1994 PLP (C (PLC(CS))

MUHAMMAD ILYAS LODHI (MEMBER): ‑‑Briefly, the facts of the case are that the appellant, Noora Khan, was appointed Senior English Teacher on 22‑9‑1976. He acquired MA. (Islamiat) and M.Ed. in 1978 and 1979. Three advance increments were allowed to him on 28‑5‑1979 on account of M.Ed. Degree and was provisionally confirmed as Senior English Teacher (B‑14) on 5‑11‑1982. He was appointed Instructor (B‑17) in the Federal College of Education, Islamabad through FPSC on 21‑2‑1982 and was confirmed as Instructor on 25‑4‑1985. On 9‑12‑1990 the appellant was granted three increments for acquiring MA. Degree in Islamiat and subsequently withdrawn vide under order note dated 5‑6‑1993 with effect from 1‑7‑1983. The appellant filed departmental appeal to the Secretary, Finance Division which was not responded to

hence this appeal on 10-10-1993.

2. The learned counsel for the appellant argued that withdrawal of grant of shortfall of three advance increments already allowed to the appellant is based on mala fide intention with a view to thwarting the order dated 19‑4‑1993 of this Hon'ble Tribunal in a case of Zia‑ul‑Haq Zia v. Ministry of Finance and others Appeal No. 532 (R)/1992 which was heard and upheld on 14‑4‑1993. Instead of allowing Zia‑ul‑Haq Zia shortfall of three advance increments on the analogy of the appellant, the respondent‑department withdrew the grant of shortfall of three advance increments of the appellant with retrospective effect without any justification. Under section 21 of the General Clauses Act, 1897 as soon as the execution order becomes effective it becomes irrevocable and the rules of locus poenitentiae cannot be exercised by the authority concerned. As such the action taken by the respondent department as quite unlawful. He argued that in a number of cases, the Hon'ble Supreme Court have held that executive orders cannot be given retrospective effect which power can only be enjoyed by the legislature and Rule‑making power, which is by way of statutory grant, does not possess such quality unless conferred by legislature. The learned counsel also argued that withdrawal of increments with retrospective effect will not only reduce the pay of the appellant by three steps but will also subject him to financial burden to the extent of recovery to be made from him which amounts to inflicting major' penalty of reduction to a lower time scale under the Government Servants (Efficiency and Discipline) Rules, 1973. These penalties cannot be imposed upon him without following the procedure prescribed under the Rules ibid. He further argued that withdrawal of shortfall of three advance increments is an arbitrary act for which there is no genuine reason. It also smacks of discrimination inasmuch as Assistant Directors/Deputy Directors, who work in the Directorate, have been allowed the benefit of grant of shortfall of advance increments and the appellant, who fulfilled all the requisite conditions and whose case for grant of such benefit was far stronger than others had been unjustifiably deprived of grant of shortfall of advance increments without any reason. The learned counsel prayed that the appeal may kindly be accepted setting aside the impugned order dated 5‑6‑1993.

3. The learned counsel for the respondent‑department argued that three advance increments have been withdrawn from the appellant on receipt of two representations from the Instructors of Federal College of Education, Islamabad through Wafaqi Mohtasib, who advised the respondent‑department to also allow them three advance increments on the analogy of Mr. Noora Khan's case. The matter was once again considered in the light of existing rules and found that the appellant, Noora Khan, was allowed shortfall of three advance increments against provision of existing rules. The Finance Division rectified its mistake by withdrawing the Finance Division's u.o. note dated 3‑12‑1990, as once a mistake is committed and comes into the notice it becomes the responsibility to rectify it to save from further loss to Government. Regarding withdrawal of three shortfall advance increments with retrospective effect under GFR‑58, the learned counsel argued that since the concession which was wrongly extended to the appellant had been withdrawn from the date of its extension, as such no violation of rules had been made. Regarding imposition of penalty on account of withdrawal of increments, the learned counsel argued that it is not a penalty but was fulfilment of rules and regulations as such the Finance Division directed to the concerned authorities to recover the amount wrongfully paid to the appellant in easy installments. The appellant should not claim financial benefit which was not due to him. He submitted that on 1‑7‑1983, the appellant was serving as Instructor and there is no provision in the existing rules to allow three advance increments to, Instructors. Moreover, he served as a Teacher in the Provincial Government whereas the incentive was allowed for the Teachers serving under Federal Government. The learned counsel prayed that the appeal be dismissed.

4. We have heard both the parties and perused the record. The appellant was legally allowed the benefit of extra increments after proper examination of his case at all levels in the year 1990 with effect from 1‑7‑1983 and since then he has been enjoying the benefit. Had the benefit allowed to him was wrong then it could have been pointed out during the last ten years by any agency e.g. Ministry of Education and the Accountant‑General of Pakistan Office etc. The A: G. Office who is required to pre‑audit all Federal Government payments also accepted the order and implemented it proves that the payments were' legal. It is very surprising that when the Federal Service Tribunal allowed Mr. Zia‑ul‑Haq Zia, the similar benefit on the analogy of appellant, Noora Khan, then the respondent‑department instead of implementing the judgment of the Federal Service Tribunal withdrew the benefit already given to the appellant without assigning any reason. Moreover, the impugned order is also not a speaking order. In the case of Aslam Warraich and others v. Secretary, Planning and Development Division and 2 others (1991 SCMR 2330), the Hon'ble Supreme Court remanded the case to the departmental authority because the authority in that case had passed the order without recording the detailed reasons.

5. The plea of the respondent‑department that they are waiting the decision of the Hon'ble Supreme Court against. the order of the Federal Service Tribunal in the case of Mr. Zia‑ul‑Haq Zia, should not be in any way hindrance to stop the benefit already given to the appellant unless some stay order is passed by the Supreme Court. In the case of Chief Secretary, Government of Sindh v. Sher Muhammad Mukhdum (PLD 1991 SC 937) it was held by the Hon'ble Supreme Court that Locus Poenitentiae is available to the Government or relevant authority and further authority which is competent to make order, has power to rescind it but such order cannot be rescinded or withdrawn once it had taken effect and has created certain rights in favour of an individual.

6. Relying on the above cases, we accept this appeal, setting aside the impugned order dated 5‑6‑1993 and allow the appellant benefit of shortfall three advance increments already allowed to him.

7. No order as to costs. 8 Parties be informed. H.B.T./959/Sr.F Appeal allowed