1997 PLP (C (PLC(CS))

AKHTAR HASSAN (CHAIRMAN). ‑‑‑The Aqeel Assam, Junior Trade Instructor Mechanical Draftsman, Government Vocational Institute, Daulat Gate, Multan was allowed one increment vide the order dated 27‑2‑1989 (Annex. D) under Notification No. F.D., P.C. 2‑1/87 dated the 27th July, 1987 (Annex. C) on account of his having acquired the additional educational qualification of F.A. over and above the minimum requirement of Matric prescribed for his post (Annex. B). Later, there was improvement on the grant of this fringe benefit as by Notification No. F.D.‑P.C. 2‑2/91, dated the 1st August, 1991 (Annex. E), two increments were allowed for each additional educational qualification like F.A./F.Sc., B.A./B.Sc. and M.A./M.Sc. The appellant who seemingly had by now acquired the additional qualification of B.A., prayed for four increments viz. two for F.A. and two for B.A. but surprisingly even the increment earlier allowed to him on account of F.A., was recalled and the over‑payment recovered by the latter dated 1‑10‑1992 (Annex. F) because of a decision of the Government of Punjab, Finance Department vide their Letter No. FD. PR. 12.3/91 (PT‑1) dated 21‑6‑1992. Aggrieved by it, the appellant preferred a departmental appeal and after waiting for 90 days, brought the instant appeal. 2 The main ground urged was that the original Notifications dated 27‑7‑1987 and 1‑8‑1991 did not limit the higher qualification to be relevant to one's job and that instead the benefit was intended to be given on acquiring higher educational qualification". Secondly that such benefit was allowed even to non‑technical staff meaning thereby that the new interpretation being given to it, would involve discrimination especially in the case of the appellant who happened to avail the facility for quite sometime past, and thirdly that the benefit once given could not be re‑called on the pretext that there was some change in the Policy subsequently.

3. The department contested the appeal justifying withdrawal of the increment earlier paid to him and also recovery of the over‑payment on the ground that lately by the Government decision dated 21‑6‑1992 (Annex. I) it was permissible only one acquiring a professional higher qualification.

4. The main proposition falling for determination is whether a subsequent ?change in the matter of granting a financial facility in the shape of a fringe benefit could be re‑called retrospectively. The plain answer to this query is iii the negative. The two notifications granting these increments respectively dated 27‑7‑1987 (Annex. C) and 1‑8‑1991 (Annex. E) clearly permitted "Grant of Advance Increments to Officials for Possessing Attaining Higher Education:; Qualification". The caption reproduced above would not have any doubt as to entitlement of getting these increments on improvement only of "educational qualifications". Further, it was clearly given in the table of the relevant para. of those notifications that, these increments were admissible on acquiring F.A./F.Sc., B.A./B.Sc. and M.A./M.Sc. Obviously these were the qualifications not strictly related to one's professional and instead were just academic in nature. .

5. The appellant had acquired the higher qualification of F.A. and B.A. whereas his job requirement as per (Annex. B) was only Matric besides a Trade Proficiency Certificate. He was rightly given one increment on 27‑2‑1989 (Annex. D) as till then only one such increment was allowed for F.A. He had not apparently acquired the qualification of B.A. till then. However statedly he had acquired it subsequently and invoked the latter Notification of 1‑8‑1991 (Annex. E) for getting two increments for F.A. and two more for B.A Since these notifications were in force when he acquired the qualification of B.A., he was a fortiori entitled to get at least two increments meant for it. He could not be denied this right on the ground that a subsequent change occurred in the policy. A vested right already created could not be divested by any subsequent change in the law or policy. Section 6 of General Clauses Act, 1897 makes it clear. Any executive fiat would always be prospective in operation and not retrospective. So was the case with the single increment already granted to the appellant for his F.A. It could not have been withdrawn, nor could .the amount relatable to it be recovered. PLD 1992 SC 207 base such recovery. Besides, it was paid to him under the then existing policy. Any subsequent change therein would not disturb a transaction past and closed. However it is doubtful if the appellant could ask for an additional increment for F.A. as by having obtained one under the then existing policy, his claim stood settled finally presenting fiat accompli of the matter. The addition appeared to be prospective not intended to be applied to the settled cases by re‑opening those.

7. The change occurred on 21‑6‑1992 (Annex. 1) with written objections) providing that improvement in qualification not relevant to the job or not in line with the trade, would not create entitlement for admissibility of advance increment. With respect this three‑lined order did not make any reference to the earlier Notifications dated 27‑7‑1987 and 1‑8‑1991 which having dealt with the matter more comprehensively really called for a better and elaborate reference if the idea was to supersede them. The public policy behind those notifications was to encourage acquiring academic or educational qualifications, but the later letter quite cryptically washed it off. Further, the earlier notifications formed part of the process of revision of pay scales. I am not persuaded to accept that such a brief method could be adopted to upset a revision of pay scales. To all intents and purposes, therefore, it appeared to be something out of context exhibiting what may be called a bureaucratic anti‑public policy step. I would, therefore, feel firm in holding that the aforesaid notifications, granting those increments on attaining higher qualifications like F. A. etc. still remain in operation.

8. The appeal is allowed. The impugned order is set aside. The appellant shall continue to get one increment for F.A. as from the date it was stopped. The so‑called recovery from him is held illegal and void. Any amount recovered B from him shall be refunded to him. In addition, he is held entitled to get two increments for B.A. from the date he passed the relevant examination and shall continue to get all these increments in future without being affected by the Policy Letter dated 21‑6‑1992 (Annex. 1). H.B.T./522/Sr.P ????????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.