' SHAHID ANWAR BAJWA, J.--- Facts giving rise to this petition are that petitioner joined employment of respondent No,2 as Accounts Officer in 1973. The petitioner was promoted to Grade-19 in 1985. On 30-7-1996 an Office Order was issued by which order the petitioner was promoted, with the approval of Board of Governors of respondent No,2 to BS-20. Such promotion was made effective from 16-6-1996. Relevant part of the Office Order dated 30-7-1996 reads as under:--- "As approved by the Board of Governors in its meeting held on 16th June, 1996 vide Resolution No, BG-23/96/Any other Item No,2; Mr. A.H. Channa, presently working in BPS-19 as Director Finance and Administration, DCET is granted grade BPS-20 (Rs,9195-440-13595) as his personal grade with effect from 16th June, 1996.
' He will be entitled to the allowance as admissible under the college rules."
2. In consequence of this order the petitioner started enjoying emoluments and benefits of BS-20.
Through letter dated 28-11-2002 the petitioner was informed that his case is being referred to the Ministry. The relevant part of this letter reads as under:--- "In this respect the case has been examined by the AGPR and found that the validity of personal Grade BPS-20 is not covered under the rules. The college authorities fixed your salary earlier under the revised new pay scale w.e.f, 1-12-2001 subject to scrutiny by the audit and AGPR. It is important to note that there is no provision in the new pay fixation formula for personal grade.
' The audit has also objected to your personal grade BPS- 20. However, your case of personal grade BPS-20 is being referred to the Ministry of Finance. If cleared, the monetary benefits shall be restored accordingly."
3. Upon attaining age of superannuation the petitioner retired in February, 2006. Being aggrieved by the order dated 28-11-2002 the petitioner approached the Federal Service Tribunals in view of provisions contained in section 2-A of the Service Tribunal Act. That appeal abated in view of dictum laid down by the honourable Supreme Court in the case of Muhammad Mubeen-us-Salam and another v. Federation of Pakistan and others PLD 2006 SC 602. Consequently this Constitution petition was filed on 25-9-2006. Learned counsel for the petitioner submitted that not only the benefits of the petitioner in terms of order dated 30-7-1996 were withdrawn after letter dated 28-11- 2002 was issued but the amount paid to the petitioner between 1996 to 2003 has been recovered from the retirement emoluments and pensionary benefits of the petitioner. Learned counsel submitted that petitioner was promoted by Board of Governors and it is nowhere alleged that the petitioner exercised undue influence over or brought external pressure upon the Board of Governors for getting himself promoted.
' Learned counsel further submitted that after petitioner was promoted in BS-20 such promotion order could not have been withdrawn without following the due course of law.
4. Mr. S.M. Iqbal learned counsel for the respondents Nos.2 and 3 referred to the comments filed by the respondent No,3. He first of all referred to letter dated 10-2-2003 issued by the Section Officer (R-2) Finance Division. The said letter in material part stated as under:--- "The undersigned is directed to refer to the Ministry of Education (Advanced Education Wing)'s U.O.
No,F.1-31/2002- NIA dated the 23rd January, 2003 on the subject noted above and to say that the Dawood College of Engineering and Technology, Karachi is a resolutory body. The superior courts have held that an autonomous body cannot be created by a resolution. Such resolutory bodies are considered extension of the government departments. In view thereof, the employees of DCET, Karachi are civil servants and government rules and policy instructions are applicable on them.
The BOG of the College was therefore not competent to allow personal up gradation to Mr. Abdul Hameed Channa."
Thereafter the learned counsel referred to the letter dated 27-11-2002 issued by the Accountant General Pakistan Revenues to the Principal of Dawood College of Engineering & Technology, Karachi which letter after reiterating what was stated in letter dated 10-2-2003 stated that the matter was referred to the administrative Ministry and Finance Division for the admissibility of BS-
20. Thereafter the learned counsel referred to letter dated 23-1-2003 written by Assistant Educational Adviser requesting for advice to the Ministry about the validity of personal grade to the petitioner. Thereafter order dated 6-4-2005 was issued by the Ministry of Education. This order reads as under:--- "I am directed to refer to letter No, DCET/C-48/3284, dated 21st February, 2005 on above subject and to state that Education Secretary, the competent authority, has been pleased to give his ex- post facto approval to the re-fixation of pay of Mr. Abdul Hameed Channa in BPS-19 from the date he started drawing pay in B-20 irregularly."
5. It was in consequence of this order that the letter impugned in this petition was issued to the petitioner. Learned counsel submitted that the decision of the Board of Directors was without authority and therefore no legal consequence or entitlement could flow from such a decision. Mr. Ashiq Raza, learned D.A.-G. Adopted argument of S.M. Iqbal Shah, learned counsel for respondents.
6. We have considered- the submissions made by the learned counsel and have also gone through the record.
7. The petitioner was promoted under the orders of the Board of Governors with effect from 16-6- 1996. He continued to perform his duties in BS-20 for almost 7 years when the authorities of the college woke up and referred the matter to the Federal Government. Even at the level of the Federal Government the Assistant Accountant General vide letter dated 27-11-2002 referred the matter to the Administrative Ministry and the Finance Department for a decision. Ministry of Education also referred the matter to the Finance Department vide letter dated 23-1-2003 and it was in April, 2005 that the Ministry of Education informed the Principal of respondent-College that Education Secretary has given post facto approval to re-fixation of pay in BS-19 that means for almost 9 years the petitioner continued in BS-20. Although his pay was fixed in BS-20 and it remained so for almost seven years and ex post facto approval for recovery was granted till April 6, 2005. Having remunerated the petitioner in BS-20 and having taken work from him accordingly it was not available to the departmental authorities to, without issuing a show-cause-notice and without hearing the petitioner, withdraw a benefit which had' been conveyed to him. Under the doctrine of locus poenitentiae as enshrined in section 21 of the General Clauses Act 1897 a decision can be withdrawn but only as long as decisive steps have not been taken and vested rights have not been created. In the present case, decisive steps were taken when the petitioner was remunerated in BS- 20 for almost 7 years and consequently vested rights were created. It was therefore not available to the departmental authority to withdraw such a vested right without even issuing a notice to the petitioner. In the present case, the petitioner retired in February, 2006 and what has been done by the departmental authorities is that the difference of amount between BS-19 and BS-20 paid to him over the years has been recovered from retirement dues of the petitioner. If an employee retires he expects something in his kitty at the eve of retirement and if the departmental authority recovers every thing from that kitty on the pretext that it had made a mistake ten years ago the retiring employee would be left high and dry, to say the least.
8. Consequence of the above discussion is that the action of the department in recovering difference from the petitioner and re-fixing his salary in BS-19 is held to be without lawful authority and of no legal effect and respondents are directed to return the recovered amount and to re-fix the pensionary benefits of the petitioner in accordance with the terms of letter dated July 30, 1996.
This constitution petition is admitted and disposed of in the above terms.