JUDGMENT JUSTICE (RTD.) MUNAWAR ALI KHAN (CHAIRMAN),- This appeal arose from the facts which may briefly be narrated as follows. The appellant Abdul Khaliq joined Directorate of School Education as Oriental Teacher in BPS- 8 vide his appointment order dated 27.11.1976. The post was subsequently upgraded to BPS-9. In 1983, the Finance Department by its letter No. FD(SR- IV)/l-62/75, dated 8th January, 1983, addressed to the Secretary, Education Department, allowed BPS-14 to the Oriental Teachers in BPS-8 with the qualifications specified in the said letter. Four years later, the Education Department, prescribed the qualifications and method of recruitment for appointment to the posts of Oriental Teachers/Arabic Teachers by the notification No. S.O.(E-V)-V-ll/82 (ES), dated 26th March, 1987. In pursuance of the said notification the appellant was awarded BPS-15 vide Directorate of School Education's order dated 23-2-1988. He enjoyed the benefit of the enhanced pay scale until 20-8-1991, when by the office order issued on the said date by the above Directorate, its earlier order dated 23-2-1988 was withdrawn with the direction that the over payment made to/the appellant on account of the higher pay scale-15 be assessed and recovered Dissatisfied with this order, the appellant preferred departmental appeal dated 7.9.1991 which was however rejected, vide intimation sent to him by the Directorate's letter dated 7.3.1992 addressed to the District Education Officer, Distt. East (Male), Karachi. On receipt of this letter the appellant approached this Tribunal by filing the present appeal on 7.4.1992.
2. We heard the arguments of the leamed counsel for the parties and also went through all the documents relevant for disposal of the appeal.
The office order dated 20-8-1991 which initially aggrieved the appellant is reproduced as under: "The orders issued by this Directorate vide No.DSW/Admn-A/4883- 87/87, dated 2-7-1987 and No. DSE/Admn-A/F.75/17740-80/88, dated 23-2-1988 under which Grade 14/15 was awarded to the following Teachers, are hereby withdrawn w.e.f, the date of award on the following grounds:-
(1) Nizamuddin Ex-S.S.T. Of G.B.S.S. Jinnah Square, at present working in Chaman Faiz Alam G.B:S.S. Malir Ex tention Colony, Karachi.
(2) Abdul Khaliq O.T. Govt. Technical High School No. 1, Jacob Lines, Karachi.
(3) Abdul Samad Siddiqui, O.T. G.B.S.S. (FMA) Model Colony, Malir, Karachi.
Grounds.
The Teacher at Sr. No. 1 above is not working in the cadre of O.T. But in the cadre of S.S.T, as pointed out by the A.G. Sindh, Karachi and as per verification of the particulars from the Service Book. He also does not possess the qualification as required for award of Grade-14/15.
The Teachers at Sr. No. 2 and 3 above do not possess the qualification as prescribed by the Govt, vide letter dated 8-1-1983 for award of Grade-14 to O.T.s The necessary recovery of over payment made to the above teachers due to award of O.T.Grade- 14/15, from the date of award to present date may be assessed and recovered from the incumbents as per rules.''
3. As is clear from the above order, the ground for withdrawal of the benefit of the higher scale from the appellant was that he did not possess the qualifications prescribed by the Govt, vide letter dated 8-1-1983 for award of Grade-14 to O.Ts. (Oriental Teachers). It was disclosed in the said letter which was produced as Annexure 'B' of the written statement that BPS-14 was given to the following categories of the Oriental Teachers (BPS-8).
(1) Trained Adeeb Fazil (Sindhi/Urdu) Oriental Teachers possessing qualifications of B.A./B.Sc. With five years experience.
(2) Trained Munshi/Fazil Oriental Teachers possessing qualifications of B A./B.Sc. With five years experience.
(3) Trained Molvi Fazil Oriental Teachers possessing qualifications of B A./B.Sc. With five years experience.
(4) Trained Fazil Darse Nizamia Oriental Teachers possessing qualifications of Intermediate with ten years experience for existing incumbents only).
It is an admitted position that the appellant did not possess the aforesaid qualifications. His appointment order dated 17.11.1976, produced as Annexure 'A' of the Memo of appeal indicated that the appellant was only a matriculate with Fazil Darse Nizamia. Thus he did not have even reduced qualifications stated at No.4 above which were prescribed specially for the existing incumbents.
4. The appellant's learned counsel however contended that despite the Finance Department's letter dated 8-1-1983 mentioned above, the appellant was allowed the benefit of the higher pay scale- 14/15 by officer order issued about five years later on 23-2-1988 and made effective from 26-3- 1987. His further submission was that the said office order was clear in that it took full note of the qualifications he possessed at the time of award of the higher scale. He was also of the view that appellant satisfied the requirements of the clause (f) of the column 5 of the Education Department's notification dated 26-3-1987. The learned counsel reiterated that the appellant's case was covered by the letter notification (dated 26-3-1987) and note by the F. D.'s letter dated 8.1.1983. This his arguments raised a very important question if the Education Department's notification dated 26-3-1987 which prescribed the method and qualifications for appointment to the posts of Oriental and Arabic Teachers was in any way inconsistent with the F. D.'s earlier letter dated 8.1.1983. The departmental representatives who had come to assist the learned Govt, counsel however attempted to convince us that there was no difference between the two documents, though through clerical error, the word Arabic Teacher was not added with oblique after Oriental Teachers in column 2 on page 1 of the Education Department's, notification dated-2(>-3-1987. This clarification was made on behalf of the official respondents even in writing, adding further in the said writing that the qualifications given at clause (a) to (d) in column 5 of the above- said notification applied to Oriental Teachers whereas these mentioned at clauses (e) and (f) were applicable to Arabic Teachers.
We have given our utmost consideration to the above arguments which, in our opinion, carry a lot of weight. The close perusal of column 5 of the Education Department's notification dated 263.1987 would reveal, that the qualifications specified at clauses (a) to (d) thereof are simply word by word reproduction of the qualifications of the Oriental Teachers detailed in the- F. D.'s letter dated 8th January, 1983 whereby the said teachers were allowed BPS-14. Of course besides, these qualifications, the qualifications mentioned at clauses (e) and (f) are shown against the Oriental Teachers in the Education Department's notification dated 26-3-1987 but as pointed out above we were informed that the qualifications given at last two clauses herein above pertained to Arabic Teachers which words owing to typographical/dericai error were not printed side by side with Oriental Teachers with oblique dividing the two.
5. It would be noticed that the words "OTs" (Oriental Teachers) mentioned, in the first four clauses,
(a) to (d), are missing from the last two clauses (e) and (f) raising an irrebuttable presumption that the qualifications mentioned at clauses (e) and (f) did not apply to Oriental Teachers but to some other category of Teachers. On page 2 of the aforesaid notification of the Education Department method of recruitment and qualifications for both Oriental Teachers as well as Arabic Teachers of the category of BPS-9 are specified. This clearly shows that on page 1 of the said notification the method of recruitment and qualifications for both Oriental Teachers and Arabic Teacher falling in category of BPS-14 were intended to be prescribed but some how obviously through clerical error the mentioning of Arabic Teachers side by side with Oriental Teachers missed, seemingly not deliberately but due to oversight. If the intention had been to prescribe the qualifications mentioned at all the six clauses of the said notification only for the Oriental Teachers in BPS-14, the prescribed qualifications for Arabic Teachers of the BPS-14 would have appeared separately at some 'different place. But the .Arabic Teachers in BPS-14 are conspicuously missing from the said notification. This clearly shows that as on page 2, they were to be bracketted with Oriental Teachers even on page 1, the former showing their grouping for BPS-9 and the latter for BPS-14.
6. We have accordingly been convinced from the above discussion that non-mentioning of Arabic Teachers with Oriental Teachers in column 2 on page 1 of the said Education Department's notification was just an innocent omission having occurred on account of the negligence of the staff/officers responsible for preparing and issuing of the said notification. The question would arise how the financial loss resulting from the said omission would be accounted for. It is a settled view of the superior courts that the Govt, would not suffer the financial loss caused by defaults of its officers and staff. In our opinion even the appellant who is a poor teacher should not be made to hear the brunt for the fault not committed by him. It is true he had been enjoying the. Financial benefit of the higher scale not due to him for several years. But it should n6t be overlooked that in these hard days of inflation he must have consumed the whole amount that he received due to enhancement of his scale pay, most probably saving nothing from it. With implementation of the impugned order, on one hand his salary would drop steeply from BPS-15 to BPS-9 and on the other hand he would be. Required to refund the whole amount of over-payment. Obviously this would be very heavy load for him and his family to bear, almost shattering his domestic economy and plunging him in un-told financial difficulties.
7. In view of above discussion while sustaining the impugned order only partly to the extent that from the date of that order the higher pay scale of BPS-15 would stood withdrawn and the appellant would revert to his previous pay-scale he was enjoying before the award of the said higher scale, we direct that the amount due to over payment made to the appellant shall not be recovered from him. Instead the departmental authorities would fix the responsibility for the default made in this behalf and recover the amount of the over payment from the officers/staff found responsible for the same. Accordingly the appeal is partly allowed with no order as to costs.
Given under our hands and the Seal of this Tribunal on this 14th day of October, 1992 at Karachi.