2000 PLP 1878 (SCMR)

CH. MUHAMMAD ARIF, J.

The background in which this appeal by leave of the Court against judgment, dated 12-7-1995 passed by the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeal No. 124(L) of 1995 directing the appellants herein to take into consideration the ratio of various cases including the judgment of this Court in the case of I.A. Sherwani and others v. Government of Pakistan through Secretary, Finance Division and others (1991 SCMR 1041), is that the respondent was promoted as Stores Officer (B-16) on acting charge basis with effect from 15-2-1988. In the same year, the post of Stores Officer was upgraded from BPS-16 to BPS-17. It was in the month of May, 1992 that the Military Accountant General objected to the upgradation as it was sans approval of the Finance Division. The matter was taken up by two persons namely, Muhammad Tufail Alvi and Abrar Hussain before the Tribunal in Appeals Nos.214(R) of 1991 and 88(L) of 1993 which were allowed by it. The respondent also relied upon these judgments of the Tribunal and sent a notice to the Military Accountant General on 2-1-1995 objecting to the revision of his pay, as above. After having received an unfavourable response to his notice, dated 2-1-1995 through letter, dated 16-3-1995, he preferred Appeal No. 124(L) of 1995 before the Tribunal. After receiving the comments of the appellant-Controller of Military Accounts, Lahore Cantt: to the effect that the implementation of the judgments of the Tribunal in the cases of M/s. Muhammad Tufail AM and Abrar Hussain afore-referred was gone ahead under the advice of the Finance Division but as the said Division did not issue any order for the implementation of the ratio therein to other cases, including the case of the respondent and after hearing the arguments of the parties, the learned Tribunal disposed of his Appeal No.124(L) of 1995 on 12-7-1995. The last paragraph of the judgment of the learned Tribunal reads thus: "In view of the law laid down by the Hon'ble Supreme Court, we direct the respondents to take into consideration all these points and decide the matter, so that there should be . no anomaly or discrimination to any aggrieved civil servant, and report compliance within a period of two months. With these observations, the appeal stands disposed of." 2.???????? Para. 3 of the leave granting order reads thus:-- "3.??????? It is grievance of the petitioners that the Federal Service Tribunal wrongly relied upon the cases of Muhammad Tufail Ali and Abrar Hussain in Appeals Nos.88(L) of 1993. and 214(R) of 1991, whereas in similar circumstances had taken divergent view in the cases of Muhammad Ashraf and Abdul Aziz in Appeals Nos. 143(R) of 1994 and 15(L) of 1993. Thus there is no violation of Article 25 of the A Constitution of the Islamic Republic of Pakistan. In such view of the matter we are inclined to grant leave to appeal and examine the points raised before us. Leave to appeal is granted accordingly."

3. It appears that the appellant's case is that the Tribunal wrongly relied upon the cases of M/s. Muhammad Tufail Alvi and Abrar Hussain in Appeals Nos. 88(L) of 1993 and 214(R) of 1991 in that its judgments in the cases of Muhammad Ashraf and Abdul Aziz in Appeals Nos. 143(R) of 1994 and 15(L) of 1993 were to the contrary.

4. Both, Mr. Maulvi Anwar-ul-Haq, learned Deputy Attorney-General for Pakistan, appearing on behalf of the appellants and Mr. Muhammad Akram Ch. learned Advocate Supreme Court representing the respondent, are one on the point that this Court's judgment reported as I. A. Sherwani and others v. Government of Pakistan through Secretary, Finance Division and others (1991 SCMR 1041), as also two judgments of the Tribunal in Appeal No.214(R) of 1991 titled Abrar Hussain v. Commander MES (DP) PAC, Kamra, Attock and 2 others, dated 25-3-1992 and Appeal No.88(L) of 1993 titled Muhammad Tufail Alvi v. Controller of Military Accounts, Lahore Cantt. and 4 others, dated 14-11-1993 help the respondents. Former has also reiterated the stand of the appellants that the Tribunal had dealt with this matter differently in the cases of Abdul Aziz v. The Engineer-in-Chief, GHQ and 4 others (Appeal No. 15(L) of 1993) and Muhammad Ashraf v. COA (DPP and ISOs), Rawalpindi and 5 others (Appeal No. 143(R) of .1994) respectively, dated 4-8-1993 and 12-5-1994. The learned Law Officer, however, candidly admitted that the respondent having received the facility from the appellants for well over 4 years, the appellants were precluded from taking it back from him as such action is hit by the principle of locus poenitentiae in that the order creating rights in his favour could not be withdrawn or rescinded. He referred to -Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407) and Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others (PLD 1991 SC 973) in that regard.

5. The plea taken by the appellants in the Memo. of Appeal which was also argued at the bar at the time of grant of leave in this case, appears to have paled out on account of the afore-referred precedents of this Court's as also the Tribunal. Respondent Syed Muhammad Ikram Shah successfully pleaded before the Tribunal that his case is akin to the cases of M/s. Muhammad Tufail Alvi and Abrar Hussain and, therefore, the revision of pay in his case was unjustified. The Tribunal has disposed of the appeal before it by mandating the appellants to decide the matter after considering all the points noticed therein, to obviate the possibility-of any discriminatory treatment being meted out "... to any aggrieved civil servant, and report g compliance within a period of two months". We do not find any infirmity in the impugned judgment to warrant any interference therewith.

6. Resultantly, the appeal is dismissed leaving the parties to bear their respective costs. Q.M.H./M.A.K./M-71/S ?????? Appeal dismissed.