' MUHAMMAD AYUB KHAN (MEMBER).---Arguments have been heard and record perused.
2. The appellant while posted as Deputy Director, Livestock and Poultry Development, Northern Areas, Gilgit, was allowed four advance increments which were subsequently withdrawn from him by order, dated 19-4-1994 and as a result of which the over payment to the tune of Rs,59,106 was shown recoverable in the Pay Slip by the Audit Office, Gilgit. Feeling aggrieved therefrom the appellant filed a Service Appeal No,282 (R) of 1995 which was disposed of on 24-9-1995 despite being hotly contested by the then respondents i,e, the Secretary, KANA Division, and the Deputy AGPR, Sub-Office, Gilgit, and the operative part of the judgment reads:-- " ...In these circumstances, we direct respondent No,1, Secretary, KANA Division, Islamabad, that after consulting the Finance Division or the Establishment Division, as they consider fit, consider the departmental appeal and pass proper order within three months and inform the appellant accordingly. It is further directed that in the identical cases, the AGPR is allowing benefit of four advance increments in view of the stay granted by the Civil Court and the excess amount drawn by them is not being deducted, therefore, in the case of the appellant status quo shall be maintained as consented by the parties. With these observations, the appeal is disposed of in the above terms."
3. It appears that the observations made in the judgment, dated 24-9-1995 were not honoured, resultantly the Finance Division vide its letter, dated 27-1-1998 regretted its inability to agree to the proposal contained in Para.5 of the KANA Division's OM NO. NA.II/8/4/95, dated 18-10-1997 and thereafter, the present appeal was filed before this Tribunal on 11-5-1998.
4. It is strange to see that a matter relating to April, 1994 was disposed of by the Tribunal on 24-9- 1995, is being agitated through the present appeal filed on 11-5-1998 and since judgment of the Tribunal the appellant is enjoying the benefit of four advance increments on the basis of similar benefits allowed by the Civil Court of the Northern Area. One wonders that how and under what law Civil Court can assume jurisdiction regarding adjudication of the terms and conditions of a civil servant which falls within the exclusive jurisdiction of the Service Tribunal but despite this ouster of the jurisdiction of the civil Courts and all other Civil forums, including the High Court under Article 212 of the Constitution of the Islamic Republic of Pakistan, stay orders are still mechanically granted and the concerned individuals, including the present appellant, are drawing undue salaries at the costs of Government exchequer.
5. A question arises, is it a justice under the law ? The legal and valid answer would be in "NO". There are many ways for devouring monies, inclusive of Government amounts, by the civil servants.
5-A. It is also astonishing to note that the Finance Division's letter of regret, dated 27-1-1998 was conveyed to the Kashmir Affairs and Northern Areas and SAFRON Division which was further forwarded by the KANA Division to the Chief Secretary, Northern Areas, Gilgit, under its letter, dated 11-3-1998 which was ultimately sent by the Government of Pakistan, Home, Services and GAD and Law Department, Northern Areas, to the Secretary, Food and Agriculture, Northern Areas, Gilgit, by endorsement , dated 20-4-1998 with a copy to the Deputy Director, Livestock and Poultry Development (Dr. Ehsan Ali, now appellant) Northern Areas, Gilgit, for information. All it means that the affairs in the administrative departments/divisions are not promptly conducted for reasons best known to the authorities (and main outstanding) due to inadvertent approach of the public authorities to the affairs of others with the result that uptil now the appellant is enjoying the fruit of status quo reportedly allowed by a Civil Court in the Northern Area. In other words, there is none to look into the basic issues legal and factual in the public interest, inclusive of the interest of State Government Exchequer. Some people are after getting "matter' solved by hook or crook and there is none to conduct real scrutiny which is only possible by imagination.
6. A perusal of the heading of the appeal indicates that the appellant has included six respondents, the first being the Secretary, KANA and SAFRON, the second the Secretary, Establishment Division, third Secretary, Finance Division, fourth. The Section Officer, S&GAD and Law Department, N.A., Gilgit, fifth, the Accountant-General Pakistan Revenue, Islamabad and sixth the Deputy Accountant- General, Pakistan Revenue, Sub-Office, Gilgit. It is to mention that the Deputy Accountant-General Pakistan Revenue, Gilgit as well as the Finance Division have resisted the appeal by filing serious objections whereas the KANA Division have taken the plea that they have got no objection to the waiving of Rs,1,17,584 overpaid to the appellant upto 2-4-1997. "of course, subject to the concurrence of the Finance Division and Establishment Division." ' being an administrative department of the appellant, all departments in the Northern Areas, Gilgit, and the KANA Division should not have stated like that. It is supposed to safeguard the interest of the Government in the capacity of a Government but it appears that it has no independent view and hence placed reliance on the Finance Division.
7. While reverting to the appeal it is stated at Para.1 thereof that the appellant obtained BV. Sc and B.Sc. (Animal Husbandry) degree from the College of Animal Husbandry, Lahore, and joined service as Veterinary Assistant Surgeon in the year 1967 in the Department of Animal Husbandry, Northern Areas, Gilgit, but due to absence of Service Recruitment Rules in the Northern Areas about the Animal Husbandry Department, the service rules then prevalent in the Provincial Governments and the Government of Azad Jammu and Kashmir were followed by the Respondent-Department and it was for the first time that such rules were issued in the Gazette Notification, dated 3-2-1984 whereunder the Service Rules of the Animal Husbandry Department, Northern Areas, were also enacted, copy of which appended to the appeal is Annexure-A. These Rules were framed and enacted but unfortunately there was a gross clerical/typographical error therein for initial appointment against the post of Veterinary Assistant Surgeon/Research Officer/Poultry Development Officer.
8. It is also stated at para.7 of the appeal that respondent No,3, the Finance Division, Islamabad, circulated/issued Office Memo. No,F.1/7/IMP.II/87, dated 1-7-1987 (Copy Annexure-B) and para.6 of which covers the grant of advance increments to the officers possessing higher educational qualification whereas sub-para.(b) thereof states:- "Engineers and doctors shall also be allowed four advance increments in case they possess or acquire post-graduate degrees in their relevant field for which they had not been allowed any qualification pay." ' and in pursuance of which the appellant was also granted four advance increments by respondent No,6, i,e, the Deputy Accountant-General Pakistan Revenue, Sub-Office, Gilgit, but, on 20-11-1993, he (respondent No,6) issued a letter with a direction that the Rules may be got revised by the competent Authority failing which the entire over-paid amounts as advance increments will be recovered, (copy of the letter, dated 20-11-1993 is available at Page 21, Annexure-C), and respondent No,1 i,e,, the Secretary Kashmir Affairs and Northern Areas and SAFRON Division, Islamabad, pursuant to the request of the appellant and others and for removal of the anomaly, was approached to amend the Rules and accordingly a notification, dated 2-4-1994 was issued by him in this respect vide Annexure "D" but despite this the Deputy Accountant-General Pakistan Revenue, Northern Areas (respondent No,6) opined that the notification was prospective in nature and not retrospective resultantly the appellant shall have to refund the overpaid amount which is further supported by the order, dated 19-4-1994 contained in the Salary Slip of the appellant vide copy at Annexure D/I.
' Feeling aggrieved therefrom he preferred a departmental appeal on 11-4-1995 (copy Annexure-E) but the same remained unresponded hence after waiting for the statutory period of 90 days, the appellant filed a Service Appeal No,282(R) of 1995 before this Tribunal on 18-7-1995 wherein the order, dated 24-9-1995 (reproduced above in Para.2) was passed.
9. The appellant has placed reliance on this judgment. The matter remained under correspondence for about 2/1-2 years and could not be solved in its true perspective in yielding fruitful result due to the resisting approach by respondent No,3, i,e, the Finance Division. The grounds agitated in this appeal are that:--
(i) the impugned order is against the law;
(ii) the respondents acted illegally and with material irregularity in rescinding/modifying the earlier order of grant of four advance increments to the appellant;
(iii) the impugned order has taken due effect and could not be revoked under section 21 of the General Clauses Act, 1897, as well as the principle of locus poenitentiae as enunciated by the Honourable Supreme Court of Pakistan in PLD 1969. SC 407; 1997 SCMR 15; 1991 SCMR 2330 and 1995 PLC (C.S.) 1090.
10. A careful perusal of the record, inclusive of documents, dated 19-4-1994 (Annexure-D/1) i,e, the impugned order, indicates that the appellant was allowed over-payment with effect from 1-7-1987 to 28-2-1994 without having any valid base in the form of existence of rules by the competent Authority. Why it was done? The answer appears to be nothing but an urge for getting illegal receipt of advance increments in connivance with the officials concerned either of the Audit Office or of the Northern Areas working under the KANA Division. No doubt there existed rules of advance increments in the Government of Azad Jammu and Kashmir as well as the Punjab Government but these were not the rules to be made applicable to the appellant although the copies of these rules are available on the file. The matter, when got divulged and surfaced the file, is not supported by any documents/complaint except the impugned order (copy Annexure-D/1) vide which the Audit Office, Gilgit, appointed out the recovery. In this respect the departmental appeal, dated 11-4-1995 preferred by the appellant and available at Annexure-E (Pages 25 and 26) explains the whole position which means that he was drawing the advance increments not on the basis of any valid notification/order of the competent authority but he was being allowed this facility without any basis by the Office of the Deputy Accountant-General Pakistan Revenue, Gilgit, who had ultimately threatened the appellant to get the matter regularized by enactment/change of the rules concerned otherwise failing which the: "paid amount will be recovered." ' vide letter contained in No,CAD/AH/Misc./92-93/1608-33, dated 9-11-1993 (copy available at page 21 of the file). In this respect the objections filed by respondent No,3, i,e,, the Finance Division, fully go against the appellant, relevant portion of which reads:- " In terms of Para.6(b) to the Finance Division's OM No,F1(7)IMP.II/87, dated 1-7-1987 four advance increments were allowed to the Doctor and Engineers on possession/acquiring higher qualification for which they have not been allowed any qualification pay.
' Therefore, Dr. Ehsan Ali was not entitled to the grant of four advance increments w,e,f,, 1-7-1987 as he did not possess higher qualification than the prescribed qualification in the relevant recruitment rules which was M.Sc. Degree. The Recruitment Rules were revised w.e.f 2-4-1994 and the prescribed qualification for the said post was reduced from M.Sc. To B.V.Sc./B.Sc. Therefore, the advance increments drawn by Dr. Ehsan Ali prior to 2-4-1994 were irregular and the action taken by the AGPR, Sub-Office, Gilgit regarding recovery of the amount paid to him prior to 2-4-1994 was in order."
11. Now coming to the arguments that as the appellant was paid the advance increments since long and is drawing uptil now, thus, under the principle of locus poenitentiae he has acquired a vested right for their drawal and continuance and in this respect placed reliance on the authorities referred to above. No doubt the principle of locus poenitentiae holds good conditionally in certain matters. It is not absolute. The Honourable Supreme Court of Pakistan has held in the case reported as PLD 1992 SC 207 that:-- 'an order which was basically wrong and, incorrect having been already acted upon would not be applicable; likewise under section 21 of the General Clauses Act, 1987, an authority competent to pass an order is also authorised/entitled to vary/amend or rescined it. The principle of locus poenitentie has also been explained/clarified that it is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and cannot be considered/deemed as a closed transaction.'
' No doubt this authority also explains that in certain matters recovery of financial benefits already pocketed by an incumbent cannot be straightaway recovered from him provided the amount was received by him bona fide. In view of the peculiar background and facts of the instant case the huge amount so received by the appellant in an obscure background cannot be construed to have been received by him in good faith. The file does not disclose the background under which this over-payment was made to him. However, one fact stands as crystal clear that payment of such amount is not ordinarily allowed by the authorities concerned without "secret deal" in which the major role/initiative comes on the part of the recipient of the benefit who is always an active party taking the initiative whereas the second party plays a passive role when greased specially in the " absence of any solid base/ground (lack of rules and regulations) "Auditwalas are very much strict in their scrutiny but the appellant appears to have won over its "sympathy".
12. Secondly the appellant agitated and placed reliance on precedent cases wherein certain incumbents were allowed this facility on the basis of the judgments of the Civil Courts, Northern Areas, Gilgit, which was also made a base for judgment, dated 24-9-1995 vide which the appellant was granted status quo which entitles him to the drawal of four dvance increments right from 1-7- 1987 till date. There was no legal justification for basing the payment of the advance increments on the judgments of a Civil Court of the Northern Areas, Gilgit, for the obvious reason that Article 212 of the Constitution of the Islamic Republic of Pakistan bars jurisdiction of all civil forums, including the High Courts. As the appellant was determined to enjoy the facility he did succeed in doing so uptil now and as such he appears to have grossly misused the rules and regulations and simultaneously the powers of the authorities, including this Tribunal as per the judgment referred to above. In fact, correct order/judgment/precedent needs to be followed and honoured and into a wrong order/precedent needs to be acted upon. In this a secret the following tradition of the Holy Prophet (p.b.u.h.), appears most relevant:-- {{ARABIC TEXT}} {{URDU TEXT}} ' The active pursuit of the facility by the appellant right from 1991 uptil date indicates his mala fide to get undue benefit. In financial/account matters all errors and omissions are excepted. If the matter is considered leniently, as has been done in the instant case, the financial administration will be shaken and placed at the mercy of the opportunists as it has become an order of the day.
There is none to take care of the Government Exchequer, as required, and to get benefit like that amounts to corruption further entailing disorderliness in the society-determintal to the public as well as the State interest. Law and financial discipline must prevail in each and every department/organization strictly in spirit of the golden principle of Islam and law of the land. There are a large number of authorities available in the subject but it is not considered advisable to refer to these authorities specially when the case calls for no ambiguity, the appellant having no solid ground to stand upon.
13. Pursuant to the aforesaid discussion, this appeal fails and is hereby dismissed with costs and the proposed recovery be effected from him in toto but by easy instalments through which he drew the same. Copies of this judgment shall be sent to the parties and the Ministry of Law and Justice Division, Islamabad.