2002 PLP (C (PLC(CS))

The petitioners have filed this Constitutional petition to call in question the order dated 2‑4‑1997 passed by respondent No.2, wherein the petitioners have been directed to refund the amount of advance increments given to them.

2. Briefly stated the facts of the case are that the petitioners were appointed as Vaccinators. The basic qualification for the appointment of Vcanninator is Matric with Science. The Government granted advance increments to the petitioners on the basis of their higher qualifications in the year 1993 and that the petitioners were allowed these increments vide Letter No.FD/PC‑2‑2/91, dated 1‑8‑1991 issued by the Finance Department. On 2‑4‑1997, respondent No.2 issued the impugned order to refund the amount of advance increments received by the petitioners through an instalment of Rs.500 per month.

3. Comments have been received wherein it has been stated that the petitioners were proceeded against and directed to refund the amount .in accordance with the audit objections and the findings of the Divisional Director, Local Fund, Audit, D.G. Khan.

4. I have heard the learned counsel for the parties and perused the record. The, Finance Department issued a letter on 1‑8‑1991 sanctioning the revision of basic pay scales of the civil employees in BS‑1 to 15 of the Punjab Government. Paragraph 5 of the above‑referred letter has provided grant of advance increments to officials for possessing/attaining higher educational qualification which is reproduced as under:‑‑ (i) "from 1‑7‑1991 onwards, advance increments shall be allowed without the condition of second Division to the officials in BS‑1 to BS‑15 for possessing or acquiring higher educational Qualifications over and above prescribed qualifications in the relevant Recruitment Rules, , to the extent given below, for each higher qualification:‑‑ Number of advance increments for (a). Where the prescribed. Matric FA/FSc BA/BSc. MA/MSc qualification is non Matric 2 2 2 2 (b) Where the prescribed qualifications is Martic. Nil. 2 2 2 (c) Where the prescribed qualification is FA/FSc. Nil. Nil. 2 2 (d) Where the prescribed qualification is BA/BSc Nil. Nil. Nil. 2 (ii) If an employee is in receipt of or is entitled to, advance increments under any other rules or order in force for the time being, he shall be entitled to draw advance increments sanctioned in this letter, or advance increments under other rules or orders, whichever may be more beneficial to him. (iii) The advance increments shall be allowed at the time of recruitment or acquisition of higher qualification, whichever is later. In case where the employee is already at the maximum of the scales, he may be allowed the number of advance increments beyond the maximum of the scale as personal pay to be absorbed at the time of his move over/promotion. Those employees who had acquired higher qualification in 3rd division prior to 1‑7‑1991 and were not granted advance increments earlier henceforth would be allowed advance increments w.e.f. 1‑7‑1991."

5. The basic qualification for the appointment of Vaccinator is Matric with Science, IInd Division from a recognized Board. The petitioners were appointed as Vaccinator on the basis of the above‑said basic qualifications. The Resident Audit Officer, Zila Council/Municipal Committee Rajanpur wrote a letter dated 8‑1‑1995 to the Divisional Director, Local Fund Audit, Dera Ghazi Khan, wherein he has stated that the Vaccinators in Zila Council Rajanpur are enjoying the benefit of two advance increments of higher qualification whereas, the undersigned is of the opinion that the post of Vaccinator is technical and they can only be allowed benefit of advance increment on enquiring higher qualification in their proper field and the respondents on the personal opinion of the Resident Audit Officer have withdrawn the advance increments granted to the petitioners. From the perusal of the letter issued by the Finance Department, the Government has granted two advance increments to officials for possessing/attaining higher educational qualification in FA/FSc., BA/BSc., MA/M.Sc., This letter has nowhere provided that the increments would be granted to the persons having qualifications in their particular fields and the respondents have sanctioned increments in compliance with the abovesaid letter dated 1‑8‑1991 issued by the Finance Department, Government of the Punjab.

6. The authority which has passed the order may recall or withdraw the same till a decisive step is taken. The authority which is competent to make order has power to undo it but the order cannot be withdrawn or rescinded once it has taken effect and certain rights created in favour of any individual. Reliance in this respect can be made on the case of Pakistan through the. Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407).

7. The recovery of amount paid on the basis of incorrect order and the recipient had received same on a bona ‑fide belief that he was entitled to it, payer was not entitled to recover the amount from the payee during the period when incorrect order remained in field and principle of locus poenitentiae would be applicable to the case. Reliance in this context can be made to the case of The Engineer‑in‑Chief Branch through Ministry of Defence v. Jalaluddin (PLD 1992 SC 207).

8. In the instant case, the advance increments granted to the petitioners have been received by the petitioners and thus, 'the respondents have .no authority to recover the amount from the petitioners/payees.

9. For the foregoing reasons and following the dictum laid down in the cases referred to above this writ petition is accepted and order impugned issued by the respondent No.2 is declared to be illegal, without lawful authority and of no legal effect, hence, the same is set aside. H.B.T./M‑544/L Petition accepted.