' ROSHAN ALI MANGI (MEMBER).---The relevant facts of this appeal, for its disposal are, that, the appellant, Shahid Masood Nadeem was initially appointed as Draftsman (b) in BPS-7, and later on placed in BPS-11 with effect from 31-5-1983. Since then he was being paid pay and the allowances till 31-10-1995, when respondent No, 1 vide Memo. Of 11/95 asked respondent No, 3 to make payment of pay and allowances to the appellant in B-7 instead of B-11 with effect from 31-5-1983 the date on which he was placed in (B-11) and recover a sum of Rs,62,555 overpaid to him for the period 31-5- 19g3 to 31-10-1995. This was done on the ground that the recruitment rules as contained in SRO- 7(KE)86, dated 23-11-1986 and notified in the Gazette of Pakistan had not been approved by the Finance Division (Regulations).
2. Aggrieved by this, the appellant preferred departmental appeal to the respondent No, 4 through proper channel on 27-11-1995 despite expiry of statutory period of 90 days, the appellant did not get any response. Hence he has filed the present appeal before the Tribunal with the prayer to accept his appeal, and respondents Nos. 1 and 2 be directed to restore the pay and allowance of the appellant from BPS-7 td BPS-11 from 31-5-1983 and the recovery of Rs,62,555 be ordered to be stopped.
3. Pleading the case of the appellant, the learned counsel submitted that he was regularly placed in BPS-11 in pursuance of the Government orders contained (Gazette of Pakistan) S.R.O.-7(KE)86, dated 23-1-1986 and as such the placement of the appellant in the enhanced scale attained finality because he had been paid in BPS-11 for the last 12 long years. It was argued if at all approval to the placement of the appellant from B-7 to B-11 was to be given by the Finance Division (Regulation Wing), it was for the appointing Authority to obtain the same either prior to issuance of the aforesaid notification or subsequently thereafter.
4. At that belated stage ordering huge recovery of Rs,62,555 from the pay of the appellant would lead to the starvation of his family for no fault of his.
5. It was submitted that higher Courts held that the benefit once granted to an incumbent cannot be withdrawn. In an identical case the Tribunal has already allowed BPS-17 instead of BPS-16 to Storekeeper of the same department.
6. The comments have also been filed on behalf of the respondents wherein it has been admitted that the appellant was appointed as Draftsman (B) in BPS-7 by the E-in-C G.H.Q. Vide letter dated 31-3-1983. His pay was accordingly fixed in that grade. On receipt of Gazette Notification SRO- 7(KE)86, dated 23-1-1986 the pay of the appellant as well as other Draftsmen class "B" was fixed in enhanced scale i,e, BPS-11.
7. However, the aforementioned notification was objected to on the grounds that it was not approved by the Finance Division (Regulations Wing). Subsequently the appellant's pay was revised and refaxed in BPS-7 with effect from 31-5-1983 (i,e, the date he was placed in BPS-11), and the recovery of the overpayment paid started at Rs,100 p.m., counting from 10 of 1990 and recovery effected up to 12 of 1991. The pay of the individual was again claimed in BPS-11 instead of BPS-7 by the executive authorities with effect from 1 of 1992 which was admitted in audit inadvertently and continued to be paid till 31-10-1995. On pointing out the discrepancy by one Ihsan-ul-Haq Draftsman "A", the pay of the appellant as Draftsman "B" was corrected and recovery of overpayment viz. Rs,62,555 calculated and started Rs,500 p.m. Froth his bill for 11 of 1995.
8. It has been submitted that the Federal Service Tribunal has also confirmed in their judgment in Appeal No, 15(L) of 1993 filed by Mr. Abdul Aziz, Senior Administrative Officer passed on 1-9-1993 and in Appeal No,143(R) of 1994 filed by Mr. Muhammad Ashraf, Senior Administrative Officer passed on 12-5-1994, that it is the Finance Division alone who can after getting approval from the competent Authority to up-grade the post.
9. It has further been contended that the appellant's pay was revised from B-11 to B-7 with effect from 9 of 1990 and recovery of over-payment started with effect from 10 of 1990 and regularly effected through pay bills up to 12/91. Again the pay of the appellant was inadvertently admitted in audit. However, on pointing out by one Mr. Ihsan-ul-Haq, Draftsman 'A' the pay of the appellant again was revised and amount due for recovery viz. Rs,62,555 intimated to GE(Air) Lahore for necessary action vide letter dated 7-11-1995.
10. It has been argued that the appellant was not regularly placed in B-11. His fixation of pay in B-11 was carried out after issuance of Gazette Notification dated 23-1-1986 and was revised in B-7 when it transpired that SRO-7(KE)86 was not approved by the Finance Divisions (Regulation Wing). Since the approval from the Finance. Division for the aforesaid Notification could not be obtained by the E-in-C, as such operation of the said Gazette Notification was considered null and void.
11. Under the circumstances the pay of individuals whose pay scales were upgraded vide aforesaid S.R.O., was revised in their original scales and recovery of overpayment also made as such it was stressed, the appellant cannot be exempted from such an action.
12. We have heard both the parties at length and have also gone through the documents before us.
The perusal of the documents reveal that there was neither formal document, to have placed the appellant regularly in BPS-11 nor there was any formal letter to reverse him back to BPS-7. It appears that not only the category of Draftsman were upgraded and placed in higher grades vide aforesaid S.R.O. Notified in the Gazette of Pakistan but the other categories were upgraded probably on the expectation that the Finance Division would approve their proposal of upgrading the various categories. However it did not. Resultantly the categories including the one of the appellants who were placed in higher grades were reverted back to their original scales. The formal order either upgrading the post of the appellant from B-7 to B-11 or reverting him back from B-11 to B-7 was not in the field either earlier or later on when it failed to obtain the approval of the Finance Division. Since there was no formal order in the field in either case, it has therefore, not created the vested right of the appellant, in our opinion. Of course, the department had erred in shaping over the matter since a long period. They should have pursued the case with Finance for its early decision. The representative of the department admitted frankly that the department was at fault.
13. Whatever the position, the learned counsel for the respondent argued that authority which allowed any financial benefits wrongly could also withdraw it. He asserted that the authority to upgrade the posts is vested in the Finance Division without whose approval no post can be upgraded. In the case of the present appellant such an approval was not obtained prior to upgrading the post of the appellant. He was not the one, in whose case the post was upgraded but there were so many others. Besides this other categories as well were included in the aforementioned S.R.O. Which was notified. However, failing to obtain the approval of Finance Division the scales upgraded of the various categories were reverted back to their original scales and the overpayment made on that account recovered from them.
14. The learned counsel laid a stress on fact that no post can be upgraded without the prior approval of the Finance Division and it is the final authority and we have no reason to differ from him. This has been confirmed by Federal Service Tribunal in their judgment in Appeal No,15(L) of 1993 filed by Mr. Abdul Aziz, Senior Administrative Officer passed on 1-1-1993 and in Appeal No, 143(R) of 1994 filed by Mr. Muhammad Ashraf, Senior Administrative Officer passed on 2-5-1994 i,e, it is the Finance Division alone who can after getting approval from the competent Authority to upgrade the post.
15. Since the higher scale allowed to others were also reverted back to their original one and recoveries made on that account, under the circumstances we are unable to accept the prayer of the appellant especially when he was placed in BPS-11 without prior approval of the Finance Division who is the sole competent Authority for that.
16. For the reasons recorded above the appeal having no substance is dismissed with no order as to cost.
17. Parties are informed.