2003 PLP (C (PLC(CS))

IJAZ-UL-HASSAN, J.

Noor Ahmad Shah petitioner feeling aggrieved of order No.4786 dated 15-6-2001, whereby an amount of Rs.33264 has been recovered from salaries drawn by the petitioner, has invoked Constitutional jurisdiction of this Court by filing instant writ petition, which is before us for consideration.

2. The petitioner was initially appointed as Class-IV servant against the post of Laboratory Attendant at Government High School, Essak Khumari, District Karak. The post of the petitioner was changed from Laboratory Attendant to Naib Qasid with effect from 1-10-1987. Later on the petitioner was transferred to Government High School, Sabir Abad against the post of Mali. The petitioner was again transferred to Government High School, Town Committee Karak against the post of Sweeper. It appears from the record that the petitioner was due to retire with effect from 30-6-2000 on attaining the age of superannuation while his retirement was ordered with effect from 31-5-2001 and on finalization of his pension case the amount in question was recovered/refunded from his pensionary benefits. The petitioner claims to have filed departmental appeal to seek redress which according to him remained un responded. Having no other adequate remedy, the petitioner has approached this Court through filling instant writ petition.

3. Headmaster Government High School, Town Committee Karak and District Accounts Officer Karak respondents Nos.5 and 6 in their parawise comments denied the petitioner's claim and maintained that the amount in question has been recovered correctly in accordance with law and the petitioner is not entitled for refund of the same.

4. Mr. Amanullah Khan Khattak, Advocate appeared on behalf of the petitioner whereas respondents Nos.5 and 6 were represented by M/s Salahuddin Khan, Deputy Attorney-General and Sardar Shaukat Hayat, Addl. Advocate-General.

5. The General Financial Rule 117(1), Vol.1 provides that if a Government servant is unable to give his exact date of birth and only mentions the year of his birth, the 1st July of such year may be treated as the date of his birth. Under G.F.R. 117(1) date of birth of the petitioner was treated as 1-7-1940. On reaching the age of superannuation the petitioner was required to be retired with effect from 30-6-2000 while his retirement was ordered with effect from 31-5-2001. Admittedly, the petitioner has worked for about eleventh months even after reaching the age of retirement without any objection from the respondents side. The question requiring determination would be whether in the facts and circumstances of the case, respondents had justifiable reasons to effect recovery of the amount in question from the pensionary benefits of the petitioner.

6. Having heard the arguments of learned counsel for the parties, we find ourselves in agreement with learned counsel for the petitioner that the petitioner having worked during the period under reference without any objection from the respondents side, there was no justification for the respondents to effect recovery of the amount from the pensionary benefits of the petitioner. There is nothing on the file to demonstrate that the petitioner had a hand in the affair and he has approached this Court with unclean hands, disentitling him to the discretionary and equitable relief provided under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973. The Hon'ble Supreme Curt of Pakistan in Jalaluddin's case reported in PLD 1992 SC 207 laid down the following principle:-- "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 of the appellants had submitted that the appellants had drawn Rs.12,890.86 during this period but the Engineer-in-Chief had directed the recovery of Rs.1,860 only. We considered that as far as the recovery of the amount in question is concerned, the principle of locus poenitentiae would be applicable and the appellants are not entitled to recover the amount. The appellants have themselves taken s liberal view and the recovery of only 12 months is being made."

7. Sardar Shaukat Hayat, learned Addl. Advocate-General also objected to the maintainability of this petition on the strength of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and maintained that the dispute relates to terms and conditions of a Civil servant and it can only be adjudicated upon by the Service Tribunal. The submission of the learned counsel is misconceived. The jurisdiction of High Court to entertain a Constitutional petition at the instance of a civil servant is not ousted in respect of all matters but the ouster is limited to only those cases which can be taken up by the Service Tribunal. The jurisdictional objection raised in this case is of no avail. I.A. Sherwani v. Government of Pakistan through Secretary, Finance Division. Islamabad? nd others (1991 SCMR 1041).

8. It may not be out of place to mention here that the recovery has been effected without issuing a notice to the petitioner. Non-issuance of notice has certainly prejudice the interest of the petitioner. When attention of learned counsel for respondents was drawn to this aspect of the matter, they had no plausible reply to make.

9. In view of the above observations we accept the petition and declare the impugned order dated 15-6-2001 to he illegal, without lawful authority and of no legal effect. The respondents are directed to pay to the petitioner the recovered /refunded amount of salaries i.e. from 1-7-2000 to 31-5-2001 amounting to Rs.33264 without loss of time. We shall make no order as to costs. H.B.T./896/P?????????????????????????????????????????????????????????????????????????????????????? Petition accepted.