2018 PLP (C (PLC(CS)N)

IJAZ ANWAR, J.

Brief resume of the case are that the petitioner was holding the qualification of MBBS and was appointed as Medical Officer way back in 1982. The Federal Government vide Finance Division OM dated 1.7.1987 allowed advance increments to the Government Servants on acquiring higher qualification over and above the prescribed qualification. This O.M. or Pay Revision was also adopted by the Provincial Government.

2. The petitioner improved his qualification when he got the Post Graduate Diploma in Health Planning and Management in the year, 1999. Though the petitioner on acquiring the higher qualification became entitled to the grant of 4 advance increments, however, it was not allowed. The claim of advance increments under the Revision Basic Pay Scale and benefit of civil employees (BPS-1 to BPS-22) was discontinued vide Finance Department letter No.FD/PRC/1-12001, dated 27.10.2001, many of civil servants who claimed to have matured their rights for the grant of advance increments have approached different Courts and got favourable orders in their favour regarding their entitlement prior to the discontinuation of the advance increment. The Finance Department in order to decide the cases of all civil servants who claim to be entitled to the grant of advance increments on higher qualification, issued Circular letter No.FD (SR-1)2-123/2010, dated 29.04.2010, whereby, it was directed that in order to facilitate all the government servants who were otherwise entitled for the grant of advance increments prior to discontinuation of the said scheme vide letter dated 27.10.2001, and were allowed a grace period of sixty days (60 days) to apply, this letter was duly circulated among all the Provincial Departments/attached departments and their subordinate offices for the finalization of all genuine pending cases. The petitioner accordingly applied and advance increments were allowed to him. He regularly received the advance increments w.e.f. 1.8.2010 till the date of his retirement from service i.e. 26.11.2013. After the retirement of the petitioner when his case of pension was processed, the District Comptroller of Accounts, Kohat directed for the recovery of four advance increments paid to the petitioner during service and the recovery order was issued vide letter dated 18.11.2013.

3. The learned counsel for the petitioner argued that initially there was misconception about the grant of advance increments to doctors on acquiring Major, Medium and Minor Postgraduate qualification and they were held not entitled to the grant of advance increments. An employee of the Federal Government filed a Service Appeal before the Federal Service Tribunal and claimed advance increments on the basis of higher qualification over and above the prescribed qualification. The Federal Service Tribunal allowed the service appeal and held him entitled to the grant of advance increments. The matter went in appeal before the Apex Court, leave was declined vide judgment and order dated 26.7.2006 and the judgment of the Federal Service Tribunal was maintained. He argued that on the strength of this judgment, the initial circular letter dated 27.7.2002 was superseded by circular letter dated 20.2.2007 entitling the medical doctors for the grant of advance increments irrespective of the fact whether they are possessing minor, medium or major postgraduate qualification. He argued that the petitioner received the said benefit for considerable long time; the same cannot be recovered as by then valuable rights have been created in his favour. He also relied upon an un-reported judgment of this Court rendered in W.P. No.3279/2010, decided on 21.12.2010, where in similar controversy was resolved and the Doctors were entitled for the grant of four advance increments on the basis of their higher qualification.

4. The learned AAG appearing on behalf of the Provincial Government argued that the Finance Department letter dated 27.7.2002 has settled this controversy, wherein the postgraduate diplomas have been clearly categorized by the PMDC and therefore, the petitioner is not entitled to the grant of four advance increments and that the recovery has properly been effected from him.

5. Arguments heard and record perused.

6. The entitlement to advance increments was firstly introduced vide Finance Department letter dated 22.7.1987, wherein grant of advance increment was made permissible to those doctors, who possessed or acquired postgraduate degree in their relevant field for which they have not been allowed any qualification pay. In order to appreciate the controversy involved in the case, it is advantageous to reproduced the said O.M.:

"

6. Grant of Advance Increments to Officials for possession/ attaining higher educational qualifications:- (a) .. (b) Engineers and doctors shall also be allowed four advance increments in case they possess of acquire a Post Graduate Course in their relevant field for which they have not been allowed any qualification pay. (c) The advance increment/increments shall be allowed at the time of recruitment or acquiring higher qualification during service. In cases where the employees is already at the maximum of his pay scales he would be allowed the requisite number of increments as personal pay to be absorbed on moving over/promotion to higher pay scale".

7. The petitioner improved his qualification, when he got postgraduate diploma in Health Planning and Management in the year, 1999. The Federal Service Tribunal set this controversy at rest vide judgment and order dated 1.5.2006, whereby in similar situation, four advance increments earlier granted and withdrawn from a doctor was restored, by the Tribunal. The Apex Court declined leave to appeal in its judgment and order dated 26.7.2006 and held that the circular letter of 1987 do not consider any distinction regarding holding postgraduate. Diplomas, regardless of whether the qualification obtained is Major, Medium and Minor. The Finance Division letter dated 27.7.2002 was also discarded by the Apex Court in the said judgment and held that it had not interpreted Finance Department instruction/circular dated 1.7.1987 in its true sense.

8. After pronouncement of the apex Court in the matter of entitlement of advance increment, the Finance Division, Government of Pakistan vide letter No.F.1(54) IMP/95-1017, dated 20.2.2007 withdrawn the letter dated 27.7.2002 and restored the advance increments to Medical Doctors having the postgraduate qualification irrespective of the categorization as given by the PMDC. The petitioner was allowed advance increments after his case was duly considered by the respondents as per their own circular letter dated 29.4.2010 issued by the Finance Department, Government of Khyber Pakhtunkhwa. The KP Cessation of Payment of Arrears on Advance Increment on Higher Educational Qualification, Act, 2012 in no way will deprive the petitioner of his earned advance increments; rather Section 2 (2) of the Act ibid gives protection to the already paid advance increments. The advance increment validly paid after a due process created valuable rights in favour of the petitioner. The petitioner received these increments till the date of retirement, as such; the respondents were left with no locus poenitentiae to withdraw or withheld this amount subsequently. The Apex Court even in a case reported in PLD 1992 Supreme Court-207 held that:- (d) Locus Peonitentiae

Principle of

Recovery of amount paid on 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.

9. In the instant case the situation is completely different, the petitioner was paid advance increment as per his entitlement and in accordance with law, therefore, under no circumstances, this can be deducted or recovered from his pension.

10. For what has been discussed above, we are left with no other option, but to issue the writ asked for, accordingly this writ petition is accepted and the recovery effected from the pension etc of the petitioner is declared as illegal. The recovered amount be re-imbursed to the petitioner forthwith. ZC/366/P Petition allowed.