' MUHAMMAD ILYAS LODHI (MEMBER).---The facts of the case in brief are that the appellant, Gulzar Ali Gul joined as Junior Teacher (B-11) on 1-6-1983 in the Special Education and Social Welfare Division, Ministry of Education, Islamabad. He graduated on 7-6-1989 and granted three advance increments vide order dated 8-1-1990 with effect from 7-6-1989 and continued to draw the same till 30-11-1992. On 10-1-1994 an office order was issued in which it was mentioned that sanction of three advance increments with effect from 7-6-1989 to the appellant on qualifying B.A. Examination is hereby cancelled with retrospective effect, instead the official is sanctioned two advance increments with effect from 1-6-1991 in accordance with the Finance Division's O.M. Dated 29-6- 1991. He filed a departmental appeal to the Secretary, Social Welfare and Special Education Ministry of Education on 1-2-1994 which was not responded to hence this appeal on 30-5-1994.
2. The appellant argued that under the rules valid orders cannot be withdrawn to disadvantage of the individual without notice. He relied on 1981 SCM R 875 wherein it was held that recall of such orders which has created vested rights was not possible even with the reservation of non-recovery of payment. He submitted that he is a trained teacher for blind children and is performing his duties of teaching and the O.M under which his advance increments are withdrawn is applicable to the clerical staff only and is not applicable to the teaching staff. Under Letter No, 5-11/83-A dated 10-4-1994, teachers of Rehabilitation Centres have been allowed three advance increments on acquiring higher qualification. As such some teachers in the same Centres have also been allowed three advance increments and continuously drawing the same which indicate discrimination on the part of the Department. He further argued that the institution in which the appellant is serving has been declared as Educational and Vacational Institution vide Ministry of Health Special Education and Social Welfare letter dated 7-5-1992, accordingly he is entitled for the said increments as has been mentioned in the preceding paras. He prayed that the appeal be accepted.
3. The departmental representative submitted that the appellant was appointed Junior Teacher (B-11) and posted to Rehabilitation Centre' for the blind children Islamabad. The prescribed qualification and experience for the post was FA/FSc. With C.T. And three years experience in the relevant field. In June, 1989 on acquiring B.A. Degree he was granted three advance increments on his application in pursuance of Finance Division's O.M. Dated 18-8-1983. In September 1992 the AGPR, Islamabad vide their letter dated 9-9-1992 had intimated that advance increments allowed under para. 14 of Finance Division O.M. Dated 18-8-1983 to Primary Middle and High School Teachers who possess or acquire higher qualification are not admissible to the Instructors/Teachers posted/appointed in the Institutions under the Directorate General of Special Education. They had also requested that advance increments if allowed to the officials as mentioned above may be disallowed and over-payment on this account be recovered under intimation to that office. He submitted that in the light of this letter the case of the appellant was reviewed and the office order dated 8-1-1990 issued by the Principal Rehabilitation Centre for Blind, Islamabad was cancelled with retrospective effect and instead of that the appellant was granted two advance increments with effect from 1-6-1991 in accordance with the Finance Division's O.M. Dated 29-6-1991 as were actually admissible to him. He prayed that the appeal be dismissed.
' We have heard the parties and examined the record. The contention of the appellant that increments allowed to him was justified as his centre was an Educational/Vacation Institution is wrong. On the contrary the letter quoted by him only declared the Centre as Vacational Department. It has also been established that Rehabilitation Centre for the Blind, Islamabad has multidiamensional functions and runs primary school classes in addition to rehabilitation activities like medical diagnosis and treatment and pre-vocational training and the status of this Centre is that of an attached department of Social Welfare and Special Education Division as mentioned in the Rules of Business. Since the Centre does not fall within the definition of a teaching institution, therefore, the aforesaid Notification of the Finance Division allowing three increments to the teachers is not applicable to its employees. The impugned order allowing him three advance increments was also conditional wherein it was mentioned that if over-payment found at any stage will be recovered from the incumbent under the rules.
5. As regards the claim of the appellant that under maxium of locus poenitentiae and decisions of the High Court and the Supreme Court vested right once accrued cannot be withdrawn by the authority is concerned, this case is not relevant to those cases. The order under the Director allowing him three advance increments was wrong and void as these were issued without consulting the Regulation Wing of the Ministry of Finance. The Principal himself interpreted the spirit of Finance Division's O.M. No F.1(1)./Imp. T, dated 18-8-1983 taking the Centre as Educational Institution and allowed the appellant three advance increments. In the case of Chief Secretary, Government of Sindh v. Sher Muhammad Makhdum PLD 1991 SC 973 relying on the case of PLD 1969 SC 407, it was held by the Honourable Supreme Court that locus poenitentiae is available to the Government or relevant authority and further authority which is competent to make order, has power to rescind it but such order cannot be rescinded or withdrawn once it had taken effect and has created certain rights in favour of an individual . But under the same Principal the authority can rescind the order if it is wrong.
6. Keeping in view the principle held in the cases referred to above we are also of the view that in this case the order is void as such can be withdrawn by the competent Authority under the maxium locus ponitentiae. However, we feel that it should not be having a retrospective effect. We partly accept the appeal and uphold the order of the respondent-department but the arrears should not be recovered from the appellant which have already been given to him. The appeal is disposed of accordingly. No order as to costs. Parties to be informed.
7. NOOR MUHAMMAD MAGSI (MEMBER).---On going through the judgment delivered by learned Member Mr. M Ilyas Lodhi, I find that the only question which falls for determination in this appeal is as to whether the employees of the Institutions under the social welfare and Special Education of the Ministry of Health are entitled to be governed by the Finance Division's O.M. Dated 18-8-1983 in the matters of grant of advance increments to teachers on acquiring higher qualifications or they are to be governed by Finance Division's O.M., dated 29th June, 1991 relating to all the Federal Government employees. It appears that the Directorate General of Special Education had applied the Finance Division's O.M. No, F-1(i)-Imp/83 dated 18-8-1983 to its employees and had granted advance increments on the pattern of teachers of Primary Schools Middle Schools and High Schools under the Ministry of Education but in September, 1992 the AGPR Islamabad raised the objection that the Instructors/Teachers posted/appointed in the Institutions under the Directorate General of Special Education could not be granted advance increments under Finance Division's O.M. Dated 18-8-1983 and that their cases were governed by the Finance Division's O.M. Dated 29- 6-1991 like all other Ministries/Divisions and Departments of the Federal Government.
8. The increments of the appellant were withdrawn on the objection raised by the AGPR Islamabad vide their Letter No, TA II/Audit/Spl. Edu/92-93/145, dated 9-9-1992, but neither the AGPR nor the Finance Division have been impleaded party in this appeal who would have been in a better position to clarify the question involved therein. I am, therefore, of the view that the point involved in this appeal is not only related to the appellant but it is also going to have far reaching effects on the other employees of the Institutions under the Directorate General of Special Education which is admittedly under the Ministry of Health, Special Education and Social Welfare. It is therefore important to decide whether the employees of the Institutions under the Directorate General of Special Education are entitled to be governed by the Finance Division's O.M. Dated 18-8-1983 or the O.M. Dated 29-6-1991 is applicable to them like employees of other Ministry/Divisions and Departments of Federal Government. This question could only be solved by the Finance Division who have issued both the O.Ms. Dated 18-8-1983 and 29-6-1991. But unfortunately neither the AGPR on whose audit objection, the main withdrawal order is based nor the Finance Division, who issued the abovementioned two O.Ms. Are party in this appeal.
9. In the interest of justice and in all fairness to the employees of the Institutions under the Directorate-General of Special Education, I remand the case to the Department with the direction to refer the case to the Ministry of Finance for their advice as to whether the employees of the Institutions under the Directorate General of Special Education are governed by the O.M. Dated 18- 8-1983 or the O.M. Dated 29-6-1991 is applicable to them in the matters of grant of advance increments on acquiring higher qualifications. It is also advisable to consult the Establishment Division in this matter. Since the important question is involved both the Finance Division and the Establishment Division should decide it within minimum possible time so that the agony of the appellant and his colleagues comes to an end and the cases of others employees of similar nature are appropriately decided. After reaching at a final decision, the appellant may also be intimated and in that event, he will be at liberty to agitate his grievance if any after exhausting appropriate departmental remedy. However, the amount already bona fidely received by the appellant, should not be recovered from him in view of PLD 1992 SC 207. The appeal stands disposed of accordingly.
No order for costs. Parties be informed.
' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).--- The facts of this appeal have been narrated by Mr. M.
Ilyas Lodhi, Member and he has dismissed the appeal but ordered that arrears received by the appellant should not be recovered from him. The other learned Member, Mr. Noor Muhammad Magsi did not agree and he is of the view that the AGPR is not the competent Authority to have decided the matter, but it is the Finance Division who issued both the Office Memorandum dated 18-8-1983 and 29-6-1991 but the opinion of the Finance Division has not been obtained, nor that Division was made party in this appeal. I feel that reasons given by Mr. Magsi are cogent and he has rightly ordered the remand of the case to the Finance Division and that the amount paid to the appellant should not be recovered from him. I am, therefore, in full agreement with findings recorded by Mr. Noor Muhammad Magsi, Member, and remand the case to the department in the light of the aforementioned observations.
' ORDER OF THE TRIBUNAL ' By virtue of proviso (a) subsection (2) of section 3-A of the Service Tribunals Act, 1973 the judgment of the Tribunal shall be according to the majority opinion.