Term locus poenitintia...
2003 SCMR 410
(a) Constitution of Pakistan (1973)‑‑
‑‑‑‑Art. 212(3)‑‑‑Finance Division DM No. F.1(1)‑Imp‑1/77 dated 28‑4‑1977‑‑‑Withholding of increments of civil servant‑‑‑Five advance increments were allowed to the civil servant in terms of letter of appointment issued by the Authority‑‑‑Department, on the objection raised by the Audit Officer, stopped the said increments and before the implementation of appointment letter civil servant was informed that five advance increments could not be given because the same had not been allowed in accordance with the rules and general policy of the Government‑‑‑Civil servant challenged. such order of the Authority before Service Tribunal which was accepted in his favour‑‑‑Validity‑‑‑Petitioner (Department) sought leave to appeal against the order of Service Tribunal on the ground that the principle of locus poenitentiae was not applicable in the case of civil servant inasmuch as the said principle could not be pressed in service for overriding a law; that the Service Tribunal had wrongly construed that it was the Audit Officer, who ordered the stoppage of increments, but in fact the same had been allowed in violation of the Rules and the policy framed by the Government; that it was obligatory on the Service Tribunal to consider as to whether the appeal tiled by the civil servant was not barred by time because his representation against the stoppage of the increments had been rejected way back in 1988 and, therefore, the appeal filed after eight years against the said order was not maintainable; that even the representation made against the stoppage of increments was barred by time because the increments were stopped in 1982 while the representation was made in 1988‑‑‑Leave to appeal was granted by the Supreme Court to consider the contentions raised in support of the petition.
(b) Civil service‑‑‑
‑‑‑‑ Advance increments, withholding of‑‑‑Locus poenitentiae, principle of‑‑ Applicability‑‑‑Five advance increments were allowed to the civil servant in terms of letter of appointment issued by the Authority‑‑‑Decision regarding stoppage of five advance increments was made by the Competent Authority which was communicated to the appointee after the issuance of appointment letter‑‑‑Payment of such five advance increments was never made to the civil servant due to its stoppage/cancellation on account of Government Policy and relevant Rules‑‑‑Contention of the civil servant was that five advance increments were included in the pay bills and, therefore, a legal right had accrued in his favour which could not have been infringed for the reason that same was never incorporated in the salary slip and preparation of bills simpliciter by the civil servant himself would not amount to creation of a legal right‑ r Validity‑‑‑Held, a legal right was such right which was recognizable and enforceable at law and on the basis of pay bills duly prepared by the civil servant himself it could not be inferred that any legal right had accrued in his favour‑‑‑Condition concerning five advance increments contained in the appointment letter in fact was never implemented‑‑‑Principle of locus poenitentiae hardly rendered any assistance to the case of civil servant in circumstances‑‑‑Principle of locus poenitentiae was available to the Government or relevant Authorities and further Authority which was competent to make order had power to undo it, but such order could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of any individual.
Pakistan v. Muhammad Himayatullah PLD 1969 SC 407; Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973; Aman‑ul‑Haq v. P.P.S.C. PLD 1989 Lah. 196; Government of Sindh v. Niaz Ahmad 1991 SCMR 2293; Muhammad Nawaz v. Federation of Pakistan 1992 SCMR 1420; Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Adreshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Chairman, Selection Committee v. Wasif Zamir Ahmad 1997 SCMR 15 and Engineer‑in‑Chief Branch v. Jalaluddin PLD 1992 SC 207 ref.
(c) Locus poenitentiae, principle of‑‑‑
‑‑‑‑Applicability‑‑‑ Principle of locus poenitentiae was available to the Government or relevant Authorities and further Authority which was competent to make order had power to undo it, but such order could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of any individual.
Pakistan v. Muhammad Himayatullah PLD 1969 SC 407; Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973; Aman‑ul‑Haq v. P.P.S.C. PLD 1989 Lah. 196; Government of Sindh v. Niaz Ahmad 1991 SCMR 2293; Muhammad Nawaz v. Federation of Pakistan 1992 SCMR 1420; Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Adreshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Chairman, Selection Committee v. Wasif Zamir Ahmad 1997 SCMR 15 and Engineer‑in‑Chief Branch v. Jalaluddin PLD 19.92 SC 207 ref.
Raja Muhammad Irshad, Deputy Attorney‑General and Mehr Khan Malik, Advocate‑on‑Record for Appellant.
Ibadur Rehman Lodhi, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent.
Date of hearing: 14th November, 2002.
JUDGMENT
JAVED IQBAL, J.‑‑‑This appeal with leave of the Court is directed against the judgment dated 17‑7‑1996 passed by learned Federal Service Tribunal, Islamabad (hereinafter referred to as the Service Tribunal) whereby appeal preferred on behalf of Muhammad Abdul Latif (respondent) has been accepted and five advance increments were restored in his favour w.e.f. 7‑3‑1982 i.e. the date of his appointment.
2. Leave to appeal was granted by means of order dated 15‑1‑1998 which is reproduced hereinbelow to appreciate the legal and factual aspects of the controversy:‑‑
The Director‑General Ordnance Services, GHQ, Rawalpindi and 2 others, petitioners, seek leave to appeal against the judgment and order dated 17‑7‑1996 delivered by the Federal Service Tribunal whereby appeal filed by the respondent against the withholding of the increment was allowed.
2.The facts in brief are that respondent Muhammad Abdul Latif was appointed as Civil Medical Practitioner in the Central Ordnance Depot on 7‑3‑1982 against an existing vacancy in BPS‑17. At the time of the appointment five advance increments were also allowed to him in terms of tire letter of appointment issued by the GHQ, Rawalpindi. Subsequently on 31‑5‑1982 on the objection raised by the Audit Officer in the Controller Military Accounts Department, these increments were stopped because the same had not been allowed in accordance with the rules and the general policy of the Government. On 24‑7‑1984 and 24‑11‑1988 the respondent made representations against the said order, which were considered but were turned down on the ground that the same were barred by time vide order dated 26‑7‑1997. It may be stated here that in the meanwhile the petitioner earned adverse remarks in his Annual Confidential Report for the year 1990 against which representation was made by the respondent, but the same was also rejected. On 18‑2‑1996 the respondent preferred an appeal before the Federal Service Tribunal and vide judgment impugned dated 17‑7‑1996 the petitioners were directed that the respondent should be given five advance increments with effect from the date on which the same were withheld. However, his plea for the expunction of the adverse remarks in the ACR was turned down.
3.The petitioners now seek leave to appeal against the said order on the ground that the principle of locus poenitentiae was not applicable in the case of the respondent inasmuch as the said principle cannot be pressed into service for overriding a law. It is contended that the Tribunal has wrongly construed that it was the Audit Officer, who ordered the stoppage of increments, but in fact the same had been allowed in violation of the Rules and the policy framed by the Government. It is further contended on behalf of the petitioners that it was obligatory on the Service Tribunal to consider as to whether the appeal tiled by the respondent was not barred by time because his representation against the stoppage of the increments had been rejected way back in 1988, and therefore, the appeal filed after eight years against the said order was not maintainable. Furthermore, it was also contended that even the representation made against the stoppage of increments was barred by time because the increments were stopped in 1982 while the representation was made in 1988.
4.After hearing the learned counsel for at some length, we grant leave to consider the contentions raised in support of this petition. "
3. It is mainly contended by Raja Muhammad Irshad, learned Deputy Attorney‑General that the legal and factual aspects of the controversy have not been appreciated in its true perspective by the learned Service Tribunal which resulted in serious miscarriage of justice. It is urged emphatically that five advance increments could not have been allowed in favour of respondent in view of the revision of National Pay Sale and the Finance Division O.M. No.F.1‑Imp‑1/77 dated 28‑4‑1977 which have been ignored by the learned Service Tribunal. It is next contended that in fact a mention regarding five advance increments was made in appointment letter of the respondent bearing No.4246/1214/MG/OS‑12, dated 27‑2‑1982 due to an inadvertent omission and in violation of the policy framed pursuant to revision of National Pay Scale. It is argued that before the implementation of said appointment letter the respondent was informed that five advance increments could not be allowed. It is next contended that the principle of locus poenitentiae is not applicable as five advance increments were never paid to the respondent. It is pointed out that the five advance increments were stopped vide order dated 21‑5‑1982 which was assailed before the learned Service Tribunal and appeal was filed on 18‑2‑1996 after lapse of about two decades which should not have been entertained being barred by time.
4. Mr. Ibadur Rehman Lodhi, learned Advocate Supreme Court appeared for respondent and supported the judgment impugned by arguing that no illegality or infirmity whatsoever has been committed and the conclusion derived by the learned Service Tribunal being well‑based does not warrant any interference. It is contended that it was mentioned in the categoric manner that respondent would be eligible to get five advance increments in his appointment letter and thereafter no objection whatsoever could be raised by the Audit Department which was not competent to bring any change in the terms and conditions of the appointment. It is contended that the principle of locus poenitentiae has rightly been pressed into service by the learned Service Tribunal as the terms and conditions once offered by the employer and accepted by the employee could not have been changed unilaterally.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have perused the judgment impugned carefully. A carefull scrutiny of the entire record would reveal that in fact five advance increments were stopped pursuant to revision of National Pay Scale by means of Finance Division O.M. No.F.I(1)‑Imp‑1/77 dated 28‑4‑1977. No action regarding stoppage of increments was ever initiated by the Audit Department by whom an objection simipliciter was made that five advance increments granted to the respondent were not admissible in view of the revision of National Pay Scale and policy formulated by the Finance Division for its implementation. Iii our considered option such an objection could have been raised by the Audit Department whose main function is to check and point out such sort of irregularities. The decision regarding stoppage of five advance increments was made by the GHQ being the Competent Authority which was communicated to the respondent soon after the issuance of appointment letter. The learned Service Tribunal erred while holding that the decision was taken by the Audit Department at his own. A perusal of record would make it abundant clear that the Controller of Military Accounts (Rawalpindi Command) raised objection for grant of five advance increments when the claim to that effect was made by the respondent by means of his pay bills. In fact Ministry of Defence vide Letter No.1155/2031/CP‑111/277/D14/W/76 dated 6‑4‑1976 allowed five advance increments to all medical graduate employees in the lower formation of the Army on the basis of Letter No.15‑5‑10/74 dated 13‑1‑1975 issued by Health and Social Welfare Division which was subsequently rescinded vide para. 5 of Finance Division O.M. No.F‑1(1)‑Imp‑1/77 dated 28‑4‑1977 (Revised National Scale of Pay) and in consequence whereof an amendment was incorporated in General Headquarters Letter No.4246/1214/MG/CS‑12, dated 27‑12‑1982 and the respondent was informed accordingly.
6. There is no denying the fact that appointment letter issued in favour of respondent finds a mention about five advance increments but payment whereof was never made due to its stoppage/cancellation for the reasons as mentioned in the preceding paragraphs. We are not persuaded to agree with Mr. Ibadur Rehman Lodhi, learned Advocate Supreme Court on behalf of respondent that five advance increments were included in pay bills and, therefore, a legal right had accrued in favour of respondent which could not have been infringed for the reason that five advance increments were never incorporated in the salary slip and preparation of bill simpliciter by the respondent himself does not amount to creation of a legal right. It is worth mentioning that the five advance increments were never paid to the respondent. Mr. Ibadur Rehman Lodhi, learned Advocate Supreme Court was asked to produce salary slip showing that five advance increments were incorporated therein but it could riot be done which makes it clear that condition concerning five advance increments was never implemented C hence no legal right whatsoever was accrued in favour of respondent and question of its infringement as pressed time and again by Mr. Ibadur Rehman Lodhi, learned Advocate Supreme Court does not arise as admittedly the five advance increments were stopped vide Letter No. Pay/IX/6213, dated 31‑5‑1982 issued by the Controller of Military Accounts.
7. It may not be out of place to mention here that a legal right is that right which is recognizable and enforceable at law and on the basis of pay bills duly prepared by the respondent himself it cannot be inferred that any legal right was accrued in his favour. In fact the condition concerning five advance increments contained in the appointment letter was never implemented. In such circumstances the principle of locus poenitentiae hardly renders any assistance to the case of respondent. There is no cavil with the proposition that "principle of locus poenitentiae is available to the Government or relevant authorities and further authority which is competent to make order has power to undo it, but such order cannot be withdrawn or rescinded once it has taken legal effect and created certain rights in favour of any individual". In this regard we are fortified by the dictum laid down in the following cases:‑‑
Pakistan v. Muhammad Himayatullah (PLD 1969 SC 407); Chief Secretary v. Sher Muhammad Makhdoom (PLD 1991 SC 973); Aman‑ul‑Haq v. P.P.S.C. (PLD 1989 Lahore 196); Government of Sindh v. Niaz Ahmad (1991 SCMR 2293); Muhammad Nawaz v. Federation of Pakistan (1992 SCMR 1420); Abdul Haque Indhar v. Province of Sindh (2000 SCMR 907); Adreshir Cowasjee v. Karachi Building Control Authority (1999 SCMR 2883); Chairman, Selection Committee v. Wasif Zamir Ahmad (1997 SCMR 15) and Engineer‑in‑Chief Branch v. Jalaluddin (PLD 1992 SC 207).
In the light of what has been discussed hereinabove we are inclined to accept this appeal by setting aside judgment impugned dated 17‑7‑1996 passed by learned Federal Service Tribunal, Islamabad. There shall be no order as to costs.
M . B. A. /D‑30/S
Appeal accepted.
0 Comments