MUHAMMAD ISHAQ KHAN (CHAIRMAN).-S. Amir Shah Kazmi was appointed as Instructor (Electrical) in the Directorate of Technical Education, Peshawar in the National Pay Scale 17. In the year 1975, the Ministry of Finance and Economic Affairs, Government of Pakistan, granted five advance increments in National Pay Scale 17 to the incumbents of certain categories of posts. The North-West Frontier Province Government also endorsed the aforesaid letter and in consequence thereof Lecturers of Colleges and others started receiving the above-mentioned increments.
However, the appellant could not get the same, therefore, he made a repre--sentation to the proper authority and the question was considered in the Provincial Co-ordination Committee Meeting held on 10th May, 1977 and the Committee decided to grant the said increments to the appellant. There--after, the appellant started receiving the said increments which merged into his pay from 1-5-1977. However, on 19-12-1977, Secretary to Government of North-West Frontier Province, Finance Department, Peshawar, wrote letter No. FD (SRI) 1-1.6/72-11 dated 19-12-1.977 and clarified the position that the Concession of five advance increments was meant for the incumbents of such posts of senior Instructors/Instructors of Polytechnics/Technical Colleges/Commercial Institutions in Grade 17 for which the prescribed basic minimum qualification is post-graduate i.e. M.A., M. Sc. Or a Degree in Engineering and who also actually possessed the same qualification on 30-4-1977. On receipt of this letter; the Accountant-General, i.e. Respondent No. 4, stopped the payment of the above-mentioned increments to the appellant and also started recovery of the amount already paid to the appellant by instalments. Aggrieved by this decision, the appellant made a representation to the Provincial Government but it having not been decided and a period of ninety days having been elapsed from the date on which the representation was preferred, the appellant has come in appeal to this Tribunal.
2. It was hotly contended on behalf of the appellant that he had been allowed five advance increments vide decision taken in the Provincial Co-ordination Committee meeting held on 10-5-77 and that this being the position, the Finance Department could not narrow the said increments to persons with certain minimum qualifications. It is not in dispute between the parties that the post of Instructor (Electrical) which the appellant holds is in National Pay Scale 17 but according to letter No. FD (SRI) 1-16-72-II dated 19-12-1977 the Finance Department clearly clarified that the conces-- sion of five increments was meant for the incumbents of such posts of Senior Instructors/Instructors of Polytechnics! Technical Colleges/Commercial Institutions in Grade 17 for which the prescribed basic minimum qualification is post-Graduation i.e. M.A., M. Sc. Or a Degree in Engineering and who also actually possessed the same qualifications on 30-4-1977. The appellant does not possess the minimum qualifications prescribed for five advance increments. It will be seen whether the incumbent in the NPS 17 who does not possess the required minimum qualification becomes entitled to the benefit of advance increments. The answer, in my opinion, is in nega--tive. In the written comments while answering para. 2 of the appeal, the respondent has stated that according to the Ministry. Of Finance, Planning and Economics Affairs (Finance Division)
Office Memo. No. 532-R. 5/75--F. No. 3 (4) RI /75 dated 30-6-1975, five advance increments were admissible to the incumbents of the following posts in NPS 17 :----
(i) NPS 17 posts of Engineers, the prescribed minimum qualification for which is graduation in any branch of Engineering.
(ii) NPS 17 posts for which the basic minimum qualification is a Master's Degree in any of the Physical/Natural Science.
(i.e) NPS 17 posts of Lecturers in Colleges.
The appellant did not qualify the conditions laid down in the Finance Department's Circular letter mentioned above and, therefore, he is not entitled to the benefit of five advance increments. In his comments, respondent No. 4 has also mentioned that as S. Amir Shah Kazmi, Instructor, was not actually possessing the above qualifications, the conces--sion of five advance increments was withdrawn from him.
3. As a sequel of the above discussion, the appeal merits no considera--tion and it is hereby rejected with no order as to costs.
HIZBULLAH (MEMBER).-I regret that I do not agree with the Chairman that this appeal merits no consideration and Should be rejected,
2. The undisputed facts of the case briefly stated are that, the appellant Amir Shah Kazmi was an Instructor in Grade 17 in Technical Education Service, N.-W. F. P. On 30-6-1975 the Finance Division of the Ministry of Finance, Planning and Economic Affairs, Government of Pakistan issued a letter granting five premature (advance) increments to certain categories of Government employees mentioned therein (Annexure I to the Memorandum of Appeal). The Finance Department N.-W. F. P's File No. KC-SR-I (F D) 1-16/72-II reveals that the Education Department N.-W. F. P. (Page 1/Corn) took up the case of the Instructors in the National Pay Scales 17 working in Government Colleges of Commerce/Commercial Training Institutes in. N.-W. F. P. Later on the Education Department N.-W. F.
P. Took up the case of the senior Instructors etc., working in Government Polytechnic Institutes etc., on 20-12-75 vide page 3 of the aforesaid File hereinafter called the Department's File). The proposal was turned down. Perhaps the Instructors continued to agitate the matter and the Federal Government (Secretary, Education Government of Pakistan's letter at Ann. IV of the memo. Of appeal) circulated the decision of the Provincial Co--ordination Committee to all Provincial Governments with the request that `the decision of the Provincial Co-ordination Committee is implemented in your Province. The original of this letter is at page 120 of the Department's File. As is evident from the Notes Part (Paragraphs 187 to 200) of the Department's File the proposal/decision was accepted by the N.-W F. P. Government and a Circular letter was issued (Page 123 of the Department's File and Annexure VI of the Memo. Of Appeal) on 20-7-1977. Consequently the Instructors including the appellant were issued revised Salary Slips fixing their pay in accordance with the instructions contained in the said Circular Letter. However, on 19-12-77 the Section Officer put up a note to the Additional Secretary Finance that the grant of five advance increments was admissible to those instructors who are M. A., M. Sc. Or B. Sc. (Engineering) and suggested the issuance of clarification to A. P. (Accountant-- General) and others concerned' (Paragraphs 222- 223 of the Notes Part of the Department's File). The suggestion was approved by the Additional Secretary Finance Mr. Mir Bakhsh Zafar himself and the same day a clarification was issued (page 139 of the Department's File and Ann. VII of the Appeal). In pursuance of that `clarification' the Accountant-General (respondent No. 4) issued revised salary slips with' effect from the month of June 1978 not only stopping the payment of the already allowed advance increments but also directed the recovery of the amount already paid in pursuance of the authority of 20-7-1977 Annexure VI of the Memo. Of Appeal. These orders of respondents 3 i. e., the Additional Secretary Finance and 4 i.e. The Accountant-General N.-W. F. P. Have been challenged before us and thus the prayers in appeal boil down to this that the `clarification' by the Additional Secretary Finance and the direction by the Accountant-General, N.-W. F. P. For the recovery of the amount already paid are bad in law and should be set aside.
3. We heard the parties as represented by their counsel. We also went through the record made available to us. At the time of the arguments it was asserted by the appellant that in spite of the `clarification' by the Finance Department some of his colleagues had been allowed the advance incre--ments. Later on, on 18-2-1980 the; appellant gave it in writing. It was, there--fore, found necessary to get the position clarified from the Accountant-General's office. Hence the Accounts Officer dealing with the case in that office was summoned. Mr. Aminul Haq, Superintendent, appeared before us and affirmed that, firstly, the case of three Instructors working in Dera Ismail Khan Division increments were being drawn by the incumbents as the Clarification of 19-12-1977 had not been received by the District Accounts Officers. He in support of this placed on record a copy of the letter dated 5-3-80 from the District Accounts Officer, Dera Ismail Khan. Secondly, Mr. Aminul Haq affirmed that the Finance Department had not directed that recovery of the amount already paid i.e., before the issuance of `clarification'; be also made. This was also confirmed by Mr. Afzal Shah, the Representative of the respondents Nos. 2 and 3. Moreover the `clarifica--tion' itself and the Department's File are also silent on this issue and thus it is established that no such order was made. Thus so far as the recovery part of the prayer in appeal is concerned the action of- the Accountant-General (respondent No. 4) was not justified- in view Of Paragraph 254 of the Audit Code 1953 Edition produced by Mr. Afzal Shah, the relevant portion of which is reproduced below;
254. When erroneous payments have been admitted in audit for a considerable time, owing either to a wrong interpretation of financial rules or to oversight, the following course should be observed:
(a) When a wrong interpretation of financial rule has been followed, the new interpretation should, in the absence of special instructions to the contrary, take effect from the date of issue, by competent authority, of the orders stating the correct interpretation."
4. Now I would deal with the Circular Letter of 19-12-1977 (Annexure VII to the Memo. Of Appeal hereinafter called the impugned Letter).
5. The Department's File shows that the Circular Letter of 20-7-1977 allowing five increments (Advance) to the Instructors in Grade 17 is not hedged about with any conditions of qualifications and this was pointed out in unambiguous words by the Deputy Secretary to the Additional Finance Secretary at the close of para. 213 of the Note Part of the Department's File, on 10-9-1977. He stated: `These Instructors were allowed increments irres--pective of the qualifications whether M. A. Or M.
Sc.' The Circular letter of 20-7-1977 was issued on his own authority by the Additional Secretary Finance and the case was never put up to the Secretary Finance or the Government or for the matter of that to the Chief Secretary, and in view of the absence of any evidence or plea to the contrary, I have no reason to doubt that the Additional Secretary Finance was competent to issue such Circular: Here I may add that neither in the written statements "of the respondents nor at the arguments stage the competence of the Additional Secretary Finance was challenged. So the Circular Letter was in order and in pursuance of that letter the Accountant -General allowed five advance increments to the appellant and it continued till June 1978. Later on when the Section Officer referred the case to the Additional Secretary Finance (incidentally he was the same Additional Secretary who had issued the original Circular Letter) on 19-12-197,7 (para. 222 of the Notes portion of the Department's File) the Additional Secretary approved the interpretation/ `clarification' and without consulting the Services and General Administra--tion Department or the Law Department or even the Secretary of the Department issued the impugned letter. Naturally there was hue and cry. The appellant and others affected by the new clarification represented to the Chief Secretary to the Government of N.-W. F. P. Through their Principal, vide Annex. VIII-A to the Memo. Of Appeal, but there was no response and the appellant then moved this Tribunal. The Department's File shows that after the issuance of the Impugned letter the Additional Secretary Finance, Mr. Mir Bakhsh Zafar corresponded with and consulted the Finance Departments of the other Provinces and ultimately on 6-5-1978 the Finance Department consulted the Law Department, N.-W. F. P. (page 170 of the Department's File). The opinion of the Law Department was communicated to the Finance Department. No privilege has been claimed by the Department nor there' could be any ground for claiming such privilege. A simple proposition of law was explained under section 21 of the General Clauses Act to the effect that if any right accrued to the persons concerned in consequence of the Circular Letter of 20-7-1977 had been acted upon then the clarification /modification which usurped (violated) the created right by virtue of the prior order would make the subsequent order invalid. It is a plain statement of law and unalterable. The Tribunal being an Administrative Court is competent to examine such record. In the present case the Letter of 20-7-1977 conferred a right upon the Instructors in N. P. S. 17 irrespective of the qualifications to draw five advance increments with effect from 1-5-77. This was acted upon and the appellant was issued necessary Pay slip by the Audit office and benefited by this order till May 1978. As such this right could not be withdrawn by the issuance of a so called clarification. There is no doubt that the appellant was an instruction N. P. S. 17 and eligible to benefit by the letter of 20-7- 1977 and this right was acted upon for almost one year. The N.-W. F. P. Service Tribunal in Shah Jehan's case (Appeal No. 12 of 1978, decided on 10-9-1978) had also observed that, `the Provincial Government could not rescind or withdraw its decision especially when the decision had been carried into effect and as a result whereof, the appellant continued realising his pay at enhanced rates from the said date for quite some time'. In that case Shah Jehan an Instructor in Physics in the Directorate of Technical Education, Peshawar, had been allowed five increments on the authority of another letter viz. FD (SRI) 1-14/75, Government of N.-W. F. P, Finance Department, dated 19-1-76, with effect from 1-7-1975. However, by the Circular Letter of 20-7-1977 issued by the Additional Secretary Finance referred to in the present appeal, the increments were to be allowed with effect from 1-5-77. The Tribunal accepted the appeal of Shah Jehan as stated above and allowed him increments with effect from 1-7-75 as he had accrued that right and the order had been acted upon. That order of the Tribunal was not challenged.
6. Since it has not been agitated before us I do not consider it necessary to discuss the issue as to whether it was necessary and desirable under the Rules of Business, 1972, Government of N.-W.F.P.
That the Law Department should have been consulted before the issue of the Circular Letters of 20- 7-1977 and 19-12-1977.
7.I would, there:-ore, accept this appeal and direct that in the case of the appellant the Impugned letter i.e., clarification of 19-12-1977 is void and the accrued rights conferred/created by the Circular Letter of already acted upon cannot be taken away.
8. The issue of Limitation was never raised before us nor the Chairman in his judgment has referred to it.
9. In the circumstances of the case I would allow costs to the appellant against respondent No. 4 i.e., the Additional Secretary, Finance Department, .N.-W. F. P.
ABEEDULLAH JAN (MEMBER).-The facts regarding five (5) advance increments to teaching staff of Colleges and Technical Institutes are briefly mentioned hereafter. (i) Five advance increments were granted by the Federal Government and the Government of N.-W.F.P. To the following categories of posts in year 1975-76 :-
(a) The NPS-17 posts of Engineers, the prescribed minimum qualifi--cation for which is graduation in any branch of Engineering.
(b) The NPS-17 Posts for which the basic minimum qualification is a Master's degree in any of the physical/natural sciences. The later include Physics, Chemistry, Botany, Zoology, Geology, Astro-- nomy and Paleantology.
(c) The NPS-17 posts of Lectures in Colleges.
2. This order caused annoyance to the teaching staff of the Technical Institute. A delegation of Pakistan Teachers Federation of Technical Education called on the Federal Minister for Education on 8th March 1976 and represented that the incumbents of NPS-17 posts in the Poly--technic Institutes should also be granted five premature increments like those mentioned in para (i) (a),
(b) & (c) above. Consequently a summary was prepared for P.C.C. And and it was circulated among all Provincial Governments besides Federal Ministries of Finance and Law. In para 6 of this summary, it was mentioned that Federal Ministry of Education propose that Instructors in Polytechnic Institutes/Technical Colleges/Com--merce Institutes, who possess the qualifications of M.A./M. Sc./B. Sc. Engineering or equivalent should also be granted five advance increments as have been done in the case of Lecturers in Colleges. It was further mentioned that under the new Education Policy the Government wish to encourage technical education. It is a problem to recruit Engineering graduates and other technical graduates for service in teaching institutions. This dis-- crimination would further drive away all the available people.
3. The Secretary to the Government of N.-W.F.P. Finance Depart--ment while giving comments on paragraph 6 of the above summary stated that (a) Federal Ministry of Education have sought for the advice of Federal Finance and Law Divisions. Government of N.-W.F.P. Would be keen to know the views of the Law and Finance Divisions in this case. (b) Financial position of N.-W.F.P. Is extremely weak and it can ill afford to bear the additional expenditure of approximately Rs. 2,01,000 to be incurred in connection with the grant of five advance increments to the Instructors of Polytechnic Institutes etc. (c) So far as the views of Provincial Government are concerned, the Instructors of the Polytechnic Institutes are performing the same duties as are being performed by the Lecturers in Government Colleges and the minimum qualifications for these Instruc--tors are also the same as in case of College Lecture or Engineers. (d) It would not be fair to deny the benefit of advance increments to the Instruc--tors of Polytechnic Institutes,
4. The above summary together with the views of the Provincial Governments and the Federal Ministries concerned were considered in the meeting of P.C C. Held on 24th April 1976 at Islamabad in which the following decision was taken :- "(a) Those Instructors in the Polytechnic Institutes where the basic qualification is M.A., M. Sc ; B. Sc.
(Engineering) and who are in NPS-17 should get the stipulated 5 advance increments. This will not exclude Diploma holders who are Instructors. However, this category of Instructors will get this benefit prospectively to be due from 1st September-payable 1st October, 1976. The Law Division will however vet this interpretation before the commitment is given.
(b) Decision on the point whether to designate them as Lecturers will be taken after the announcement of the award of the Pay Commission.
5. The above decision was changed by the Provincial Co-ordination Secretariat and the following amended decision was circulated :- "Those Instructors in the Polytechnic Institutes/Commercial Institutes where the basic qualification is M.A.,M. Sc ; B. Sc. (Engineering) and who are in NPS-17 should get the stipulated 5 advance increments. This decision will take effect from 1st September, 1976 (pay--able on 1st October, 1976).
However, this provision will not apply to those instructors who are only diploma holders. The law Division will vet this interpretation before the commitment is given."
6. In pursuance of the above decision of P.C.C. And in the light of the summary earlier circulated by the Education Ministry, Law Division tendered the following advice. "(a) Qualification should not determine the status as lecturer or otherwise but the criterion should be the duty they are performing. (b) As regards the grant of five advance increments to the instructors (NPS-17) in the Polytechnic Institutes-Commercial Institutes possessing basic qualification of M.A./M. Sc and B. Sc.
(Engg.), it is not a matter involving interpretation of the statutory provision but it is essentially a policy issue which should be determined by the referring division."
7. The matter was again raised in the next meeting of P.C.C. Held on 9th and 10th May 1977. Federal Secretary Education explained that the issue of granting five advance increments to Instructors/Senior Instructors of Polytechnics/Technical Colleges and Commercial Institutes was more or less resolved and decided in the 14th meeting of P.C.C. Held pp 24-4-1976 subject to clearance by the Ministry of Finance and due to the objections raised by the Ministry of Finance, the decision could nor be implemented. The minimum qualifications for recruitment as Instructor Senior Instructors of a Polytechnic/Technical College is B. Se. (Engineering) or a Diploma in Technical Teachers Education and five years' experience. The qualifications .For entry into service compare favourably with those of lecturers in Colleges although they are designated as Instructors. Besides they are also placed in Grade-17 as in case of Lecturers.
8. In the light of the above explanation of Federal Secretary of Education, P.C.C decided that :- "Instructors/Senior Instructors of Polytechnic/Technical Colleges/ Commercial Institutes who are employed in Grade 17 be granted five advance increments which will however be due with effect from 30 April 1977 and merged into the pay for fixation under the new scales from 1st May 1977'."
9. The Department of Finance, Government of N.-W.F.P., accepted the recommendations of P.C.C and issued circular letter No. So (SR. 1) 1-16/72-dated 20-7-1977 which reads as under :-
(a) Provincial Government has been pleased to decide allowing of five advance increments to Instructors/Senior Instructors of Poly--technic/Technical Colleges/ Commercial Institutes in NPS-17 (.500--50--1,000/50-1,250) w.e.f. 30-4-1977 subject to the condition that the pay in each case, inclusive of advance increments will not exceed the maximum of the NPS-17 (500-50-1,000/50- 1,250).
(b) The increments so granted will be merged into the pay for fix--ation under the Revised National Pay Scales w.e.f. 1-5-1977.
(c) This facility will be available to Instructors/Senior Instructors appointed on a regular basis in NPS-17 in accordance with the relevant Recruitment Rules and actually holding these posts on 30- 4-1977. New' entrants on or after 1-5-1977 will not be entitled to any advance increments.
10. In pursuance of the above circular letter of the Finance Depart--ment, salaries of the incumbents were fixed and appellant started receiv--ing emoluments at the enhanced rate with effect from 30-4-1977. On 19th December 1977, another letter was issued by the Finance Department, Government of N.-W.F.P. In which it was mentioned that "certain doubts have beenth expressed about the application of these orders. It is clarified that the concession of five advance increments was meant for the incumbents of such posts of Senior Instructors/Instructors of Polytechnics/Technical Colleges/Commercial Institutes in Grade-17 for which the prescribed basic minimum 'qualification is Post-Graduate i.e. M.A., M. Sc. Or a degree in Engineering and who also actually possessed the same qualification on 30-4-1977 subject to other conditions laid down in this Department's letter referred to above."
11. In view of the above clarification, Accountant-General, N.-W.F.P. Issued revised salary slip wherein payment of five (5) advance incre--ments to the appellant was stopped. In May 1978, Deputy Secretary (Reg) Finance, Government of N.-W.F.P. Sought advice from Law Department Government of N.-W.F.P. As to whether the Finance Department letter dated 19-12-1977 withdrawing concession of five advance increments previously granted to instructors of Polytechnic Institutes was legally valid and its operation ab initio covered by the West Pakistan General Clauses Act, 1956.
Deputy Secretary Law Government of N.-W.F.P. Vide his U.O. No. (Op) (33)/78-2126. Dated 16-5-1978 tendered the following advice.
"Instantly Finance Department only alleging clarifying the original order No. SO (SR. 1) 1-16, 72-II dated 20-7-1977, this exercise is to be adjudged on the criterion as to whether or not any right accrued to the concerned has been acted upon and if the answer is in the affirmative then the clarification modification which usurps the created right by, virtue of the prior order would make the subsequent order invalid."
12. The above history of this case indicates that (i) The decision of the Provincial Co-ordination Committee did not contemplate any distinction between the Instructors of technical and related subjects for the- grant of this concession (ii) Government of N.-W.F.P. Had allowed the concession of five (5) advance increments to all the Instructors of Polytechnic Institutes irrespectively of the basic minimum qualification. (i.e) In view of the advice of Law Department, Government of N.- W.F.P., it is clear that the concession once extended and having accrued cannot be withdrawn with retrospective effect through a subsequent clarification. (iv) Government of Punjab had also accepted the recommendation of P.C C, and had granted five advance increments to the instructors of Polytechnic Institutes and in spite of pressure from Federal Ministry of Finance they have not withdrawn the concession from their employees m view of the provision of West Pakistan General Clauses Act, 1956, besides other reasons. A letter from Additional Secretary Finance Government of Punjab is available on the relevant file of the Finance Department Government of N.W.F.P. At page 166/C.
13. Before I conclude and announce the judgment, let me briefly discuss the Finance Department's letter dated 19-12-1977 through which the concession of five advance increments was withdrawn.
This order was issued in great haste as apparent from the following facts :--
(i) The perusal of the relevant file of the- Finance Department would show that a note was put up by the Section Officer concerned on 19-12-1977 to Additional Secretary Finance without any reference or P. U. C. The contents of this office note are reproduced below -- "The Instructors of Polytechnic/Technical Colleges/Commercial Institutes in NPS-17 were allowed five advance increments w.e.f. 30-4-1977. The intention was to allow advance increments to Instructors who are M.A., M. Sc. Or B. Sc. (Engg.). It is, however, understood that advance increments in certain cases have been availed of by even those Instructors who are possessing lower than the required qualification.
If approved, the position may be clarified. To Accountant-General and others concerned. DFA.
(ii) The file bad stopped at the level of Additional Secretary Finance. It was not put up to Secretary Finance although five advance incre--ments were earlier granted to the instructors of Polytechnic Institutes with the concurrence of Secretary Finance.
(i.e) Clarifications were issued on the same day i.e. 19-12-1977 on which office note was put up by Section Officer concerned to Addi--tional Secretary which passed through Deputy Secretary.
(iv) It was mentioned in the order that certain doubts had been raised about the application of order contained in Finance Department's letter dated 20-7-1977. It is not clear who had expressed doubts and on what score.
(v) Federal Ministry of Finance letter No. F. 23 (4)/77-RId-10-RI/78 dated 2-1-1978 on the subject was received in the Finance Depart--ment Government of N.-W.F.P. On 4-1-1978 whereas the concession of five advance increments was withdrawn by the Additional Secre--tary Finance Government of N.-V-F.-P. On 19-12-1977 i.e. 15 days before the receipt of Federal Government letter on the subject:
14. For the reasons stated above I accept the appeal of Mr. Amir Shah Kazmi and grant him the relief sought for in his appeal. This would mean that I have agreed with my learned brother Mr. Hizbullah Khan full time Member.