1. MUNAWAR ALI KHAN (CHAIRMAN).--In two appeals No.73/88 and 74/86 respectively filed by Nek Muhammad Brohi and Ghulam Mustafa Bughio, identical questions of law and fact are involved, therefore, they are being disposed by this common judgment.
2. The above two appellants were appointed as Secretariat Assistants in the pay scale of Rs.275-20- 375/20-475/20-600, (Grade-11) --by the separate orders of Project Director, Poultry Research Institute, Karachi; one dated 16--11-1973 in respect of appointment of Ghulam Mustafa Bughio and another dated 8-12-1973 relating to appointment of Nek Muhammad Brohi. The said appointments were made on ad hoc basis. Subsequently the relevant Select Committee set up under MLO-55 made recommendations on 9-7-1978 for regularisation of the appellants' appointments. However by order dated 14-7-1979 the Project Director regularized their appointments in Grade-10 instead of in Grade-11. Meanwhile their pay was fixed in lower grades namely Grade-8 and Grade-10 by the Accountant-General's Office. In their applications dated 26-7-1979 made to the Secretary to Government the appellants took serious exception to their regularization in Grade-10. Before any decision was taken on their applications, the Audit party of the Accountant-General's Office in course of their audit for the year 1980-81 made an audit objection on the basis of fixation of the appellants' pay on 1-5-1977 that excess amount of Rs.2,004/- from appellant Nek Muhammad and Rs.4,796.50 from appellant Ghulam Mustafa be recovered. Accordingly two impugned orders; one dated 3-3-1986 and another dated 17-3-1986 were passed for making the recoveries of the alleged excess amounts from appellants Nek Muhammad and Ghulam Mustafa respectively. These orders were challenged by them in appeals to Secretary to Government of Sind, Agriculture, Department.
3. Since no decision was made by appellate Authority within the Statutory Period of 90 days, the appellants filed the present appeals.
4. The learned counsel for the parties were elaborately heard and the relevant record, pertaining to these appeals was also gone through.
5. On careful perusal of the appellants' appointment orders, it is clear that they were not only appointed as Secretariat Assistants but were also allowed pay scale equivalent to Grade-11. The learned Government counsel frankly conceded on the basis of information conveyed to him by the Departmental representatives from the record they had brought to assist the said learned counsel that the appellants were appointed against the vacant posts of Assistants and further that Project 'Director who made their appointments was competent to make such appointments. Of course the appointments were not made in the prescribed manner and as such they needed to be regularized.
6. It is not disputed that the appellants' cases were subsequently referred to the relevant Select Committee set up under MLO-55 for regularization. In this connection our attention is drawn to the extract of the Minutes of the Select Committee meeting held on 9-7-1978. It reads as under: "The cases of M/s. Abdul Sattar Kathio, Ghulam Mustafa Bughio and Nek Muhammad Brohi, Secretariat Assistants were examined but concerned officials were also interviewed. After scrutiny of the record, the Select Committee was of the view that all the Three Officials possessed the prescribed qualifications for the post held by them and, therefore, the Committee recommends that they may be retained in the posts held by them in terms of Sub-para (i) of para 6 of M.L.O.-55."
7. Since the appellants were holding the posts of Secretariat Assistants in Grade-11, the recommendations of the Select Committee were obviously intended to regularize their appointments in those posts. However as per order of Project Director dated 14-7-1979 their appointments were regularized in Grade-10. No reasons were assigned in the said order for the appellants' regularization in the posts of lower grade. It appears the appellants challenged the above order in separate departmental appeals but no decision has so far been taken thereon. In fact the above order of regularizing the appointments of appellants in Grade-10 instead of in Grade-11 is not agitated in the present appeals and as such we need not go into that question.
8. Moreover, it is admitted on behalf of the appellants that pending the decision in their departmental appeals, they started drawing their pay in Grade-10 ever since their regularization in that grade.
9. As stated above the appellants' case is that prior to their regularization in Grade-10, their pay was wrongly fixed by Accountant General's Office in lower grades namely Grade-8 and Grade-10 in 1977. Despite such fixation of their pay they continued to draw their pay in Grade-11 until annual audit of the year 1980-81 when the Audit party raised an Audit Objection that the excess amounts paid to the appellants be recovered from them. Consequently by the impugned orders the appellants were called upon to refund the excess amounts in monthly instalments. It is these orders which were first challenged in departmental appeals and then before this Tribunal in above-mentioned appeals.
10. As pointed out above the appellants were appointed as Secretariat Assistants in Grade-11 against vacant posts by the Project Director, Poultry Research Institute who was admittedly competent to make such appointments. Even the relevant Select Committee recommended their regularization in the said posts. It is also an admitted position that right from the date of appointment they had been drawing their pay of Grade-11 until the order dated 14-7-1979 was issued whereby their regular appointments were made in Grade-10. Of course after the issuance of this order they have drawn their pay in Grade-10 and therefore, the question of recovery of any excess amount from the date of their regularization does not arise. Even the impugned orders relate to the recovery of over payments during the period between 16-11-1973 and 31-1-1979.
11. The only point that falls for our decision in these appeals therefore is whether the recovery of the alleged overpayments as detailed in the impugned orders can be made from the appellants. The learned Government counsel raised a preliminary objection that the appeals were hit by limitation.
12. According to him the order with regard to fixation of the appellants' salary in lower grades was passed on 20th February, 1979 and .The same was reiterated by another order dated 3-8-1985.
13. Therefore, in his view both the appeals which were filed on 12-8-1986 were obviously time-barred.
14. As against the above argument the appellants' prayer is that the two orders dated 3-3-1986 and 17-3-1986 may be set aside. By these orders specific amounts mentioned therein are required to be recovered from the appellants in monthly instalments, the value of which has also been specified in the said orders. The earlier orders referred to by the learned Government counsel relate to fixation of pay of the appellants in lower grades from the specified dates. Despite these orders it is an admitted position that the appellants continued to draw their salary in Grade-11 until the regularization of their appointments in Grade-10 on 14-7-1979. It is true that in the earlier orders by which the appellants' pay was fixed in lower grades it was indicated that as result of that fixation overpayments were to be recovered from them. However the said orders were not implemented.
15. Moreover, they did not specify the actual amount to be recovered from each appellant] nor did they elaborate if the amounts due were to be recovered in lumpsum or in instalments and if the arrears were to be cleared till instalments, they did not even mention the value of each instalment.
16. All these details were given for the first time in the impugned orders., In absence of such material, the appellants were not in a position to' make an affective representation before the higher authorities. Moreover the appellant felt the real pinch only after passing of the impugned orders.
17. They were hardly affected by the earlier orders fixing their pay in lower grades as the said fixation was not enforced.' On the contrary, as stated above, they continued to draw their salary in Grade-
11. It was for the first time that they were hit hard by the impugned orders. Assuming for the sake of arguments that, the earlier orders did provide cause of action to the appellants, then the impugned orders which were obviously more severe for the appellants gave them fresh cause of action. Accordingly we are of the view that the appeals which are directed against the impugned orders are within time.
18. This brings us to the material issue as to whether the excess payments as mentioned in the impugned orders can be recovered from the appellants. In this connection we may keep in mind the well-known legal principle of locus poenitentiae, which has been applied and discussed by the Honourable Supreme Court in the case reported as Pakistan v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 wherein it has been held "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 or 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."
19. It would appear from the above authority of the Supreme Court that the authority having power to make an order also possesses the power to rescind or modify such order before it has been acted upon. Applying the said principle in the instant case it is found that on their appointment as Secretariat Assistants, the appellants were allowed national scale of pay of Grade-11 and such orders were made by the competent authority. Admittedly the appellants started drawing their salary of Grade-11 right from the date of their appointment. This means to say that the orders by which they were allowed the pay of Grade-11 was in fact, acted upon. The overpayments shown in the impugned orders to be recoverable from the appellants would arise only when the initial order by which the appellants were allowed scale of pay of Grade-11 was modified so as reduce their pay below the pay of the said grade. This is precisely what has been done by the so-called order of fixation of the appellants' pay passed on 20th February, 1979. In view of the law laid down by the Supreme Court in the reported case, after the appellants have drawn their pay in Grade-11 which was allowed to them by the competent authority at the time of their appointment the said pay can not be subsequently reduced. Unless this was done, the alleged overpayments reflected in the impugned orders would not arise.
20. The upshot of the above discussion is that the pay already drawn by the appellants in pursuance of their initial order of appointment until they themselves started drawing their pay in lower Grade- 10 following the regularization of their appointments in that grade cannot be reduced so that excess payments specified in the impugned orders become recoverable from them. Consequently the said excess payment cannot be recovered from the appellants. The impugned orders are therefore without lawful authority and as such they are set aside and the appeals are allowed with no order as to costs.
21. A.A./131/Sr.S.