' M. SALEEM CHAUDHRY (CHAIRMAN).-In this case appellant assails the order dated 21st May, 1970 of Additional Chief Engineer, Highway, Central Zone, Lahore, whereby it was conveyed that the Finance Department had not agreed to allow Secretariat Pay Scale (Consolidated) to those officials who were appointed by the Regional Heads or Heads of Attached Departments in their offices after 13th October, 1955. On the basis of this decision the appellant who was drawing pay in the consolidated pay scale of 225/500 with effect from 1st December, 1962 was asked In the said order to opt either for unconsolidated pay scale of 150/370 or for the consolidated pay scale of 175/350. The departmental appeals of the appellant against these orders evoked no response from the authorities. The brief facts of the case which are common between the parties are that the appellant was appointed as Stenographer by the Additional Chief Engineer, Central Zone, Buildings & Roads Branch, on 22nd March, 1956. He was posted as Assistant in the scale of Rs, 150/370 in the same office in the year 1957. By a subsequent order of 29th August, 1958 the appellant's promotion as Assistant was allowed to continue on regular basis and he was made substantive permanent in that capacity by order dated 22nd February, 1966. With enforcement of the West Pakistan (Non- Gazetted) Civil Service Pay Revision Rules, 1963, the pay scales and allowances which the Government Servants were drawing on 30th December, 1962 were merged and consolidated in the new Pay Scales which were made effective from 1st December, 1962. Under rule 4 of the said Rules the appellant exercised his option on 13th June, 1963 in favour of the consolidated pay scale of Rs, 225/500 which was a scale corresponding to the unconsolidated pay scale of Rs, 150/370 in which scale the appellant was drawing his pay on 30th December, 1962. The appellant continued to draw pay and increments in the said scale for over 7i years, till the issuance of impugned order on 21st May, 1970, whereby as narrated above he was held not originally eligible to draw pay in the scale of 150/ 370 which in turn made him ineligible to the corresponding consolidated pay scale of Rs, 225/500.
2. We have heard the parties at length. The plea of the respondent is that the appellant was admittedly recruited in the office of the Additional Chief Engineer, Buildings & Roads Branch on 22nd March, 1956, which falls after the date of integration !. e. 13th October, 1955. The office of the aforementioned Additional Chief Engineer not being a Secretariat Office the appellant was not entitled to the pay scale of 150/370 which is a scale approved for Assistant working in the Secretariat. The appellant being a post-integration recruit was also not covered by protection given to some categories of pre-integration employees of the integrating Units to continue to draw Secretariat pay scales even when posted to the offices of the Heads of Attached Department. It is argued that allowing the pay scale of Rs, 150/370 on his first appointment was a mistake which was sought to be rectified by the impugned order of 21st May, 1970. It is further submitted that in rectifying the error, the Government have not gone all the way back to enforce the negative adjustment against the appellant right from the date of his first appointment but have limited it to the re-fixation of his pay under the Pay Revision Rules of 1963. By the impugned order the appellant has been given an option to select either his existing pay scale of 150/370 (which was wrongly allowed to him) or the consolidated pay scale of Rs, 175/350 which is not the corresponding scale to the existing scale of 150/370, but is the consolidated pay scale allowed to an Assistant in the non-Secretariat Office. This scale of Rs, 175/350 is the scale corresponding to unconsolidated scale of Rs, 120/250, which is the scale pertaining to a non-Secretariat Assistant to which scale it is urged that the appellant was in fact eligible on his initial appointment. The respondents also rely upon the revised option given by the appellant dated 1st May, 1970, in which he had opted for the existing pay scale of Rs, 150/370 and had agreed to refund any excess payment made. It is contended that by giving this option the appellant was estopped from raising any objection against the enforcement of that option against him,
3. On the other side learned counsel for the appellant however, raised several contentions. In the first place it is submitted that the impugned order is an order which adversely effected the emoluments of the appellant and as such could not be given retrospective effect. It is further contended that vide rule 2 (a) of the West Pakistan (Non-gazetted) Civil Service Pay Revision Rules, 1963, the consolidated scale has been defined as the 'scale of pay as prescribed in the Schedule appended to the rules' while the 'present scale' has been defined in sub-rule (h) of the same rule as 'the scale to which a Government Servant was entitled on 30th day of November, 1962, in accordance with the rules applicable to him on that day'. It is argued that the 'present scale of the appellant was Rs 150/370 and according to the schedule appended with the rules the consolidated pay scale against the same is Rs, 225/500. As such it is contended that the appellant was entitled to the consolidated pay scale of Rs, 225/ 500 and there is no provision of any other consolidated scale against the 'present scale' which the appellant was drawing at the relevant time. An order requiring the appellant to opt for a consolidated pay scale other than that provided for under the aforementioned Pay Revision Rules of 1963 was ultra vires of the said Rules and hence illegal.
4. It is further contended that the appellant was given the right of option under rule 4 of the aforementioned Pay Revision Rules, 1963, "to opt for the consolidated scale or present scale "on the condition that "the option once exercised shall be final". It is submitted that the option once having been exercised in due form as provided in the said rule 2 of the aforementioned rule 4 and accepted by the Government and acted upon for over 7i years became final and irrevocable by either party.
5. Lastly it is contended that even if the plea of rectification of mistaken order be accepted, such rectification could only take place after associating the appellant in the enquiry and after giving him a hearing. For this contention the appellant relies on the following observations in the case cited as PLJ 1974 Lab. 287 in which the appellant was aggrieved by an order of Health Secretary cancelling an earlier order promoting him to P. H. S. Class-I Senior Scale and putting him back to his former position of a temporary ad hoc appointee in the same scale :- "As regards the ground of mistake and representation by those senior to him, if the petitioner were not a party to the mistaken order then it was for the Department to have called upon him and to associate him in the inquiry for establishing the mistake and after that had been done the order could be withdrawn only prospectively as has been done in this case by cancelling it altogether. If the vested rights of others have been interfered with there is all the more reason that the rights of the petitioner should be interfered with at their instance and for their benefit only after hearing him because the impugned order does affect the status of the petitioner and reduces him in rank from P. H. S-I Senior as thereafter he is made to officiate or to work in purely temporary and ad hoc arrangement liable to disturbance any time in the exigencies of service."
6. For examining the last mentioned contention on behalf of the appellant it wogici. Be advantageous to reproduce the impugned order dated 21st May, 1970, which runs as under :- "Subject : Grant of Secretariat Scale of Pay:-- ' The Finance Department has not agreed to allow Secretariat pay scale (consolidated) to those officials who were appointed by the Regional Heads or Heads of the attached Department in their offices after 13th October, 1955. They have, however, given right to such employees to regain any of the two scales :-
(i) Rs, 150/370 (unconsolidated).
(ii) Rs, 175-10/215-350 (consolidated).
2. As you are appointee of the Regional Office (Other than Sect. Office) you are not entitled to Secretariat consolidated scale of pay as per advice of the Finance Department. You are, therefore, requested to please exercise your option for one of the two scales of pay mentioned above so that your pay could be fixed accordingly and you are paid at the revised rates.
3. Your reply must reach the undersigned within three days from the receipt of the communication failing which your pay will be fixed in the scale of Rs, 150/370 (unconsolidated) being beneficial to you."
' The above order conveys a final decision to the appellant to the effect that he is entitled either to the unconsolidated pay scale of Rs, 150/370 or the consolidated pay scale of Rs, 175/350 and that he should exercise his option in favour of any one of these two scales within three days failing which his pay will be fixed in the scale of Rs, 150/370. It is the department's own case that the impugned order was issued to rectify the consequences of the earlier mistaken order whereby the appellant was initially allowed to avail of the pay scale meant for an Assistant of the Secretariat Office whereas he was actually eligible to the lower pay scale meant for an Assistant of a non- Secretariat Office. The impugned order does not indicate that in arriving at this decision either the appellant was associated or was afforded a personal hearing. Nothing has been shown to rebut this contention of the appellant. In respectfully following the ratio laid down in Lahore High Court case relied upon by the learned counsel for the appellant cited as PLJ 1974 Lah. 287 we set aside the impugned order of 21st May, 1970 with the directions that the case is remanded back to the competent authority for deciding the matter on merits after associating the appellant and giving him a personal hearing.