MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition the petitioner, Muhammad Rafique Khalid, impugns the letter dated 28.09.2017 from the Office of the Director General, Pakistan Post ("D.G.-P.P."), informing the petitioner about the decision to withdraw ab-inito the special allowance equal to 50% of his basic pay received by him with effect from 01.07.2006. In the said letter, instructions were given to recover the special allowance paid to the petitioner with effect from 01.07.2006. The decision to withdraw the special allowance from the petitioner had been taken pursuant to a clarification received from the Finance Division vide letter dated 18.09.2017.
2. The record shows that on 31.05.1980, the petitioner had been appointed as a Dispenser in the Postal Medical Centre at Islamabad. He was promoted as Medical Supervisor on 11.10.1992. The petitioner claims to have been performing emergency duties since 1997. Vide letter dated 05.10.2006, the erstwhile Ministry of Health informed the Accountant General Pakistan Revenue about the sanction by the President of Pakistan for the grant of special allowance equal to 50% of the basis pay to all medical professionals i.e., doctors, nurses, paramedical staff working in emergency services in the Federal Government hospitals in Islamabad, Lahore and Karachi with effect from 01.07.2006. The expenditure in this regard was to be met from the annual sanctioned budget grant for the respective Federal hospital. The said letter dated 05.10.2006 was issued with the concurrence of the Finance Division conveyed through letter of even date.
3. Vide letter dated 20.12.2008, the D.G.-P.P., pursuant to the Ministry of Health's letter dated 05.10.2006 granted the petitioner special allowance equal to 50% of his basic pay with effect from 01.07.2006.
4. Vide impugned letter dated 28.09.2017, the petitioner's entitlement to the special allowance was withdrawn ab-initio with effect from 01.07.2006 and directions were issued for the recovery of the amount so paid to him. The petitioner, on 05.10.2017, submitted a representation against the said letter to the D.G.-P.P. Having not received any response, the petitioner, on 04.12.2017, filed the instant writ petition. Vide order dated 06.12.2017, this Court restrained the respondent from recovering the special allowance already paid to the petitioner.
5. Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant writ petition, submitted that ever since 1997, the petitioner had been performing emergency duties and in this regard, he placed reliance on D.G.-P.P.'s letter No.Wel.16-5/93 which shows that medical supervisors had also been given the responsibility to perform emergency duties after office hours.
He further submitted that the special allowance had been granted to the petitioner after approval in this regard had been given by the D.G.- P.P.; that it is not the respondent's case that the petitioner had maneuvered the grant of special allowance in his favour; that the petitioner has retired on attaining the age of superannuation on 15.03.2019; and that it would be most unjust and inequitable to recover the special allowance paid to the petitioner for a period of more than eleven years prior to his retirement. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein. In making his submissions, learned counsel for the petitioner placed reliance on the judgment reported as Shams Ur Rehman Vs. Military Accountant General, Rawalpindi (2020 SCMR 188).
6. On the other hand, learned Deputy Attorney-General submitted that the special allowance was only for the doctors, nurses, and paramedical staff working in emergency services at the Federal Government hospitals in Islamabad, Lahore and Karachi; that the Postal Medical Centre at Islamabad is not a Federal Government hospital and therefore the special allowance could not have been paid to the petitioner; that the Postal Medical Centre is for visiting patients and does not have an emergency or casualty unit; that the special allowance paid to the petitioner had to be withdrawn ab-inito since an audit objection regarding the payment of the said allowance to the petitioner had been raised; that the D.G.-P.P. had misinterpreted the Ministry of Health's letter dated 05.10.2006 by allowing special allowance to the petitioner; that the approval of the Finance Division had not been obtained before the benefit of special allowance was granted to the petitioner; and that the D.G.-P.P. had initiated the process of recovering the special allowance from the petitioner's pay. Learned Deputy Attorney-General prayed for the writ petition to be dismissed.
7. I have heard the contentions of the learned counsel for the petitioner as well as the learned Deputy Attorney-General and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 4 above and need not be recapitulated.
8. I am of the view that where public funds are inadvertently or mistakenly paid, the Government has the right to seek recovery of the same. A person in receipt of public funds cannot retain the same if such payment was not authorized by the law or applicable rules. Additionally, the recipient of such unauthorized payment cannot be made to suffer alone. In such cases, appropriate proceedings also ought to be initiated against all those who are responsible for the decision to make the unauthorized payment.
9. In the instant case, it is an admitted position that the petitioner never worked at a Federal Government hospital in Islamabad. The Postal Medical Centre in Islamabad is not a Federal Government hospital. Since the petitioner did not perform emergency duties at a Federal Government hospital in Islamabad, this Court cannot hold that he was entitled to the benefit of special allowance in terms of the Ministry of Health's letter dated 05.10.2006. The decision of the D.G.- P.P. to grant special allowance to the petitioner was indeed the result of misinterpretation of the Ministry of Health's letter dated 05.10.2006, as admitted by the respondent in its written comments.
10. The vital question that needs to be determined is whether the D.G.-P.P. was justified in recovering the special allowance paid to him since 01.07.2006. It is an admitted position that the petitioner had played no role in the decision to pay the special allowance to him. In the written comments, it is admitted that the approval to grant special allowance to the petitioner had been made ' by the D.G.-P.P. It is only after an audit objection was raised that the D.G. P.P. decided to withdraw ab-initio the special allowance that had been granted to petitioner for more than eleven years.
11. Although the learned Deputy Attorney-General placed reliance on the law laid down in the case of Shakeel Ahmad Zaidi Vs. Secretary, Higher Education, Government of Punjab, Lahore (2021 SCMR 474), where the decision to recover special allowance from the recipients, who were not entitled to receive the same, had been upheld, the said judgment was rendered by a two- member bench of the Hon'ble Supreme Court. In the case of Government of the Punjab, Education Department Vs. Muhammad Imran (2019 SCMR 643), which is a judgment of the three- member bench of the Hon'ble Supreme Court, it was held as follows:- "IV) None can retain the benefits of a withdrawn order, claiming the protection of having taken a decisive step, when the very order passed by the authority is illegal, void or without lawful authority. In such circumstances, it would not matter, even if decisive steps have been taken by the person in pursuance of the illegal order passed by the authority. However, the pecuniary benefit accrued and already received by a person in pursuance of an illegal order passed by the competent authority cannot be recovered from him unless the benefiting order was obtained by the person through fraud, misrepresentation or concealment of material facts."
12. In the case of Messrs Al-Mahmudia (Pvt.) Ltd. Vs. Pakistan through Secretary, Ministry of Housing and Works, Islamabad (PLD 2007 SC 79), it was held that a judgment of the larger bench of the Hon'ble Supreme Court should be preferred and followed. Since I am bound to follow the law laid in the case of Government of the Punjab, Education Department Vs. Muhammad Imran (supra), the instant petition is allowed to the extent that recovery of the special allowance paid to the petitioner cannot be made. There shall be no order as to costs.