N. A. CHOUDHARY (MEMBER),-.-Mr. M. K. Jaskani, the appellant in this case, was the substantive holder of the post of Administrative Officer, which was upgraded with effect from 1st July, 1959 to the scale of Rs. 600-1,150, vide Ministry of Agriculture letter dated 29th January, 1960. He was confirmed against this post with effect from 21st October, 1960. He was allowed to draw his pay and allowances in that scale by the Ministry of Finance vide their letter dated 10th November, 1961. In July, 1962, the orders of the Ministry of Finance to allow him the pay in the scale of Rs. 600---1,150 were withdrawn. In January, 1963, in consultation with the Auditor-General of Pakistan, the Ministry of Finance again allowed him to continue to draw the salary in the same scale. On 31st August, 1963, the orders of the Ministry of Finance were again withdrawn on the pica that the appointing authority can at dis--cretion appoint a person to lower scale of pay against a vacant post carrying higher scale of pay. In June, 1966, it was again decided at the level of Joint Secretary (Regulations) of the Ministry of Finance to allow him this scale for all the period for which he was holding that post. Ultimately, on 8th August, 1967, the Ministry of Finance again, re-imposed their decision to withdraw the entitlement of pay to the petitioner in the scale of Rs. 600--1,150 after he had practically drawn the pay in this scale far eight years.
The petitioner submitted an appeal to the President of Pakistan on 31st August, 1967 against these conflicting decisions of the Government. The petitioner was informed after 3-- years by the Establishment Division that the petition was withheld.
The petitioner represented against the above orders on 19th February, 1972. It was accepted by the Government that the action of the Establishment Division to withhold the petition was incorrect.
However, the above petition of the appellant remained undecided for seven years despite repeated reminders. He was ultimately informed on 31st July, 1974 that his petition dated 30th August, 1967 had been rejected by the President of Pakistan, and it was ordered to enforce recovery from him of the amount paid in excess of this revised, entitlement. He further made a request to the Ministry of Agriculture on 12th August, 1974 representing to them to release the pay he was originally permitted to draw by the Ministry of Finance. The petitioner did not receive any reply to this request. Hence this appeal dated 10th December, 1974 to the Service Tribunal.
Before the merits of the case could be discussed, the learned counsel for State raised a preliminary objection regarding limitation. He argued that the petitioner received the final reply from the Government on 31st July, 1974 rejecting his appeal therefore, he should have filed his petition within thirty days. The period, therefore, expired on 30th August, 1974. In any case, he was entitled to approach the Service Tribunal within six months of its establishment, under section 4 (1) of the Service Tribunals Act, 1973. The Tribunal was established on 22nd February, 1974 and in that case also, his period of limitation ran out on 21st August, 1974. The learned counsel for State, therefore, stressed that the petition being barred by limitation by about four months should be rejected on this account.
The learned counsel for the appellant argued in detail that the circumstances under which the delay occurred were abnormal and beyond the control, of the petitioner. During these four months, the appellant was transferred for seven tunes and he was not allowed any rest and respite to consider filing of appeal on this long outstanding dispute over the fixation of his salary to the Service Tribunal. We have no hesitation to accept the plea of the learned counsel for the appellant that these orders of the Government were unusual and abnormal and provided sufficient justification to the petitioner for condonation of the delay which occurred in submission of his appeal to the Service Tribunal. The question of limitation having been decided, the facts and merits of the case were further argued by both the parties.
The learned counsel for the appellant argued that once the Govern--ment order was issued by the competent authority which remained operative for eight years, it was illegal and improper to cancel these orders to deprive the officer of the entitlement of pay originally allowed to him. The Government cannot get out of the validity ref its orders and instructions after eight years and recovery of the so-called over said mount was, therefore, not justified. The learned counsel quoted the authority from PLD 1969 SC 407, the relevant portion of which runs as under: - "Order cannot be withdrawn or rescinded once it has taken legal effect and certain rights created in favour of any individual."
The learned counsel further argued that the case on merit was covered by provisions of F. R. 23, because it was a case of change of the scale of pay and the decision of the Government conveyed after consult--ing the Controller and Auditor-General was, therefore, correct according to the interpretation of the applicable rules and directives. It was further argued by the learned counsel that the basic premise taken by the Ministry of Finance that the officer could be appointed by the competent authority on a post carrying a lower scale of pay against a vacant post carrying a higher scale of pay was, baseless, because in the instant case, neither there was any post in the scale of Rs, 350--850 available, not the competent authority (Resident of Pakistan in this case) ever ordered such an arrangement being made. The establishment of pay based can this premise was, therefore, misconceived.
The learned counsel argued that since the petitioner held the post carrying a scale of pay Rs. 600- -1,150 substantively, the Ministry of Finance were not competent to withdraw the entitlement of this pay from the officer.
The learned counsel also explained a significant factor in the case at this stage, which has also been mentioned in the cross-objections submitted by the petitioner. He pointed out that the revised sanction of the scale Rs. 350-850 has been, in fact, issued oh 21st January, 1961 and subsequently by interpolation arid change in the date, this has been made effective from 25th July, 1960. Since the petitioner stood confirmed on 21st October, 1960, as Administrative Officer in the scale of Rs. 600--1,150 which was under the then operative orders applicable to him, the revised scale of pay could not be enforced against him under the rules.
The learned counsel for the appellant also quoted the following authorities to support his contentions mentioned in the foregoing paragraphs: PLD 1969 Dacca 254.-Held : Post could not be downgraded merely to avoid payment of higher salary to a person officiat--ing ; no order could be passed in violation of provisions of Constitution and Fundamental Rules. The officer is entitled to the higher grade.
PLD 1965 SC 106.-The scale of salary of a civil servant cannot be revised to his disadvantage with retrospective effect, even though he is an officiating employee.
PLD 1965 Dacca 433.---In a case Abdul Rashid v. Secretary, Home Department, Government of East Pakistan, it was held that a Government servant upgraded and confirmed in a post such an order could not subsequently be reviewed to his Pre--judice without giving him an opportunity of being heard.
The learned counsel for State argued that the Government were competent to revise their orders issued earlier. The Ministry of Finance had considered this entitlement of the officer from time to time and according to their final orders dated 8th August, 1967, the officer was found entitled only to pay in the scale of Rs. 350-850. His pay was accordingly revised enforcing the recovery of amount already overdrawn.
He further argued that the appellant was not appointed to the scale of Rs. 600-1,150 and, therefore, he was not entitled to draw pay in that scale.
After hearing both the parties, we come to the following conclusions:
1. 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 therefore, the Government cannot be allowed to get out of the validity of its own orders after such a long time because this ha created, in fact a right to a particular entitlement of pay in favour of the petitioner. This view is clearly supported by the authority PLD 1969 SC 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 order revising the scale of pay from Rs. 600-1,150 to Rs. 350- 850 were, in fact, issued on 21st January, 1961 and not on 20th July, .1960, has not been satisfactorily refuted by the Government side.
2. The contention of the appellant that this was a case of change of scale and was covered by the provisions of F.R.
23. Which has also been held by the Government at one stage in consultation with the Auditor---General, also appears to be correct, and gives his entitlement to draw pay in the scale of 600-1,150.
3. The competent authority is, no doubt, empowered to keep, a post in the higher scale of pay vacant and as against that, to appoint an officer in a post carrying a lower scale of pay. In the instant case, however, we find that the President of Pakistan who was the competent authority in this case never exercised these powers to appoint the appellant in a lower post carrying lower scale of pay nor was any such sanctioned post available during the relevant time. This contention of the Ministry of Finance has, therefore, to be ignored.
4. The contention of the learned counsel for State that the appellant eras never appointed to the scale carrying pay of Rs. 600-1,150 is also not borne out by facts. It was, in fact, notified by the Government on 7th January, 1961 that the appellant, Mr. M. K. Jaskani, Administrative Officer, Class II, was appointed as Administrative Officer, Class I. With effect from 1st July, 1959. On the date of this notification, the post of Administrative Officer Class I, stood sanctioned in the scale of Rs. 600-1,150, and as mentioned earlier, the revised sanction of the Government to treat this post in the scale of Rs. 350-850, was issued on 21st January, 1961.
In the above circumstances, we accept the appeal of the petitioner. 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 a9 admissible under the Rules from time to time up-to-date. The question of recovery of the overdrawn amount also does not arise.
Parties to be informed.