' SARDAR MUHAMMAD ASLAM, C J.---The petitioner, Chief Reporter (English), is serving in the National Assembly Secretariat, Islamabad. The petitioner was granted leave with full pay (LFP) for 730 days in the year, 1998 with effect from 10-11-1998 vide notification dated 7-11-1998. However another notification dated 24-11-1998 was served upon the petitioner, which was in supercession of the previous notification, whereby the leave of the petitioner was reduced from 730 days to 365 days with pay w.e.f, 10-11-1998 without assigning any reason whatsoever. The petitioner rejoined the office on 30-10-1999 after availing 354 days leave instead of 365 days leave, already granted to him. The petitioner received a notification dated 27-5-2002, issued by respondent No,1, whereby the above said leave of the petitioner was declared to be without pay and allowances and no reason whatsoever was cited in the said notification. The petitioner moved an application dated 15-6-2002 to respondent No,1 requesting for withdrawal of the said notification, which was rejected vide memorandum dated 16-7-2002. On 31-12-2002 the petitioner moved another application dated 31- 12-2002 for review of the office memorandum dated 16-7-2002 which was not responded. On the other hand a sum of Rs,5000 is deducted from the petitioner's salary every month since July, 2002 and the said deduction shall remain continue till the realization of the full amount of pay and allowances granted to the petitioner for the period of leave of 354 days already availed by him. The petitioner has prayed that impugned notification No,G(89)/Estt. 1(76) dated 27-5-2002 be declared to have been passed without lawful authority and hence of no legal effect whatsoever and totally inoperative on the rights of the petitioner. Direction has also been sought against respondents to reimburse the entire amount deducted so far from the petitioner's salary pursuant to the impugned Notification together with mark-up at the prevalent bank rate.
2. The respondents filed their comments. It has been alleged that petitioner, in the year, 1998 was selected for appointment as English Reporter/Secretary in the Islamic Development Bank (IDB), Saudi Arabia vide letter dated 28-8-1998 and he requested for his deputation with IDB initially for the three years vide request dated 25-8-1998. In the meanwhile Mr. Siddiq Zafar, Official Reporter, National Assembly Secretariat, also requested for grant of 2 years ex-Pakistan leave on half pay and verbally informed that he requires the leave as he was also selected for appointment with IDB.
While considering the grant of leave to both the above mentioned Reporters, there was no mention at any stage of granting them leave on full pay. Thereafter Mr. Saeedul Islam another Reporter, who was also selected for appointment with IDB, requested to allow him deputation and grant of two years ex-Pakistan leave. He was allowed one year 365 days leave instead of two years by the Speaker, National Assembly. During this exercise of grant of leave to Mr. Saeed-ul-Islam, it revealed that in term of Establishment Division O.M. No,1/65/90-T-IV dated 22-4-1998, the leave granted to him on full pay/half pay should be leave/EOL because for working with some other International Organization or a foreign government only EOL due can be granted. A Government servant cannot draw two salaries simultaneously from two different organizations/departments, under Rule 5(a) and Rule 9 of the Revised Leave Rules, 1980. Thus, for rectification of the earlier omission, the staid period of leave on full pay granted to Reporters was treated as EOL vide notification dated 14-5- 2002 and 27-5-2002. Consequent upon conversion of leave on full pay into EOL (without pay and allowances), the salary and allowances amounting to Rs,121,717 drawn by the petitioner during his leave so converted as EOL were declared as overpayment outstanding against the petitioner and was directed to be recovered.
3. Learned counsel for the petitioner contends that principle of locus poenitentiae is applicable and the Government after having paid the salary cannot recede its steps and raise demand for reimbUrsement of the amount of salary, even if paid illegally. He relied upon:--
(i) The Engineer-In-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207.
(ii) Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407.
(iii) Mst. Sajida Javed v. Directorate of Secondary Education, Lahore Division and others 2007 PLC (C.S.)364.
4. On the other hand learned counsel representing respondents submitted that principle of locus poenitentiae enunciated in judicial decisions is not a principle of law placing prohibition on recalling of an order under any circumstance. He defended the order of respondent functionaries in seeking re-imbursement of amount of salary received by the petitioner without doing any work.
5. Heard, record perused.
6. Firstly dealing with the judgment cited by the learned counsel for the petitioner in Jalaluddin case. Supra, it is observed that the honourable Supreme Court of Pakistan while interpreting principle of focus poenitentiae was pleased to hold that locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed become irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. In the precedent case the Government on acquisition of knowledge that respondent was wrongly granted grade-11, withdrew the order. The principle of locus poenitentiae was, thus, held not applicable. The honouable Supreme Court upheld order of authority directing reimbursement with categorical finding that if the original order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The respondent functionaries were, however, not allowed to recover the amount received on the bona fide belief of his entitlement. The amount, too, was only a sum of Rs,1,860.00.
' In the case of Muhammad Himayatullah Farukhi, supra principle of locus poenitentiae was canvassed and it found favour with the honourable Supreme Court of Pakistan that power of receding is available until a decisive step is taken when rights have been created in favour of any individual and such order is withdrawn or rescinded detrimental to those rights.
' In Mst. Sajida Javed Case, the honourable Supreme Court held that the petitioner, civil servant was fully qualified to hold the post and was working as such, therefore, recovery cannot be enforced against her for services rendered.
7. The view taken in the afore-mentioned judgments of the honourable Supreme Court proceed on peculiar facts of each case. Principle of locus poenitentiae was declared not a law in Jalaluddin case and illegal order was not allowed to stay in field. Recovery of amount of salary was not allowed, received on the bona fide belief of his entitlement.
8. The petitioner was employee in National Assembly as English Reporter. He applied for deputation to Islamic Development Bank (IDB) but somehow the officials allowed him leave on full pay. He has been drawing his full salary from National Assembly as well as from the IDB, an International Organization located in Saudi Arabia. He fully knew that a Government Servant cannot receive two salaries at one time. He did not perform any duty or undertaken any work in the National Assembly for the period, he received salary. Petitioner was an educated person and fully aware that he is legally not entitled to the salary claimed by him Notification No,1/65/90-T-IV dated 22-4-1998 is reproduced below for facility of reference: ' GOVERNMENT OF PAKISTAN ' CABINET SECRETARIAT ' ESTABLISHMENT DIVISION ' No .1/65/90-T -IV, Islamabad, the 22nd April, 1998 ' OFFICE MEMORANDUM ' SUBJECT: EMPLOYMENT WITH FOREIGN GOVERNMENTS ' The undersigned is directed to refer to the subject cited above and to state that the competent authority has been pleased to direct that in future all the cases of employment of Government Servants, other than official requests from the Government of a friendly country or International Organizations/UN Specialized Agencies, be processed as employment on leave/EOL due, rather than deputation.
2. It is requested that these instructions may kindly be circulated among all concerned for further necessary action.
(Sd.)
(FARAH HAMID KHAN) SECTION OFFICER (T-IV) PHONE; 9203663 ' All Ministries, Divisions and Provincial Governments.
9. Two colleagues of the petitioner, similarly placed and circumstanced, joined IDB and withdrew their salaries from the respondent National Assembly. Both when confronted had deposited the amount received by them. Petitioner is the only exception. Recovery is also being made from his salary to the tune of Rs,5000 per month. Any exercise in constitutional jurisdiction, cannot be made in aid of injustice.
10. The excess amount received by the petitioner is not a bounty. The exchequer cannot be deprived of its legitimate right of recovery being guardian of public revenue collected through direct/indirect taxation. Its interest are to be jealously safeguarded to facilitate running of the economy. Good governance requires recovery of amount paid to any of the civil servant in excess of his due. The honourable Supreme Court of Pakistan in Syed Niaz Hussain Shah Bukhari, Technician (Process) v. Oil and Gas Development Corporation Limited through Chairman, OGDC Head Office, Islamabad, 2003 SCMR 228 had taken the view that when there was no work, there was no pay and that recovery has rightly been effected from the civil servant.