MAQBOOL BAQAR, J.---Assailed through the above petition, was the order dated 06.09.2006, in terms whereof a learned Single Judge of the Lahore High Court, whilst allowing the petition filed by the respondent, declared order dated 12.02.2015 passed by petitioner No, 2 as void ab initio.
2. The brief facts of the case are that while the respondent was working as a Senior Clerk in the Market Committee, Yazman the Director General Agriculture, through order dated 07.12.1996, passed under Rules 70(3) of the Punjab Agricultural Produce Market (General), Rules, 1979, created a post of accountant (BS-11), in the office of Market Committee, Yazman, such, in terms of the said order was done, to adjust the respondent. The post of senior clerk held by the respondent in the said office was also abolished by the said order, and thus the respondent commenced his work as an Accountant from 09.12.1946, and was through order dated 31st July, 2000 transferred from Yazman to Bahawalpur. Through order doted 16.11.2002, the petitioner No,2, on the recommendation of Departmental Promotion Committee, moved over the employees of the department. The respondent was thus moved over from BS-11 to BS-12 w,e,f, 01.12.2000. He was also placed in the seniority list of accountants prepared on 31.12.2000. The respondent upon attaining the age of superannuation, was through order dated 11.06.2014, retired as Accountant Market Committee, Yazman w.e.f, 12.06.2014. However, through order dated 12.02.2015 the petitioner No, 2 withdrew the aforesaid order dated 11.06.2014, as well as the order dated 16.11.2002 pertaining to the move over of the respondent, and directed issuance of a fresh orders for retirement of the respondent as a senior clerk instead, and to process his case for pensionary benefits accordingly, and also to deduct from his pension, the salary and allowances drawn by the respondent as an accountant, instead of a senior clerk. The order, as mentioned therein, was passed for the reason that the respondent was adjusted as an accountant without his being promoted to the said post. It is the order dated 12.02.2015, that, as noted earlier, has been set aside through the order that was sought to be impugned through the above petition.
3. Ms. Aasma Hamid, learned Additional Advocate General submitted that while rendering the impugned judgment the learned Single Judge of the Lahore High Court has overlooked the fact that, in the first place, no person specific post can be lawfully created, and secondly, the respondent otherwise also could not have been posted to the post of an accountant without being so promoted by the competent authority, however the post was expressly created for the benefit of, and to "adjust" the respondent, which post/position he assumed and held without being promoted as an accountant to be able to hold the same, and thus held the same illegally, and without being competent for and entitled to the same. The learned Additional Advocate General further submitted that none under the law was authorized to pass an order creating a person specific post as done in favour of the respondent, and therefore the order as such being non-est, its recall cannot be precluded or resisted on the pretext that it has been acted upon, investing valuable rights in the respondent, as order in question being non-est, does not give way to any right. She further submitted that public exchequer was unjustly burdened because of the purported orders dated 07.12.1996 and 11.06.2014 respectively. The learned Addl. AG also submitted that perks, salaries and pensionary benefits are not state bounties to be granted to individuals in violation of law and beyond the prescription thereof. She submitted that public money is to be utilized for the benefit and welfare of the public at large and not as largess to undeserving individuals. The learned Addl. AG also submitted that by maintaining the respondent's retirement as of an accountant, public exchequer shall be unjustly burdened. She urged that in order to rectify such wrong the impugned order is liable to be set aside, so that order dated 12.02.2015 be restored, whereby the benefits and privileges wrongly received by the respondent be retrieved and restored to the exchequer. She submitted that order dated 07.12.1996 having been rectified through order dated 12.02.2015 as having been passed without lawful authority. All acts and deeds done and performed in pursuance of former are to be retrieved/rectified and the order rectifying the above wrong shall have its application in the retrospect, also as the order rectified has been reduced into non-existence. She further contended that an advantage or a benefit enjoyed in violation of law cannot be protected or justified to be retained on the pretext that it has occurred or has been received as such. Learned Additional Advocate General while concluding her arguments urged that the impugned order be set aside.
4. Indeed, as rightly submitted by Ms. Aasma Hamid, the creation of the post specifically for the 'benefit of, and to "adjust" the respondent was illegal. It is also a fact that the respondent who was at the relevant time serving as a senior clerk was not promoted to be able to hold the past of an accountant. However, the fact remains that the respondent has, in pursuance of order dated 07.12.1996, served as an accountant since 09.12.1996 and was as such also moved over to BS-12 in pursuance of order dated 16.11.2002, his name also found place in the list of accountants; and after serving as such the respondent retired on 12.06.2014, through order dated 11.06.2014. There is absolutely no allegation that it was the respondent who maneuvered his way up as noted above, or was in any manner instrumental in his being posted as an accountant. It is an admitted position that since after his posting in pursuance of order dated 07.12.1996, and till the date of his retirement i,e, 12.06.2014, the respondent has throughout worked and discharged his functions as an accountant. It has not even been alleged that during these more than 18 years the respondent has failed to discharge his duties as an accountant to the satisfaction of his superiors or gave way to any complaint regarding his conduct and performance as such. Indeed it is true that the employment and retirement benefits are neither a bounty nor largess, but the same have to be earned by performing the assigned job, and discharging the prescribed duties, which criteria the respondent has fully met to the satisfaction of his superiors/employers. As noted earlier, there is no fault of the respondent in being appointed as an accountant, it would therefore be wholly unjust and unfair if he is made to suffer for the follies and indolence of his superiors, after a lapse of more than 18 years. Since admittedly the respondent has served, and discharged his duties as an accountant it would be wholly incorrect to plead that payment of his salaries and other employment benefits including the pensionary benefits as an accountant would be an unjust burden on the public exchequer. The respondent having been notified as an accountant and having served as such for more than 18 long years, cannot now be denied his perks and privileges as such. The payments of such perks, privileges and benefits are also protected under the doctrine of legitimate expectancy, as in the circumstances the respondent was wholly justified in expecting such payments.
5. In a case regarding pensionary benefits of the Judges of superior Courts, reported as PLD 2013 SC 829, dealing with the question as to whether in the event of the judgment of this Court titled as Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others, whereby it was held that the retired judges of the High Court were entitled to get pensionary benefits admissible to them, from the date of their respective retirements, irrespective of their length of service as such Judges having been held per incuriam, the retired Judges of the High Court who had already availed the pensionary benefits on the basis of the said judgment were hound to return such benefits, this Court by a majority of three to two, held that the amount received by the retired Judges in pursuance of the judgment held per incuriam, should not be recovered from them, as it shall be oppressive and prejudicial to them, however their right to receive pension in future has come to an end. It was observed that the retired Judges who received pensions in pursuance of the judgment have not been at fault in procuring the same, but have received the same in pursuance of a judgment of this Court which was considered as a valid enunciation of law during the interregnum, and have received their pensions bonafidely, as the judgment entitling them to so receive remained in force till the time it was declared per incuriam. It was further held that because of lapse of a long span of time intervening between the two judgments most of the retired Judges who received the pensionary benefits in question might have spent and consumed the same, and if the amount was ordered to be recovered from them now, they might have to sell their assets (shelter) and belongings, and those who had no assets, or savings, might be compelled and constrained to entreat others or borrow. It may however be observed here, that through the above referred judgment, the retired Judges were not found to be entitled for payment of pension in future, for the reason that they did not serve for the period prescribed for being entitled to such pension, however, in the present case, the petitioner has retired upon reaching the age of superannuation, and was thus fully entitled to the pensionary benefits, and the only question was/is as to whether he was/is entitled to compensation/benefits as a senior clerk or an accountant, and we, in view of the foregoing discussion, are clearly of the view that the benefits and compensation to the petitioner as an accountant cannot be lawfully denied.
6. It was for the foregoing reason that, through our short order dated 13.04.2017, we dismissed the above petition. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.