SHAHID KHAN, J.- Through the subject petition, under Article 199, Constitution of Islamic Republic of Pakistan, 1973, the petitioners seek the issuance of appropriate writ with the following prayer: "It is humbly prayed that an appropriate writ may kindly be issued and to declare the act of respondent by way of which they have deducted the salaries and recovered the amount as illegal, against law, unconstitutional based on malice, discriminatory and without any lawful authority.
That direction may kindly be issued to the respondents to make the payment of all outstandings and the amount which is deducted.
That the respondents may kindly be restrained to make any deduction from the salaries.
That the respondents may kindly be directed to refund all the deductions made from the salaries of the petitioners.
That any other relief deemed appropriate in the attending circumstances of the case may also be graciously granted in the interest of justice."
2. In essence, the case of the petitioners is that on different dates, they have been appointed by the respondents-department as IT Teacher in BPS-16 and Senior IT Teacher in BPS-17 on fixed pay of Rs.
40,000/- & Rs. 70,000/- respectively, under the Projects "150559-Establishment of 500 IT Labs in Government High & Higher Secondary Schools in Khyber Pakhtunkhwa" & "160151-Establishment of 500 IT Labs in Government High Schools in Khyber Pakhtunkhwa" but on temporary and purely on contract basis. However, in the year 2017, the Government of Khyber Pakhtunkhwa enacted an act, "The Khyber Pakhtunkhwa Employees of the Elementary & Secondary Education Department (Appointment & Regularization of Services) Act, 2017" (hereinafter referred to as "Act of 2017"), whereby, under the mandate of section 3, services of the petitioners have been regularized, vide Notifications dated 29.03.2018 and 15.10.2018. As such, their salaries have been fixed as per the Government Rules but suddenly, after regularization of their services, the respondents-department started deduction from their salaries for the reason that before regularization, payment has been made to them in excess of their salaries. The petitioners approached the respondents-department for redressal of their grievance but of no avail.
3. It obliged the petitioners to approach this Court through the subject petition.
4. Per direction of the Court, the respondents No. 1 to 3 furnished their para-wise comments and opposed the issuance of the desired writ on certain legal & factual grounds. The petitioners also submitted their rejoinder to the comments.
5. Arguments of learned counsel for the petitioners and the learned Assistant Advocate General for the respondents have been heard and the record scanned through with their valuable assistance.
6. The record made available before this Court would transpire that initially, appointments of the petitioners have been made under the above-referred Projects but on temporary and purely on contract basis. However, their services have been regularized by the Provicial Government through the Act of 2017 but thereafter, deductions have been started from their salaries on the ground that they have received payment in excess of their required salaries before regularization. In this regard, the respondents No. 2 and 3 in their comments have stated that after receipt of clarification from the Government of Khyber Pakhtunkhwa Finance Department, vide letter dated 22.10.2019, recovery of the excess payment has been started from salaries of the petitioners. In the said letter, it has nowhere been mentioned that deduction may be made from salaries of the petitioners, however, it has been mentioned that their case may be examined in light of the Act of 2017. Moreso, in the Act of 2017, it has also not been mentioned that such deduction should be made from salaries of the petitioners. The respondents have also opposed the issuance of the desired writ on the ground that pay of the petitioners has not been secured in light of letter dated 06.02.2014, which is related to contract employees and the petitioners have been appointed under the Projects and have drawn their monthly salaries at fixed rates instead of regular basic pay scales. The text of the aforesaid letter dated 06.02.2014, being relevant, is reproduced as under for the sake of ready reference: "Subject: Protection of Pay of Contract Employees on Regularization/Appointment on Regular Basis.
Dear Sir, In pursuance to the Finance Division's Office Memorandum No. 7(9)R-1/2012 dated 31st May, 2013, the competent authority is pleased to allow the pay protection to non-Gazetted contract employees on their regularization/ appointment on regular basis with immediate effect subject to the following conditions:- i. That the contract appointment has been made on standard terms and conditions, circulated by this Provincial Government as amended from time to time. ii. That the contract employee has applied through proper channel and has been properly relieved by the appointing authority. This condition shall not apply in case of regularization on the same post. iii. That regularization / regular appointment has been made with the approval of competent authority. iv. That there is no break/interruption between contract service and regular service. v. That the service rendered on contact basis shall not qualify for pension/ gratuity. vi. That in case of regular appointment in lower grade, pay shall not be protected."
They have also relied on letter dated 18.03.2021, issued by the Government of Khyber Pakhtunkhwa Finance Department. For the sake convenience, text of the said letter is also reproduced as under: "Subject: Protection of Pay of Contract Employees on Regularization/Appointment on Regular Basis.
Dear Sir, In pursuance to the Finance Division's Office Memorandum No. 4(2)R-2/2014-237 dated 71h April, 2015, the Competent Authority (Provincial Cabinet) is pleased to allow the pay protection to gazetted contract employees on their regularization/appointment on regular basis subject to the following conditions:i. That the contract appointment has been made in BPS on standard terms and conditions, circulated by this Provincial Government as amended from time to time. ii. That the contract employee has applied through proper channel and has been properly relieved by the appointing authority. This condition shall not apply in case of regularization on the same post. iii. That regularization / regular appointment has been made with the approval of competent authority. iv. That there is no break/interruption between contract service and regular service. v. That the service rendered on contact basis shall not qualify for pension/ gratuity. vi. That in case of regular appointment in lower grade, pay shall not be protected. vii. That the pay protection/fixation of pay will be admissible with immediate effect with regard to old/ new cases which are fulfilling the pay protection criteria mentioned above."
When seen the appointments orders of the petitioners, it has duly qualified the test of the referred to above letters but despite of it, deduction has been started by the respondents-department from salaries of the petitioners.
7. Other than the above, it is well-settled that once payment has been made to an employee in the course of employment and he has drawn his salary of the post against which he was serving under a valid order, then the same cannot be allowed to be recovered as arrears of salary wrongly paid.
Reliance is placed on the case of Mst. Salida Javed v. Director of Secondary Education, Lahore Division and others reported as 2007 PLC (C.S.) 364, wherein, the Hon'ble Apex Court has held that: "The paym ent made to a civil servant in the course of employm ent, due to inadvertence on the part of the employer, cannot be allowed to be recovered as arrears of salary wrongly paid. In our view, petitioner cannot be legally asked to refund the differential of salary drawn by her of the post against which she had been serving under a valid order.
Similarly, in the case of Shahid Masood Nadeem v. Dv. C.A.A.F., Lahore Cantt. and 3 others reported as 2003 PLC (C.S.) 1262, it was also held as under: "We find that the appellant obtained the financial gain under the orders of the competent authority and the principle of locus poenitentiae would be attracted qua the order relating to the recovery of pay and of allowances already paid to the appellant and consequently, the order to that extent is unjust and would be of no legal consequence.
In the light of foregoing reasons, we hold that the order to the extent of recovery of pay and allowances already paid to the appellant for the period in question is not a legal order and we while setting it aside direct that no recovery shall be effected from the appellant."
In the case of the Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin reported as PLD 1992 Supreme Court 207, it was held that: "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. Learned counsel for the appellants had submitted that the appellants had drawn Rs.12,890.86 (Rupees twelve thousand, eight Hundred, ninety and paisa eighty-six only) during this period but the Engineer-in-Chief had directed the recovery of Rs.1,860.00 only (Rupees one thousand, eight hundred, sixty and paisa nil only). 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."
Similar view was also reiterated by the Lahore High Court in its judgment rendered in the case of Syed Zafar Hussain and others v. Government of Pakistan and others reported as 2014 CLC 643 [Lahore], wherein it was observed as under: "Therefore, the essential point of difference remaining between the parties that requires resolution is whether the petitioners can lawfully be directed in terms of the impugned memorandum dated 4-9-2004 and CAA's order dated 119-2004 to refund and deposit the excess amount of pay and allowances received by them in the past three years. It is unfair to expect the petitioners to have saved the large differential amount received by them over a three years period. It is on this question that the law extends its equitable principles to protect the rights of a person to retain benefits conferred by a competent authority.
The Court has drawn the following conclusion: "Consequently, although the petitioners have received paym ent in excess of the amount allowed by the Federal Government, the fact is that these payments were authorized and disbursed to the petitioners by the competent authority in the CAA. The petitioners cannot be held responsible for the failure of the CAA to correctly administer the rules of internal administration with respect to securing the approval of and implementing policy directives from the Federal Government. In-fact it was not even imagined by the relevant quarters whilst disbursing the impugned scales of pay and allowances to the petitioners that there may be any difference of opinion or calculation between the Federal Government and CAA, Consequently, both on the principle, locus poenitentiae and past and closed transaction, the petitioners shall retain the excess paym ents received by them."
8. To conclude, it is observed that the act of the respondents-department, in respect of deduction from salaries of the petitioners, is against the referred to above letters of the Government of Khyber Pakhtunkhwa Finance Department as well as the settled exposition of law, as such, they are not legally allowed to direct the petitioners to refund & deposit the excess amount of pay and allowances received by them in the past. In the peculiar facts & circumstances of the case, the petitioners have been able to make out a case for interference of this Court in exercise of its constitutional jurisdiction.
9. For what has been discussed above, the subject petition is allowed as prayed for.