2003 PLP (C (PLC(CS))

MUHAMMAD NAWAZ ABBASI, J.

This appeal by leave of the Court has been directed against the judgment dated 18-6-1998 passed by Federal Service Tribunal in a service appeal.

2. The relevant facts in the background are that the appellant Shahid Masood Naveed was appointed as Draftsman in NPS-7 in Military Engineering Service (M.E.S.) and subsequently, in pursuance of notification dated 23-1-1986 issued by the Government of Pakistan, Ministry of Defence (Defence Division) he was placed in BPS-11 w.e.f. 31-5-1983. However, Garrison Engineer Air, Lahore Cantt. in pursuance of letter dated 11/95 issued by the Deputy Controller of Accounts, Air Force, Lahore Cantt. withdrew the higher pay scale given to the appellant from the date of its grant and also directed for recovery of the over payments made to him for the period from 31-5-1983 to 31-10-1995 and again placed him in BPS-7. The action was taken on the ground that the recruitment rules notified in the gazette vide S.R.O.7 (KE)86 dated 23-11-1986 were not approved by the Finance Division (Regulations Wing) of the Government of Pakistan. The appellant at the first instance, filed a departmental appeal and on its non -disposal within the statutory period, approached the Service Tribunal for redressal of his grievance. The Tribunal having found no merit in the appeal dismissed the same through the impugned judgment.

3. Learned counsel for the appellant while placing reliance on Engineer-in-Chief Branch v. Jalalluddin (PLD 1992 SC 207), Pakistan v. Muhammad Himayatullah (PLD 1969 SC 407) and Muhammad Nawaz v. Government of Punjab (1981 SCMR 523) has contended that order relating to the withdrawal of BPS-11 and recovery of pay and allowances drawn by the appellant in the said scale, for the period in question was not legal and the respondents were not empowered to withdraw the benefit of higher scale given to the appellant under the Rules framed by the Government.

4. Learned Deputy Attorney General, on the other hand, while placing reliance on Engineer-in-Chief Branch v. Jalalluddin (PLD 1992 SC 207) supra, has submitted that the principle of locus pointentiae is not a rule of law under which an order once passed becomes a past and closed transaction and that an illegal order can be recalled, rescinded and withdrawn at any time.

5. The notification containing the Rules under which the appellant was placed in BPS-11 was given effect without the approval of the Finance Division of the Government of Pakistan whereas, the same involving financial implication were necessarily, required approval of Finance Division. The concerned authority inadvertently giving effect to the notification extended its benefit to the appellant and further due to oversight, he kept on drawing pay and allowances in the higher scale for a continuous period of 12 years. The order by virtue of which the appellant was allowed BPS-11 was subsequently withdrawn qua the remaining employees but the name of the appellant was not included in the said order by mistake and he remained enjoying the benefit of BPS-11 till 31-10-1995. It is settled proposition of law that no right can be claimed on the basis of an illegal order and such an order despite having taken effect, neither would change its status nor create any right enforceable in law and in the light of principle that the authority which possesses the power of passing an order is also empowered to vary, amend or rescined, the said order can be undone with no legal bar. However, in case of a legal order, this power can only be exercised till a decisive step is taken to give effect to the order and once the order is given effect, the authority would loose the power to retrace its steps. The result is that a legal order which creates some right in favour of a person, on taking effect cannot be withdrawn, rescinded or varied to the disadvantage of said person but an order which has no legal force even if is acted upon can be recalled, rescinded and withdrawn at any subsequent stage and thus principle embodied in section 21 of the General Classes Act 1956 cannot be made applicable equally to all legal and illegal orders. There is a distinction in the benefit derived under a legal order which is recognized in law as a legal right whereas the benefit arising out of an illegal order cannot be given such recognition.

6. The appellant was placed in BPS-11 w.e.f. 31-5-1983 in pursuance of the notification dated 23-1-1986 which having been issued without the approval of Finance Division of Government of Pakistan had no legal sanction behind it and in consequence thereto, the appellant could not be given BPS-11 under the said notification, therefore, the illegality committed by the sanctioning authority was rectified through the order in question. The Tribunal after detail discussion, upheld the order impugned in the service appeal and we take no exception to the view expressed by the Tribunal. However, we find that the appellant obtained the financial gain under the orders of the competent authority and the principle of locus poententiae would be attracted qua the order relating to the recovery of pay and f allowances already paid to the appellant and consequently, the order to that extent is unjust and would be of no legal consequence.

7. In the light of foregoing reasons, we hold that the order to the extent of recovery of pay and allowances already paid to the appellant for the period in question is not a legal order and we while setting it aside direct that no recovery shall be effected from the appellant but the order regarding the withdrawal of BPS-11 is maintained. This appeal in the above terms, is partly allowed with no order as to costs. M.H./S-263/S Order accordingly.