S. ABDUL JABBAR KHAN (CHAIRMAN). --Hassan ul Murtaza Khawar has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against the order, dated 4-1-1879 passed by respondent No. 4 regarding alleged recover of Rs.1051 as an alleged over-payment and depriving the appellant from the right of receiving the monthly salary in running pay scale No. 8, like usual. He has impleaded the Government of the Punjab, Education Department through Secretary Education, Civil Secretariat, Lahore, Director of Education, Punjab, Lahore, the Deputy Director Education, Bahawalpur Region, Bahawalpur and the District Accounts Officer, Rahimyar Khan as respondents.
2. By virtue of this appeal he has prayed that the impugned order be set aside and the recovery of Rs.1051 be held without jurisdiction and respondents be directed to pay the appellant the amount of salary in running pay scale No. 8 alongwith his other colleagues.
3. Brief facts of the case are that the appellant was employed as Oriental Teacher in the Tameer- e-Millat High School, Rahimyar Khan after passing examination of Hons. In Persian/Munshi Fazil from the University of Punjab and Dars-e-Nizami from Madrisa Azizia, Bhera at Rs.75 p.m. He applied to the ex-management of the school for the grant of regular scale of O.T. And was awarded regular scale w.e.f. 5-11-1962. At the time of nationalization of privately managed schools by the Government, his services were regularized from 1-10-1972, and he was getting Rs.208 p.m. On 30-9-1972. His pay was fixed at Rs.125 p.m. w.e.f. 1-10-1972, by the D.P.I. Punjab, Lahore being untrained as he did not possess any professional qualification. His pay was fixed on 26-12-1978 by the District Accounts Officer, Rahimyar Khan at Rs.125 p.m. w.e.f. 1-10-1972 and Rs.200 p.m. w.e.f. 1-7- 1973 and Rs.370 p.m. From 1-5-1977. The District Accounts Officer also pointed out an over-payment of Rs.1,051 received by the appellant from the Government Treasury for the period from 1-10-1972 to 31-8-1976, which was to be recovered. The appellant filed a suit in the Court of Senior Civil Judge, Rahimyar Khan on 2-12-1979, which was decided in his favour on 24-10-1981. However, Education Department filed appeal before the District and Sessions Judge, Rahimyar Khan, which was accepted and it was decided that as the case related to the terms and conditions of service, the proper forum was the Punjab Service Tribunal. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.
5. According to the learned counsel for the appellant, the appellant applied on 29-10-1962, to the President, Adara-e-Tameer-e-Millat High School, Rahimyar Khan through proper channel, for upgrading his pay according to his educational qualification. The application of the appellant was duly recommended by the Head Master of the School and was accepted by the Head of the Institute vide his order, dated 5-11-1982, and, therefore, the appellant used to have been made the payment in running scale as Oriental Teacher throughout the whole period during which the appellant rendered his services without any fault. Learned counsel for the appellant has referred to the monthly salary sheet appended with his appeal at Annexures B, B-1, B-2 and B-3. According to the learned counsel as the said school was nationalized by the Government from 1-10-1972, therefore, the appellant should have been paid the same remuneration in the scale No. 8 like usual, but in 1979, the respondent No. 4 illegally passed the order whereby the appellant was directed to be put in fixed scale No. 8 instead of the running one and he directed to recover a sum of Rs.1,051, which was already paid by the Department to him. It has been further argued that the appellant made a number of representations to the higher authorities including the Secretary Education, the President of Pakistan through registered posts, but as nothing came out, he moved the civil .Court and got, a decree in his favour, however, the same was set aside by the Additional District and Sessions Judge, Rahimyar Khan, as he found that the case was not maintainable before the civil Court, in view of Article 212 of the Constitution, under which the Punjab Service Tribunal was the only forum to entertain such appeals relating to the terms and conditions of service.
6. On the other hand learned District Attorney has taken a stand that according to the MLR 118, the services of the appellant were nationalised by the Government w.e.f. 1-10-1972, therefore, the qualification which he possessed on the said date the same would be available to him for fixation of his pay for his further service. It was argued that as the appellant was an untrained person on 1- 10-1972, as such pay scale to which he was admitted was illegal and the Government was fully justified to recover over-payment of Rs.1,051, as pointed out by the District Accounts Officer, Rahimyar Khan. He has also taken exception to the maintainability of the appeal on the point of limitation by submitting that the appellant. Had no business to go to the civil Court and even after the case was decided against him, he did not, come before this Tribunal within the stipulated period for the same.
7. We have given our anxious thought to the arguments so advanced by the parties and find that the case of the appellant has no merit so far as his claim to continue in running pay scale No. 8 is concerned, as the same has to be governed in accordance with the qualification which he had possessed on the crucial date when his services were sod, nationalised. The arguments advanced by the learned. District Attorney are quite forceful and it is very difficult to hold otherwise.
8. However, with regard to the recovery of Rs.1,051 we do not'' find any justification to do so, as the appellant has been paid continuously for a, number of years not at, his asking but by the respondents themselves, therefore, the principle of transaction of past and closed, will be fully applicable in his case. Even otherwise on equitable basis it would be very hard for the appellant to repay the same which he had already consumed and spent during the course of his service, particularly in view of the high inflation in the country. We will also invoke the principle of locus poenitentiae as laid down in Raja Muhammad Nawaz's case decided by the Supreme Court of Pakistan in his favour.
9. In the light of the above, we proceed to dismiss the appeal as without being merits with the direction that the recovery of arrears of Rs.1,051 so paid to the appellant, will not be made. There will be no order as to costs.
M.I