1. ' MUNAWAR ALI KHAN (CHAIRMAN).--This is the third round of litigation that the appellant, Dr.Ghulam Rasool has launched for seeking the same relief, namely the grant of five advance increments allowed to other doctors of his grade w,e,f, 1-10-1974. He had to withdraw his first appeal which was premature, as it was filed prior to exhausting of departmental remedy. So far his second appeal was concerned it was dismissed as time-barred vide judgment of the Tribunal dated 8th August, 1984. However, in view of the observations made by the Tribunal in the said judgment the appellant moved the Secretary Finance Department afresh with prayer that appropriate decision be taken on his appeal pending in the said department. In response to that representation he was intimated by the Secretary, Health Department by his letter dated 7th January, 1986 that his request for fixation of pay was turned down by the Finance Department. On receipt of that reply the appellant once again knocked at the doors of this Tribunal by filing the present appeal.
2. ' As disclosed in the memo. Of appeal, the appellant's case is that he joined Health Department as a Licentiate Doctor when he was only I,.S.M.F. On 1-3-1969 he was promoted to Junior Class I, equivalent to Grade-17. While the appellant was working in the post of grade-17, the Government of Sind in the Finance Department, under the instructions of the Federal Health Ministry, allowed five advice increments to all the doctors in NPS-17 w,e,f, 1-10-1974 vide its memo No, PD-SR-IV/39/74, dated 21st December, 1974. Since the appellant was drawing Rs,900 in NPS-17 on 1-10-1974, his pay was raised to Rs,1,150 which he continued to receive until 1-6-1979. Meanwhile he was promoted on regular basis to grade-18 retrospectively from 1-10-1974 by Government Notification dated 6th May, 1975. The five increments allowed to the appellant were ultimately merged in his pay following the announcement of new National Pay Scale on 1-5-1977. However in July, 1979 while fixing the appellant's pay in grade-18, the Accountant-General arbitrarily reduced his basic pay to Rs,1,000 with retrospective effect from 1-10-1974. Consequently his salary of Rs,1,690 which he had drawn on 1-6-1979, came down to Rs,1,575. As a corollary of the above reduction in his pay, a sum, of Rs, 8,393 was also recovered from the .Appellant as excess payment made to him. The curtailment of his salary at the time when he was about to retire had a telling effect on his overall economic position.
3. As he stood retired on 31-3-1980, he sustained consequential loss not only in pension, but also in gratuity and payment due on commutation.
4. ' As the appellant was unrepresented he was permitted to put in written arguments. We have carefully considered his lengthy arguments and also the arguments submitted by learned Govt.
5. Counsel. We have also examined various documents relied upon by both the sides.
6. ' The appellant has, inter alia, made prayer that he may be allowed five advance increments from 1-10-1974 to 31-3-1980 (date of his retirement) and the amount of Rs,8,393 recovered from him as excess payment be refunded to him. In support of his prayer the chief document relied upon by him is the Finance Department's letter dated 21st December, 1974. It reads as under:-- "I am directed to refer to the Government of Sind Health and Social Department Memo No,SO-I (B)-26-1/74 dated 5th November, 1974, on the subject noted above and to further clarify the position, in respect of various concessions sanctioned to the Junior Doctors, as under:
(a) Five advance increments may be allowed to all doctors who were in NPS-17 on .140-1974, as well as those who joined or may join service after that date. This will, however, be subject to the condition that pay after allowing advance increments does not exceed the maximum of N.P.S. 17 i,e, Rs,1,250.
(b) Those doctors in Grade-17 who are drawing pay more than the minimum of Grade-18 will have their pay fixed at the next higher stage in the new scale on promotion to Grade-18, under 40 formula."
7. ' The appellant claims that he is covered by the above letter and hence he is entitled to the benefit of five advance increments w,e,f, 1-10-1974 like other doctors in NPS-17. It is not denied that he was promoted to grade-17 on 1-3-1969 and was holding the post of that grade when the above letter was issued. Accordingly he was allowed the benefit of five advance increments and his pay was revised from Rs,900 to Rs,1,150. Admittedly he enjoyed this concession until 1-6-1979. However in July, 1979 the said concession was withdrawn retrospectively from 1-10-1974 and as a result thereof the appellant's pay was curtailed from Rs,1,600 to Rs,1,575. Thus he suffered the recurring monthly loss of Rs,115 in his pay. While defending the withdrawal of the above concession from the appellant the learned Govt. Counsel contended that the concession was extendable to only Medical Graduates. He also added that as the appellant had not graduated by the relevant date he was not entitled to the said concession. In this connection a reference was made to Finance Department's letter No,FD/SR/4/1 (39)/74 dated 18th December, 1978. Para. 2 of this letter which is pertinent to the point reads as under:- - "Finance Department clarified that only M.B.,B.S. Doctors are entitled to the grant of advance increments."
8. There was no doubt that the appellant was not Medical Graduate when the concession of five advance increments was allowed to the doctors in NPS-17. But the question arose if the benefit allowed to the appellant in terms of the letter issued in 1974 could be withdrawn on the basis of the belated clarification of the Finance Department referred to above. Of course the Finance Department being author of the letter issued in 1974 was competent to interpret the same. But in our opinion neither the above clarification was in the nature of interpretation nor the letter in question provided any scope for such interpretation. The said clarification was sought to modify the original text of the letter in question by introducing a totally new idea. In the case. Reported as Pakistan v. Muhammad Himayatullah Farooqui PLD 1969 SC 407 it was held by the Supreme Court that there was no dispute with the rule that apart from the provisions of section 21 of the General Clauses Act, locus penitential i,e, power of receding till a decisive step is taken, is available to Govt.
9. Or the relevant authorities. In another case reported as Shahbaz v. Crown PLD 1955 Lah. 65, it was held that if the previous order was given effect so that no locus penitential was left, there would be no occasion for the exercise of the powers mentioned in section 21 of the General Clauses Act. In view of these reported cases the Government in Finance Department could modify its earlier order only before it was implemented or acted upon. In the instant case as soon as Finance Department's letter dated 21st December, 1974 was issued, the appellant was allowed the confession of advance increments and in consequence even his salary was enhanced, so much so that he enjoyed the benefit of enhanced salary until 1-6-1979. Thus the Government's notification having been implemented, could not be changed or modified subsequently after lapse of nearly five years, by introducing totally a new condition for entitlement to the concession. Therefore, we are of the view that the above clarification of the Finance Department could not be construed to have the effect of changing the original intention of the letter issued on 21st December, 1974.
10. ' 26-1/74, dated 8th November, 1974, of the Health and Social Welfare Department, wherein it was stated: ' The initial pay for a fresh Medical Graduate will be National Pay Scale No,17 plus Rs,250 as five advance increments i,e, Rs,750.
11. ' This letter was obviously based on Finance Department's U.C. No,F.D. SR-/IV-I (39)/74, dated 5-1- 1973. It was argued that on the strength of the above letters issued from Health Department and the Finance Department, the concession of five advance increments was allowed to only fresh Medical Graduates. It may be so. But by the Finance Department's subsequent letter issued on 21st December, 1974, the scope of the concession was clearly enlarged to include all doctors in NPS-17 on 1-10-1974. This intention is clear from the fact that the Finance Department had issued the said letter in reference to the Health Department's letter dated 8th November, 1974, which we feel, due to typographical error was mentioned as the letter of 5th November, 1974. It seems to us that Finance Department had in mind its own letter of 5th November, 1974 when it gave reference of the Health Department's letter, which was dated 8th November, 1974 and not 5th November, 1974. In this way, although the Health Department by its letter dated 8th November, 1974 had initially extended the benefit of five advance increments to only fresh Medical Graduates, yet by subsequent letter issued by the Finance Department on 21st December, 1974 the benefit was allowed to all doetors in NPS-17 irrespective of whether they were graduates or not. Thus the appellant who had not graduated by the time the above letter of 21st December, 1974 was issued became eligible for the concession of the advance increments. He was therefore rightly allowed the benefit of the same.
12. Subsequently by Government's notification dated 6th May, 1975, the appellant was promoted on regular basis to grade-18 retrospectively from 1-10-1974. Accordingly the argument was raised that as a result of his promotion to higher grade the appellant ceased to remain a member of grade-17 on the very date i,e, 1-10-1974 when he was allowed the benefit of advance increments by virtue of his being in the said lower grade. The argument further went to say that on that ground the appellant became disentitled to the benefit of advance increments which was meant only for the doctors in NPS-17. We are inclined to agree with this argument and hold that consequent upon appellant promotion to grade-18 from 1-10-1974, withdrawal of advance increments allowed to him from the said date on the basis of his being grade-17 doctor was fully justified. It was entirely a different issue that the appellant instead of getting any monetary gain, sustained a financial loss by his promotion to higher grade-18. Precisely for the reason of such anomalous cases that the Finance Department issued letter No,FD-SR-IV/2-79/77, dated 17-3-1981 whereby the benefit of five increments was allowed also to doctors who were in grade-18 on or before 1-10-1974. As stated above the appellant was promoted to grade-18 retrospectively from 1-10-1974. As such he was entitled to the benefit of advance increments allowed to the doctors of grade-18. Despite that the office of the Accountant General made query from the Secretary, Health Department vide its letter dated 5-1-1981 if the benefit of five increments given to doctors in grade-18 was applicable even to those doctors who already stood retired:- However reply of Administrative Department to the said query, if any, was not placed before us. Nevertheless it would be pertinent to reproduce para 3 of the written statement filed on behalf of the respondent No,4 (Accountant General). It reads as under: "3. That the contents of paras. (b) & (c) it is submitted that his pay was revised on the basis of promotion not made under 40% quota as required by para (b) of FD No,SR-IV (39)/74, dated 21-12- 1974 and he was not medical graduate on 1-10-1974 and finally confirmed by FD under which non- medical graduate were not entitled to draw five advance increments vide No,FD-SR-1 (27)/81, dated 26-9-1981. He was allowed to correct pays allowances (as confirmed by FD) before proceeding on retirement, hence the appellant did not suffer any loss in pension/gratuity, commutation etc."
13. It would appear from the reply furnished by the Accountant General that the appellant was denied the benefit of five advance increments not on the ground that he had already retired from service but on the ground that he was not Medical Graduate on the relevant date i,e, 1-10-1974. We have already made it clear in the foregoing paragraphs that the concession was extendable to all the doctors notwithstanding the distinction based on graduation. As for the question of his retirement, it may be pointed out that since the benefit was allowed from 1-10-1974 when the appellant was still in service we see no reason why his retirement which took place six years later in 1980 should affect his right of enjoying the benefit.
14. ' For above reasons we hold that the appellant having been promoted to grade-18 w,e,f, 1-10-1974, he was entitled to the benefit of five advance increments which had been allowed to doctors of grade-18 from the said date in terms of the Finance Department's letter dated 17-3-1981.
15. Accordingly the appeal is allowed to the above extent with no order as to costs.