2013 PLP (C (PLC(CS))

MUHAMMAD AZIM KHAN AFRIDI, J.

Muhammad Zafar Iqbal and five others hereinafter referred to as the petitioners have preferred the instant constitutional petition with a prayer to direct the respondents to grant pay protection to the petitioners on antedation of their placement in EG-III from 1-12-2002 to 1-12-997, by modifying impugned office memorandum dated 22-9-2005 and that illegal recovery from salary of the petitioners be stopped forthwith and that the amount unjustly recovered from the salary be refunded.

2. Brief facts relevant for the disposal of the instant constitutional petition are that the petitioners, employees of OGDCL, were promoted and placed in Executive Group-I with effect from 1-12-1992, and subsequently placed in EG-II with effect from 1-12-199, though they were required to be placed in EG-III from the said date in line with their colleagues in non-technical cadre as they were granted such promotion in pursuance of judgment dated 15-1-2001 of the Hon'ble Supreme Court of Pakistan as reported in 2005 SCMR 1115. That the petitioners requested for placement in EG-III w.e.f 1-12-1997, but their request was declined by respondent No.2 vide office memorandum dated 19-5-2003. That as a result of antedation of placement in EG-III, the pay of the petitioners was re-fixed vide impugned office memorandum dated 22-9-2005, which resulted in reducing the basic pay of the petitioners. That recovery has been worked out against the petitioners and monthly installment is being deducted from the salary at the petitioners since February, 2006. That the petitioners requested time and again for stoppage of the recovery, but of no use and hence the instant writ petition.

3. Learned counsel for the petitioners has argued that the petitioners were entitled for placement in EG-III with effect from 1-12-1997, while they were placed in EG-III with effect from 1-12-2002. That as a result of antedation of placement in EG-III w.e.f. 1-12-2002, the pay of the petitioners was re-fixed vide office memorandum dated 22-9-2005 whereby the basic pay of the petitioners was reduced resulting in proportionate reduction in allowances. That due to the afore-stated reasons illegal recovery was worked out and the same was recovered through the process of reduction in the shape of monthly installment from the salaries of the petitioners. That the amount already paid to the petitioners was not recoverable from the petitioners on the principle of locus poenitentiae. That the petitioners had not received the said amount as a result of any wrong order of the respondents and that the same was paid to the petitioners as legitimate earning in the shape of pay at the relevant time and as such the same was not recoverable from the petitioners. He further argued that the petitioners would be satisfied if their case is considered by the respondents for antedation of their placement in EG-III with effect from 1-12-1997.

4. Learned counsel for the respondents has argued that the entire outstanding amount has been recovered from the petitioners and as such the writ petition has become infructuous. He further argued that the recovery was not the result of any orders passed for the recovery of any amount incorrectly paid to the petitioners and that the same was in fact the outcome of adjustments of the petitioners in the line of promotion which had in fact benefited the petitioners. That the petitioners cannot claim the benefits of the promotion from retrospective effect without adjustment of their salaries. That the antedate promotion is always subject to the prescribed criteria and the same cannot be unilaterally granted to each and every employee including the petitioners.

5. I have heard arguments of learned counsel for the parties and perused the record.

6. The case of the petitioners is two fold i.e. (i) stoppage/reduction of recovery or in case of recovery refund of the same and (ii) consideration of the petitioners to EG-III with effect from 1-12-1997.

7. So far as the recovery of the amount stated in the table given in para No.9 of the writ petition is concerned, the same is result of antedate promotion of the petitioners which had benefited the petitioners. The said recovery cannot be taken into account in isolation of beneficial order of promotion of the petitioners and as such the same cannot be termed an unjust recovery as the antedate promotion of the petitioners was in the best interest of the petitioners and adjustment of the pay and allowances of the petitioners was a consequential and essential requirement. Such eventuality would neither attract the principles of locus poenitentiae nor the same can be taken into account in isolation to the benefits of promotion.

8. So far as prayer of the petitioners for considering their cases with effect from 1-12-1997 is concerned, it is directed that their cases may be considered by the respondents in the prescribed manners and in case the petitioners meet the criteria for promotion to the said position with effect from 1-12-1997, then, in such eventuality they may be considered promoted to EG-III with effect from the said date and in that eventuality the case of the petitioners in respect of entitlement to the amount already recovered from their pay shall also be re-considered.

9. The writ petition is disposed of in the above terms. KMZ/79/Isl. Order accordingly.