MUHAMMAD NASEEM CHAUDHRI, J.---This Infra-Court Appeal is directed against the judgment dated 11-4-1995 passed by a learned Single Judge of this Court who accepted the petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 calling in question the order dated 17-6-1991 whereby the advance increments earlier granted to the respondent were ordered to be withdrawn.
2. The brief facts giving rise to this Intra-Court Appeal are that Khadim Hussain respondent had the qualification of a Dispenser which he obtained after passing his Matriculation Examination. He was employed as a Dispenser by the appellant on 30-8-1975. He completed the probation period. He is in service. Vide Notification No. F.D.P.C. 2-1/87, dated 27-7-1987 the Punjab Government revised the Pay Scales declaring in that all the officials in basic Pay Scales Nos. l to 15 would be entitled to have an advance increment for possessing or acquiring higher educational qualification (at least in second division) over and above the minimum qualification prescribed in the relevant rules for recruitment to the post held, by them. During the year 1991 an amendment was made in the Notification whereby the condition of obtaining higher qualification in second division was waived and rather to increments were directed to be paid to the employees who possessed or acquired higher qualifications. The respondent passed his F.Sc. Examination who was declared for the advance increment vide order No.325, dated 6-10-1987. The respondent continued to receive the abovesaid increments till 17-6-1991 when the same were stopped vide order of even date on the ground that F.Sc./F.A. Could not be considered as higher qualification for the post of a Dispenser.
Thereafter, the respondent filed the writ petition for the proposed relief that the order dated 17-6- 1991 withdrawing the increments be declared to be without jurisdiction and having been passed without lawful authority and that appellant No.2 i.e. The Director Social Security, Multan may be directed to pay him the advance increments from the date of its withdrawal. The said petition was resisted by the appellants who took up the plea that the respondent was not a permanent employee who could not file the Constitutional petition without invoking departmental remedy. It was added that F.A./F.Sc. Was not a higher qualification for the relevant post as the post of a Dispenser was technical/professional and higher qualification, if any, should have been obtained in the same field.
3. After hearing the parties the learned Single Judge gave his view that a bare reading of clause (6) of sub-clause (i) of the relevant Notification would show that the words used therein possessing or acquiring higher educational qualification meaning thereby that the person seeking benefit of advance increment should be either possessed of or have acquired higher educational qualification and that the words educational qualification means academic qualification and not technical education. The learned Single Judge referred to the principle of locus poenitentiae and held that appellant No. l having awarded the advance increment to the respondent could not be allowed to retrace their steps so as to withdraw the same particularly when a right had been accrued in his favour. The writ petition was accepted. Hence this appeal.
4. We have heard the learned counsel for the parties and gone through the record before us. Before proceeding further it would be convenient to re--produce as under the relevant portion of the Notification:- GRANT OF ADVANCE INCREMENTS TO OFFICIALS POSSESSING/ACQUIRING HIGHER EDUCATIONAL QUALIFICATIONS:
(i) Advance increments shall be allowed to the officials in BPS-1 to 15 for possession or acquiring higher educational qualifications (at least in 2nd division), over and above the minimum qualification prescribed in the relevant rules for recruitment to the posts held by them, to the extent given below:-- Number of advance increments for obtaining: Matric F A /H Sc B.A./B.Sc. M.A./M.Sc
(i) Where the prescribed qualification is Non-Matric1111
(ii) Where the prescribed qualification is Matric. Nil111
(iii) Where the prescribed qualification is F.A./F.Sc.NilNil11
(iv) Where the prescribed qualification is B.A.B.Sc.NilNilNil1
(ii) If an employee is in receipt of, or is entitled to, advance increments under any other rules or orders in force for the the being, he shall be entitled to draw advance increments sanctioned in this letter, or the advance increment admissible under other rules or orders, whichever may be more beneficial to him.
(i.e) Engineers and doctors holding posts the minimum prescribed qualification for which is lower than a post-graduate degree shall be allowed four advance increments in case they possess or acquire a post-graduate degree in their relevant field for which they have not been allowed any qualification pay/allowance or advance increments.
(iv) The advance increment/increments shall be allowed at the the of recruitment or acquiring higher qualification during ser4ice whichever is later. In cases where the employee is already at the maximum of his pay scale or reaches the maximum by grant of advance increments less than the entitlement, he would be allowed the requisite number of increments or shortfall thereof, as the case may be as personal pay to be absorbed on moving over/promotion to higher pay scale.
5. After hearing the parties we hold a-different view. It was admitted that a Matriculate cannot be employed as a Dispenser which means that the qualification of the respondent is the holder of a diploma of Dispenser Course and not only a Matriculate. It was admitted that the initial grade of a Dispenser is BS-6 while that of a civil servant recruited as a Matriculate is BS-5. This aspect of the matter has made us to express that the higher qualification has already been take into account by the employer. Had the respondent been given BS-5 at the the of his recruitment, he would have been entitled to take benefit of the aforesaid relevant provision of the Notification. Thus, in this case the Basic Scales 1 to 15 are simply irrelevant. Khadim Hussain respondent is not having the qualification of Matric. He is having the qualification of a diploma-holder in Dispenser Course. He has not enhanced his qualification and rather the persons of his qualification are not included in the said Notification dated 27-7-1987.
6. In our view in the light of the law laid down in the Engineer-in-Chief Branch through Ministry of Defence, Rawalpiadi and another v. Jalaluddin PLD 1992 Supreme Court 207-the principle of locus poenitentiae would not be applicable when the order in question was incorrect. In this ruling section 21 of the General Clauses Act was also referred to according to which the authority which can pass the order can vary, amend, alter or rescind that order. It has been held in this ruling that on the basis of the principle of locus poenitentiae it is not a principle of law that the order once passed becomes irrevocable and past and closed transaction.
7. The net result is that on the basis of the Notification referred to above the respondent was not entitled to the advance increment and that the order dated 17-6-1991 is held to be valid and operative. Consequently we accept this appeal, set aside the impugned judgment dated 11-4-1995 passed by the learned Single Judge and dismiss the writ petition.