S. HAFEEZ-UR-REHMAN (MEMBER).-The appellants, Nazar Hussain and Noor Muhammad, Physical Training Instructors (P. T. I.)in the Education Department, have, through this appeal, impugned the order dated 19th August, 1980 issued by the Chairman, District Council, Lahore, withdrawing from the appellants and others the selection grade granted to them on 20th July, 1973 and then directing them to pay back the overpayment received by them because of the selection grade during the intervening period. An appeal against the impugned order was rejected by the Secretary, Local Government Department.
2. Brief history of the case is that the appellants joined service under the District Council, Lahore, as P. T. Is., when local body schools were provincialised, their services were also provincialised with effect from 1st June, 1970. The appellants were granted selection grade of ks. 225-15300-20-400 attached to the posts of classical and vernacular cadre comprising S. Vs., 0. Ts., Drawing Masters and I. T. Is. Appellant Nazar Hussain received the selection grade from 30th January, 1969 and Noor Muhammad from 31st December, 1967 vide order dated 20th July, 1973 made by the Chief Officer, District Council, Lahore. At that time a joint seniority list of classical and vernacular teachers was maintained. In 1973, Afzal Hussain Akhtar, Drawing Master (respondent No, 3) challenged the award of selection grade to two teachers. Namely Muhammad Din and Muhammad Sharif, through a civil suit. This suit abated in 1974. Respondent No, 3 thereater filed Appeal No, 3 of 1977 with this Tribunal.
The Tribunal held the appeal to be not maintainable vide Is decision dated 8th January, 1978, but directed the Respondent Department, 1. e. The District Council to give a fresh look to the case of the appellant (Respondent No, 3) and consider it sympathetically. Respondent No, 3 then sought relief through a writ petition before the High Court. On 17th January, 1979 the High Court issued order that the case be reconsidered in the light of the Tribunal's decision of 8th January, 1978. The writ petition was later on withdrawn on 24th September, 1980. After this litigation the impugned order was issued on 19th August, 1980 quoting the Tribunal's decision as direction. This order, inter alia, separated the cadres of Drawing Masters, P. T. Is., and S V/0 Ts. With retrospective effect ; resultantly the appellants will now be required to return substantial amounts of money over-paid to them because of being in the selection grade.
3. The parties were heard. Mr. Masud Ahmad Riaz, learned counsel for the appellant contended that once the selection grade was duly awarded and the order implemented and the grade enjoyed by the appellants for many years it could not be arbitrarily withdrawn. He relied for this contention on the principles of animus revertendi and locus poen1tentia and cited in this behalf in re. Raja Mehammad Nawaz v, Government of Punjab . 1n that case the learned Judges of Supreme Court had held that even if an order granting a facility was passed through s. Ome mistake or against sonic rules, it would stand because by its implementation that the person so granted had been conferred a certain status in life and vested right had been created which could not be withdrawn subsequently. In the context of considering the cadres of Drawing Masters, P. T. Is. And S V/0 Ts., as a joint cadre, learned counsel quoted PLD 1970 SC 543 wherein it had been held that if a department interprets a particular rule in a particular way for a long time it is estopped from changing that interpretation even if that interpretation is wrong. He submitted that the joint cadre was in vogue since 1937. Learned counsel objected vehemently to the impugned order placing reliance on judgments of this Tribunal and the High Court, contending that neither had given its definitive decision on the appeals of respondent No,
3. In an case it was a settled proposition (PLD 1965 SC 106) that executive order cannot be retrospective in its effect. The Respondent had passed the impugned order on the ground that when the pay scales were revised in 1972 the notification showed Drawing Masters separately, therefore, they should get the selection grade on their own seniority list. This was a misconception, because the notification of pay scales has nothing to do with terms and conditions of service which are dealt with by S&GA Department and not the Finance Department. As regards the sanctity accorded to joint cadre by long practice, learned counsel stated that the Subordinate Education Service Rules of 1937 mentioned a joint cadre and ever since then no one had questioned this interpretation.
4. Mr. Chulam Nabi, learned counsel for the District Council, submitted that, to begin with, the appellants had in 1973 given an undertaking that any overpayment made to them in respect of the selection grade would be returned by them. Therefore, they were bound to that undertaking. So far as the matter of joint or separate cadre was concerned, learned counsel informed the Court that the decision regarding separate cadres was taken as a result of the judgment pronounced by the West Pakistan High Court (Peshawar Bench) in Writ Petition 296 of 1963 which had bifurcated the classical and Vernacular cadre allocating a quota of selection grade to the extent of 15% each to O.
Ts., and S. Vs. No doubt, before this judgment it was a single cadre, but now the respondent- Department was bound to follow the High Court dispensation.
5. Mr. S. M. Hamici Ali, learned counsel for respondent No, 3, also addressed us. He stated, however, that his client had nothing against the appellants who had not even been impleaded by him during his various appeals before different forums. His complaint was against Muhammad Din and Muhammad Sherif because they were Drawing Masters and had been given the selection grade whereas it was his right after the superannuation of Ramzan Ali, Drawing Master, on 8th September, 1966. Since then he had been agitating the matter as the basis of the West Pakistan High Court judgment. But learned counsel did object to the present appeal as being not maintainable on the ground that the Tribunal was not empowered to go into the question of fitness for promotion to a higher grade. He also referred to the undertaking given by the appellants with regard to any over-1 payment made to them as a consequence of the grant of selection grade and submitted that the appellants, could not go back on that undertaking.
6. We have heard the parties with attention tend have given or anxious consideration to their arguments. We must say that this case has one or two strange features. For instance, the W. P. High Court gave its judgment, mentioned above, on 17th May, 1966. This was on the basis of Government notifications dated 21st December, 1960 and 23rd (or 28th) December, 1962. And yet the Education Department continued to treat the cadre as a joint cadre instead of the separate cadres framed by these notifications and by the notification of 27th April, 1963 and that of 12th June, 1963 which concerns the Pay Revision Rules of 1963. It seems that it was the efforts of respondent No, 3 to obtain the selection grade that resulted in the Education Department becoming aware of the authen. Tic state of affairs with respect to the position of cadres. In any case, there are the issues which have to be decided by us one, whether the cadre is joint as claimed by the appellants or separate as stated by the respondents, and two, if two cadres are separate and the appellants are not entitled to the selection grade, then what treatment the appellants are to receive as a consequence of the impugned order. There is no doubt in or mind that, howsoever belated, the impugned order is correct in so far as it grants selection grades to certain person on the basis of new separate seniority lists of various categories of teachers. But we are not inclined to go along with the last paragraph of the order whereby the selection grade has been withdrawn from the appellants and two others. There is much that appeals to or conception of justice in the arguments put forth on behalf of the appellants. The appellants were granted selection grade vide order dated 10th July, 1973. Appellant No, I received it from 30th January, 1969 while appellant No, 2 became entitled to it with effect from 31st December, 1967. This means that they enjoyed this grade till the issuance of the impugned order dated 19th August, 1980 for nearly 12 years and almost 13 years respectively. They did sign a routine undertaking that in the event of overpayment they would reimburse the extra amount, but what is the period that commonsense or usage would fix for the overpayment to become known and thereby reimburseable? Certainly not 12 years and 13 years during which time the appellants became accustomed to receiving a certain amount as salary and probably fashioned their style of living accordingly. During all this while no hint was given to them that they should be prepared for reduction in their emoluments because of a wrong interpretation of the principle involved in the grant of selection grade. In fact the impugned order came to them like a bolt from the blue. According to the judgments of superior Courts which have now become law, the appellants acquired valuable judicial rights which it may not be easy to snatch from them by a stroke of the executive pen. We believe that the principle laid down by the Supreme Court in the case of Raja Muhammad Nawaz v. The Punjab Government is sufficiently applicable to the instant case, because that honourable Court had held in that judgment that a valuable right occurrin to a civil servant would stand even if the order granting it was passed through some error or against some rules. We bow before this dictum o the Supreme Court, because in the present case also the selection grade was granted to the appellants under a misreading of the principles formulated in this behalf. The law laid down in 1981 SCM R 523 has been relied upon by this Tribunal in a number of cases, including that of Saleem Husain Gardezi v. Punjab Government Appeal No, 66 of 1981, decided very recently. In that case we held that the appellant once appointed as Inspector of Police could not be appointed to a lower post by the same authority under the principles of animus revertendi and locus poententia.
7. In view of the above discussions we hold that the selection grade granted to the appellants cannot be withdrawn from them, and to the extent that the impugned order of 19th August, 1980 cancels the appellants selection grade, the order is null and void and of no legal value.
8. The appeal is therefore, accepted, with no order as to costs. This decision will not affect the selection grade granted to respondent No. 3.2 3