2009 PLP (C (PLC(CS))

ZUBDA-TUL-HUSSAIN, J.

Thirty-nine (39) candidates, including the petitioner, were appointed as Patwaries in BPS-5 by the Cholistan Development Authority through letter No.CDA-87/968-1023, dated 11-5-1987. While specifying the method/mode of payment of salaries it was observed that the salary was to be charged to the Head 512-Land Management (Land Records and Colonization) Land Record District charges for the years 1986-87 which arrangement was seemingly extended on yearly basis. The salary of some of the appointees was, however, charged from the funds and budget of the C.D.A. In relation to the officials who were paid from the funds/budget of the Director Land Records certain deductions such as the G.P. Fund, Benevolent Fund etc. were regularly made. Subsequently, however, (consequent upon the devolution plan) the budget provisions were also revised and the charge under the Head 512-Land Management (Land Records and Colonization) Land Record District charges from which the petitioner and other Patwaries were being paid the salary was omitted and discontinued. Resultantly, the C.D.A. started payment of salaries to these Patwaries from its own budget.

2. According to the petitioner, the original arrangement of payment of salary from the budgetary allocation of Director Land Records, including pensionary contribution as such had developed an expectancy to the petitioner of being entitled to the pension and other benefits at the time of his superannuation. It also somehow occurred that the seniority list of those employees who received salary from the budget of the Director Land Records was prepared separately from the other Patwaries of the C.D.A. Thus, the grievance of the petitioner is two-fold:-- (i) The cessation of the facility of G.P. Fund, Benevolent Fund and pension has adversely and unlawfully affected his rights; and (ii) As a result of the aforesaid cessation, preparation of a combined seniority list is unlawful.

3. The learned counsel for the petitioner has argued that once the salaries of the petitioner etc. having been charged from the budget of the D.L.R., it could not be recalled or changed to the detriment of the petitioner. According to the learned counsel, the terms and conditions of payment of salary through the budget of D.L.R. head attained finality and as such action of the respondents for taking the petitioner and others on the common roll of the C.D.-A. was hit by the principle of locus poenitentiae. It has also been argued that the petitioner and others had an understanding for a liason between the two departments from the very inception of their service which had been disturbed unlawfully. Similarly the learned counsel has also asserted that once a separate seniority list was prepared the merger of the petitioner etc. and preparation of common seniority list in the C.D.A. was also unwarranted and unlawful.

4. The basic and hard reality which perhaps the petitioner and other similar employees may never wish to realize or press into service is that they were recruited in the service by the C.D.A. as the employees of the C.D.A. and were never absorbed in or placed on the roll of or as the employees of the M.B.R./D.L.R. The very appointment order produced and relied upon by the petitioner is sufficient to show that the petitioner and the other similar employees were recruited by the C.D.A. as its own employees. They always worked as recruitees/employees of the C.D.A. The D.L.R. provided the source and mode of payment of salary which was only a financial arrangement settled or made for disbursement of salaries. Thus, the petitioner and other similar employees were always the employees of the C.D.A. and the only lien they had with the D.L.R./M.B.R. was for the purpose of their pay and salary as the expenditure was to be charged from the head allocated to the D.L.R.

5. Payment of salary alone does not determine the hierarchy of the employees. If by way of some mutual settlement the two departments or institutions which are also under the administration and financial control of the same Government, had chalked out an arrangement for payment of salaries from the budgetary provisions against different heads it could not by itself mean that the payees had become the employees of the institution/department from the budget of which salaries were being disbursed to them. Their status has to be determined by the nature of their appointment.

6. The law has provided various modes of appointments to civil service. Section 4 of the Punjab Civil Servants Act, 1974 provides that appointment to a civil service of the Province or to a civil post in connection with the affairs of the Province, shall be made in the prescribed manner by the Governor or by a person authorized by him in that behalf. Pursuant to section 4 the matters in relation to appointment and conditions of service have been dealt with in the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. The study of the said Act and the Rules framed thereunder shows that the appointment to a civil service can be made by initial recruitment or by promotion, transfer or deputation. A person appointed by initial recruitment or by promotion if transferred or deputed to any other office/department retains his lien with the parent department as is admissible under the Rules and it is terminated only by the competent authority in accordance with law/Rules. After transfer or deputation such an employee unless absorbed in the department to which he has been transferred or, deputed continues to be the employee of his parent department and it is lawful for the competent authority to seek his repatriation to the parent department/office.

7. What follows from the above is that the transfer or deputation from one department to another does not by itself create a vested right in favour of the transferred or the deputed official to claim his employment with the latter department/office before his absorption in such department. As already observed, it is a hard fact and undeniable reality that the petitioner and the similar employees were recruited by the C.D.A. as its own employees. They were never absorbed in the office of the Director Land Records/Board of Revenue nor their lien was ever terminated from the service of C.D.A. Another important factor to be kept in view is that the budget under the head from which the petitioner etc. were paid salary was issued on yearly basis which by itself is sufficient to show that the petitioner and others as such had no permanent place in any office other than the C.D.A. Payment or drawal of the salary from a specific head was only budgetary arrangement to meet the requirements of the C.D.A. and its employees. As soon as the provision of budget in the said head for payment of salary to the petitioner etc. was discontinued, they ceased to have any opportunity to receive the salary from the erstwhile head of account. The arrangement naturally reverted back to the C.D.A. and it was for the C.D.A. then to manage the budget and funds for the payment of salary to the petitioner.

8. As the service of the petitioner and the similar employees was for all intents and purposes under the auspices of the C.D.A. the deductions, if any, made from their salaries did not create a vested right in them for the same over and above the service rules of the C.D.A. It is very simple that when there was Ito budget in a specific head the question of payment of salary and making deductions therefrom did not arise. It is also questionable whether the deductions of G.P. Fund etc. could validly and compulsorily be made from the salary of the petitioner etc. who were not the employees of the department from the budget of which department they were getting pay because they being not the employees of that department were to be governed by the Service Rules of their own department i.e. C.D.A.

9. The contention regarding the rule of locus poenitentiae is without any force and has rather lost all its significance in the light of the circumstances discussed above. Section 20 of the West Pakistan General Clauses Act, 1956 lays down that where a power to issue notification rules, scheme, form or bye-laws is conferred then that power includes a power, exerciseable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind, any notifications, orders, rules, scheme, form, bye-laws so issued.

10. By virtue of these provisions the authority which can pass an order is entitled to vary or to rescind the same but, it is correct that such power does not include the power or authority to take away a validly acquired right. Power of rescinding till descisive steps taken is also exerciseable for replacing or rectifying the wrong steps taken by the concerned authority. This power of course is not available to such authority when decisive steps have already been matured. A decisive step is deemed to have been taken when an order takes effect and certain rights are created in favour of the beneficiary of such steps. The crux of the matter is that the authority which has passed an order can withdraw it but only before decisive steps have been taken. The moment the matter has been finalized and the other party has also acted upon it the valuable rights created thereby cannot be jeopardized by rescinding such order.

11. As already stated, the claim of the petitioner under the principle of locus poenitentiae is misconceived. The employer/C.D.A. was not itself competent to place or transfer or depute the services of the petitioner and others permanently on the disposal of the Revenue Department of Government of the Punjab. Board of Revenue only made an arrangement for the payment of the salary/pay to the petitioner etc. from the budget provided to the D.L.R. under a mutual arrangement between the C.D.A. and Revenue Department, Government of the Punjab. The question of taking any final or decisive steps in relation to the pay of the petitioner by the Revenue Department or their services in that department thus, did not arise. Thus, the basic thing in relation to the case of the petitioner is that it is not as such a case of decision or of any final order. It was only a change of the arrangement for the purposes of pay of the petitioner and other similar employees. The principle of locus poenitentiae, therefore, is not relevant to the case of the petitioner.

12. The prayer made by the petitioner in the writ petition can be jotted down as under for facility of understanding:-- (i) The previous arrangement of disbursement of salaries from the Head 512-Land Management (Land Record and Colonization) Land Record District charges may be restored; (ii) the status of the service prior to the change of the arrangement of payment of salary may be restored; (iii) the benefit of pensionable service may be made available; (iv) the benefits flowing from the Benevolent Fund, G.P. Fund, Group Insurance etc. may be made applicable; and (v) the seniority may be maintained separately instead of the new combined seniority list. It has repeatedly been mentioned above that the budget allocation under the desired head of the petitioner as previously allocated to the D.L.R. has been discontinued. If no budget is available in the given head there can be no question of payment of salary from the same. Hence, the earlier arrangement of payment of salary cannot be restored from any point of view. The status of the service of the petitioner as such has not undergone any change. He was an employee of the C.D.A. from the very inception and even in the current situation he continues to be its employee. The pay scale etc. also have not been changed at all.

13. The claim that the petitioner has been deprived of the benefit of pension on superannuation is absolutely misconceived for the simple reason that in pursuance of section 25 of the C.D.A. Act, 1976 the competent authority has extended the West Pakistan Civil Servants Pension Rules, 1963 to be applicable mutatis mutandis to the employees of the C.D.A. A copy of the Notification No.1(66)RP/P&D/90, dated 10-3-1993 available on the file can be perused in this behalf. The service of the petitioner and others under the C.D.A. is, therefore, pensionable in accordance with the aforesaid Rules.

14. The benefits of Benevolent Fund, G.P. Fund, Group Insurance etc. can be admissible to the public servants only under the relevant Rules. As the petitioner was and is employee of C.D.A., the benefits which are not admissible under' the Rules framed or adopted by it, the same cannot be claimed by him as of right. So far as the previous contribution towards the G.P. Fund is concerned the amount on the credit of the petitioner and others is their own property, reimbursement of which can be claimed by them at any time. Any clog or restriction under the G.P. Fund Rules cannot restrain the payment of the deposit to the petitioner and others because they were not governed by these Rules and as such the restrictions will not apply to their deposit. As the deduction was made and amount remained in the custody of the Government/concerned office, the usual interest shall surely be given on the contribution.

15. The matter of seniority of the employees of the C.D.A. are governed by the C.D.A. (Appointment and Conditions of Service) Rules, 1993. Rule 8 provides as under:

"The seniority inter se of the employees appointed to posts in the same group shall be determined: (a) In the case of employees appointed by initial recruitment, in accordance with the order of merit assigned by the Selection Committee: Provided that employees selected for appointment to the post in an earlier selection shall rank senior to the employees selected in the latter selection and (b)

Explanation I

Explanation II

Explanation III

" It is an admitted fact that the petitioner was appointed by initial recruitment. As already held he was always an employee of the C.D.A. and never remained on the service roll of the DLR/Board of Revenue. The seniority list of the employees of the one and the same organization unless provided under the Rules can only be maintained jointly among the employees. of a specific category. There can, therefore, be no valid question or claim for maintaining a separate seniority list for the petitioner. It has been stated on behalf of the respondents during the arguments that the seniority list shall be maintained strictly in accordance with the aforesaid provision of Rule

8. It is not the case of the petitioner that in the joint seniority list he has been placed on wrong place. His claim is for a separate seniority list which already stands rejected. 16 For all what has been discussed above, this petition has no force which is dismissed. Keeping in view the nature of the case there shall be no order as to the costs. M.H./A-96/L Petition dismissed.