2007 PLP (C (PLC(CS))

RANA BHAGWANDAS, J.

Petitioner seeks leave to appeal against judgment, dated 14-3-2001 of the Punjab Service Tribunal (hereinafter referred to as the Tribunal) dismissing her service appeal against the recall/cancellation of order of her appointment as Secondary School Teacher BS-16 in the Education Department.

2. Petitioner was initially serving as Elementary School Teacher in BS-9 in Education Department. Vide offer of appointment-cum-posting order, dated 11-3-1996, she, along with twelve other female teachers, was given an appointment as Senior School Teacher in BS-16 on the basis of 50% of available vacancies and posted in Government Girls Model School Easan, Ferozewala, District Sheikhupura. Later, through office order, dated 6-1-1997, she was transferred to another school in the same District in her own pay and grade. She continued performing her duties smoothly when, all of a sudden, vide office order No.1268/Admn, dated 24-1-2000, earlier order, dated 11-3-1996 at serial No.5 in respect of her appointment was cancelled/withdrawn without any reason. Copy of the order was, inter alia, endorsed to District Accounts Officer, Sheikhupura with a request to stop payment of salary to the petitioner and to work out the amount drawn by her in the capacity of Senior School Teacher in accordance with orders issued by Directorate of Secondary Education, Lahore Division for the purpose of recovery. Petitioner, after availing of departmental remedy, filed service appeal before the Tribunal with the prayer that the respondents be ordered to release and regularly pay her salary with effect ,from January, 2000.

3. Respondent-Education Department contested the appeal on the premise that she was awarded BS-16 inadvertently considering her to be on the strength of District Sheikhupura while she was actually working in District Lahore. Essentially, the respondents want to demonstrate that the petitioner while working in District Lahore could not be appointed against the vacancy reserved for District Sheikhupura.

4. Leaned Member of the Tribunal vide judgment, dated 14-3-2001 dismissed the appeal as without substance holding that the petitioner was at fault by not disclosing the fact that the merit list was meant for Sheikhupura while she had been working in District Lahore.

5. We have heard Syed Sharif Hussain Bokhari, learned Senior Advocate Supreme Court for the petitioner and Miss. Sajida Sohail, Under Secretary, Education Department, Government of Punjab and gone through the record.

6. Appointment of the petitioner to the post of Senior School Teacher in BS-16 vide office order, dated 11-3-1996 is not disputed. It is also not disputed that she actually served against this post in different Girls Middle Schools wherever posted. The fact that the department realized its mistake after about four years would show that petitioner herself was not at fault in procuring the appointment or her posting in different schools in Sheikhupura District by unfair means. By accepting the offer validly made to her by the Department on the basis of her qualification and training in the relevant field, a valuable right had accrued to the petitioner and she could not be made to suffer for the mistake or error of the officials of respondent-Department. Indeed, the offer had been accepted and actually acted upon for almost four years. The case would, thus, be governed by the principle of locus poenitentiae and, in our view, the Department cannot retrace the steps already taken and lawfully acted upon by the petitioner.

7. Be that as it may, presently, grievance of the petitioner is directed against withholding of her salary and demand for recovery of differential of the amount of salary between BS-9 and B-16. In our view, the demand of the Department and direction to the District Accounts Officer is completely misconceived and against all canons of justice. Petitioner having actually served against the post of Senior School Teacher cannot be compelled to accept the salary payable to an Elementary School Teacher in BS-9. At any event, department cannot be permitted to withhold the salary of a serving employee and make her to starve for no fault on her part. This Court has consistently declared in a large number of cases that the payment made to a civil servant in the course of employment, due to inadvertence on the part of the employer, cannot be allowed to be recovered as arrears of salary wrongly paid. In our view, petitioner cannot be legally asked to refund the differential of salary drawn by her of the post against which she had been serving under a valid order. Reservation/allocation of vacancies for a particular District and utilization in another District has no nexus with the case of the petitioner.

8. For the aforesaid facts and reasons, we are of the view that impugned judgment of the Tribunal suffers from misconception of law and misconstruction of the record. We would, therefore, convert this petition into appeal and allow the same with the observation that order, dated 24-1-2000, to the extent of endorsement at S. No.1 in relation to appellant, is declared to be without lawful authority and the petitioner would be entitled to claim her salary in BS-16 till she was lawfully relieved of the office of Senior School Teacher. No order as to costs. M.H./S-72/SC Appeal allowed.