Ch. Shahid Naseer , Member .--All the above cited seven appeals are going to be disposed of through the instant consolidated judgment, as the same are more or less carry the identical facts.
2. Briefly stated, the appellants were granted four advance increments on acquiring higher educational qualification which were subsequently objected upon by the Respondent No. 2, without any cogent reason and the said increments were withdrawn by the Respondent No. 3, vide impugned Office Order dated 12.5.2016, which is as under: "During the scrutiny of service books of Sargodha GPO, pay fixation and service verification party 0/0 DA, PPO Lahore, Camp at Sargodha GPO has raised an objection that the following officials have been granted four increments on Graduation basis which are not admissible as per available policy . Detail of overpaid amount paid to the of ficial is mentioned against each as under: Sr. No. Name of Official & DesignationBPS Period Amount Rs.
From To
1. Mr. Fida Hussain ASPS O/o DSPS14 01.06.1996 To Date 206,046/-
2. Mr. Shahid Karim Qazi Clert Sargodha GPO09 20.12.1995 To Date 114,804/-
3. Mr. Mehtab Ali Bukhari Clerk O/o A.D. PLI. Sargodha09 13.07.1996 To Date 133,419/-
4. Mr. Muhammad Faisal Clerk O/o DSPS Sargodha09 16.01.1996 To Date 197,064/-
5. Mr. Aziz-ur-Rehman Clerk Sargodha GPO09 16.12.1995 To Date 120,1 11/-
6. Mr. Fazal-e-Haq Khan postmaster Rehman Pura PO Sargodha09 21.12.1995 To Date 206,316/-
7. Miss Farhat Batool Clerk Sargodha GPO09 28.12.1995 To Date 200,916/- They are therefore, directed to deposit the said amount in Government account under head unclassified receipt otherwise, the outstanding amount will be recovered from their monthly pay ."
The names of the appellants, date of joining, date of regularization and date of granting four advice increments by the order of the Competent Authority are mentioned in the Table as below: Sr.
No.Name of AppellantDate of JoiningDate of RegularizationDate of GrantQualification
1. Fida Hussain 30.05.1996 31.05.2003 01.07.1997 B.A.
2. Farhat Batool 27.12.1995 26.06.2003 30.01.1996 B.A.
3. Shahid Karim Qazi 19.12.1995 31.07.2002 25.06.2003 B.A.
4. Aziz-ur- Rehman 16.12.1995 31.07.2002 25.01.1996 B.A.
5. Fazal-e-Haq 19.12.1995 31.07.2002 30.01.1996 B.Com
6. Muhammad Faisal 20.12.1995 31.05.2003 14.02.1996 B.A.
7. Syed Mahtab Ali Shah 31:05.1994 01.08.2002 13.01.1997 B.A.
The appellants have further stated that question of advance increments has already been settled and the judgment-of this Tribunal was upheld by the Hon'ble Supreme Court of Pakistan in a case of Muhammad Sadiq, Postal Clerk Gujranwala G.P.O., who was engaged temporarily w.e.f. 2.1.1996, and his services were regularized on 11.11.2002 in pursuance of orders issued by the Director General, Pakistan Post, Islamabad. He filed an Appeal No. 1718(R)CS/201 1, in this Tribunal, with the prayer that his pay might be ordered to be refixed after granting four advance increments on the basis of acquiring higher educational qualification i.e. B.Sc since his initial appointment. His appeal was accepted accordingly by this Tribunal for granting four advance increments from the date of his appointment/regularization i.e. 2.1.1996. The question of limitation was also rejected. The benefit of said judgment was also extended to another official Attiq-urRehman by this Tribunal, on 13.7.2016, in Appeal No. 135(L)/2016. The Department filed an appeal before the Hon'ble Supreme Court of Pakistan against the judgment of this Tribunal, but the same was also dismissed on 31.5.2013.
Resultantly , the Director General, Pakistan Post was directed to implement the said judgment of this Tribunal, vide his office order dated 29.7.2013 which had attained finality . The appellants moved their departmental appeals on 6.6.2016 against the impugned orders dated 12.5.2016, which remained un-responded, hence these appeals.
3. The learned counsel for the appellants has contended that the recovery of amou nt in lieu of advance increments is arbitrary and illegal. The reason is that the advance increments remained in field for about 20 years, which were withdrawn on the objection of Responde nt No. 2 without any legal and cogent reason. The scheme of advance increments was introduced to all the employees of BS-1 to 15 without any condition of 2nd Division in B.A/B,Sc/B.Com vide Finance Division O.M. dated 29.6.1991 circulated by the Director General, Pakistan Post, vide his Circular No. 4 of 1991. The learned counsel for the appellants has further contended that under the principle of locus poenitantiae the disbursed amount may not be recovered. Reliance is placed on 2003 PLC (C.S.)
262, 1994 PLC (C.S.) 1511, 1989 PLC (C.S.) 332. Moreover , the policy of discontinuation of advance increments was introduced in 2002. In an identical case, the Hon'ble Supreme Court of Pakistan directed the respondent- Department to grant advance increments, positively . Reliance is placed upon 2009 SCMR 177. Before issuing the impugned order no notice was issued and the appellants were condemned unhe ard i.e., "Audi Alteram Partem " which is against the principles of Natural Justice. Since long, the appellants have been receiving said increments with bonafide belief that they are entitled to the said relief, and recovery of already paid amount to the appellants is entirely an illegal step. As per dictum laid down by the Hon'ble Supreme Court of Pakistan in PLD 1992 S.C. 207 on the analogy of locus poenitantiae , the appellants have prayed for accepting the instant appeals for not to implement the impugned orders dated 12.5.2016.
4. Vehemently contesting the appeals, the respondents have maintained that the appeals are not maintainable as the Director General, Pakistan Post, Islamabad has not been impleaded in these cases, whereas he was the necessary party . The appellants were regularized from the date of their initial appointments on ad hoc basis. During the process of Verification of Pay, the Respondents No. 3 and 4 allowed advance increments on acquiring higher qualification, the said advance increments were allowed without prior approval of the Director General, Pakistan Post, Islamabad, who has already clarified vide letter No. PA&P 1-14-2004 dated 4.4.2005 that the regularization of the officials from the date of initial appoin tment was only for the purpose of pay protection and had no relevance to the grant of advance increments on the basis of higher qualification. Consequently , benefit of advance increments allowed by the concerned Chief Postmaster was discontinued during the process of pay fixation. Admittedly , the cases of the appellants for grant of advance increments on acquiring higher qualification was taken up with the Director General, Pakistan Post for guidance vide letter dated 22.2.2017, but remained un-responded, the appellants have no justification to move these appeals as such the same be dismissed.
5. Arguments heard. Record perused.
6. As discussed above, the appellants enrolled in the service of the respondents initially on ad hoc temporary basis in the years 1994-1996 and were granted Advance Increments on account of higher qualification of B.A/B.Sc and B.Com, while their services were regularized as per Table. The Divisional Superintendent Post Offices, Sargodha Division vide separate Orders as mentioned in Para-2, supra, granted four advance increments, on passing B.A examination which were admissible, vide Finance Division O.M. dated 1.7.1987, D.G, Post Office letter dated 4.9.1986 and further clarified vide letter dated 3.3.1988. The Respondent No. 3, vide impugned order dated 12.5.2016, directed the appellants to deposit the over-paid amount with effect from the date of their initial appointment (1995-1996) from their monthly pay, pursuant to the scrutiny of service books of Sargodha G.P.O, Pay Fixation and. Service Verification Party of the Respondent No. 2, who raised an objection that four advance increments were granted on graduation basis, which were not admissible, as per policy . The question of advance increments has already been settled and the judgment of this Tribunal dated 10.5.2012 passed in Appeal No. 1718(R)CS/201 1 was upheld by the Hon'ble Supreme Court of Pakistan, vide Order dated 31.5.2013, is a case of one Muhammad Sadiq, who was engaged temporarily w.e.f. 2.1.1996 but his services were regularized on 11.11.2002. The advance increments remained in field since 20 years, but the same was withdrawn on the objection of Respondent No. 2 without any cogent reasoning. The advance increments scheme was allowed to all the employee of BS-1 to 15 without respect to the condition of second Division in BA vide Finance Division Notification dated 29.6.1991 circulated by the Director General, Pakistan Post, Islamabad vide Circular No. 4 of 1991. It is well settled principle of locus poenitantiae that once benefit granted cannot be withdrawn or rescinded, as enunciated in Government of the Punjab, Education Department through Secretary Higher Education, Punjab Civil Secretariat Lahore and others (2019 SCMR 643 ) wherein it has been observed as under: "5. The jurisdictional contours of an authority to recall its orders was considered in detail in Pakistan through the Secretary , Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407), wherein an earlier order of the President of Pakistan made in favour of a government servant fixing his basic salary at a certain rate was withdrawn. This Court by a majority decision declared the withdrawal of the order to be without lawful authority in terms that: "The authority that has the power to make an order has also the power to undo it. But this is 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."
6. The ratio of the decision in the aforementioned case evolved with time. It was in Engineer-in-Chief Branch v.
Jalaluddin (PLD 1992 SC 207) that this Court further refined the scope of the jurisdictional limits of the authority to withdraw its decisions, observing that: "Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that orders once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained -on the basis of an illegal order-However , as the respondent had received the amount on the bona fide belief, the appellant is not entitled to recover the amount drawn by the respondent during the period when the latter remained in the field. We consider that as far as the recovery of the amount in question is concerned, the principle of locus poenitentiae would be applicable and the appellants are not entitled to recover the amount."
7. The appellants preferred their departm ental appeals separately in ,the month of June 2016 against recovery order dated 12.5.2016, which were not decided by the respondents. In consequence thereof the appellants filed their separate service Appeals No. 592 to 598(L)/2016, which were remanded to the respondents to decide their pending departmental appeals within a period of 30-days. However , these appeals have been filed by the appellants in a second round of litigation. The appellants filed Misc. Petitions No. 165 to 171/2017 for grant of stay of recovery and the following order was passed on 9.4.2018: "By means of impugned order , dated 12.5.2016, which is the subject matter of appeal it was ordered that "outstanding,, amount will be recovered from their monthly pay." Since the appeal has already been admitted to regular hearing the learned counsel contends that there is every likelihood of the appeal having been decided in favour of the appellants as the recovery sought to be made from the appellants is untenable in law .
Be that as it may, without going into the detailed aspects of the matter we are inclined to suspend the operation of the impugned order to the extent of recovery .
The applications are disposed of accordingly ."
Likewise, a similar case was also decided by this Tribunal in Appeal No. 135(L)/2016 on 13.7.2016, the respondent-Department assailed the impugned order before the Hon'ble Supreme Court of Pakistan in Civil Petition No. 2862-L of 2016, decided on 16.10.2018, and the following Order was passed: "The Tribunal has granted the responden ts four advance increments on account of higher qualification of D.Com, whereas the required qualification for appointment as Postman is Matriculation Certificate. The respondent was appointed to that post in the year 1995 and another officer, Muhammad Sadiq, in the same department was appointed as Postal Clerk in the year 1996. Both employees were regularized in service in the year 2002 from their date of initial appointment. Sadiq claimed advance increments on account of highe r qualification before the learned Service Tribunal which were allowed vide judgment dated 10.5.2012. The petitioner's recourse to this Court against the said judgment failed vide order dated 31.5.2013 on account of being time barred. Thereafter , the respondent claimed equal treatment which relief has been granted by the Tribunal through impugned judgment dated 13.7.2016. Learned Additional Attorney General informs that the respondent was not entitled to the advance increments because the policy of grant thereof was discontinued in November 2001 whereas the respondent was regularized in service on 11.11.2002. Further submits that the case of Muhammad Sadiq cannot serve as precedent because it was not decided on merits by this Court and -had failed on account of the time bar .
2. Irrespective of the dismissal of the petitioner's appeal in the reference case of Muhammad Sadiq we notice that the advance increments for higher quali fication were admittedly available in the petitioner department to those employees whose services were regularized before continuation of the benefit in November 201L In the present case, the respondent was regularized with effect from 1995. On that basis the facts of the respondent's case are virtually identical to those of Muhammad Sadiq. Since the entitlement to the advance increments on account of higher qualification existed upto November , 2001 therefore, the respondent is also entitled to the same relief.
Accordingly , we find no infirmity in the impugned judgment of the learned service Tribunal.
The petition is dismissed and leave to appeal declined."
8. As per record, the appellants were appointed on temporary/ ad hoc basis in the years 1994-1996. Subsequently their services were regularized and qualification increments were granted to them, which they received for a long time. Suddenly , a Notification, dated 12.5.2016, was issued with the direction to all the appellants for depositing the said amount in Government accounts. From the respondents' side an Office Order dated 25.11.2015, which is as under , was issued: "SUB: CLARIFICA TION REGARDING GRANT OF ADVANCE INCREMENTS TO THOSE OFFICIALS WHOSE SER VICES HA VE BEEN REGULARIZED RETROSPECTIVEL Y A case seeking clarification regarding admissibility of advance increments to those postal employees whose services have been regularized retrospectively as a result of Court Orders or otherwise, was referred to the Ministry of Communications (Postal Services Wing) for further pursuing with the Finance Division as advised by the Law and Justice Division. The Finance Divisi on has clarified that there is no policy to grant advance increments for possessing/acquiring higher educational qualification to those whose services have been regularized after 01.12.2001 i.e. the date when the scheme was discontinued."
Thereafter , a letter dated 16.3.2016 from the office of the Director General, Post Office, Islamabad was issued, which is as under: "SUB: GRANT OF ADVANCE INCREMENTS TO MR. NAZIR AHMAD FOR IMPLEMENT ATION OF COUR T
Kindly refer to your of fice letter No. PF/Postal/677 dated 23.02.2016 on the above noted subject.
2. It is intimated that a general case seeking clarification regarding grant of advance increments to those postal employees whose services have been regularized retrospectively , was referred to the Finance Division for advice.
The Finance Division vide O.M circulated under this Dte-General letter No. PA&P. 1-2/2014 dated 25.11.2015 {copy enclosed) has clarified that "there is no policy to grant advance increments for possessing/acquiring higher educational qualification to those whose services have been regularized after 01.12.2001 i.e. the date of discontinuation of scheme." You are therefore, requested to dispose of the case accordingly ."
9. After issuing the said two letters, the impugned order dated 12.5.2016 was issued. The worth-noting point is that qualification allowance is going to be granted to the appellants under some specific Notifications/Orders, which were not derived by the appellants through fraud, misrepresentation. If there was any fault that is on the part of the Department, the appellants in resultant of that may not be saddled with the liability of depositing back the qualification allowance/increments to the respondent-Department, under the principle of locus poenitntiae .
Consequently , the respondent-Department is not competent to recover the said paid benefits, hence in the light of the aforesaid facts, accepting the appeals of the appellants, the impugned order dated 12.5.2016 is set aside.
10. No order as to costs.