2026 PLP (C (PLC(CS))

MUHAMMAD NAJAM-UD-DIN MENGAL, J.

The instant Constitutional Petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which carries the following prayer clause: "In the above foregoing submissions, it is most respectfully prayed that this Honorable Court may kindly allow the petition and revised LPC on 17.03.2023 may kindly set aside further court may also restrain the respondents from recovering pre-mature increments from 02.12.2014, Rs.4,36,626/- and leave encashment amounting Rs.2,80,280/-, the best interest of just (sic) and fairplay."

2. Briefly facts expressed in the petition in hand that the petitioner was appointed as JVT in the year 1983 and through successive promotions and up-gradations, he retired in BPS-20 on 11th January 2023. Upon retirement, the respondent No.1 issued Last Pay Certificate ("LPC") on 16th January 2023 correctly reflecting his last pay, but thereafter issued revised LPC dated 17th March 2023; wherein the basic pay was mentioned as Rs.1,55,990/- instead of Rs.1,62,680/-, further in the recovery section of LPC remarks were written as "ROP and all pre-mature increments from 2nd December 2014 Rs.4,36,626/-, ROP of leave encashment amount to Rs.2,80,280/- also be recovered." Feeling aggrieved, the petitioner approached the respondents for redressal of his grievances, but instead of resdressing his grievance, they handed over him the Notification dated 29th December 2022 and relief upon the same. Whereafter, the petitioner invoked the constitutional jurisdiction of this Court.

3. The respondents in their parawise comments submitted that various notifications of the Finance Department dated 2nd January 2008, 27th October 2010, 14th December 2011 and 19th July 2012 had granted time scale incentives to teaching staff. The petitioner had already availed time scale benefits up to BPS-20. Subsequently, Finance Department Notification dated 29th December 2022 clarified that premature increments would not be admissible to those who had already availed higher time scale before upgradation. The Accountant General Balochistan also sought clarification, whereupon Finance Department, vide letter dated 8th September 2022, confirmed that no employee can claim double benefit by way of premature increment, if he had already availed higher time scale. Besides, the revised LPC was issued in conformity with such clarifications and recovery was lawfully calculated.

4. Learned counsel for the petitioner contended that once the LPC was issued upon retirement, the same could not be altered adversely and recovery of amounts already paid during service would cause grave hardship after the retirement to a retired employee; the learned counsel for petitioner mainly agitated upon the principle of locus poententiae and contended that the act of respondents is against the referred principle, finally he urged for setting aside the impugned the impugned LPC dated 17th March 2023 and also prayed for restraining the respondents from recovery of pre-mature increments from 2nd December 2014 Rs.4,36,626/- and leave encashment amounting to Rs.2,80,280/-.

5. While, on the other hand, learned Assistant Advocate General controverted the arguments so advanced by the learned counsel for petitioner and argued that no vested right exists in drawing an unlawful benefit and the Government is empowered to rectify overpayments based on Finance Department clarifications, as such, he agitated for dismissal of the instant petition and maintaining the LPC dated 17th March 2023 and recovery of overpayments from the petitioner.

6. We have heard the learned counsel for the parties and perused the record minutely. The record reflects that the petitioner joined services as JVT in the year 1983 and throughout his successful service and getting promotion and upgradations, lastly after attaining the age of superannuation, he was retired in BPS-20, as such, his Last Pay Slip (LPC) was issued on 16th March 2023, but all of sudden another LPC was issued on 17th March 2023, wherein certain recoveries were made by the respondents. Consequent whereupon, he approached the respondents for correction of the same, whereby he was informed that the department has relied upon the notification dated 29th December 2022.

7. Since it is admitted proposition that government employees are entitled only to such pay, pension and allowances are admissible under law, rules and notifications issued by competent authority. If an employee has received double monetary benefit not sanctioned by law, the National Exchequer is well within its authority to rectify such overpayment. The Finance Department, being the competent authority under Rules of Business, 2012, wherein has clarified, vide Notification dated 29th December 2022 and letter dated 8th September 2022 that premature increments are not admissible where an employee has already availed higher time scale.

8. The bare perusal of record reflects that petitioner had already reached BPS-20 through time scale before upgradation. In such circumstances, his case falls squarely within the clarification that disallows further premature increment. Thus, the revised LPC issued on 17th March 2023 was in consonance with the Finance Department's clarification.

9. It is well settled principle of law that any benefit/allowance wrongly extended to a civil servant due to some misunderstanding, error, misconception of law or without sanction of competent authority, such benefit/allowance cannot be claimed in perpetuity under the doctrine of locus poenitentiae principle, as such, perpetual rights cannot be gained on the basis of an illegal order. Any such benefit, being contrary to law, rules or policy, cannot be claimed as a perpetual entitlement. The applicability of locus poenitentiae must always be assessed in light of the peculiar facts and circumstances of each case, rather than applied indiscriminately or in a blanket manner. Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. Reliance in this regard can be placed on the judgment of Hon'ble Supreme Court of Pakistan in the case of "Shakeel Ahmed Zaidi and others v. Secretary, Higher Education, Government of Punjab, Lahore and others (2021 SCMR 474)", for facilitation the relevant portion thereof is reproduced hereinbelow: "

8. We are therefore clear in our minds that only where lawful orders have been passed by an authority having the power to do so under the relevant law and a person bona fide receives a benefit under the said law without any positive action on his part, such beneficiary can claim a right under the exception to the principle of locus poenitentiae and claim that the benefit bona fide received by him by virtue of an a lawful order passed by the competent authority (which at the relevant time and for its duration till its withdrawal was lawfully passed by an authority competent to pass such order) cannot subsequently be recovered by virtue of the protection available under the exception to the aforesaid rule.

9. In the instant case, the basic requirements which are sine qua non for the exception to the principle of locus poenitentiae being attracted namely issuance of a lawful order by the competent authority is missing. Further, we are not convinced that despite clear and unambiguous language of the notification, the Appellants were unaware that they were being paid an allowance to which they were not lawfully entitled and was being paid on the basis of a notification which was not applicable to them. We are therefore of the view that the High Court had valid reasons and lawful justification to hold that the Appellants had a right not only to stop further payment of the allowance but also recover the same in easy instalments from the Appellants so as not to overly burden them financially"

10. Similar view has also been taken by the Hon'ble Apex Court of the country in the case titled as "Syed Azam Shah v. Federation of Pakistan through Secretary Cabinet Division, Cabinet Secretariat, Islamabad and another (2022 SCMR 201)", wherein it has been held as under: "This Latin phrase is connected with contractual law which expresses an opportunity to withdraw from a contract or obligation before it is completed but in our comprehension, there is no hard and fast rule that if some benefit was wrongly extended due to some misunderstanding, error, misconception of law or without sanction of competent authority, that act should be treated so sacred and sacrosanct which could not be withdrawn to retrace or redo the wrong decision or action under the guise of locus poenitentiae principle. A wrong benefit extended beyond the scope of law and rules/policy cannot be claimed in perpetuity or eternity hence the applicability of this doctrine depends on the circumstances of each and every case and cannot apply universally or randomly without adverting to the merits of each case in its peculiar circumstances. In the case of Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin (PLD 1992 SC 207), this Court held that the order under which the payment was made had no sanction of law. Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. In the case of (Contempt proceedings against Chief Secretary, Sindh and others) (2013 SCMR 1752), it was held that if the order is illegal then perpetual rights cannot be gained on the basis of an illegal order.

11. In the present case, while the petitioner retired recently and recovery of substantial amounts may indeed cause hardship, the amounts were drawn without lawful entitlement. The petitioner's claim to retain such benefit cannot be upheld. Nonetheless, in order to mitigate hardship, the respondents may recover the said amounts in easy installments, spread over a reasonable period, instead of lump sum deduction, if not deducted earlier. For the reasons discussed hereinabove, this petition stands dismissed. However, with the direction that recovery of Rs.4,36,626/- and Rs.2,80,280/- from the petitioner shall be effected in easy monthly installments, so as not to cause undue hardship to the retired employee. The petition is disposed of accordingly. MQ/158/Bal. Order accordingly.