1. ' Through this Constitutional petition the petitioner has challenged the orders contained in Office Memorandum No,F.1(14)-R.3/83, dated the 8th December, 1985, whereby the special pay granted to him was withdrawn. Besides seeking the declaration as contemplated by Article 199 of the Constitution of the Islamic Republic of Pakistan the petitioner has also prayed for making an order directing the respondent to allow him to draw the special pay equivalent to 20% of his basic pay in accordance with the orders contained in Office Memorandum No,F.1(14)-R.3/83, dated the 7th of November, 1983 (to be hereinafter referred to as the Memorandum).
2. Briefly stated the facts of the case are that the petitioner has been in the service of the Government of the Punjab and on 1-12-1983 was appointed as Additional Draftsman in the Ministry of Justice, Government of Pakistan, Islamabad. In November, 1983 the respondent decided to pay to all (i) Officers posted as Deputy Secretary or equivalent in the Federal Secretariat, and (ii) Field Officers on appointment to any post in the Federal Secretariat special pay equal to 20% of their basic pay, in addition to pay. This decision was notified in the orders contained in the Memorandum. It is averred that in pursuance of the above order the petitioner being a field officer posted in the Federal Secretariat was paid the special pay for the month of November, 1985. It is further averred that later the respondent changed its above decision and accordingly notified through its Office Memorandum No, F.1(14)R-3/83, dated the 8th of December, 1985 that the special pay of 20% granted to all officers posted as Deputy Secretary or equivalent and Field Officers on appointment to any post in the Federal Secretariat had been cancelled. Pursuant to the later decision the special pay paid for the month of November, 1985 was deducted from the petitioner's pay for the month of December, 1985. By his letter dated the 1st of January, 1986 the petitioner questioned its vires and requested the respondent for allowing him to draw the special pay authorised under the Memorandum but with no result. With this background the petitioner has submitted that the orders of the respondent contained in the Office Memorandum, dated the 8th of December, 1985 are illegal and inoperative and do not affect his right to continue receiving the special pay granted through the Memorandum. His precise case is that the decision of allowing special pay having been acted upon had created a valuable and a vested right in his favour and the respondent had no locus penitential, authority or power to withdraw the special pay or pass any order or take any decision to affect him adversely.
2. ' In the parawise comments filed on behalf of the respondent it is asserted that the petitioner originally belongs to the Provincial Judiciary and in the year, 1978 was appointed by the Federal Land Commission as Deputy Legal Advisor (Grade-19) and thereafter was appointed in the Commission as Legal Advisor on acting charge basis in Grade-20. His services were placed by the Establishment Division at the disposal of the Justice Division for posting as Additional Draftsman on acting charge basis in BSC 20 and his services have not yet been regularised under the Federal Government. It has been further stated that the petitioner was not a field officer of the Federal Government and was to serving in the field post since 1978. It has also been submitted that the terms "Field Officer" and "on appointment" had not been defined and the Memorandum had been cancelled ab initio. It is further stated that the petitioner is a B-18 Provincial Officer serving in pay scale 20 post under the Federal Government as a deputations and is not covered by the provisions of clause (ii) of the Memorandum as it was meant only for field officers of the Federal Government appointed to a post in the Federal Secretariat. The respondent's precise case is that the petitioner was not serving as a "Field Officer" and consequently the special pay sanctioned in the Memorandum was not admissible to him and if he had drawn the same it cannot be said to have been drawn legally and created vested right in the petitioner.
3. ' I have heard the learned counsel for the parties at some great length. Learned counsel for the petitioner submits that the respondent no doubt had the authority to withdraw the special pay allowed under the Memorandum but it could not do so after it had been acted upon and the special pay had been paid to and drawn by the petitioner. He further submits that the special pay was allowed for the month of November, 1985 and the petitioner had acquired a right to claim the benefit as contemplated by clause (ii) of the Memorandum, and that the respondent was left with no power to recede. In support of his contention he invited my attention to the principle of locus penitential and has placed reliance on the following pronouncements:--
(i) Pakistan through Secretary, Ministry of Finance v. Muhammad Himayat Ullah PLD 1969 SC 407.
(ii) Collector Central Excise & Land Customs v. Aziz-ud-Din Industries Ltd. PLD 1970 SC 439.
(iii) Lt.-Col. G. L. Battacharya v. The State PLD 1964 SC 503.
(iv) Muhammad Aslam Khaki v. Vice-Chancellor Gomal University PLD 1980 Peshawar 128.
(v) Colony Thal Textile Mills Ltd. v. Assistant Collector Central Excise & Land Customs 1980 CLC 1660.
4. ' On the other hand, the learned counsel for the respondent contends that the petitioner is not covered by clause (ii) of the Memorandum and the special pay paid to him in the month of November, 1985 was under a bona fide mistake and, therefore, it cannot be said that any decisive step had been taken there by precluding the respondent from rectifying the omission/commission.
5. Elaborating the arguments, the learned counsel contended that the terms "Field Officers" and "on appointment" have not been defined and the petitioner being an employee of the Provincial Government on deputation with the Federal Government does not fall within the four corners of the above terms. At first blush this argument appears to have some force but on a perusal of Letter No,Dy.1344/87-B&A, dated the 17th of August, 1987, from the Section Officer, Ministry of Justice and Parliamentary Affairs to the petitioner (copy whereof was placed on record by the petitioner with permission of the Court) it is evident that in terms of Ministry of Finance O.M.No, F.1(1)Irnp/83, dated the 18th of August, 1983 special pay of Rs,400 per month was allowed to certain Provincial Judicial Officers during their posting in the Ministry as Deputy Secretary. The petitioner admittedly belongs to the Provincial Judicial Service and was posted in the Federal Secretariat where he worked as Deputy Draftsman. If certain officers belonging to the Provincial Judicial Service have been allowed by the respondent a speical pay though at a different rate (Rs, 400 p.m.) it does not lie in the mouth of the respondent to say that the petitioner though belongs to the Provincial Judicial Service is not covered by clause (ii) of the Memorandum. In case the petitioner is treated differently then he will be justified in labelling the action of the respondent as discriminatory. I am, therefore, clear in my mind that the petitioner is fully covered by clause"(ii) of the Memorandum, absence of the definition of the terms "Field Officer" and "on appointment" does not make any difference, and the respondent is precluded from treating the petitioner discriminately. I am also not persuaded to believe that the special pay allowed to the petitioner in the month of November, 1985 was under a bona fide mistake.
6. ' Learned counsel for the respondent also contends that in the circumstances and on facts of the case, it cannot be said that the payment of special pay to the petitioner in the month of November, 1985 cannot be construed as a decisive step and consequently the principle of locus penitential is not attracted to the case. He contended that the respondent had not committed any illegality in deducting the special pay allowed to the petitioner in the month of November 1985 and refusing to pay him such special pay for the period subsequent thereto during which he remained posted as Additional Draftsman in the Ministry of Justice and Parliamentary Affairs in the Federal Secretariat.
7. ' No canvassing is needed for the proposition that "decisive step" connotes taking of an active physical step by which alone an order has been effectively implemented. Until that stage is reached the order remains inchoate order with the result that until the decisive step is taken locus penitential exists for the Government to recall or rescind an order but where the order has taken legal effect and in pursuance thereto certain rights have been created in any individual "decisive step" would be deemed to have been taken and thereafter the order cannot be withdrawn or rescinded to the detriment of those rights. In the instant case it is an admitted position that special pay in terms of clause (ii) of the Memorandum was paid to the petitioner in the month of November, 1985 meaning thereby that a "decisive step" had been taken. In the circumstances of the case the principle of locus penitential becomes effective with full force and precludes the respondent from either modifying, rectifying or withdrawing it to the disadvantage of the petitioner.
8. This principle has been upheld in various pronouncements some of which have been cited at the Bar by the learned counsel for the petitioner.
9. ' In the circumstances and on facts of the case, I am of the view that the special pay allowed to the petitioner in the month of November 1985 in terms of clause (ii) of the Memorandum could not be deducted from his pay for the month of December, 1985 as he had acquired a vested right which the respondent had no authority to withdraw the same both under the principle of locus penitential as well as under the general principle of law. I am further of the considered opinion that the refusal of the respondent to allow special pay to the petitioner in terms of the above clause for the period in question are acts without lawful authority and of no legal effect. I, therefore, accept the petition and direct the respondent to allow the petitioner special pay equivalent to 20% of his basic pay in accordance with the orders in the Memorandum for the relevant period.
10. ' Parties are, however, left to bear their own costs.