2019 PLP 67 (CLCN)

MUHAMMAD NASIR MAHFOOZ, J.

Petitioners, through the instant petition under section 3 of the Contempt of Court Ordinance, 2003 has prayed for initiation of proceedings against the respondents for non-compliance of the judgment of this Court passed in W.P. No. 22-B/2012 decided on 24.10.2013.

2. As per decision of this Court in W.P. No.22-B/2012, it was held as under: "The perusal of the judgments of this Court in the above mentioned two writ petitions reveal that the same Notifications had been challenged by the employees of Ayub Medical College, and Khyber Teaching Hospital/Khyber Medical College, Hayat Medical Complex and Khyber College of Dentistry, Peshawar, with the prayer of same relief. In both the writ petitions the same controversy has already been resolved by this Court and the respondents are well aware of this fact because it is evident from the order/judgment passed in W.P. 1673 of 2012, that the respondents have implemented the judgment of this Court passed in W.P. No.654-A of 2012, in letter and spirit. In light of the judgment of this Court already passed in the aforesaid two writ petitions, there remains no controversy unresolved."

3. The grievance expressed in the above mentioned writ petition related to stoppage of special allowance availed by the petitioners during vacations, vide notification/letters/orders dated 28.10.2011 and 30.09.2011. The said special allowance relating to Basic Science Teaching Allowance, approved/granted to the different teachers performing their duties in Medical Colleges of Khyber Pakhtunkhwa, vide notification No. FD (SOSR-II) 8-19/99/Vol-II dated 20.02.2008, w.e.f. 01.07.2008, which was subsequently made admissible w.e.f. 01.06.2007, but later on vide the Secretary Finance, notification FD(SOSR-II) 8-18/2009 dated 25.08.2011, ordered recovery of said special allowance from the petitioners during leave, LPR, winter and summer vacations.

4. As mentioned in the said judgment, this Court had relied upon two other decisions passed in W.P. No. 654-A of 2012 dated 30.04.2013 and W.P. No. 1673 of 2012 dated 16.05.2013, copies whereof are placed on file. Moreover, this court in other W.P. No. 817-D of 2011, dated 11.06.2015, keeping in view 'ratio decidendi' of judgments passed by Hon'ble Supreme Court of Pakistan in PLD 1969 SC 409 and PLD 1991 SC 973, had declared that principle of locus poenitentiae is available to the government or relevant authorities and further authority which is competent to make order has power to undo it, but such order cannot be withdrawn or rescinded once it has taken legal effect and created certain rights in favour of any individual.

5. We have heard arguments of learned counsel for he petitioners and learned A.A.G representing the official respondents, while respondent No.9 was put to notice to appear along with record, who was also heard.

6. Learned counsel for petitioners stated that in all the rest of Medical Colleges of Khyber Pakhtunkhwa teachers are drawing Science Teaching Allowance at the rate mentioned below: i. Professor Rs.57,000/- PM ii. Associate Professor Rs.46,000/- PM iii. Assistant Professor Rs.35,000/- PM iv. Lecturer/Demonstrator Rs.14,000/- PM But the same allowance has been denied to the petitioners.

7. Learned A.A.G submitted that, they had deducted the said amount from the salary of the petitioners in light of Audit Paras/ objections of the Accounts Office and as per letter dated 16.05.2013, issued by the Principal, Bannu Medical College, Bannu.

8. We have considered arguments addressed at the bar and there appears no doubt in this fact that said Basic Science Teaching Allowance has been granted to the teachers performing their duties in Medical Colleges in the province of Khyber Pakhtunkhwa, because the same has not been denied in open Court today. When the main writ petition was filed by the petitioners and it came up for hearing in motion on 30.01.2012 an interim relief was granted as below: "Notice. Till then amount already received shall not be recovered from the petitioners." The said interim relief has merged into final judgment of this Court, passed on 24.10.2013 as the same was decided in favour of petitioners, in view of earlier judgment of this Court. It is also worthwhile to mention that vide notification No.16/SEC/BOGMTI/2017 dated 06.02.2017, the Board of Governors, Medical Teaching Institute, Bannu has approved Science Teaching/Special allowance to Basic Science Teachers at the same rate, during vacations, in the following words: "The Board in its 2nd meeting held under the Chairmanship of Chairman Board of Governor, Medical Teaching Institutions Bannu on 21.01.2017, accorded approval to allow Science Teaching/Special allowance to basic Science Teachers at the same rate and in line with other public sector Medical colleges of the province during vacation with immediate effect. Sdxxxx SECRETARY Board of Governor Medical Teaching Institutions Bannu.

9. It appears that during pendency of the said writ petition, vide letter dated 16.05.2013, respondent No.8 herein had decided to recover Basic Teaching allowance paid to the petitioners in view of decision by the Departmental Accounts Committee and Public Accounts Committee.

10. We would not venture to enter into detailed pros and cons of the grant or refusal of Basic Teaching allowance, subject matter herein, because this Court has not once, but in several judgments decided the main controversy and we could not adopt a different view other than one mentioned above and therefore, hold that the petitioners were entitled to basic Teaching Allowance, since the date of grant of such allowance, then at the time of institution of writ petition and now after decision of Board of Governor dated 06.02.2017, hence, any deduction made is in violation of the judgment passed by this court, which could not be allowed to continue, however, instead of issuing an order for payment of the said allowance already deducted, we would direct respondent No.3, Secretary Finance, Govt. of Khyber Pakhtunkhwa, Peshawar, to direct the District Accounts Officer for reimbursement of deducted allowance after considering the case of each petitioner along with detail of amount within a period of one month, so that judgment is implemented in letter and spirit.

11. In view of above observations and directions, this Contempt of Court petition, stands disposed of accordingly, as we expect that no time will be lost to implement this judgment. SA/169/P Order accordingly.