' CH. SHAHID SAEED J.--- By way of instituting this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have called into question the legality of order dated 19-7-2010 whereby they have been directed to refund the salary and other emoluments given to them on account of back-benefits.
2. Facts leading to the filing of this petition are that the petitioners were employed as lecturers on ad hoc basis in the Education Department in the year 1993-96 but their services were terminated vide order dated 5-8-2000. The petitioners approached Service Tribunal through appeals which were dismissed. Feeling dissatisfied, they filed petitions before the Hon'ble Supreme Court of Pakistan, which were converted into appeals and the Hon'ble Supreme Court vide judgment dated 25-9-2002 passed in case Dr. Naveeda Tufail and 72 others v. Government of Punjab and others (2003 SCMR 291) Directed the Government of Punjab to initiate process of regularization of the petitioners through Punjab Public Service Commission within a period of one month.
3. The Government of the Punjab sought review of judgment dated 25-9-2002 which was dismissed vide judgment dated 9-1-2003 with the direction to implement the judgment dated 25- 9-2002 within one month.
4. In compliance with the above judgments of Hon'ble Supreme Court of Pakistan, Punjab Public Service Commission invited applications for regularization and on the recommendations of the Commission, services of 520 lecturers were regularized. However, the petitioners' services were not regularized as the Commission did not deem them fit for regularization.
5. Afterwards, the petitioners filed Writ Petition No, 143 of 2004, which was allowed by this Court with the direction to implement the above-mentioned judgments of Hon'ble Supreme Court. The Government of Punjab filed C.Ps. Nos.1086-L, 1571-L, 1572-L, 1573-L and 1875-L of 2008 which were dismissed on 25-3-2009 by the Hon'ble Supreme Court of Pakistan with the direction to concerned authorities to implement the aforementioned judgments within three days. Accordingly, the services of the petitioners were regularized and the intervening period, i.e, from date of termination to the date of joining, was considered as on duty with full financial and service benefits vide order dated 28-3-2009 issued by the Secretary High Education Department. The petitioners reported for duty and were also paid salaries and other emoluments. However, the Secretary Higher Education Department vide order dated 19-7-2010 declared that the intervening period of the petitioners, i.e, from the date of termination to the date of joining, has been treated as leave without pay and directed the petitioners to refund the arrears in monthly instalments from their salaries not exceeding one third of their basic pay. Feeling aggrieved of the order dated 19-7-2010, the petitioners have filed this constitutional petition.
6. Learned counsel for the petitioners have chiefly contended that the benefit once granted by the competent authority cannot be withdrawn. There is no provision in the Punjab Civil Servants Act or the rules framed thereunder authorizing the government to withdraw the amount once granted.
Further contends that the petitioners were willing to do their duties but they were stopped to do so by the respondents so, the petitioners cannot be punished for the illegal act of the respondents.
Learned counsel avers that the petitioners received the salaries and other emoluments under the order passed by the competent authority which could not be recalled as principle of locus poenitentiae is attracted. Learned counsel next argues that the petitioners had remained unemployed from 5-8-2000 to 29-3-2000 and were locked in litigation with the government. In order to maintain themselves and their families, they had obtained loans which were paid back on receipt of arrears, therefore, the writ petition be allowed and the impugned order be set aside. In support of his contentions, learned counsel has relied upon the judgments passed in cases The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin (PLD 1992 SC 207), Asad Ali Alvi v. Secretary, Government of Punjab, Irrigation and Power Department, Lahore and 8 others (2007 PLC (C.S.) 924), Shaulcat Ali v. District Government through Nazim/Chairman Selection Committee and 4 others (2005 PLC (C.S.) 790), Muhammad Anwar v.
Director Lahore Museum (2009 PLC (C.S.) 572), Mirza Inayat Beg v. The WAPDA through Chairman and 3 others (2002 PLC (C.S.) 1237) and Controlling Authority, N.-W.F.P. Board of Technical Education, Peshawar and another v. Abdul Salam Secretary, N.-W.F.P. Board of Technical Education (PLD 1993 SC 200).
7. On the contrary, learned Additional Advocate-General appearing on behalf of the respondents has contended that the Hon'ble Supreme Court of Pakistan had ordered to regularize the services of the petitioners but there was no specific order for awarding back-benefits to the petitioners, as such, awarding back-benefits to the petitioners was not in accordance with the direction of the apex Court. Further contends that there was a direction of the Hon'ble Apex Court to regularize the services of the petitioners within three days. As there was a very short time available for consideration, the mistake occurred and the petitioners were unlawfully awarded back-benefits.
Subsequently, a committee was constituted to reconsider the award of back-benefits to the petitioners, who found that the order whereby the petitioners were granted back benefits was not in line with the directions of the Hon'ble apex Court and recommended recalling of the same to that extent. Learned Additional Advocate-General asserts that the competent authority has all the powers to withdraw an order issued by him earlier in time. Moreover, the petitioners did not perform their duties during the period in question, therefore, they are not entitled to the salary or any other benefit for that period. Learned Law Officer avers that the petitioners were granted back-benefits erroneously and unlawfully, so they are bound to refund the said amount of arrears. Learned Additional Advocate-General prays that this writ petition has no force, it be dismissed.
8. I have heard the arguments advanced by learned counsel for the parties and have also perused the record. The law cited at bar has also been examined.
9. The record highlights that the petitioners along with others were employed as ad hoc lecturers in Higher Education Department in 1993 to 1996. The services of ad hoc lecturers were terminated vide order dated 5-8-2000 who approached Punjab Service Tribunal who dismissed their appeals.
Feeling dissatisfied, they approached the Hon'ble Supreme Court of Pakistan who allowed the petitions vide judgment dated 25-9-2002. The operative para of judgment dated 25-9-2002 passed by the Hon'ble Supreme Court of Pakistan is reproduced hereunder:--- "We deem it proper to direct that the respondents while seeking guidance from the scheme of regularization of ad hoc employees of Federal Government referred above, will initiate the process of regularization of the petitioners through PPSC giving the concession as mentioned in the reply filed by the respondents in the Punjab Service Tribunal within a period of one month and meanwhile without prejudice to the rights of the selectees of the Public Service Commission for appointment on regular basis, the posts which were being held by the petitioners shall not be filled. It is clarified that the cases of the petitioners shall be sent separately to the PPSC and shall not be tagged with the direct recruits. In case any of the petitioners is not found suitable by the PPSC, he shall not be entitled to be retained in service."
10. It is ex facie clear from bare perusal of the above that the Hon'ble Supreme Court of Pakistan has nowhere directed that the ad hoc lectures will be granted back-benefits on their regularization.
11. In compliance with the judgment supra, the Punjab Public Service Commission invited applications and on the recommendations of the Commission, services of 520 lecturers were regularized but they were not granted any back-benefits. However, the Punjab Public Service Commission did not consider the petitioners suitable for regularization either they did not appear before the Commission or they could not qualify the suitability test. So, the petitioners again filed a writ petition which was allowed. The government's Civil Petitions before the Hon'ble Supreme Court of Pakistan failed and the Hon'ble Supreme Court directed the respondents/concerned authorities to regularize the services of the petitioners within three days. Apparently, there was a shorter time of only three days, so the Secretary, Higher Education Commission issued notification dated 28-3- 2009 and regularized the services of the petitioners in a hasty manner allowing them the back- benefits.
12. It is pertinent to mention here that 520 lecturers who were found suitable by the Punjab Public Service Commission for regularization were not granted any back-benefits but the petitioners who were not found suitable for regularization by the Commission were granted back-benefits which itself is a discrimination with those who were earlier regularized on the recommendations of the Commission and were not given back-benefits. Moreover, a long practice of a department has also the force of rule. If the petitioners are allowed back-benefits for the period they did not serve, this will open flood-gate and a large number of such employees will claim for the same relief on the basis of having been discriminated. In that case, it will not be possible for the government to manage such claims.
13. The contention of learned counsel for the petitioners that the benefits once granted cannot be withdrawn is misconceived as it is not a principle of law that order once passed becomes irrevocable. It is well settled law that a public authority which can pass an order is amply empowered to vary, amend or rescind that order, so recalling of earlier order by Secretary Higher Education and directing the petitioners to refund the amount received by them as back-benefits is fully in accordance with law. Furthermore, a party may claim numerous reliefs but it is the discretion of the court to grant all or some of those reliefs. It is established law that where a court does not grant a specific relief, it would be assumed that such relief has been refused.
14. Another contention of learned counsel for the petitioners is that the petitioners remained in litigation for a long period and had obtained loans for their existence, so, the impugned order directing them to refund the amount they have received and spent is harsh one. This court observes that the Secretary, Higher Education Commission while passing the impugned order has already taken into consideration the hardships of the employees and directed That the amount received will be refunded in instalments and an instalment will not exceed one- third of the basis pay of that employee, which can be managed by the petitioners.
15. It has been held by the superior courts that in a case, where an employee receives some financial benefits on a bona fide belief that he was entitled to it but on the basis of an incorrect order and during that period, he also performs his duties, he will be entitled to those benefits till that order remained in field. But it is not the case of the petitioners. The services of the petitioners were terminated and they did not serve from the date of termination to the date of joining, so they are not entitled to payment of salary and other emoluments for the period during which they did not serve.
16. The law relied upon by learned counsel for the petitioners is not applicable to the case in hand and distinguishable for the reason that in all, those cases, the employees had been performing their duties as regular employees, so the recovery of financial benefits on account of incorrect Order was disallowed by the superior courts. But in the instant case, the petitioners could not perform their duties, so they are not entitled to the relief of back-benefits.
17. The epitome of the whole discussion is that since the petitioners did not perform their duties during the intervening period, i.e, from the date of termination to the date of joining, they were not entitled to back-benefits. That is why the Hon'ble Supreme Court of Pakistan had not ordered for the grant of back-benefits and asked for simple regularization of the petitioners. The competent authority has ample powers to recall his order, so the impugned order dated 19-7-2010 is in accordance with law and policy and there is no illegality in it. As a result, this constitutional petition being without any substance is dismissed.