1984 PLP (C (PLC(CS))

The factual background of the grievance disclosed in this constitutional petition is that the petitioner was directly appointed as Accountant on 21st January, 1965 in the pay scale of Rs. 120‑

250. The pay scales were revised in September, 1968, and the then Chief Administrator of Auquaf, West Pakistan, vide order, dated 14th September, 1968 accorded sanction to the revised pay scales for the post of Accountants as classified below with imme diate effect. Item No. 3 of the order pertaining to the petitioner reads :‑ S. No. Post Existing grade Prescribed grade

3. Accountant 175‑10‑215‑15‑ 225‑15‑360/20‑500 Grade‑II 275‑15‑350 The admitted position is that pursuant to the revision in the pay scales, the petitioner was allowed to draw pay in the revised pay scale from 14th September, 1968 to 31st January, 1969. 1n the meanwhile, Accounts Officer issued Memo. No. XXXVII (4) Auqaf/53 (A‑13), dated 20th November, 1968 on behalf of Chief Administrator of Auqaf laying down minimum qualifications for the post of Accountant Grade‑11 in the revised pay scale. As the petitioner was not having seven years' experience in accounts work as prescribed in the aforesaid memo, it was directed that the amount overdrawn by him be deducted from his pay in four instalments. This was vide Memo. No. DDH‑MS‑Misc (P)/69/148, dated 11th March, 1969. The excess amount was accordingly deducted. The petitioner is thus aggrieved of the deduction so carried out and the refusal made to allow the revised pay scale since 14th September, 1968 to him.

2. The Auqaf Department in the comments submitted conceded that the petitioner is entitled to draw pay in the revised pay scale from 21st January, 1972 and that the Department is prepared to pay the emoluments of the petitioner according to the revised pay scale from above‑stated date. This fact was noted in the order, dated 14th February, 1983. This, how ever, did not satisfy the petitioner as it was submitted on his behalf that as in fact he was allowed revised pay scale w. e. f. 14th September, 1968 and as the petitioner has been drawing pay in the said scale, the addition of any qualification at a subsequent stage cannot be made basis for refusing pay to the petitioner in the revised pay scale.

3. I have heard the learned counsel for the parties. Mr. Riaz Kayani, Advocate, Legal Advisor of the Auqaf Department states that though the Memo. dated 20th November, :968 (Annexure 'B') was not issued by the competent authority itself i.e. the Chief Administrator Auqaf, but the said action or addition of the qualification was accepted and ratified by the Chief Administrator of Auqaf later on. He fairly and candidly conceded that this ratification would have only prospective effect. It was not also possible for him to deny that the petitioner was given pay in the revised pay scale for four months but he added that the petitioner did never object to the deduc tion of the said amount and refused to allow him pay in the revised pay scale since 14th September, 1968 till filing of the present constitution petition. He argued that the petitioner had acquisced with the action taken and as petition suffers from laches, the petitioner is not entitled to seek relief by invoking constitutional jurisdiction. The other objection raised is that in case the petitioner is allowed the pay scale since 14th September, 1968 as re quested by him, that will make him senior to ten other officers who have not been impleaded as respondents in this petition, except Abdus Sattar. He states that no relief can possibly be granted to the petitioner without afford ing an opportunity of hearing to the affected persons. The petitioner at this stage submits that in the case he is held entitled to receive pay in the revised pay scale since 14th September, 1968, he will not claim seniority over any other person except respondent No. 2.

4. In view of above, the petitioner shall not be entitled to claim right of seniority on the basis of this judgment. As regards the entitlement to receive pay in the revised pay scale, it will be seen that in pursuance to the sanction order, the pay was allowed to be drawn according to the revised pay scale. The sanction order as such was acted upon. Moreover, the addition to the qualifications was admittedly made subsequent to the issuance of the sanction order as well at a time when the said order had already been acted upon and a benefit had already accrued to the petitioner. This memo. adding qualification for receiving the revised pay scale could apply prospectively only and not retrospectively. The petitioner, as such, could not be deprived of the benefit which had already accrued to him and, therefore, he is entitled to receive pay according to the revised pay scale since 14th September, 1968.

5. For the reasons given above, the petition succeeds in the terms stated above. There shall be no order as to costs. A. E. Petition accepted,