' IQBAL HAMEEDUR RAHMAN, J.--- Brief facts giving rise to this writ petition are that the petitioner was appointed as Junior Clerk in the year 1965 in Irrigation and Power Department and in the year 1995 he was promoted as Head Clerk. According to Notification dated 7-10-1998 issued by the Governor of the Punjab, the petitioner was promoted as Circle Superintendent (BS-16) in Northern Tube-Well Division (NTD), Multan vide Order No,ADMN/2002/13831/247/94, dated 17-12-2002 passed by respondent No,2/The Chief Engineer, Irrigation Zone, Dera Ghazi Khan. Respondent No,6 vide Order No,ADMN/2003/1337/247/94, dated 1-2-2003 had withdrawn the order, dated 18-,12-2002 and one Muneer Ahmad Stenographer was promoted as Circle Superintendent vide Order No,ADMN./2003/1344/247/94, dated 1-2-2003. The order dated 1-2-2003 was assailed by the petitioner in departmental appeal/representation but respondent No,2/Chief Engineer Irrigation Zone D.R. Khan did not decide the matter within stipulated time. The petitioner preferred Appeal No,1071 of 2003 before the Punjab Service Tribunal challenging the order, dated 1-2-2003 passed by respondent No,6. The learned Tribunal vide order, dated 17-3-2004 while setting aside of the order, dated 1-2-2003 remanded the case to Departmental Promotion Committee for regular promotion.
The DPC approved the promotion of the petitioner after fulfilment of all the legal requirements vide its decision dated 29-5-2004 and the petitioner was posted as Circle Superintendent in Project Circle, D.G. Khan vide order, dated 29-5-2004 issued by respondent No,6 and consequently, he assumed the charge as Circle Superintendent Project Circle Irrigation D.G. Khan vide letter No,223/EA, dated 1-6-2004 issued by respondent No,4. Munir Ahmad Stenographer serving in Irrigation Zone D.G. Khan filed a representation before respondent No,2, who vide order, dated 2-6- 2004 stayed the proceedings of DPC. The said order was challenged by the petitioner through Writ Petition No,2985 of 2004 which was dismissed with the observation that the petitioner may approach the Service Tribunal for the redressal of his grievance. The petitioner, therefore, filed Appeal No,1632 of 2005 before the Punjab Service Tribunal which was disposed of vide judgment dated 20-3-2006 and the case was remanded to respondent No,1 to decide the matter regarding promotion and seniority of the petitioner after hearing both the parties. In compliance of the judgment dated 20-3-2006 passed by the Punjab Service Tribunal, the petitioner moved representation before respondent No,1 but he did not even both to call the parties for hearing.
During the pendency of representation before respondent No,1, order of retirement of the petitioner was issued vide Office Order No,ADMN/2006/10299- 10305/1297, dated 14-9-2006 passed by respondent No,6. During the process of retirement of the petitioner, he was transferred from Project Circle Irrigation D.G. Khan to Development Division II (Northern Tube-Well Division), Multan, vide Order, No,1967/ZE, dated 23-9-2006 passed by respondent No,4. Both the orders dated 14-9-2006 and 23-9-2006 were challenged by the petitioner through Writ Petition No,5075 of 2006 which was disposed of with the direction that respondent No,1 shall decide the representation of the petitioner by or before 7-10-2006, vide order, dated 29-9-2006. Thereafter, respondent No,1 decided the representation of the petitioner and set aside the decision of the Departmental Promotion Committee regarding the promotion of the petitioner vide order, dated 6-10-2006. The petitioner filed an application before respondent No,8 District Accounts Officer, D.G. Khan for the issuance of Last Pay Certificate (LPC) and payment of pay for the month of September, 2006, 23 days duty period on 19-1-2007 as he relinquished the charge on 23-9-2006 but neither LPC was issued nor the salary was paid to the petitioner. Instead respondent No,2 had issued a Letter No,12211-98/12/97, dated 6-11-2006 regarding the recovery of alleged excess salary/allowance from the petitioner.
Against the said order, the petitioner has filed this writ petition.
2. It is contended on behalf of the petitioner that no one can be deprived of his salary for the work, which has been done by him and action of the respondents is therefore, not only illegal but also is against the norms of natural justice and in this respect reliance is placed upon Administrator, District Council, Larkana and another v Ghulab Khan and 5 others 2001 SCMR 1320, wherein it has been held that salaries of the employees cannot be withheld on the ground that appointment was illegal being made in violation of the relevant rules and in fact action should have been initiated against those who were sitting at the helm of affairs for such irregularities. Reliance is also placed upon Zafar Mahmood Malik v. Water Management Specialist and 5 others 2005 PLC (C.S.) 4, Nisar Ahmad and others v. Town Committee, Khairpur Tamewali through Administrator 2004 PLC (C.S.)
382 and Khalid Parveen v. D.E.O. (Female) Secondary, Karak and others 2003 PLC (C.S.) 1376 and that the petitioner was awarded promotion on the recommendation of the DPC and he was appointed as officiating Circle Superintendent and on that post he worked and performed his duties and, therefore, action of the respondents for recovery of the salary is without lawful authority and in this respect reliance is placed upon Shaukat Ali v. District Government,through Nazim/Chairman Selection Committee and 4 others 2005 PLC (C.S.) 790 and The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalal Uddin PLD 1992 SC 207.
3. On the other hand, the learned A.A.-G. Has supported the impugned order, dated 6-11-2006 and also supported the comments submitted by the respondents, wherein it is stated that pension papers of the petitioner have not been received and as soon as his pension papers are received, the pension matter will be disposed of immediately according to prevailing rules and regulation.
4. I have heard learned counsel for the petitioner as well as the learned A.A.-G. And also perused the impugned letter, dated 6-11-2006 and comments submitted by the respondents.
5. It is an admitted fact that the petitioner was awarded promotion on the recommendation of the DPC and 'he was appointed as officiating Circle Superintendent and on that post he worked and performed his duties honestly and if the proceedings of the DPC were defective or there was any irregularity committed by the Department, the petitioner could not be held responsible for the same. Recovery of amount paid on basis of incorrect order received by the petitioner on a bona tide belief that he was entitled to it, as such the respondents were not entitled to recover the amount from the petitioner during the period when incorrect order A remained in field and principle of locus poenitentiae would be applicable to this case. In this respect, reliance is placed upon The Engineer-in Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalal Uddin PLD 1992 SC 207 and Shaukat Ali v. District Government through Nazim/Chairman Selection Committee and 4 others 2005 PLC (C.S.) .790. The petitioner filed an application before respondent No,8 for the issuance of Last Pay Certificate (LPC) and payment of pay for the month of September, 2006 (23days duty period) on 19-1-2007 as he relinquished the charge on 23-9-2006 but neither LPC is issued nor the salary is paid to the petitioner. It is settled principle of law that no one can be deprived of his salary for the work which has been done by him and even it has been held in Administrator, District Council, Larkana and another v. Ghulab Khan and 5 others 2001 SCMR 1320 that salaries of the employees cannot be withheld on the ground that the appointment was illegal being made in violation of the relevant rules and in fact action should have been initiated against those who were sitting at the helm of affairs for such irregularities. Reliance is also placed upon Zafar Mahmood Malik v. Water Management Specialist and 5 others 2005 PLC (C.S.) 4, Nisar Ahmad and others v. Town Committee, Khairpur Tamewali through Administrator 2004 PLC (C.S.)
382 and Khalid Parveen v. D.E.O. (Female) Secondary, Karak and others 2003 PLC (C.S.) 1376.
6. In view of the above circumstance and relying upon the afore-mention authorities, this writ petition is accepted and the impugned letter, dated 6-11-2006 is set aside. The respondents are directed to release the pensionary benefits with all other emoluments of the petitioner within one month..