1980 PLP 940 (SCMR)

GOVERNMENT OF PAKISTAN MINISTRY OF FOOD & AGRICULTURE (AGRICULTURE DIVISION) Karachi, the 29th January, 1960. The Director, Marine Fisheries Department Karachi Subject‑‑Fisheries Development in Pakistan Sir, I am directed to convey the sanction of the President to the creation with effect from 1st July 1959 of the following additional posts for the quick and effective implementation of the Fisheries Development Scheme already approved by the Cabinet :‑ Designation of the Post. No. of Pay Scale Pay scale Posts.

General Central Service (Class I). Administrative Officer Up-gradation of the existing permanent post of Administrative Officer. 1 Rs. 600‑‑40‑‑‑1,000‑30‑‑‑ 1,150." Now the admitted position is that the respondent was appointed to the said upgraded post with effect from 1‑7‑1959 vide letter dated 10‑11‑1961, issued by the Ministry of Finance of the Federal Government and allowed to draw the pay scale of Rs. 600‑1,

150. In July 1962, however, the Ministry of Finance retracted from the said position. But in January 1963, in consulta tion with the Auditor‑General of Pakistan, the Ministry of Finance again allowed to the respondent the said pay scale of Rs. 600‑1,

150. On 31‑8‑1963, however, the Ministry of Finance again changed its position and con sequently disallowed to the respondent the said pay scale on the ground that the appointing authority was competent to allow him a lower pay scale against a vacant post, which was carrying higher pay scale. In June 1966 however, the Joint Secretary (Regulations) of the Ministry of Finance again allowed to the respondent the said pay scale of Rs. 600‑1,150 for all the period during which he performed his duty in the upgraded post of Administrative Officer. But on 8‑8‑1967, the Ministry of Finance unfortunately again retracted from the said position and informed the respondent that he was entitled only to the pay scale of Rs. 350‑850, and not the pay scale of Rs. 600‑1,150, which he had drawn for more than eight years. Upon these facts, the view taken by the Service Tribunal was "The orders of the Government allowing the appellant to draw pay in the scale of Rs. 600‑1,150 remained operative for about eight years, and there fore, the Government cannot be allowed to get out of the validity of its own orders after such along time because this has created, in fact, a right to a particular entitlement of pay in favour of the petitioner. This view is clearly supported by the authority P L D 1969 S C

407. It is also not possible to refute the contention of the appellant that he stood confirmed against a post, which was sanctioned in the scale of Rs. 600‑1,150, and as such the revision of this scale with retrospective effect, could not deprive him of the original entitlement. The contention of the appellant that the orders revising the scale of pay from Rs. 600‑1,150 to ks. 350‑850 were, in fact, issued on 21‑1‑1961 and not on 20‑7‑1960, has not been satisfactorily refuted by the Government side. With this view taken by the Service Tribunal, we fully agree Mr. Shahudul Haq, the learned counsel for the petitioner Government ha taken us through the record, but was unable to point out arty order o communication to show that the above facts mentioned in the order of the Service Tribunal were incorrect. The learned counsel also could not controvert the finding recorded by the Tribunal that whereas the‑ revised pay scale of Rs. 350‑850, pertaining to the post held by the respondent, was fix with effect from 21‑1‑1961. But long before that, i.e. to say on 21‑10‑1960, he had been confirmed in the upgraded post and allowed the revised pa, scale of Rs. 600‑1,150, which he enjoyed for more than eight years before the impugned order was passed against him. It would therefore, follow that the Government could not possibly change ‑to his detriment the said "pay scale of Rs. 600‑‑1,150 retroactively. In this behalf the Service Tribunal was indeed supported by the judgment of this Court. Pakistan v. Muhammad, Himayatullah (PLD1969 S C 407), in which the dictum relevant to the facts of this case is to the following effect :‑‑ "There can hardly be any dispute with the rule that apart from the provisions of section. 21 of the General Clauses Act, locus poenitentiae i.e. the power, of, receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empower to pass orders to retrace the wrong steps taken by them. The authority that he, the power to make an order has also the power to undo it. But this is subject to the exception that where t order has taken legal effect, and in pursuance thereof certain right have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights," It would thus be seen that the order passed by the Service Tribunal is entirely unexceptionable; this petition therefore, fails and is dismissed. Petition dismissed.