MUHAMMAD SAJID MEHMOOD SETHI, J. Through instant petition, petitioners have assailed vires of order dated 26.12.2019, passed by respondent No.2/Secretary, Board of Intermediate and Secondary Education ("BISE"), Faisalabad, whereby petitioners representation challenging audit objection along with notices dated 26.07.2016, issued by the respondent-Board, was rejected and benefit of award of presumptive selection scale, enjoyed by petitioners, was declared unjustified and withdrawn forthwith and in addition, excess payment made in this regard was also ordered to be calculated and recovered from petitioners in proper installments from their salary or pension, as the case may be.
2. Brief facts of the case are that petitioners were appointed as Junior Clerks on different dates of April, 1989 and were promoted as Senior Clerks BPS-07 w.e.f. 04.05.11991 without granting selection grade as at that time, five years' service was required for admissibility of selection grade. Later on, Finance Department through notification dated 25.07.1991 reduced minimum length of service for grant of selection grade as two years for the posts of BS-1 to BS-15 (enforced w.e.f. 25.05.1991).
Finance Department vide notification, dated 18.10.1993 superseded its former notification.
Meanwhile, some other Junior Clerks of the petitioners' batch were promoted as Senior Clerks after grant of selection grade and their pay, despite being junior to petitioners, exceeded more than that of their seniors i.e. petitioners. Petitioners applied for grant of selection grade, whereupon a committee comprising upon (i) Deputy Secretary Admn., (ii) Deputy Secretary Finance, (iii) Deputy Secretary, Stores, (iv) Superintendent Admn., (v) Superintendent Audit and (vi) Superintendent Secrecy was constituted by respondent-Board, who recommended for grant of selection grade i.e. BS-7 and BS-9 to petitioners as per their admissibility, pursuant whereof the competent authority ordered for grant of presumptive selection grade to petitioners, their pay was re-fixed accordingly.
Meanwhile, during audit for the year 1998-99, the Local Fund Audit made an objection upon grant of selection grade to petitioners. The Finance Department did not regularize the presumptive selection scale granted to petitioners, hence, competent authority issued notice dated 26.07.2016 to petitioners to deposit payment received by them on account of presumptive selection scale.
Petitioners challenged aforesaid notices before this Court by way of filing W.P. No.25125 of 2016 and W.P. No.27250 of 2016, which were allowed vide order dated 08.10.2019 and matter was remitted to respondent No.2 for reconsideration. However, respondent No.2, vide impugned order dated 26.12.2019, again dismissed petitioners' representation. Hence, instant petition.
3. Learned counsel for petitioners submits that despite direction passed by this Court in the previous round of litigation vide common order dated 08.10.2019 passed in W.P. No.25125 of 2016 and W.P. No.27250 of 2016, petitioners grievance relating to withdrawal of presumptive selection/personal scale has not been redressed in accordance with law. In the end, he submits that impugned order, having been arbitrarily passed, is unsustainable in the eye of law.
4. On the contrary, learned Legal Advisor for respondent-Board defends the impugned order and submits that petitioners have failed to point out any illegality or legal infirmity therein.
5. Arguments heard. Available record perused.
6. Perusal of record shows that the respondent-Board awarded selection grade to petitioners on 04.05.1991 instead of 25.05.1991, and for this irregularity, an overpayment of Rs. 11970/- was remitted into Board's account on 09.05.2012, which was duly verified by audit, hence, audit para was recommended for settlement by the Special Departmental Accounts Committee during its meeting dated 10.05.2012 held under the chairmanship of Additional Secretary (Academic) of Higher Education Department. However, later on, the audit para was re-opened and discussed in the Public Accounts Committee's meetings held on 09th, 10th and 11th April 2014 and Para No.1.2.32 was settled in the following manner:- Para No.1.2.32 Pages 47 & 48 of Audit Report for the year 2010-11; Unauthorized Grant of Presumptive Selection Grade -- Rs.2.770 Million.
The Department explained that the necessary actions had been taken and record was available for verification.
The Committee settled the paras subject to verification of record by Audit.
7. It is well-established that once an action/order has taken effect and in pursuance thereof, certain rights have been created in favour of a person, then such order/action cannot be withdrawn or rescinded to the detriment of rights created. It becomes irrevocable, past and closed transaction on the basis of principle of locus poenitentiae., On the other hand, the sole exemption is if the action/order is illegal or procured through fraud and no effective steps had been taken in implementation thereof, but in the instant case, no such element is existing. Reliance is placed upon Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others [2007 PLC (C.S.) 824], Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI (C/O) Rawalpindi and others (2015 SCMR 1418), Mst. Misbah Fatima v. Province of Punjab through Secretary and 4 others (2011 MLD 1494), District Headmasters/Principals Association District, Mutton through President v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 3 others (2015 PTD 1714) and Muhammad Farooq v. Ministry of Defence through Secretary Defence, Rawalpindi Cantt and 3 others [2015 PLC (C.S.) 1018).
In Bashir Ahmed Solangi's case supra, the Hon'ble apex Court has ruled as under:-- "7. .... The rule of locus poenitentiae is that the power of rescinding is available to the Government or the relevant authorities to retrace and undo the wrong order till a decisive step is taken and there is hardly any dispute that an authority which has power to make an order has also the power to undo it but this is subject to the exception that if an order has taken effect and certain rights have been created in favour of an individual, such an order cannot be rescinded or withdrawn to the detriment of the such rights. The provisions of section 21 of the General Clauses Act, 1956, envisages that the power to issue an order includes the power to rescind or vary such an order which co- relates with the authority to competently pass an order and also recall, rescind or cancel such an order but this is not an unfettered power to be used at any stage in any manner for undoing any order which having already taken effect, has created vested rights. The spirit of rule is that once an order is given effect and in consequence thereto certain rights are created in favour of a person, such rights cannot be subsequently taken away. This Court in a similar case Pakistan v.
Muhammad Himayatullah PLD 1969 SC 406 held as under:- "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government of the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. 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."
8. In this case, upon detection of anomaly regarding award of selection grade on 04.05.1991 instead of 25.05.1991, a penalty was imposed upon petitioners and the entire extra payment made to them was recovered. Thereafter, the Public Accounts Committee had no authority to resuscitate the matter, which had become a past and closed transaction. No further action in a matter is permissible which had already become final and thus, a past and closed transaction. Reliance can safely be placed upon Chief Commissioner Inland Tax, through RTO, Zone-I Federal Board of Revenue. Hyderabad and others v. Ghulam Mustafa Mari, Ex-Inspector, Income Tax, Revenue Division, FBR, Hyderabad (2019 SCMR 1657) and Pana Abdul Hameed Talib Additional District Judge, Lahore and others (PLD 2013 Supreme Court 775). Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973 guarantees that no one can be prosecuted or punished twice for the same offence. We can draw inference from Article 13 ibid to observe that once someone is punished for an act, he cannot be penalized again for that. It is axiomatic that the Courts are custodian of fundamental rights of citizens and protector of civil liberties and they are bound to guard these rights jealously/enviously. In Secretary Local Government and Rural Development, Government of Punjab, Lahore and another v. Ahmad Yar Khan 2010 PLC (C.S.) 495), after the departmental inquiry, the respondent was given minor penalty of censure, which order was never challenged till it attained finality, however, subsequently, the authority imposed a penalty of recovery of money against the respondent. The respondent challenged that order in appeal before the Service Tribunal, which accepted the appeal and set aside the penalty. The Hon'ble Supreme Court also upheld the order of Service Tribunal with the following observations:-
8. We are conscious of the fact the simultaneous action under the Disciplinary Rules and Criminal Law can be initiated subject to certain legal exceptions but in view of the peculiar circumstances of the case simultaneous action cannot be initiated against the respondent as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner for the reason that action against the respondent has already been finalized and penalty imposed under the Punjab Removal from Service (Special Powers) Ordinance, 2000 has attained finality.
[emphasis supplied]
9. As discussed in the earlier round of litigation while referring to Employees Welfare Association through President and General Secretary Employees Welfare Association Board of Intermediate and Secondary Education, multan and 3 others v. Board of Intermediate and Secondary Education, Multan through Chairman and 2 others (2000 CLC 1102), the controlling authority has limited powers to interfere with the financial affairs of the respondent-Board. Even otherwise, the well-enshrined and celebrated principle of audi alteram partem i.e. no one should be condemned unheard, and the fact that petitioners are entitled to be treated in accordance with law, right to procedural fairness and right to procedural propriety in view of Articles 4 and 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, have been ignored while I passing impugned order for withdrawal of presumptive selection scale and recovery of the amount from petitioners.
Said principle is applicable to judicial, quasi-judicial and non-judicial proceedings. No order affecting the right of a party could be passed without affording opportunity of hearing, which aspect of the matter has been overlooked while passing impugned order in the later round of litigation. Reference is made to Naeem Abbas v. Government of Punjab through Secretary and 4 others [2017 PLC (C.S.) 404]
10. In view of above, instant petition is hereby allowed. Consequently, impugned order is set aside being illegal and without any lawful authority.