1999 PLP (C (PLC(CS))

ABDUL RAZZAQ A. THAHIM (CHAIRMAN). ‑‑‑The facts of this appeal are that the appellant while working as Assistant Sub‑Inspector was granted Selection Grade from BPS‑5 to BPS‑7 with effect from 30‑5‑1989 by order dated 1‑7‑1989 passed by the Superintendent of Police, Pakistan Railways, Quetta and his pay was fixed at Rs.

905. In the meantime, the post of A.S. I. was upgraded from BPS‑7 to BPS‑11 and consequently his pay was refixed at Rs.956. In the year 1990, due to revision of pay‑scales, his pay was fixed from B‑7 to B‑11 at Rs.1,533 after allowing the benefit of Selection Grade Cad 33%, by S.P., Railways Police, Quetta vide order dated 27‑7‑1991, and by order dated 16‑12‑1991 he was allowed the benefit of one increment and his pay was fixed at Rs.1,619 in BPS‑

11. The appellant was served with a notice dated 5‑12‑1993, in pursuance of the orders of the Inspector‑General, Pakistan Railways Police HQ, Lahore, refixed the pay without awarding selection grade to the appellant whereby excess amount was ordered to be recovered from him, i.e. Rs.3,348.97. This gave a cause of grievance because according to him, the earlier orders whereby he was granted selection grade, was withdrawn, and he made departmental appeal on 8‑12‑1993, and in response thereto, he was directed to appear before the Deputy Inspector‑General of Police on 5‑1‑1994 but there was no response. He made another appeal to the Chairman, Pakistan Railways Board, Islamabad on 18‑11‑1994. However, the request of the appellant was rejected vide letter dated 5‑12‑1994 by the A.I.‑G./Admn., Office of the I.‑G. Lahore, and this decision was communicated to the appellant by S.P., Pakistan Railways Police, Quetta, vide letter dated 8‑12‑1994. He then filed this appeal before the Tribunal under section 4 of the Service Tribunals Act, 1973, with the prayer that selection grade with all back benefits may be restored to him.

2. We have heard the learned counsel for the appellant at length. It is contended that the appellant was granted selection grade by the competent Authority on the basis of 33 % quota and the I.‑G. without show‑cause notice or affording him opportunity of hearing in person, has arbitrarily withdrawn the order. It is further contended that the appellant requested for interview which was declined which is contrary to the rules as the appellate authority is bound to hear the appellant before passing any adverse order. It is argued that according to the respondents, selection grade has been withdrawn on the basis of bad record, but the learned counsel for the appellant has taken us to the comments and submitted that the punishments mentioned in the comments are minor penalties and could not be considered as adverse in view of the decision reported in 1977 PLC (C.S.) 139.

3. Comments have been filed by the respondents and at the time of regular hearing, Mr. Atif Hussain, Senior Clerk appeared on their behalf and submitted that there were two Wings, namely Investigation and Preventive, and there being only one vacancy in the Preventive Wing, the appellant was not entitled to grant of Selection Grade @ 33 % quota, and therefore, the I.‑G. after considering this aspect of the case, withdrew the selection grade, as there was no post in that Wing.

4. The appellant was granted Selection Grade BPS‑7 by Superintendent of Police, Pakistan Railways, Quetta, vide order dated 1‑7‑1989, with effect from 30‑5‑1989, and his pay was accordingly fixed at Rs. 905, whereafter his pay was re-fixed from time to time consequent upon the upgradation of the posts of A.S.Is. and the revision of pay‑scales, and finally his pay was fixed at Rs.1,619 in BPS‑

11. The appellant was allowed the benefit of Selection Grade and upgradation, after examining the service record and seniority, etc. as required under the rules, as such benefits are not allowed automatically, but after due process of rules, by the competent Authority, and this exercise having been done and order passed in 1989 and acted upon in favour of the appellant, it had created a vested right as the appellant had enjoyed this benefit right from 1989 and under the principle of locus poenitentiae, such order could not be withdrawn, and that too, without hearing the appellant, which is fatal. Moreover, it is a settled law that no adverse order could be passed with retrospective effect. With regard to bad record as mentioned in the comments, it was for the competent Authority to have examined this aspect of the case at the time of granting him selection grade. In these circumstances, we are of the view that the order dated 5‑12‑1993 whereby the pay of the appellant had been re-fixed and excess amount has been recovered, and there are no specific reasons for withdrawal of selection grade, cannot sustain. We accordingly set aside the impugned order dated 5‑12‑1993 and consequently amount so recovered be paid to appellant. H.B.T./174/Sr.F ????????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.