2012 PLP (C (PLC(CS))

ABDUS SATTAR ASGHAR, J.

The petitioner Abdul Sattar Principal (BS-18) on return from earned leave was appointed as Principal in (BS-19) on current charge basis and posted as Principal Government Degree College of Special Education, Lahore vide order dated 26-5-2006. Through a subsequent order dated 31-5-2006 his posting at Government Degree College for Special Education, Lahore was cancelled and he was posted at Principal Government Degree College for Special Education, Bahawalpur on current charge appointment against a newly created post. In compliance of the order dated 31-5-2006 he assumed the charge of said post at Bahawalpur. His current charge appointment in BS-19 was extended for further one year w.e.f. 26-5-2007 vide order dated 1-9-2007. It is on the record that no specific termination order was passed by the Authority on completion of one year extension of the current charge rather he continued to serve as such on the said post till 19-11-2008 when the Secretary Special Education vide order dated 19-11-2008 terminated his current charge appointment in BS-19 w.e.f. 26-5-2008 and posted him at his own pay and scale w.e.f. 27-5-2008. However, he has been drawing salary and allowances of BS-19 w.e.f. 26-5-2008 to 3-2-2009.

2. The District Accounts Officer, Bahawalpur/respondent No.1 taking exception to the said withdrawals pointed out this irregularity as violative to the Service and Financial Rules and imposed recovery of over payment of Rs.91603, drawn by the petitioner. Being aggrieved of the impugned deduction of Rs.91603, the petitioner has invoked the jurisdiction of this Court through this writ petition seeking declaration that the same is against law and facts and liable to be set aside.

3. District Accounts Officer, Bahawalpur/respondent No.1 in his comments has opposed the petition.

4. I have given patient hearing to the learned counsel for the petitioner and learned A.A.-G. for the State and also gone through the record.

5. Main argument of the learned counsel for the petitioner is that amount in shape of salary and funds if paid even wrongly and in excess received by the employee cannot be recovered and cannot be deducted from his salary under the principle of locus ponetentiae. In this regard he has take reliance upon Controlling Authority N.-W.F.P. Board of Technical Education, Peshawar and another v. Abdus Salam Secretary N.-W.F.P. Board of Technical, Education (PLD 1993 Supreme Court 200).

6. Admittedly, the petitioner held the charge of the post in BS-19 by virtue of order dated 1-9-2007 for an extended period of one year w.e.f. 26-5-2007. However, fact remains that even after expiry of one year i.e. 26-5-2008 he continued to work on the said post up till 19-11-2008 when his current charge appointment was cancelled by the Authority vide letter No.SO(Estt.)10-171/2006 dated 19-11-2008 and he was posted as Principal in his own pay and grade (BS-18) till further orders. Therefore, the petitioner has strong case to draw the salary and allowances of BS-19 from 26-5-2008 to 19-11-2008. Petitioner's plea also finds strength from the fact that the Government of the Punjab Finance Department in its letter No.FD-PC-44-9-2009 dated 16-12-2009 directed that pay of the higher post will be admissible to a civil servant during the period of his appointment on higher post. Reliance is made upon: Islamic Republic of Pakistan through Secretary Finance Division, Government of Pakistan, Islamabad v. Qazi Abdul Karim, Deputy Accountant-General, N.-W.F.P., Peshawar and another (1978 SCMR 289) wherein it was held that an employee promoted to officiate in a higher post involving higher responsibility is entitled to the pay of grade of higher post.

7. In the light of above referred factual and legal position there is no doubt in my mind to find that petitioner is entitled to draw the salaries and allowances in BS-19 up till 19-11-2008 when his current charge appointment was cancelled by the Authority. For the foregoing reasons, writ petition is partially allowed with a direction to the District Accounts Officer, Bahawalpur/respondent No.1 to modify the impugned deductions accordingly. H.B.T./A-139/L Petition partly allowed.