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Civil Petition for Special Leave to Appeal No. 120‑8 of 1979, decided on 18th March 1980.

(On appeal from the judgment and order of the Service Tribunal, Islam abad, dated 15‑2‑1979, passed in Appeal No. 823(K) of 1974).

Constitution of Pakistan (1973)‑

---Art.-212(3)‑Service matter‑Petitioner failing to point out any order or communication to show facts mentioned in order of Service Tribunal being incorrect‑Petitioner also failing to controvert finding recorded by Tribunal holding lower pay scale pertaining to post held by respondent though fixed yet respondent long before such date of fixation confirmed in upgraded post, allowed higher pay scale, and such privilege enjoyed for more than eight years before impugned order passed against him‑Petitioner‑Government, held, cannot change pay scale of respondent to his detriment retrospectively an order passed by Service Tribunal allowing higher scale of pay to respondent, held, entirely unexceptionable.‑{Civil services]

Pakistan v. Muhammad Himayatullah Farukhi P L D 1969 S C 407 ref

Pakistan v. Muhammad Himayatullah P L D 1969 S C 407 ref

Syed Muhammad Shahudul Haq, Advocate, instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

S. M. Abbas, Advocate‑on‑Record for Respondent

Date of hearing: 18th March, 1980.

This petition seeks leave against the judgment of the Central Service Tribunal, Camp Karachi, dated 15‑2‑1979, by which the appeal of the respondent was accepted as under:

"He is entitled to draw pay in the scale of Rs. 600‑1,150, with effect from 1st July 1959, which is the date of his appointment. He would be entitled to normal increments admissible under the rules, and would draw increased pay as admissible under the rules from time to time up‑to‑date. The question of recovery of the overdrawn amount also does not arise."

In seeking leave to appeal Mr. Shahudul Haq, the learned counsel for the petitioner Government has raised the following three contentions against the impugned judgment :‑

(1) that the respondent had challenged before the Tribunal the 40 orders, dated 31‑8‑1961 and 8‑8‑1967 passed by the petitioner Government which orders, however, could not be challenged in view of the proviso (c) to subsection (1) of section 4 of Service Tribunal Act, 1973, as the said two orders had been passed long before the target date of 1‑7‑1969

(2) that the President of Pakistan, who was the competent authority in respect of the terms and conditions of service of the respondent, had passed no order to the effect that he would be entitled to draw the pay scale of Rs. 600‑1,150 in his capacity as Administrative Officer ; and

(3) that the appeal filed by the respondent before the Tribunal was barred by 110 days and since he had filed no application for the condonation of delay under section 5 of the Limitation Act, the Tribunal had no jurisdiction to have condoned the delay in his favour.

In so far as the last contention is concerned, the learned counsel was evidently mistaken, as Mr. S. M. Abbas, the learned counsel for the respondent placed before us a copy of the application under section 5 of the Limitation Act filed before the Tribunal. When this application was brought to the notice of the learned counsel for the petitioner‑Government, naturally he had no answer and so did not press the said objection any further.

As to the first contention urged by the learned counsel, we are afraid it has no substance in it. It is a matter of record' that in this case unfortunately the petitioner Government has been changing its position from time to time inasmuch as in view of some orders passed by it, the respondent was allowed the pay scale of Rs. 600‑1,150, but subsequently the said position was reversed to his detriment. In this view of the matter, the respondent filed an appeal before the President of Pakistan on 31‑8‑1967. But 3J years thereafter he was informed by the Establishment Division that his appeal had been withheld. Against the said order, be made a representa tion on 19‑2‑1972 but he was informed that by withholding his appeal the Establishment Division had taken the correct position. On 31‑7‑1974, however. it was communicated to the respondent that his appeal filed before the President had been rejected, and as a consequence thereof he was asked to repay all the excess amount received by him in the pay scale of Rs. 600‑1150, with effect from 1‑7‑1959, as the pay scale to which he was entitled was Rs. 350‑850. It was in this background that the respondent invoked the appellate jurisdiction of the Service Tribunal, and we agree that in view of the facts and circumstances of the case the order communicated to him on 31‑7‑1974 was indeed the final order, and not the other two orders to which the learned counsel for the petitioner‑Govern ment has made reference. We are, therefore, satisfied that the contention urged by him is misconceived.

As to the second contention urged by the learned counsel, it would be necessary to refer to certain orders passed by petitioner Government from time to time. The first order in this connection is dated 29.1‑1960 (sea page 52), which in relevant parts runs as under:

Karachi, the 29th January, 1960.

The Director,

Marine Fisheries Department Karachi

Subject‑‑Fisheries Development in Pakistan

I am directed to convey the sanction of the President to the creation with effect from 1st July 1959 of the following additional posts for the quick and effective implementation of the Fisheries Development Scheme already approved by the Cabinet :‑

Designation of the Post. No. of Pay Scale Pay scale

Posts.

------------------------ ------------ ------------

General Central Service (Class I).

Administrative Officer

Up-gradation of the existing

permanent post of

Administrative Officer. 1 Rs. 600‑‑40‑‑‑1,000‑30‑‑‑

1,150."

Now the admitted position is that the respondent was appointed to the said upgraded post with effect from 1‑7‑1959 vide letter dated 10‑11‑1961, issued by the Ministry of Finance of the Federal Government and allowed to draw the pay scale of Rs. 600‑1,150. In July 1962, however, the Ministry of Finance retracted from the said position. But in January 1963, in consulta tion with the Auditor‑General of Pakistan, the Ministry of Finance again allowed to the respondent the said pay scale of Rs. 600‑1,150. On 31‑8‑1963, however, the Ministry of Finance again changed its position and con sequently disallowed to the respondent the said pay scale on the ground that the appointing authority was competent to allow him a lower pay scale against a vacant post, which was carrying higher pay scale. In June 1966 however, the Joint Secretary (Regulations) of the Ministry of Finance again allowed to the respondent the said pay scale of Rs. 600‑1,150 for all the period during which he performed his duty in the upgraded post of Administrative Officer. But on 8‑8‑1967, the Ministry of Finance unfortunately again retracted from the said position and informed the respondent that he was entitled only to the pay scale of Rs. 350‑850, and not the pay scale of Rs. 600‑1,150, which he had drawn for more than eight years.

Upon these facts, the view taken by the Service Tribunal was "The orders of the Government allowing the appellant to draw pay in the scale of Rs. 600‑1,150 remained operative for about eight years, and there fore, the Government cannot be allowed to get out of the validity of its own orders after such along time because this has created, in fact, a right to a particular entitlement of pay in favour of the petitioner. This view is clearly supported by the authority P L D 1969 S C 407. It is also not possible to refute the contention of the appellant that he stood confirmed against a post, which was sanctioned in the scale of Rs. 600‑1,150, and as such the revision of this scale with retrospective effect, could not deprive him of the original entitlement. The contention of the appellant that the orders revising the scale of pay from Rs. 600‑1,150 to ks. 350‑850 were, in fact, issued on 21‑1‑1961 and not on 20‑7‑1960, has not been satisfactorily refuted by the Government side.

With this view taken by the Service Tribunal, we fully agree Mr. Shahudul Haq, the learned counsel for the petitioner Government ha taken us through the record, but was unable to point out arty order o communication to show that the above facts mentioned in the order of the Service Tribunal were incorrect. The learned counsel also could not controvert the finding recorded by the Tribunal that whereas the‑ revised pay scale of Rs. 350‑850, pertaining to the post held by the respondent, was fix with effect from 21‑1‑1961. But long before that, i.e. to say on 21‑10‑1960, he had been confirmed in the upgraded post and allowed the revised pa, scale of Rs. 600‑1,150, which he enjoyed for more than eight years before the impugned order was passed against him. It would therefore, follow that the Government could not possibly change ‑to his detriment the said "pay scale of Rs. 600‑‑1,150 retroactively. In this behalf the Service Tribunal was indeed supported by the judgment of this Court. Pakistan v. Muhammad, Himayatullah (PLD1969 S C 407), in which the dictum relevant to the facts of this case is to the following effect :‑‑

"There can hardly be any dispute with the rule that apart from the provisions of section. 21 of the General Clauses Act, locus poenitentiae i.e. the power, of, receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empower to pass orders to retrace the wrong steps taken by them. The authority that he, the power to make an order has also the power to undo it. But this is subject to the exception that where t order has taken legal effect, and in pursuance thereof certain right have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights,"

It would thus be seen that the order passed by the Service Tribunal is entirely unexceptionable; this petition therefore, fails and is dismissed.

Petition dismissed.

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