' Rana Muhammad Shafi, the petitioner in this case, was a Chowkidar for the Cycle Stand in the Office of Chief Engineer Irrigation, Bahawalpur Road, Multan. He was recruited as Chowkidar in the year 1972 at a time when he was an Ex-Army personnel having been retired from there. On 18-9- 1997 he received a letter from the Irrigation Department informing him that he had been retired from service with effect from 25-9-1996. He was further told that he shall have to refund the salary from 26-9-1996 to 31-8-1997 because he had been working beyond the age of superannuation.
According to him, this calculation was incorrect. That if any statement with respect to his age is being attributed to him, he was not aware of it because being an illiterate person he did not know as to when he attained the age of 60 years. That it was for the department to have found out the date and time of his retirement and should have retired him at the exact time instead of making him work for a year and retiring him retrospectively while also asking him to refund the amount of salary he had received for the work he had performed for the period under reference.
2. He, therefore, made a petition to the Chief Engineer Irrigation asking him not to make deduction from his salary dues as he had performed the work for a year as a Chowkidar with the department without any objection.
3. Parawise comments in this case were called and the Chief Engineer advanced the plea that since 60 years was the age of superannuation, no one could be employed thereafter on a regular basis nor paid salary after such an age and as the petitioner had received his salary beyond the age of superannuation, the amount of money so received by him became refundable. It was further said that although the petitioner was illiterate, he was a sensible enough and that in one of his application he stated his date of birth as 1941, whereas in the Service Book it was recorded as 1936.
4. That the petitioner was given a chance to produce his date of birth from the military record for purposes of establishing his correct age but this he has been unable to provide, therefore, the department was justified in the deduction of Rs,31,598.43 from his salary dues for the period from 26-9-1996 to 31-8-1997. It was, however, said that he was entitled to pension and gratuity with effect from 26-9-1996 which was being paid to him.
5. The service record of the petitioner was called and was seen. In File No,768 of 1969 at page 3 one finds a handwritten note pertaining to the recruitment of the petitioner. The note also reflects his age as on 9-10-1972 at the time when the note was scribed and it says while keeping in view his past service that he was of 22 years, 8 months and 16 days on 5-6-1959. While calculating the age on the basis of this information, it comes to 22 years, 8 months and 16 days on 5-6-1959 and 36 years and 16 days on 9-10-1972.
6. It is, therefore, apparent that the record of the department itself reflects a certain age at the time of the start of the service of the petitioner. The department while retiring him, used this date for calculating or arriving at his date of superannuation with effect from 25-9-1996 (A.N.) and had declared that his date of birth was 26-9-1936.
7. When this date was available with the department, action ought to have been taken against the petitioner on 25-9-1996 or close by this date.
8. It is correct that the petitioner in some of his applications had been mentioning his year of birth as 1941. But the department ought to have taken care while keeping in view its own record and the note at the time of the recruitment where a certain age had been mentioned. In case there was any doubt about it, this should have been removed before 25-9-1996.
9. Because of the availability of this information at the time of recruitment with respect to the age of the petitioner, the department cannot attribute any mala fides to the petitioner for suppression of the true age. In fact, there was no need of asking the petitioner about his age when it was already available on the record.
10. In this case, the petitioner has worked with the department as a Chowkidar. In fact he was allowed to work because timely action was not taken against him and the record of the department was not consulted for his retirement orders and this was done a year later when he had already been paid the salary for the work he had performed during this period.
11. There appears to be no mala fide on the part of the petitioner or cleverness on his part in this connection except that he made some ' applications subsequently mentioning his year of birth as 1941. It was because he was trying to fight the departmental order against deduction of his salary dues.
12. This Court is of the view that the department is now estopped through its own conduct in making deductions from the dues of the past salary already paid for the work he has performed.
This Court is fortified in I its views by the dictum laid down in the case of Engineer-in-Chief v. Jalal- ud-Din PLD 1992 SC 207, and the relevant portion of which is reproduced below in extenso:-- "It is, therefore, clear that the Tribunal has also not disputed the contention of the appellant that respondent was not entitled to be fixed in Grade-II of National Pay Scale. The principle of locus poenitentiae was invoked by the learned Tribunal in aid of the respondent. Having gone through the facts of the case, we have come to the conclusion that this principle is not attracted in the present case. Additionally, under section 21 of the General Clauses Act, the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order. The order under which the payment was made to the respondent had no sanction of law. Locus poenitentiae is the power of receding till decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is 'past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The appellants when came to know that on the basis of incorrect letter, the respondent was granted Grade-II, they withdrew the said letter. The principle of locus poenitentiae would not apply in this case. However, as the respondent had received the amount on the bona fide belief, the appellant is not entitled to recover the amount drawn by the respondent during the period when the latter remained in the field. Learned counsel for the appellants had submitted that the appellants had drawn Rs, 12,890.86 (Rupees twelve thousand, eight hundred, ninety and paisa eighty-six only) during this period but the Engineer-in-Chief had directed the recovery of Rs,1,860 only (Rupees one thousand, eight hundred, sixty and paisa nil only). We consider that as far as the recovery of the amount in question is concerned, the principle of locus poenitentiae would be applicable and the appellants are not entitled to recover the amount. The appellants have themselves taken a liberal view and the recovery of only 12 months is being made."
13. Under the circumstances, the Order bearing No,AI/97/ 19398/430/76, dated 18th of September, 1997, issued by the Administrative Officer Irrigation, Multan Zone, Multan, to the extent that it relates to the deduction of the amount already paid as salary to the petitioner is declared to be of non- consequence. The writ petition is, thus, accepted to the extent with no order as to costs.