2004 PLP (C (PLC(CS))

I intend to decide Writ Petition No. 5243‑S/2000/BWP and Writ Petition No.5786‑S/2000/BWP by this single judgment as the common questions of law and fact are involved in the aforesaid writ petitions.

2. In the Writ Petition No. 5243/S/2000/BWP (Mst. Rafia Naheed v. District Health Officer, Bahawalpur and two others), the petitioner was appointed as Medical Technician in BPS .8 against an existing vacancy in the year, 1984. In the year, 1991, the Government of Punjab, Finance Department, issued a Notification No. FD‑PC‑2‑/91, dated 1‑8‑1991, on the basis of which four advance increments were awarded to the petitioner on account of her acquiring higher educational qualification during service. On the basis of this notification, the petitioner had been drawing the increments since 1‑8‑1991, when an order, dated 1‑11‑2000 bearing No.22786 of 1995 was conveyed to the petitioner, directing her to deposit a sum of Rs.46720 (Rupees forty six thousand, seven hundred and twenty only) as having been drawn wrongly by the petitioner on account of improvement in the qualification, in another field.

3. The same was case with regard to the petitioners of W.P. No. 5786‑S/2000/BWP who were dispensers and medical technicians and had been granted selection grade and advance increments on account of improvement in their qualifications. They were also directed to deposit the amount collected as advance increments through Letter No.22785 of 1995, dated 1st of November, 2000 by the District Health Officer, Bahawalpur, respondent No. 1.

4. The learned counsel appearing on behalf of the petitioners submit that the advance increments awarded to the petitioners could not be recovered on the basis of rule of locus poenitentiae.

5. On the other hand, learned counsel appearing on behalf of the department has opposed vehemently the arguments of the learned counsel of the petitioners and has referred to a decision passed in Civil Revision No.383‑L of 1999 (Faiz Ahmad v. Chief Engineer, North, etc.) announced on 12‑8‑1989 by the august Supreme Court of Pakistan. Amplifying the arguments, the learned counsel for the respondents submitted that the amount to be recovered from the petitioners was granted wrongly to them as they had not improved their qualification in the field in which they were posted, and the improvement of qualification in another branch of education would not grant them the right to claim and retain the advance increments collected by them.

6. After hearing the arguments and examining the record, I have come to the conclusion that the rule of locus poenitentiae is fully applicable to the facts and circumstances of this case. Petitioners were awarded the advance increments, the order which is being harped by the respondents that the petitioners would be entitled to get the advance increments when they fulfil the requirement of improvement of their qualification in the field concerned was not in the existence, otherwise advance increments could not be awarded to them in violation of that notification. In the comments, the Letter No. FD‑SR‑12‑3/87 (PT‑BI), dated 17‑3‑1992 and Letter No. FD‑SR‑12‑3/87, dated 12‑1‑1998 have been referred, which according to the respondents had enjoined that the advance increments would be permissible only if the higher qualifications were to be improved in the relevant field, in which the employee was posted. Consequently, it becomes clear that at the time of grant of advance increments in the year, 1991 on the basis of the letters of the Government of the Punjab, Finance Department, dated 27‑7‑1987 and 1‑8‑1991, the amended letters/memos. dated 17‑3‑1992 and 12‑1‑1998 (referred to above) had not taken their birth. Therefore, the bona fides of the petitioners could not be doubted in the receipt of increments, anti in such cases where the bona fide belief of the employee could not be disproved, the department could not be allowed to retrieve the amount paid as advance or increments to the employee. I am fortified in this view of by the precedent reported in 2002 PLC (C.S.) 302 (Muhammad Shakir, etc. v. Administrator District Council, Rajanpur) and the citation reported in PLD 1992 SC 207 (The ‑Engineer in Chief Branch v. Jalal ud‑Din). The fault, if any was of the Department concerned which had'; not informed or acted promptly on the letters/memos issued thereafter by the Finance Department. It is rule of interpretation in the matter of fiscal legislation, statutes, memos. letters, circulars that these are to be interpreted in such a way as to grant more benefits to the subject/employees than the Government because those are persons who are hard hit by the financial worries and the problems. And the employees should not be made to suffer for the fault of the Department. Therefore, I accept both these writ petitions and declare the letters memos. for recovery of advance or increments, dated 1‑11‑2000 issued by District Health Officer, Bahawalpur/respondent No.1 to be without lawful authority, without any order as to costs. H. B.T/R‑31/L Petition accepted.