Justice (R) Tanvir Bashir Ansari, Chairman.--This common judgment shall decided all the above mentioned appeals as identical question of law and fact are involved in the same.
2. The appellants being employed in the capacity as mentioned in the respective memos of appeal were granted two advance increments on attaining the higher qualification of F.A in terms of Finance Division 0.M dated 29.06.1991. Later vide order dated 06.02.1994 issued by the Respondent No, 4 the two advance increments were withdrawn with retrospective effect and recovery was directed to be effected from the salary of the appellants with effect from 01.06.1991. The impugned order was made in respect of as many as 29 officials including the present appellants. One Muhammad Asghar, Stenographer who figured at S. No, 17 of the said impugned order challenged the same before this Tribunal in Appeal No, 88(R)/95 which was dismissed vide judgement dated 26.04.1995. The said Muhammad Asghar filed an appeal before the Honourable Supreme Court which was accepted vide judgment dated 11.06.1997 and it was held that the said appellant was entitled to the grant of advance increments in terms of 0.M No, F. 1(12) Imp-II/91 dated 29.06.1991.
Further Appeals No, 1334 to 1350(R)/1999, 1360 to 1363(R)/1999 and 1385(R)/1999 and 1386(R)/1999 were filed before this Tribunal on 06.07.1999 upon a similar cause of action. The said appeals were accepted vide judgement dated 26.02.2000 and it was directed that the advance increments could not be withdrawn and if any recovery is made from the salaries the same be refunded.
3. These orders were duly implemented by the respondents but were confined only to those employees who had litigated before this Tribunal or before the Honourable Supreme Court. Feeling themselves entitled to the same relief on the basis of the principle laid down by the Honourable Supreme Court in the case of Hameed Akhtar Niazi reported as 1996 SCM R 1185 and Tara Chand and others Vs. Karachi Water and Sewerage Board, Karachi reported as 2005 SCM R 499 the appellants preferred these appeals on 31.12.2005 after unsuccessfully agitating the matter before the departmental authorities. The appeals were admitted to regular hearing in order to consider the contention of the appellants that the advance increments were withdrawn without giving any reason and without giving an opportunity of being heard to the appellants. It is also noted that similar relief had been extended to the other similar placed railways employees by this Tribunal and by the Honourable Supreme Court and that the appellants were entitled to a similar and equal treatment in law.
4. The respondents filed objections to the appeals. Besides contending that the appeal were barred by time, it was submitted on merits that the withdrawal of the two advance increments which was granted to the appellants provisionally were withdrawn on receipt of clarification from the competent authority i,e, GM(P), Lahore.
5. We have heard the learned counsel for the parties and have perused the record.
6. The appellants joined service as LDC in BS-5 on different dates on the basis of matriculation qualification. During the course of employment the appellants improved their educational qualification and also earned promotions on the basis of seniority-cum-fitness. In terms of Finance Division OM No, F. 1(12)-Imp-II/91` dated 29.06.1991, the appellants were granted two advance increments upon attaining the higher qualification of F.A. Through the impugned order/notice dated 06.02.1994 the advance increments were withdrawn ,ab initio and recovery was directed to be effected against the recipients of these increments.
7. As hereinbefore observed this notice was challenged by various employees who were similarly placed as the present appellants. An appeal Bearing No, 88(R)/95 was filed by Muhammad Asghar, Stenographer before this Tribunal which was initially dismissed on 26.04.1995. That judgment was challenged before Honourable Supreme Court and vide judgment dated 11.06.1997 the same was allowed and grant of advance increments in terms of the OM dated 29.06.1991 was upheld. As many as twenty three identical appeals Bearing No, 1334 to 1350(R)/1999, 1360 to 1363(R)/1999 and 1385(R)/1999 and 1386(R)/1999 were brought before this Tribunal. Through common judgment dated 26.02.2000 the said appeals were allowed, the appellants were found entitled to the grant of advance increments and the impugned order withdrawing the same was set aside with the direction to refund all or any deduction which was made from the salaries of the said appellants on account of the illegal withdrawal.
8. The appellants approached the Honourable High Court in Writ Petition No, 1283/2002 wherein the grievance expressed by them was that the respondent administration has not decided their representation against the withdrawal of the advance increments. This writ petition was disposed of vide order dated 10.05.2002 with the direction to pass final order on the departmental representation within 60 days and that thereafter the appellants (petitioners in writ petition) may avail the alternate remedy if dissatisfied by the order of the respondents. A Criminal Original Petition No, 115-W/2003 was filed by the appellants complaining of the intentional violation of the order dated 10.05.2002. This petition was disposed of vide order dated 28.10.2004 with the direction that the respondents were to abide by the orders of the High Court within a further period of one month. Finally the claim of the appellants was refused by the respondent vide order dated 22.11.2004. The said order is reproduced as under:-- "Subject: CRIMINAL ORIGINAL NO. 115/W/2003 IN WRIT PETITION NO. 1283 OF 2002 FILED BY MR. MEHMOOD AHMED SIDDIQUI AND OTHERS V/S PAKISTAN RAILWAYS BEFORE LAHORE HIGH COURT BENCH RAWALPINDI.
The case regarding grant of advance increments was referred to the General Manager/Personnel Headquarters Office, Lahore for policy directives vide this office letter of even number dated 5.2.2000, followed by reminders dated 7.6.2002, 29.1.2003 & 18.11.2004. The General.
Manager/Personnel has already taken necessary action vide Letter No, 831-E/654-III (E-Policy) dated 25.9.2000. However in reply to this office letter of even number dated 18.11.2004, the General Manager (Personnel) vide Letter No 831-E/654-III (E-Policy) dated 20.11.2004 has directed this office to inform, you that; In view of the judgment of the Honourable Supreme Court of Pakistan in the case of Mr. Asghar V/s Pakistan Railways for allowing advance increments on acquiring higher qualification, the Railway Administration considered the matter to be referred to Ministry of Railways in consultation with FA & CAO to decide the issue as a matter of policy, so that the same may be applied in all identical cases vide G.M./P's Letter No, 831-E/654-III (E-Policy) dated 25.9.2000, following by reminder dated 01.02.2003.
The matter is still under correspondence with Ministry of Railways during which queries were made and reply thereto given by the General Manager/Personnel. Since the matter involved financial repercussions, as such the same has already been referred by the Ministry of Railways to Ministry of Finance. The Ministry of Railways has again been reminded by the General Manager/Personnel vide Letter No, 831-E/654-III (E-Policy) dated 20.11.2004 for conveying decision in this matter.
As such it is reiterated that as soon as definite decision/directive from the MOR on the subject is arrived at, that shall be conveyed by the General Manager/Personnel to this office for taking necessary action to redress your grievances.
You are, therefore, informed to wait for the decision which will be implemented as and when received from Ministry of Railways/Ministry of Education by the General Manager/ Personnel and communicated to this office."
9. The perusal of the record made available clearly indicates that in all the cases which were filed against the withdrawal of the advance increments, either this Tribunal or the Honourable Supreme Court has consistently held the order of withdrawal to be without legal efficacy with the result that all or any deduction made from the salaries of the successful employees were directed to be refunded. The appellant herein joined the service of the respondents as LDC (BS-5) for which the minimum qualification was a matriculation certificate. It is not denied that during the course of employment the appellants had improved their educational qualification and were thus fully entitled to advance increments in terms of Finance Division F. 1(12)-Imp-II/91 dated 29.06.1991. The impugned order dated 06.02.1994 does not state any reason for the withdrawal of the benefit of the advance increment. There is nothing on the record to suggest that any opportunity of being heard was given to the appellants at any stage. This offends against the principle of Audi Alteram Partem as no one can be condemned unheard. The withdrawal of the OM dated 29.06.1991 with retrospective effect particularly when it was acted upon for a long period of time also offends against the principle of Locus Poenitentiae. Although it is mentioned in the objections that the order of withdrawal of advance increments was made on receipt of clarification from competent authority, no such clarification containing any cogent reason for the same is available on the record. We have noticed that the appellants had filed representation to the Managing Director, Pakistan Railways Carriage Factory, Islamabad on 01.05.2000 but the same remained completely unresponded. The appellants were constrained to file Writ Petition No, 1283 & 1284 of 2002 for soliciting a final order from the respondents. Despite the direction of Honourable High Court dated 10.05.2002 and dated 28.10.2004 the only response which had come forth was through the order dated 2.11.2004 reproduced in detail hereinbefore.
10.We have closely examined the judgment dated 26.02.2000 passed by this Tribunal in the case of Waheed Hassan and others as also the judgment dated 11.06.1997 passed by the Honourable Supreme Court in Civil Petition No, 1433 of 1995 and are of the firm view that the order of withdrawal of the advance increments is illegal and void. The appellants are justified in drawing strength from the dictum of the Honourable Supreme Court as laid down in the case of Hameed Akhtar Niazi (1996 SCM R 1185) that whenever the Federal Service Tribunal or the Honourable Supreme Court decides a point of law relating to the terms of service of the civil servants it covers not only the case of the civil servants who litigated but also of other civil servants who may have not taken any legal proceedings. In such a case rule of good governance shall be that the effect of the said judgments by FST/ Supreme Court be extended to other civil servants also.
11.In view of this position the objection raised by the respondents regarding the appeals being time barred is also dismissed. Resultantly all the appeals succeed with the result that the impugned order dated 06.02.1994 being without legal efficacy is set aside. Consequentially the appellants shall be entitled to the two advance increments as contemplated in the OM dated 29.06.1991. Any deduction made from the appellants' salaries shall be refunded within .sixty days with compliance report to the Registrar of this Tribunal.
12. No order as to cost. Parties be informed.