This judgment will dispose of simultaneously R.S.A No. 533 of 1967 as well because both arise from the same judgment and decree dated the 25th of April, 1967, passed by the learned Additional District Judge, Sargodha, whereby he partly accepted the appellant-plaintiff's first appeal.
2. The plaintiff Ata Muhammad was employed as Superintendent Octroi under the respondent- Town Committee, Bhalwal, which granted him higher scale of Rs. 100-8-18/ 230 by a Resolution passed in compliance with a directive dated 9-9-19(4) of the Collector as Controlling Authority. He continued getting pay according to this scale till 6-6-1964 when the Collector, Sargodha, in his capacity as Controlling Authority directed the Town Committee to withdraw it and recover the excess payment to the tone of Rs. 11,786.56 from him. The respondent-Committee accordingly passed Resolution No.479-A dated 11-11---1964, whereby the appellant was placed in his original scale of 75-5-100-6/142 and the excess payment was ordered to be recovered in monthly instalments from his pay at the rate of Rs. 106/- each. The appellant challenged the relevant order as also the Resolution contending that those were bad in law inasmuch as he was given no notice to show cause against them, and that the Collector had no power"' to review his predecessor's orders which had been acted upon for about four years with the express or tacit approval of a number of his fore-runners.
3. The suit was contested pleading that failure to join the Deputy Commissioner as Controlling Authority in it was fatal; that it was not tenable because the departmental remedy of an appeal before the Commissioner was not availed; that the resolution in question having been passed in compliance with the directive of the Controlling Authority was not open to challenge; and that the appellant was placed in the higher scale with his express assurance that it shall be allowed to him if approved by the Commissioner, or else he would refund the excess payment. It was denied if the whole action was taken without notice to him; rather its correctness was affirmed by pointing out that it was based upon an objection raised by the Auditor. The assertion that the appellant kept good record throughout was controverted inasmuch as his career was said to have been quite blemished by his having been suspended, fined and admonished many times.
4. The trial Court framed appropriate issues in regard to these objection and came to the conclusion that the order dated 9-9-1960 and the consequential resolution upgrading the pay of the appellant were null and void, whereas the order dated 6-6-1964 and the consequential resolution dated 11-11-1964 withdrawing the same were quite valid. As a result, it dismissed the suit.
The appeal, however, ex facie was accepted in toto but the relevant order showed prima facie that it was accepted partly by modifying the decision of the trial Court. Both the parties preferred separate appeals therefrom.
5. As I could read the appellate judgment, I feel that the entire relief claimed by the appellant Ata Muhammad, was allowed to him notwithstanding the fact that it was shown to have been partly accepted so as to modify the decree passed by the Court of the first instance What it explicitly provided for was that the order dated 9-9-1960 by which the appellant was placed in the higher scale was not void and conversely, the order dated 6-6-1964 by which he was degraded was void.
It obviously gave an impression that granting the appellant the higher scale was not illegal and that the action taken to recall it was quite illegal. This reading of the impugned order makes the present appeal rather uncalled for. The counsel tried to explain that the word "modified" in the impugned decree led him to think that the appellant was not allowed the whole relief and, therefore, he did not like to lose the chance of assailing it by way of the present appeal. The explanation does not appear to be very wrong, for, partial modification of the decree ostensibly provided room for thinking that a part of the relief was disallowed to the appellant. However ex- facie, it was not so. The present appeal for this reason is disposed of.
6. The other appeal (R.S.A. 533/1967) was claimed to be untenable on the application of the principle of "locus poenitentiae" as envisaged in Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407). The admitted facts were that the official was placed in higher scale in 1960 and he continued to avail the same till 1964, i.e. For a long period of four years. Payment of the scale to him for this period constituted a decisive step and, therefore, there was left no power with the Town Committee to recede back after allowing him the same all over this period. The arguments that it was not authorised by various rules or that it had not been approved by the Commissioner or that record-wise the official was not eligible to get it were all beside the point when the decisive step of implementing the orders was once taken. Further, the direction in pursuance of which the resolution dated 11-11---1964 was passed was claimed to have not been covered by the mischief of Section 111 of the Municipal Administration Ordinance, 1960, which authorised striking down any action already taken by the Committee if it was (i) not in conformity with the law and (ii) was in any way against the public interest. 1t was argued that the directive dated 9-9-1960 and the resolution passed in relation therewith were quite competent under Art. 75(1) of the Basic Democracies Order, 1959, and, therefore, it could not be said that the grant of higher scale to the appellant at that time was "not in conformity with law" or "in any way against public interest". Support for this view was sought from Syed Fayyaz Hussain Qadri, Advocate v. The Administrator, Lahore Municipal Corporation, Lahore and 4 others (PLD 1972 Lahore 316), where it was held that a Controlling or Supervising Authority could act within the four corners of powers vested in it and that it was not competent to do anything in excess of such powers. The contention had considerable substance. The order dated 9-9-1960 was quite competent in view of Article 75(1) ibid and, therefore, it could not have been struck down subsequently under section 111 of the Municipal Administration Ordinance, 1960. Nor was there any reason to suppose that the grant of higher scale four years ago had become by now something opposed to public interest. An individual official was granted scale after due consideration of merits and demerits of his service career. Obviously granting him such scale was then in public interest. The authority could not be allowed to turn round to take a somersault four years later to say that action taken in such a distant past was not in public interest. The facts of the precedent case lend considerable strength to this view. Likewise, the audit report on the basis of which the scale was being recalled was said to be an internal affair of the department without associating the appellant and could not be used as a handle against him to reduce his scale. In Water and Power Development Authority and others v. Umaid Khan (1988 CLC 501) such a report was held ineffective against the rights of an individual consumer because of his non---association with the process. No provision was cited to the contrary and the inference was that the Deputy Commissioner was competent to direct passing of the resolution by the Committee enhancing the appellant's scale. Thus, after the order having been passed validly by competent authority, and acted upon for quite a long period, could not be retracted on the basis of locus poenitentiae. The objection as to the non-joinder of the Deputy Commissioner was held inconsequential in view of the decision rendered in District Board, Lahore v. Agha Muhammad Khan (PLD 1957 Lahore 780), where Town Committee itself was held to be a sufficient party. Joinder of Controlling Authority was rightly held as per this decision, not required.
7. Mr. Ilahi Bakhsh Wajdani for the Town Committee reiterated that the grant of higher scale without the approval of the Commissioner was unauthorised and that the same was rightly revoked. The fact remains that contradictory orders were passed at times by various D.Cs, once to grant the scale to the official and then to recall it. They should have been more vigilant in the very start and if they by their negligence allowed implementation of the scale to him, it would constitute taking a decisive step in terms of aforementioned dictum and they will be deprived of power to recede from it subsequently, all the more when it was initially sanctioned validly.
8. As a result, the Committee's appeal (R.S.A. 533/1967) is dismissed. The suit of Ata Muhammad stands decreed in toto. Parties are left to bear their own costs throughout.
H.B.T./A-782/L