MOHAMMAD AFZAL, MEMBER-I.- As per facts leading to this appeal, the appellant was appointed as Arabic teacher on 16.11.1985 in BS-9 on merits. Appellant, while continuing in his service as Arabic Teacher was appointed as O.T. On 17.2.1990. Before his appointment as O.T, the appellant passed B.A. And also subsequently, acquired the qualification of M.A. He was allowed three advance increments on account of higher qualification of B. A. And one advance increment on account of higher qualification of M.A. Through orders dated 17.4.1990 while working as O.T. In BS-9. Through notification dated 3.6.1989, post of OTs up-graded from BS-9 to BS-15, but BS-15 was to be allowed to those who had at least five years' experience. The authority considering the fact that the appellant fulfilled the condition of five years' experience as he had already been working as Arabic teacher in the same scale i.e. BS-9, upgraded the appellant to BS-15 w.e.f. 17:11.1990. The pay of the appellant was fixed accordingly in BS-15 including benefit of advance increments which the appellant had already received on account of higher qualification in BS-9. On an audit objection against the pay fixation as allowed to the appellant in BS-15 and also advance increments, the appellant was served with a notice dated 22.11.1999 to refund the amount of Rs. 73,301/-. Appellant submitted reply stating that he had been allowed advance increments as well as BS-15 according to his entitlement and under the orders of the competent authority and the same could not be withdrawn after nine years. The matter, therefore, remained pending in correspondence between various offices of the department as an effort was being made to settle the audit objection.
However, in 2001, the pay of the appellant was stopped by the concerned headmaster of the school and he was asked to first refund the recoverable amount which according to the said headmaster was over drawn by the appellant. Appellant feeling aggrieved, filed writ petition and the impugned orders relating to recovery were suspended and withheld pay of the appellant was released.
Another order dated 20.11.2001 was thereafter passed vide which advance increments as well as up-gradation of the appellant to BS-15 w.e.f. 17.11.1990 were withdrawn and BS-15 was allowed to the appellant from later dated i.e. w.e.f. 17.2.1995, In consequence of this order, the appellant was asked to give recovery of Rs. 93,015/-. Feeling more aggrieved with this new/adverse development, the appellant filed Writ Petition No. 4567/02. In consequence of this writ petition, fresh recovery orders were stayed and a direction was given by learned High Court not to make recovery from the pay of the appellant on account of earlier up-gradation of the appellant as well as grant of advance increments. The said writ petition was finally decided by orders dated 14.7.2004 and while direction was given not to make any recovery from the pay of the appellant as regards revised up- gradation taking place from 17.2.1995, direction was given to the concerned departmental authority to pass appropriate orders on the pending departmental appeal of the appellant. Appellant thereafter submitted fresh appeal after removing certain objections raised by the concerned office and as the same was decided within the statutory period, the appellant has now preferred present appeal in this Tribunal challenging the latest orders dated 20.11.2001 vide which, while advance increments were withdrawn, up-gradation was allowed w.e.f. 17.2.1995 instead of 17.11.1990 as earlier allowed to the appellant.
Learned counsel for the appellant contends that orders dated 20.11.2000 and also earlier impugned orders in the same context, were blatantly illegal and arbitrary, as the concerned authority had miserably failed to appreciate the facts of the case, It is maintained that in the first place, as per law already settled, no advance increments allowed by the competent authority and received by a civil servant in good faith, could be withdrawn, secondly, the recovery orders as well as orders regarding cancellation of advance increments and up-gradation were passed out of mala fide as the headmaster in whose school the appellant was posted was personally annoyed with the appellant and he had his hand behind the audit observations which were totally unwarranted, It is also pointed out that the appellant was entitled to advance increments from the date the same were allowed because if any adverse clarification was made regarding grant of these advance increments subsequently by the Education Department, In 1998, the same was not applicable, particularly, when the- advance increments had been allowed to him in BS-9 and not in BS-15 i.e. Before upgradation. It is also maintained that similarly under the notification dated 3.6.1989, up- gradation was to be made subject to experience of five years and the appellant did possess the said experience on particular dated i.e. 17.11.1990 when he was allowed up-gradation as OT. It is also argued that the case of the appellant was basically governed by the basic pay scale scheme introduced on 25.3.1983 and under this scheme the appellant was entitled to advance increments on acquiring higher qualification and that the same benefits could not be withdrawn after 10 years and the appellant could not be put to hardship and jeopardy. It is also maintained that even otherwise the function of the appellant as Arabic teacher and as O.T. Including pay scales, remained the same and on this ground also the appellant was entitled to up-gradation of the post of O.T. From the date he had completed five years' experience as Arabic teacher as well as O.T. As there was no mention in the notification that experience of five years was to be an experience as O.T.
3. Appeal is opposed by the respondents, It is maintained on behalf of the respondents that the appellant was appointed as O.T. Teacher on 1.7.9.1990 and he was allowed advance increments while working as O.T, whereas in accordance with clarification made by the Government, O.Ts.
Benefiting from up-gradation were not entitled to any advance increments as they had already been placed in BS- 15. It is maintained that when the appellant was placed in BS-15, then, he had no claim for grant of advance increments which were allowed to the appellant irregularly. It is also maintained that the authority was competent to withdraw its orders at any time if it was found that those orders were not passed in accordance with law. Therefore, the orders relating to withdrawal of advance increments and up-gradation had been validly passed by the concerned authority, It is further stated that under the Government notification relating to up-gradation of the post of O.T., the experience of five years was to be the experience of five years was O^T. And not experience as Arabic teacher and, therefore, the appellant was not entitled to up-gradation till 1995 when he would have completed the experience of five years as O.T.
4. I have considered contentions from both sides and also gone through the relevant record. I find that the stance of the respondents suffers from contradictions and inconsistencies. On the one hand, it is being stressed that in terms of notification dated 3.6.1989, if the appellant was entitled to up-gradation to BS-15 then he was not entitled to any advance increment. On the other hand, it is also stated by the same respondents that the appellant was not entitled to up-gradation as well on the basis of the fact that he had not completed five years experience as O.T. I do agree with the appellant that in the notification dated 3.9.1989 there is nothing that five years' experience shall be required as that of O.T. The notification being silent on this point, the department authority had apparently concluded that the experience of the appellant as Arabic teacher shall also be counted for the purpose of up-gradation. Moreover, the post O.T. And that of Arabic teacher which the appellant was holding were similar in functions and carried the same pay scale. Appellant was naturally allowed the benefit of upgradation as O.T. By counting his experience as Arabic teacher when he was allowed BS-15 w.e.f. 17.11.1990. Prior to this, appellant had been allowed advance increments while working in BS-9. The fact is not disputed by the respondents that advance increments were allowed to the appellant in BS-9. Appellant was naturally not entitled to advance increments in BS-15, but he was definitely entitled to advance increments on higher qualification while in BS-9. The clarification dated 7.9.1998 to which the respondents have repeatedly referred in their parawise comments is certainly not applicable and not attracted in the case of the appellant In the first place, the orders granting advance increments to the appellant had been passed at least nine years prior to the issuance of clarification dated 7.9.1998. Therefore, this clarification was not applicable from back date. Secondly, even according to this clarification also, the department had disallowed advance increments in the case of those who had been placed in BS-15. Appellant was placed in BS-15 on 17.11.1990, whereas the advance increments had been allowed to him w.e.f.
17.2.1990 in BS- 9. I, therefore, find that even if by any stretch of new interpretation, the appellant was found not entitled to upgradation to BS-15 on grounds of lack of experience as O.T., he was certainly entitled to advance increments on the basis of higher qualification in 1990. Appellant had already received the financial benefits under valid orders of the competent authority in 1990. There is found no illegality in those orders. If any clarification was made after 8 & 9 years, such clarification could not be applicable in the^case of the appellant and in the light of such clarification, financial benefits already allowed to the appellant in good faith by the competent authority could not be withdrawn and the appellant could not be subjected to recovery.
5. For the reasons given above, appeal is allowed and it is directed that the benefits of advance increments and up-gradation, allowed to the appellant shall not be withdrawn and he shall not be burdened with any recovery through any adverse orders.