JUDGMENTJUSTICE (RTD) MUNAWAR ALI KHAN (CHAIRMAN) .-As disclosed in the Memo of appeal, the appellant's case is that following his appointment as College Librarian in 1955, he was allowed the consolidated scale of Rs.300-600, sanctioned for the Librarians working in Colleges/Higher Secondary Schools. In October, 1982 the Directorate of Education, Karachi was bifurcated into Directorate of School Education and Directorate of College Eductation and the appellant opted to serve in the latter Directorate. However he was neither transferred to the Directorate of his choice nor was he given the National Scale of pay allowed to his juniors w.e.f. 1.3.1972. By subsequent notification No. FD(SR-1)1-1(9)/71 dated 24th January, 1974 (hereinafter referred to as the Government notification of 1974) the Government of Sind revised the pay scale of the College Librarian effective from 1.6.1970. The appellant made several representations for revision of his pay as due to him but all in vain. Ultimately he was constrained to file writ petition No: 312/84 in the High Court whereupon a direction was issued by the said Court to the Department concerned obviously for disposal of his representation. As a result of the High Court's direction, the appellant was given National Scale of Pay-16 (Rs.400-1000) retrospectively from 15.12.1973 subject to the condition that no arrears resulting from the refixation of his pay would be allowed to him. The appellant challenged the said condition in the departmental appeal filed before the Chief Secretary. Having failed to obtain any relief at the departmental level he approached this Tribunal by filing the present service appeal.
2. The learned counsel for the parties submitted their arguments for the first time on 26.4.1989. In course of the arguments made at the Bar, the issue that emerged for our decision was whether denial of payment of arrears arising from refixation of the appellant's pay in higher pay scale No. I6 from the date he was allowed the said scale, had any legal basis. The impugned order dated 14th January, 1987 wherein the denial of arrears is reflected reads as under:"No. S.O.(E-V)6-46/84:- Sanction is hereby allow the pay fixation in the scale of Rs.400-1000(NSP-16) w.e.f. 15.12.1973 (the date he passed the Diploma Course in Library Science) to Mr. M.A. Hashmi, Librarian, Govt. Sr. Model School, PECHS, Karachi subject to the condition that no arrears will be allowed as a result of pay fixation."
3. Before the arguments were concluded, the learned Gove, counsel secured an adjournment of the case for the purpose of seeking some clarifications from the Department concerned. It was obvious that wh.En the learned Government counsel was confronted with the arguments of the other side, he wanted to know from the Department concerned the law/rules/any other legal ground on which the appellant was deprived of the benefit of the arrears accrued to him on account of refixation of his pay in BS-16 from the specified date. As he was unable to produce any legal authority in support of the denial of the payment of arrears on the following two dates: namely 2.5.1989 and 15.5.1989,the case was fixed for hearing further arguments again on 5.6.1989. On this date the learned Govt, counsel on the basis of information supplied to him by the departmental representatives of the Finance Department and Administrative Department made statement that a reference had been made to the Law Department for its opinion and as such he requested for adjournment in the meantime.
It was on 29.8.1989 that the learned Government counsel produced two documents: namely first, opinion of the Law Department and second, order of the Education Department dated 28.8.1989 revising the impugned order.
This time relying on these two documents, the learned Govt, counsel submitted that the appellant was no longer entitled to the arrears in question. In order to appreciate the latest stand taken by the learned Govt, counsel it may perhaps be advantageous to reproduce the two documents produced by him. As stated above the first document is the Law Department's opinion which reads as under: " Mr. M.A. Hashmi, Librarian on School side has been allowed scale of pay which in fact, as apparent from the Sindh Education Service Pay Revision Rules, was prescribed for the Librarian working on College side and thus the scale given to Mr. M.A. Hashmi was contrary to the said Rules. Since Education Department Notification No. SO(E-V)/6-46/84 dated 14th January, 1987 issued in this behalf, is subjective in nature, it cobld not operate retrospectively. Mr. MA. Hashmi is, therefore, entitled to the said scale from the date of the said notification viz. 14th January, 1987.
It appears that the said Notification has not been acted upon and, therefore, the issuing authority has power to amend, vary and rescind the said Notification whereby the higher grade could be given from 14th January, 1987 considering that the Notification was contrary to the rules and was issued under bona fide mistake. Finance Department's earlier advice contained in its U.O. Of even number dated the lst January, 1987 stands modified to the above extent.The A.D. Is now advised to take action as aforesaid and forward revised sanction for authentication."
It is not denied that the second document (Education Department's order dated 28th August, 1989) by which the impugned order has been revised, was issued in the light of above Law Department's advice. The said revised order reads as under: " No: S.O.(E-IV) 4-23/88: In supersession of this Department's order of even number dated 14.1.1987, sanction is hereby accorded to the fixation of pay of Mr.M.A.Hashmi, Librarian, Government Senior Model School, PECHS? Karachi in BPS-16 viz 1050-80-2250 w.e.f. 14.1.1987 (F.N)."
4. It would appear that the moment the learned Government counsel produced the above two documents and shifted the thrust of his arguments on the basis of the said documents, he clearly admitted his inability to invoke any law, rule or any other legal document in support of that part of the impugned order by which the appellant was denied the benefits of payment of the arrears.
Moreover the revised order dated 28th August, 1989 was purported to have superseded the impugned order dated 14.1.1987. Consequently the issue for our decision was also changed as to whether the impugned order could be modified in the manner and at the stage as it had been done. Before taking up this fresh issue for consideration, we must reiterate that inspite of the fact that the learned Government counsel was given more than enough chance in the shape of repeated adjournments of the case, he was unable to show us any law or rules to justify the denial of the payment of arrears that had accrued to the appellant in consequence of the refixation of his pay in BS-16, as per impugned order.
5. Coming to the issuance of the revised order dated 28th August, 1989, it is clear from its language that it has been issued in supersession of the impugned order. In other words the impugned order issued on 14.1.1987 has completely vanished. It was stated by the learned Government counsel that this action was taken on the advice of the Law Department. We have carefully perused the Law Department's advice reproduced hereinabove. We regret our inability to endorse the wisdom reflected in the said advice. In para 1 of the Law Department's advice it is said that the notification dated 14th January, 1987 (impugned order) is subjective in nature and therefore in the opinion of the Law Department it could not operate retrospectively and as such the appellant (Mr.M.A.
Hashmi) was entitled to the said scale (BS- 16) from the date of said notification viz 14th January, 1987. Of course normally a notification takes effect prospectively i.e. From the date it is issued. But the notification, whereby monetory benefit is allowed to a civil servant from the date it legally accrued to him, is delayed or is not issued at the time of accrual of such benefit can not but be given retrospective effect. This is because the civil servant can not be made to suffer for the lethargy or delay made on the part of the departmental authorities. In the present case, the appellant became entitled to BS-16 as soon as he obtained Diploma in Library science, on 15.12.1973.
If he had been allowed that scale on or near about that date the question of arrears would not have arisen nor would have arisen the question of giving retrospective effect to the impugned notification.
6. The Law Department's advice further goes to show that the impugned "notification has not been acted upon and therefore the issuing authority has power to amend, vary and rescind the said notification, whereby the higher grade could be given from 14th January, 1987, considering that the Notification was contrary to the rules and was issued under bunafide mistake." There is no dispute with the Law Department's view that the authority which has issued the notification has power to amend, very etc. The same. This principle is enunciated by S.20 of the West Pakistan (now Sindh)
General Clauses Act 1956, which reads as under: "20. Power to make to include power to add to, amend, vary or rescind orders, rules or be-laws- Where, by any West Pakistan Act, a power to issue notification, orders, rules, scheme, form or be- laws is conferred, then that power includes a power, exerciseablc in the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind, any notifications, orders, rules, shame, form, byelaws so issued."
The rule contained in the above Section is also known Locus Poenitcntiasde i.e. The power of receding till a decisive step is taken. This principle came up for consideration by the Supreme Court in the case reported as Pakistan-vs-Muhammad Nimayatullah Farukhi (PLD 1969 Supreme Court 407). In that case, the president by his order dated lst October, 1959 fixed the basic salary of Rs.1,000/- per mensem for the respondent Himayatullah Farukhi, which order was subsequently revoked by the President's order dated 26th August, 1962. It was held: "There can hardly be any dispute with the rule as laid down in these cases that apart from provisions of Section 21 of the General Clauses Act (Central 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 existance of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong stop 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 can not be withdrawn or rescinded to the derrikent of these rights................................... The order of the President wasduly communicated to the Ministry of Communications and the respondent and its implementation thus ensured became a part of the terms and conditions of the service of the latter (Himyatullah Farukhi) relating to his remuneration............................. The President's subsequent order was, therefore, void on that basis."
7. It is crystal clear from the above authority that once the order issued by an executive authority has been implemented or acted upon, it can not be interfered with. In the above reported case were communication of the President's earlier order to the Ministry concerned and the respondent was held as its due implementation. So for the appellant's case is concerned, not only the impugned order was communicated to him but also his salary was refixed in the light of that order and he has been enjoying the enhanced pay since then with periodical increases as and when becoming due to him. Thus the impugned notification issued in favour of the appellant has been implemented in toto. His only grievance is that the denial of the benefit of arrears arising from refixation of his pay in higher grade was unjustified and therefore he has come to this Tribunal seeking the relief of payment of arrears to him.
8. Even otherwise the authority concerned had committed no mistake in allowing him higher grade-16 w.e.f. 15.12.1973, so that it became neceassary for that authority to modify the earlier notification of 14th January, 1987 by the subsequent order dated 28th August, 1989. As is clear from the Government notification of 1974 the said higher scale was admissible to these possessing Diploma in Library Science in addition to degree of BA/BSC. In the impugned notification it has been clarified that the appellant was allowed the higher scale w.e.f. 15.12.1973 because he passed Diploma Course in Library Science on that date. Thus the impugned notification was issued in strict compliance of the Government's notification of 1974. Consequently the question of rectifying any wrong committed by issuance of the impugned notification did not arise. As such the later notification dated 28th August, 1989 was uncalled for, void and without any lawful authority. Having arrived at such finding, we hold that the impugned notification is valid and operative. Under this notification since higher scale has been given to the appellant w.e.f. 15.12.1973 he could not be deprived of the arrears that become due to him as result of refixation of his pay in the said higher scale from the said date. Accordingly the appeal is allowed with no order as to costs.