M. TABASSUM AFTAB ALVI, J.--- The supra titled writ petition has been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby writ in the nature of prohibition is solicited against the respondents jointly and severely from abrogating order dated 30.03.2002, through which petitioner was granted three advance increments, on the basis of passing M.Ed. Examination w.e.f.
10.02.2001. A further writ in the nature of certiorari is also solicited to quash the impugned decision of Ombudsman of Azad Jammu and Kashmir-respondent No.4 dated 23.12.1999, as having been passed without lawful authority.
2. The precise facts culminating into filing of the instant writ petition are that petitioner was appointed as Headmistress B-17 on recommendations of the Public Service Commission, vide Government notification dated 29.09.2000. The petitioner after the aforesaid appointment improved her qualification and passed M.Ed. Examination from Alkhair University of Azad Jammu and Kashmir, in the year 2001. As per claim of petitioner, she was entitled to obtain three advance increments on the basis of prescribed Government Policy, however, office of Accountant General i.e. Respondent No.3 objected the same vide script dated 28.03.2002. The said objection of office of Accountant General, (respondent No.3) was answered by Education Department vide letter dated 30.03.2002. The petitioner consequently was granted-benefit of three advance increments vide order dated 03.04.2001. As per assertion of petitioner she is continuously receiving the aforesaid increments without any objection from respondents since 2001. The Ombudsman of Azad Jammu and Kashmir-respondent No.4, however, in some proceedings declared that three advance increments cannot be awarded to M.Ed. Degree holders vide decision dated 23.12.1999. The petitioner on the basis of the aforesaid decision of the Ombudsman felt threaten that respondents would withdraw order of increments dated 03.04.2001, hence, she constrained to file the instant constitution petition.
3. The writ petition has been contested by respondents through written statement, wherein, it is stated that petitioner has an alternate remedy in shape of filing of an appeal before the Service Tribunal, therefore, writ petition is not competent. It is further stated that authority which issued notification has power to amend or cancel the same under law. It is maintained that ill-gotten gains could not be protected through writ jurisdiction. It is further claimed that petitioner has not invoked jurisdiction of this Court with clean hands, therefore, submitted for dismissal of writ petition.
4. Sardar Karam Dad Khan, the learned counsel for petitioner, strenuously argued that petitioner was appointed as Headmistress B-17 on recommendations of the Public Service Commission vide Government notification dated 29.09.2000. He referred Detailed Marks Certificate (DMC) of petitioner, appended along with writ petition, whereby, petitioner had passed Master of Education (M.Ed.) Examination on 19th February, 2001. The learned counsel pressed into service that on the basis of the aforesaid higher qualification of M.Ed., petitioner was granted three advance increments by Secretary Education as Principal Accounting Officer vide order dated 03.04.2001, which cannot be taken back by respondents due to principle of locus poenitentiae. He further argued that petitioner was not arrayed as party in complaint No.273/99, before the Ombudsman of Azad Jammu and Kashmir, hence, decision dated 23.12.1999, was not binding upon her. The learned counsel in support of his contentions referred to and relied upon an unreported judgment of the apex Court titled "Accountant General, Azad Jammu and Kashmir, Muzaffarabad and another v.
Shahid Mehmood and another" [Civil Appeal No.82/2002] decided on 18.02.2005 and a case titled Dr. Umar All v. N.W.F. Province and 2 others (1984 PLC (CS) 1569).
5. Mr. Abdul Waheed Khan Durrani, the learned counsel for respondents vehemently argued that as per the Azad Jammu and Kashmir School Cadre Service Rules, 1989, substituted vide notification dated 18.05.1994, the basic qualification for the post of Headmistress B-17 of High Schools was M.A./M.Sc. 2nd Division with M.Ed. 2nd Division, therefore, petitioner was not entitled for three advance increments, hence, craved for dismissal of writ petition.
6. After hearing the learned counsel for parties at length, I have perused the contents of writ petition, examined the appended documents with utmost care and have given my earnest thought to the points raised by the learned counsel for parties.
7. A contemplate perusal of record reveals that petitioner was appointed against the post of Headmistress B-17 on recommendations of the Public Service Commission vide Government notification dated 29.09.2000. After the aforesaid appointment petitioner acquired additional qualification of Master of Education (M.Ed) vide DMC dated 19.02.2001. The petitioner on the basis of her M.Ed education was granted three advance increments by Secretary Education as Principal Accounting Officer, vide order dated 03.02.2001. At the time of appointment against the post of Headmaster B-17, petitioner was possessing basic qualification of M.A., B.Ed. (2nd Division). As per the Azad Jammu and Kashmir School Cadre Service Rules, 1989, substituted vide notification dated 18.05.1994, the basic qualification required for initial recruitment pertaining to the post of Headmistress B-17 was M.A./M.Sc. (2nd Division) with B.Ed. (2nd Division) which extract speaks as under: 1.Name of the DepartmentFunctional UnitName of the Post with GradeAppointing Authority Initial recruitment or TransferMinimum qualification for appoint by Promotion 12 3 4 5 6 -- 2 3____ _____ ____ 4_ ____ 5Education DepartmentSchool EducationHead Mister/ Head Mistress High Schools Deputy Dist.
Education Officer SubjectMinister InchargeM.A./M.Sc (2nd Div) with BEd.
(2nd Div) provided that the candidates who candidates who are M.A. English (3rd Div) may be provisionally appointed specific condition that they shall acquire requisite qualification within 3 years after their appointment or will qualify the special Diploma Specialist Elementary Colleges and Higher Secondary School B-
17. course in English arranged by Allama lqbal Open University Islamabad in any of the two consecutive session of the Course starting immediately next to the date of their appointment on their failure to require the requisite qualification within the aforesaid period there services shall stand terminated automatically(or)
M.A./M.Ed. (2nd Div) from a recognized university. Or equivalent qualification.
Note: If M.A/M.Sc with B.E.41 are not available than M.A/M.Sc will be appointed by initial recruitment subject to the condition that they shall esquire the qualification within three year.
Note. For subject specialist, the above mentioned qualifications in the relevant subject shall be essential.
6 7 8 9 10 11 12 13 14 15 16 Method of recruitmentAge for initial recruitmentExamination / Training and other condition for confirmationMin Max 7 8 9 10 11 M.A./M.Sc (2nd Div) provided that for those who are M.A.
English (3rd Div) the same condition shall apply as mentioned in Col. 6 B.Ed. (2nd Div).
For promotion to post of subject specialists the above mentioned qualification in the relevant subject.(i).33% by initial recruitment. 18-35.
(ii).67% by promotion form amongst SSTs.
Note:
1. SSTs on strength of the education department immediately before enforcement of these rules will be eligible for promotion as Headmaster/ Headmistress/ Deputy District Education Officer without having M.A/M.Sc degree but shall not be eligible for posting as subject specialists for promotion to the posts to B-18 without possessing M.A/M.Sc M.Ed M.A (Education).
Note:
2. Subject specialists shall not be eligible for posting as Headmaster/ Headmistress / Deputy District Education Officer unless they have served as subject specialist for a period of 10 years similarly Headmaster / Headmistress / Deputy District Education Officer shall not be eligible for posting as subject specialist unless they have served as such for a period of 10 years. _ -- _ _ _ -- -- ' As petitioner acquired higher qualification of M.Ed. After her appointment against the post of Headmistress B-17, whereas at the cast of repetition it is reiterated, that basic qualification for initial recruitment of the post in question was M.A./M.Sc. (2nd Division) with B.Ed. (2nd Division). Therefore, on the basis of paragraph-7 of Pay Revision Scheme of 1983, the petitioner was entitled to advance increments which para is reproduced herein below:-
7. Government servant belonging to the cadre of Headmasters/ Headmistresses of High Schools would also be entitled to advance increments as admissible to other high school teachers for possessing higher qualifications provided that they were not appointed to the cadre by initial recruitment on the basis of qualifications for which advance increments have been sanctioned."
As M.Ed. Qualification was higher to BEd. Required for initial recruitment, therefore, no illegality was committed by respondents Nos.1 to 3 while granting advance increments to petitioner vide order dated 30.03.2002. As the aforesaid valid order was also acted upon and in pursuance thereof certain rights have been created in favour of petitioner, hence, such an order cannot be rescinded to the detriment of those rights. An identical proposition came under consideration before the Lahore High Court in case titled Mahmooda Begum v. District Magistrate, Sialkot and 2 others (PLD 1991 Lahore 230), wherein at page 239, it was opined as under:- "There can be hardly any dispute that under section 21 of the General Clauses Act, 1897 and section 20 of the West Pakistan General Clauses Act, 1956, the authority that has the power to make an order has the power to undo it subject to the exception that where the order has taken legal effect and in pursuance thereof certain rights have been created in favour of any individual such an order cannot be withdrawn or rescinded to the detriment of those rights."
' The aforesaid proposition also came under consideration before the Islamabad High Court in case titled Raja Shehryar v. Pakistan Council of Scientific and Industrial Research, through Chairman [2013 PLC (C .S.) 1125]. At page 1131 of the report, it was observed as follows:- "As far as, the applicability of principle of locus poenitentiae is concerned, the said principle applies where certain vested rights accrue in favour of some in furtherance of a valid legal order, however, the said principle would not arise in a situation when some benefit accrues due to an illegal order."
The respondents, therefore, in view of the aforesaid facts and law cannot be permitted to withdraw, rescind or abrogate order dated 30.03.2002,1 hence, it is held that the instant writ of prohibition is maintainable.
8. The petitioner was admittedly not party before the Azad Jammu and Kashmir Ombudsman in complain No.273/99, decided on 23.12.1999. It is settled principle of law that a person not party to any lis or proceedings such like decision cannot be binding on such person. An identical proposition came under consideration before the Karachi High Court in case titled Mst. Amina Begum v. Chairman, Karachi Development Authority and 05 others (1993 CLC 1307), wherein at page 1308, it was held as follows:- "We have heard Mr. Haji Ameer Ahmed Khan, learned counsel for the petitioner. The above facts show that there are judgments of Civil Court and Appellate Court standing in favour of the present petitioner and that claim of the present respondent No.5 has not been upheld on any of the previous litigation between the parties. It is also an admitted position that the present respondent No.5 was not a party to the suit flied by the petitioner, which stands decreed in her favour and the decree has attained finality as the same was not challenged in any higher forum. However, point raised by the learned counsel is with regard to observation by the learned III ADJ, Karachi that the said decree would not be binding on the.Present respondent No.5 as he was not party to the suit of the petitioner. Of course, by virtue of the provisions of section of the Specific Relief Act no judgment or decree in suit would be binding on a person unless he is a party to the suit or is claiming through any party to the suit."
' The same view was expressed by the Peshawar High Court in case titled Ziarat Gul v. Qadar Gul and 7 others (PLD 1989 Pesh. 14). At page 17 of the report, it was observed as under:- "In the case in hand, factual aspect of the matter is that the entries of the mutation were based on a judgment of a suit, wherein the plaintiff-respondents were not party at all and, therefore, they were not bound by such decision."
The respondents, therefore, on the basis of the aforesaid decision of the Ombudsman, in which petitioner was not party, cannot be allowed to withdraw valid order of advance increments issued in her favour on 30.03.2002.
9. The contention of MT. Abdul Waheed Khan Durani, the learned counsel for respondents that as per the Azad Jammu and Kashmir School Cadre Service Rules, 1994, the basic qualification for the post in question was M.A/M.Sc. (2nd division) with M.Ed. (2nd Division), is misconceived. At the time of granting advance increments to petitioner the Azad Jammu and Kashmir School Cadre Service Rules, 1989, substituted vide notification dated 18.05.1994, were applicable, which postulated basic qualification for the post of Headmistress B-17 as M.A./M.Sc. (2nd Division) with B.Ed (2nd Division).
However, it may be clarified that through the Azad Jammu and Kashmir School Cadre Service Rules, 1994, substituted vide notification dated 15.11.2011, the basic qualification for the post of Headmaster/Headmistress B-17 of High Schools is laid down as M.A./M.Sc. (2nd Division) with B.Ed or M.Ed. (2nd Division). The aforesaid amendment was brought into the statute book vide notification dated 15.11.2011. The application of said notification is prospective, therefore, the same was not applicable at the then time when petitioner passed higher qualification of M.Ed. In the year 2001 and was granted advance increments as per Government Policy, on 30.03.2002.
10. The crux of above discussion is that by accepting the instant writ petition the respondents jointly and severely are hereby restrained through writ of prohibition to withdraw, rescind, cancel or modify advance increments granted to petitioner vide order dated 30.03.2002. However, writ petition to the extent of setting aside the impugned decision of Ombudsman dated 30.03.2002, is declined for the reason that the aforesaid decision is not binding on petitioner. The writ petition is accepted in the manner as indicated herein above with no order as to the costs.