Constitutional Petition No. 718 of 2020
filed by Mr. Biaizeed Khan Kharoti v The Chief Secretary & Others
Last hearing on 14-09-2020 and Judgment Announced on 21-10-2020
JAMAL KHAN MANDOKHAIL, CHIEF JUSTICE
Petitioner Point of view regarding Grant of Cash Award
The petitioner is aggrieved from orders No.F.D.SO(B&A)III-47/2020/ dated 10th July, 2020 and 13th July, 2020 respectively, pursuant to which, the Government of Balochistan has granted cash award of four months full pay along with admissible allowance including (house requisition allowance) to the officers/officials of the Finance Department, two months to the officers/officials working in the Governor’s House, officers/officials of the Planning & Development Department, officers/officials of the Balochistan Provincial Assembly Secretariat and MPA hostel, officers/officials of the Chief Minister Secretariat and officers/officials of the Chief Secretary’s office. The petitioner has arrayed sixteen departments as respondents, out to whom, the respondents No.2 to 8, 14 and 16 have been deleted vide order dated 30-7-2020. On behalf of rest of the respondents, the learned AAG submitted para wise comments along with relevant documents and copy of the Balochistan Government Rules of Business and Balochistan Delegation of Financial Powers and Re-appropriation Rules, 2019.
The petitioner argued the matter personally and stated that granting cash award to the officers/officials is an excess of an authority by the Government. He added that the Government has exercised power under the Balochistan Delegation & Financial Powers and Re-appropriation Rules, 2019 (the Rules, 2019), illegally by misinterpreting the word cash award. He stated that as per these rules the cash award can be paid to employees for discharge of duties beyond their normal call of duty and by performing extraordinary special tasks, but there is no evidence on the record to believe that the officers/officials were entitled for the cash award. He stated that budget making is the normal duty of the officers/officials of the Finance Department, therefore, the officers/officials of the Finance Department and its attached departments were not entitled for the cash award, but they were awarded the same illegally. He added that the officers/officials of rest of the departments have otherwise no concern with the preparation of the budget, therefore, they on this score were not entitled for the cash award, but it was granted to them by the Government illegally.
Government Point of view regarding Grant of Cash Award
The learned AAG and the Secretary Finance, Government of Balochistan opposed the contention and stated that a Summary was submitted before the Chief Minister Balochistan, who is the competent authority under the Rules 2019 and the Balochistan Government Rules of Business to grant the cash award. They stated that the competent authority after considering the fact that activity of budget making is pain stacking, warranting extra time and energies. According to them, the process of budget making was continued beyond the official working hours and some time it continued during the notified holidays, therefore, the officers/officials of all the notified departments discharged their duties beyond normal call of duty and completed special task of preparation of the budget in time. The learned AAG and the Secretary Finance contended that after approval of the Summary by the competent authority, it was endorsed
by the Provincial Cabinet in its meeting held on 20-06-2020, where-after, as cash award was approved. In the end, they added that budget making is a process in which several departments are involved, therefore, all the officials of the relevant departments were granted cash award according to their contribution, therefore, no illegality, irregularity or misuse of authority has been committed.
The Government of Balochistan with prior approval of the Governor made the Rules, called the Balochistan Government Delegation of Financial Powers and Re-Appropriation Rules, 2019 (the Rule 2019). Rule 2 (1) (c) of the Rule 2019 defines cash award as under:
“Cash Award means the amount paid to an employee with the approval of the Authority specified in Column-3 of the Second Schedule, Part-I, at the rate determined by such Authority for discharging duties beyond normal call of duty and on account of accomplishment of the extra-ordinary, special tasks etc.”
The Chief Minister in exercise of power under the Rules 2019, granted cash award to the officers/officials of the selected departments as award for budget making, after approving a summary submitted to him by the Secretary Finance, in the month of June 2020, which is reproduced herein below,
FINANCE DEPARTMENT GOVERNMENT OF BALOCHISTAN
SUMMARY FOR THE HON’BLE CHIEF MINISTER BALOCHISTAN
Subject:- GRANT OF “C AS H AWA RD” AS R EW ARD T O T H E OFFICERS/OFFICIALS OF FINANCE DEPARTMENT AND OTHERS ENGAGED IN BUDGET MAKING PROCESS DIRECTLY OR INDIRECTLY ON ACCOUNT OF PREPARATION OFBUDGET 2020-21.
As per Balochistan Budget Manual-1987, Budget Cycle consists of seven phases, which keep engage all staff of the Finance Department in official duties throughout the year in general and beyond normal working hours during last six months of the financial year in particular, for reparation of (Development/Non- Development) budget of the province. All the staff of Finance Department mad utmost efforts by working double shifts in addition to their routine work in order to prepare Annual Budget-2020-21 well in time for presentation before the Provincial Cabinet and Provincial Assembly.
2. Furthermore, staff of Finance Department remained in touch with the concerned officials of all Administrative Departments for seeking Reconciled Expenditure, Budget Estimates 2020-21 and Revised Estimates 2019-20, and New Expenditure (Recurring & non-Recurring). Besides, this Finance Department has also carefully prepared Indicative Budget Ceiling figures and the same has been conveyed to all Administrative Departments which further helped and ensured the financial discipline and accuracy in finalization of Annual Budget 2020-21 well in time
3. It is also worth to mention here that since the outbreak of Covid-19 the staff of Finance Department continuously carried out their official responsibly even at the risk of suffering from fatal contagious viral disease. During the emergency period, staff of Finance Department played the role of front line workers and remained present all the time at their place of duty. A part from the preparation of Annual Budget 2020-21 the staff of Finance Department remained vigilant to release the funds to the concerned departments on time to combat (Covid-19).
4. It is pertinent to mention here that the survey reports of international fiscal institutions have categorically reported that organizations where better financial incentive are provided to its employees, there will be better performance and low corruption ration in comparison with other low paid organizations. More so, annual cash award as a reward to employees for their hectic work during preparation of annual budget has been in practice, not only in Balochistan but also in Finance Division Federal Government and sister Provinces
5. In view of efforts made by staff of Finance Department working in double shifts in addition to their routine work enabled the Government to present Annual Budget 2020-21 before Provincial Assembly. So, they deserve to be rewarded in terms of cash money on part of Government to encourage them
6. It is, therefore, proposed that the Competent Authority may grant (i) reward of Four salaries in the form of “Cash Award” equal to pay of the July 2020 with all admissible allowances (including House Requisition) in pursuance of Rule 45(1)(b) Schedule-V-III, Part-A(15) of Rules of Business-2012 and in relaxation of financial powers and re-appropriation rules 2019 FR-34 (ii) to the Officers/Officials of Finance Department, P&D Department, Chief Minister’s Secretariat, Chief Secretary Office, Office of Finance Minister and attached employees working in Finance Department. Furthermore, (ii) Two month’s gross pay with all admissible allowances may be approved in favor of Officers/Officials of Provincial Assembly Secretariat, Governor’s Secretariat, Printing Press, Bureau of Statistics, Cabinet Section S&GAD and attached employee of Chief Minister’s Secretariat, Governor’s Secretariat, Chief Secretary Office, P&D Department and fixed sum to other selected officials who contributed significantly in budget preparation 2020-21 (F/A)7.
Approval of the Hon’ble Chief Minister Balochistan is solicited to the proposal contained at Paras 6/n of the Summary, please.”
In the Summary it is stated that some time, the officials performed their duties in double shifts. Be that as it may, a question arises, as to what was the cause of not completing the budget within the stipulated office working hours. Even if it is believed that the officer/officials of the Finance Department performed their duties beyond the official office timing, at the best, they could have demanded an honorarium, which is permitted by Rule 2(1)(0) of the Rules 2019, which is reproduced herein below,
“Honorarium means a recurring or non-recurring payment equal to one month’s basic pay granted to a Government servant with the approval of the Authority specified in Column-3 of the Second Schedule, from general revenue as remuneration for a work which is occasional in character and either so laborious or of such special merit as to justify a special reward”
The grounds mentioned in the Summary for the approval of cash award do not fulfill the criteria laid down in the definition of cash award mentioned in the Rules 2019.
بجٹ بنانا محکمہ خزانہ کا معمول کا کام ہے ، جو صدیوں سے چل رہا ہے۔ ایسے حالات میں ، مجاز اتھارٹی نے منتخب محکموں کے افسر / عہدیداروں کو نقد ایوارڈ دے کر قانون کی غلطی کی ہے۔ حکومت عوامی خزانے کی نگہبان ہے اور مجاز اتھارٹی کو قانون کے مطابق اپنی صوابدید کا استعمال کرنا چاہئے ، جو کہ معاملے میں نہیں ہے ، جیسے ، منتخب کردہ تمام محکموں کے افسر / عہدیداروں کو نقد انعام دینے کے احکامات دائرہ اختیار کے بغیر ہے ، لہذا غیر قانونی ہے۔
Hon’able Chief Juctice Mr. Jamal Khan Mandokhail finaly decided as under:-
Thus, in view of above, the petition is allowed. The orders impugned passed by the respondents, granting cash award to the officer/officials of the selected departments are set aside. If the cash amount is drawn by any of the officer/officials, the same be recovered and to be deposited in the Government’s Accounts.
عدالت عالیہ بلوچستان نے اپنی اِس تاریخی فیصلے میں مختلف محکموں کے ملازمین کے ساتھ امتیازی سلوک کو غیرمنصفانہ ، غیرقانونی اور اختیارات سے تجاوز اقدام قرار دیا ہے۔ اور مخصوص ملازمین اور مخصوص محکموں کو ملنے والی کیش ایوارڈ کی وصول شدہ رقم کو واپس سرکاری خزانے میں جمع کرانے احکامات صادر فرما دیے ہیں۔