside. Resultantly, this petition is converted into appeal and allowed.
