Through this Constitutional petition the petitioner has challenged the order dated 11-2-1999 by which he has been demoted from Grade-17 to Grade-16. He has also challenged the recovery of Rs,1,78,000 which the respondent has paid to the petitioner while he was serving in Grade-17.
2. The brief facts of the case are that the petitioner joined respondent No,1 as Sub-Engineer in PBS-11 on 1-2-1967. As the record of the petitioner throughout his service remained exemplary he was promoted to Grade-16 vide order dated 20-9-1984. He was promoted to Grade-17 w,e,f, 1-12-1990 vide order dated 24-11-1999. The petitioner came to know that the Federal Service Tribunal while deciding the appeal titled as "Arif Rana v. WAPDA" made certain observations and suddenly issued notification dated 11-2-1999 directing to reversion of the petitioner from BPS-17 to BPS-16. The petitioner claims that he was not a party to the proceedings before the Federal Service Tribunal.
The interpretation of the observations of the Federal Service Tribunal to the extent of the petitioner are wrong. The petitioner was issued a notice for the payment of Rs,1,78,000 which according to the respondents had been paid to the petitioner as Grade-17 Officer as he has been demoted hence the excess pay received by him is liable to be recovered from him.
3. Learned counsel for the petitioner contends that the petitioner has been wrongly demoted from Grade-17 to Grade-16 on the decision of Federal Service Tribunal in which the petitioner was not a party and the decision to the extent of the petitioner is not binding. It is further contended that the petitioner has been condemned unheard and the impugned order has been passed in an arbitrary manner by the respondents by which the rights accrued in favour of the petitioner entitles him the work done as an Officer of Grade-17 the demotion is illegal and unlawful. He further contends that the respondents were bound to hear the petitioner before the passing of impugned order. The impugned order has been passed on the back of the petitioner and is hit by the principle of natural justice. It is further contended that the alleged excess amount paid as Grade-17 Officer to the petitioner is not recoverable from the petitioner as he bonafidely received the amount as an Officer in Grade-17 appointed by the respondents themselves and the petitioner who worked for the job in Grade-17 cannot be asked to return the amount paid to him due to his services.
4. On the other learned counsel appearing on behalf of the respondents has opposed this petition on the ground that the writ petition is not maintainable as the matter relates to the terms and conditions of a civil servant and after the induction of section 2-A in the Service Tribunal Act, this Court has no jurisdiction to entertain such like matters and only the Service Tribunal can pass the order regarding the relief claimed in this writ petition. He relied upon judgments reported as Muhammad Hashim v. Government of Punjab and three others (1999 PLC (C.S.) 1340), Syed Afzal Muhammad Farooq v. Secretary, Establishment Division and 2 others (1998 PLC (C.S.) 1175) and Mumtaz All Mangi v. National Bank of Pakistan and others (1995 PLC (C.S.) 119).
5. I have heard the learned counsel for the parties and also perused the documents attached with this petition. As far as preliminary objection of the learned counsel for the respondents regarding the maintainability of this petition is concerned there is no cavil to the proposition that the matter relates to the terms and conditions of service cannot be entertained in writ jurisdiction. The case- law cited by the learned counsel for the respondents applies and the consistent view is that this Court cannot entertain the petition in which appeal under section 4 of the Federal Service Tribunals Act, can be filed. Hence the first prayer of the petitioner challenging his reversion/demotion from Grade-17 to Grade-16 cannot be entertained through this writ petition. To this extent the petition of the petitioner is dismissed. So far as the second prayer of the petitioner impugning the action by which the respondents have called upon the petitioner to pay back an amount of Rs,1,78,000 as an amount received in excess of BPS-16 due to this promotion in Grade-17 is concerned this matter does not relate to the terms and conditions of service and the appeal cannot be filed before the Federal Service Tribunal in this respect, this Court can entertain the writ petition and decide the same. Learned counsel for the respondents has failed to point out any case-law in this respect that the amount paid in Grade-17 to an Officer, subsequently if he demoted can be recovered from the official. Admittedly the petitioner served the department in Grade-17 when he was promoted by the Department itself and he received the payment as per the direct notification of the Department and after the demotion of the petitioner demand for the refund of excess amount is illegal and unlawful which is not recoverable. I am fortified by the judgment of the August Supreme Court reported in Controlling Authority, N.-W.F.P., Board of Technical Education, Peshawar and another v.
Abdul Salam Secretary, N.-W.F.P. (PLD 1993 SC 200). In this case a writ petition was filed which was accepted where a similar question had arisen that whether the payment of excess amount received by a servant in the shape of salary and allowances can be recovered from the civil servant after his demotion. The Supreme Court of Pakistan has held at paged 204-D as under:-- "This appeal, in the light of the foregoing discussion, is allowed and the judgment of the High Court is set aside. However, the learned Additional Advocate-General relying on some of the observations made in the Engineering in-Chief Branch v. Jalal-ud-Din (PLD 1992 SC 207) stated that the direction in the notification impugned before the High Court, for the "refund of the excess amount received by him (the respondent) as pay, and allowances on the basis of the order hereby declared as null and void, shall not be enforced."
' This authority is based on the earlier case decided by the Supreme Court of Pakistan in The Engineer-in-Chief Branch v. Jalal-ud-Din (PLD 1992 SC 207), in which the august Supreme Court has held that the receiving of an amount by the official on a bona fide belief that he was entitled to receive it, the Department was not entitled to recover the amount from the payee during the period when incorrect order remained in the field. The relevant para. Is at 210-D which is as under:-- "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,1,86,000 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."
6. As I have discussed above, the respondents cannot recover the amount paid to the petitioner in Grade-17 when he served the Department in Grade-17 and this amount was paid to the petitioner as his salary for the post for which he had served. As the work done by the petitioner cannot be taken back similarly the amount paid to him for the work done by him cannot be taken back by the Department hence the prayer in this writ petition to the extent of declaring refund of an amount of Rs,1,78,000 as illegal is allowed and the respondents are restrained from recovering the same from the petitioner.
7. .