P L D 1992 Supreme Court 207 (PLP)

ABDUL QADEER CHAUDHRY, J.-- This appeal by leave of the Court is directed against the judgment of the Federal Service Tribunal dated 5-7-1987. The facts of the case are that respondent Jalaluddin was appointed as Draughtsman Class 'C' in the M.E.S. Department on 1st of March, 1971. On the implementation of the National Pay Scale with effect from 1st March, 1972, the respondent was placed in National Pay Scale No.5. As per rules, the respondent qualified the departmental promotion examination from Draughtsmen Class 'C' to Draughtsmen Class 'B' in May, 1976. He was promoted to Draughtsmen Class 'B' on 15-5-1976. On 8th of May, 1974, the Ministry of Finance issued an Office Memorandum which reads as under:-‑ "It has been decided that in the case of Engineering Diploma holders and technical draughtsmen employed under the Federal Government the enhanced pay scale shall be as follows:-- (a) NPS-11 shall be allowed for posts for which the prescribed qualification for direct entry is Matriculation plus 3 years diploma course in any branch of engineering from a recognised institution. (b) NPS-11 shall also be allowed for posts of draughtsmen requiring for direct recruits the educational qualification of Matric with 3 years diploma course. (c) The promotees to posts (a) and (b) above shall get the same NPS as direct recruits irrespective of their educational qualification." According to respondent, he was allowed National Pay Scale 11 with effect from 13-5-1976. He stated at the time of hearing that he was granted the National Pay Scale 7, on 13-5-1976. It means, on the same day, he was given escalated pay scale from 7 to 11. (If the contention of the appellant be accepted, then he was granted this Scale No.11 on 13-5-1976). The perusal of letter dated 8th May, 1976, clearly shows that National Pay Scale-11 was allowed to all promotees irrespective of their educational qualifications. Thus the qualification for promotion as contended by the department of the appellant, was done away by this Notification. Under the Recruitment Rules, the qualification for direct recruits of Draughtsmen is Matric. The Certificate of Draughtsmanship from the recognised institution and there is no dispute between the parties about the qualifications for appointment of Grades 'A' and `B' of the Draughtsmen, as direct recruits. The Draughtsmen Class 'A' were allowed National Pay Scale No. 9' with effect from 1-3-1972. They were placed in National. Pay Scale No. 11 with effect from 1-5-1974. If the contention of the respondent is accepted then irrespective of their qualifications and experience, both categories of Drughtsmen would get National Pay Scale

11. This is to our mind, against the principle of fairness and justice. By the letter dated 24th May, 1976, the Finance Division stated that NPS-11 shall be allowed to the post for which the prescribed qualification for direct entry is matriculation and three years' diploma course in any branch of engineering from the recognised University. However, relaxation was made for those who had been appointed/recruited directly without the requisite qualification, by the competent authorities, in consideration perhaps of their practical experience. They were also allowed NPS-11. There is no reference in this letter that Grade 'B' is also entitled to the same National Pay Scale. In the letter dated 12-10-1977 issued by MA.G., Rawalpindi, it has been stated that for the post of Draughtsmen 'B' grade of M.E.S., the minimum qualification is Matric plus Certificate from a recognised institution in Draughtsmanship. Accordingly, it is clear that Draughtsmen 'B' Grade of M.E.S. being not Diploma-holders, whether appointed direct or promoted form 'C' Grade are not entitled to NPS-11. By letter dated 27th February, 1984, MAG directed to recover the overpayment for the last 12 months from the date it was challenged. The letter dated 12th October, 1977, was cancelled on 28th November, 1977, by the. Engineer-in-Chief Branch, Rawalpindi. Similarly, on 18-5-1982, it was stated that incorrect fixation of pay of Draughtsmen Grade 'B' in Grade-11 has been carried out and this was not in order. It was directed that all the cases be reviewed and necessary refixation may be made out. The facts narrated above, make it clear that the respondent was never promoted to NPS-11 and no decision of the competent authority has been placed on record to substantiate the contention of the respondent about his fixation in NPS-11. He was not properly and legally allowed the Grade-11. The respondent challenged the action of the appellants in an appeal before the Federal Services Tribunal. The appeal was allowed. The reasons which weighed with the learned Tribunal are as follows:-‑ "Be that as it may however, it is a well-settled legal position that a public authority which can pass an order, is empowered to vary, amend or rescind that order. But this power to recede can be exercised only till a decisive step to carry out that order is taken. If, however, the order has been Oven effect to, so that no locus poenitentiae is left, there will be no occasion for exercise of such power. Thus the power to amend or cancel an order cannot be carried into effect if the order has been acted upon. In the present case the pay of the appellant was duly fixed in NPS-11 in 1976 which was being paid to him for about seven years. Therefore, the departmental authorities had no valid power of receding the orders of fixation of the appellant's pay in NPS-11 which was fully carried into effect. Consequently we hold that the impugned action is incompetent and unjust." It is therefore, clear that the Tribunal has also not disputed the contention of the appellant that respondent was not entitled to be fixed in Gra.de-11 of National Pay Scale. The principle of locus poenitentiae was invoked by the learned Tribunal in aid of the respondent. Having gone through the facts of the case, we have come to the conclusion that this principle is not attracted in the present case. Additionally, under section 21 of the General Clauses Act, the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order. The order under which the payment was made' to the respondent had no sanction of law. Locus paenitentiae 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. The appellants when came to know that on the basis of incorrect letter, the respondent was granted Grade-11, they withdrew the said letter. The principle of locus paenitentiae would not apply in this case. However, as the respondent had received the amount on the bona fide belief, the appellant is not entitled to recover the amount drawn by the respondent during the period when the latter remained in the field. Learned counsel for the appellants had submitted that the appellants had drawn Rs.12,890.86 (Rupees twelve thousand, eight Hundred, ninety and paisa eighty-six only) during this period but the Engineer-in-Chief had directed the recovery of Rs.1,860.00 only (Rupees one thousand, eight hundred,' sixty and paisa nil only). We consider that as far as the recovery of the amount in question is concerned, the principle of locus paenitentiae would be applicable and the appellants are not entitled to recover the amount. The appellants have themselves taken a liberal view and the recovery of only 12 months is being made. For the reasons stated above, WC accept this appeal and set aside the order of the Tribunal. However, the appellants would not recover even Rs.1,860 (Rupees one thousand, eight hundred, sixty and paisa nil only) from the respondent. There would be no order as to costs. M.B.A./E-24/S Appeal accepted.