2004 PLP 309 (SCMR)

JAVED IQBAL, J.

Leave to appeal was granted vide order dated 16-4-1999 which is reproduced hereinbelow to appreciate the legal and factual aspects of the controversy:-- "(1) Leave to appeal is sought against the judgment dated 26-11-1997 of the Punjab Service Tribunal, Lahore through which the appeal filed by the respondent against the order dated 4-9-1993 of the departmental authority by which two advance increments earlier granted to him on account of improvement of his educational qualification were withdrawn, has been accepted and the said order set aside. (2) The respondent was appointed as Divisional Head Draftsman Punjab Highways Department. The basic educational qualification for appointment against the said post as prescribed under the rules was matriculation with science. On 8-1-1991, the Finance Department introduced revision of pay scales according to para. 5 of which the civil servants working in scales 1 to 15 were given two advance increments on improvement in the prescribed educational qualification. The respondent having passed B.A. was granted two advance increments through order dated 15-11-1992 in terms of para.5 thereof which subsequently were withdrawn through order dated 4-9-1993 on the ground that the Finance Division had clarified that only those officers could be granted increments who had improved educational qualifications in the relevant field and not otherwise and since the respondent had passed only B.A. Examination, therefore, the' increments already granted to him were withdrawn. (3) The appeal filed by the respondent has -been accepted by the Service Tribunal through the impugned judgment dated 26-11-1997 on the ground that the said clarification having been made subsequent to order granting two increments under Finance Department Notification dated 8-9-1991, therefore, was prospectively effective and could not adversely affect the rights already created and granted under the said notification. (4) Learned counsel for the petitioners, inter alia, contended that the basic educational qualification for the post in dispute was matriculation with science and under para. 5 of Notification dated 8-9-1991, an officer was qualified for the grant of increments on his improving prescribed qualification i.e. passing B.Sc. as matriculation with science was the prescribed qualification and not B.A., as such, even under the said notification, the grant of two increments was not permissible which aspect of the case did not receive consideration by the Service Tribunal.

5. The above contention requires examination, therefore, leave to appeal is granted to consider the same."

2. Mrs. Afshan Ghazanfer, learned Assistant Advocate-General, Punjab entered appearance on behalf of appellant and contended that it is within the competency of Government to withdraw the benefit of two advance increments which aspect of the matter has been ignored by the Punjab Service Tribunal resulting in serious miscarriage of justice. It is next contended that the increments have been withdrawn pursuant to the clarification made by the Finance Department on 8-7-1993 and no injustice whatsoever has been done to the respondent who was not entitled to get two advance increments in view of the clarification as made by the Finance Department. It is contended that the respondent had not acquired higher qualification relevant for the official purpose but on the contrary it has no relevancy with nature of the job:

3. Pervaiz Iqbal, respondent, entered appearance in person and supported the judgment impugned for the reasons enumerated therein. He, however, conceded that the higher qualification acquired by him was not in the relevant technical field but simultaneously urged with vehemence that the increments so granted could not have been withdrawn with retrospective effect.

4. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of record of the case including the notifications issued from time to time. A careful scrutiny of the entire record would reveal that two advance increments had been granted in favour of respondent by means of order dated 15-11-1992 w.e.f. 8-9-1991 on account of higher educational qualification which has been withdrawn by means of order dated 4-9-1993. The pivotal question which needs determination would be whether such advance increments could have been withdrawn retrospectively? The answer would be in negative for the -simple reason that decision for withdrawal of such advance increments was made pursuant to new sub-para. (iv) added in Circular NO.FD.PC-2-2/91, dated 1-8-1991 which runs as follows:-- "(iv) The advance increments shall be allowed only if the higher qualifications are in the relevant/related field."

5. The new added sub-para. was not available in the original Circular bearing FD. PR-12-3/87(PT.VI), dated 22-1-1998 whereby two advance increments were granted on account of higher qualifications which were acquired undisputedly by the respondent at the time of grant of the advance increments. The Finance Department, Government of the Punjab got up from deep slumber and new above sub-para. was added after about seven years but which could not have been given retrospective effect. Even otherwise the circular letter cannot be equated to that of a legitimate piece of legislation, hence the question of its application with retrospective effect does not arise. In view of the clarification as made by the Finance-Department by means of new-added sub-para. (iv) in the above mentioned circular the respondent would not be entitled to get two advance increments after 22-9-1998 i.e. the date of issuance of the circular with new-added sub-para. (iv) which would have no effect whatsoever on the increments for the period prior to issuance or said clarification. No deduction would be made from the pay or respondent prior to 22-2-1998 for the amount withdrawn qua two advance increments for which he would not be entitled after 22-2-1998. The appeal is partly accepted in the above terms. There shall be however, no order as to costs. M.H./P-114/S Order accordingly