ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

C. P.No.D-851 of 2010

DATE ORDER WITH SIGNATURE OF JUDGE

For Katcha Peshi.

14.10.2011.

Mr. Mehmood Hussain Siddiqui Advocate for the petitioner.

Mr. Muhammad Arshad Pathan Advocate for the respondents.

The petitioner was initially appointed as Jr. Clerk on 01.02.1968 by the respondent No.2 and subsequently he was promoted as Accounts Assistant in BPS-11 in Revenue office Sukkur. While he was in service, he qualified S.A.S/equivalent examination in the year 1977 for the post of Assistant Accountant and promoted as Assistant Accountant BPS-16. In 1990 the petitioner came to know that Government of Pakistan had granted an amount of Rs.100/- per month as qualification allowance for S.A.S/equivalent in the basic pay w.e.f July, 1983 and later on said allowance was increased from time to time by the Government and now rate of said allowance is Rs.400/- per month. The petitioner on coming to know about said allowance, made a representation through an application dated 02.01.1990 to the Chief Manager Finance (Power) of the respondent No.2 for grant of said allowance while serving in revenue office at Sukkur. Consequently said allowance was sanctioned to the petitioner with retrospective effect from July, 1983 and he was paid arrears accordingly. From the pleadings it appears that the petitioner availed said allowance till 30.06.2008 when the said allowance was stopped from his salary from 01.07.2008. Consequent to that order, respondent No.3 issued directions to the respondent No.4 to recover a amount of Rs.64103/- paid to the petitioner in lieu of that allowance.

It is, inter alia, contended that the petitioner availed S.A.S allowance in accordance with law and rules. Learned counsel has also referred annexure P-2 which reflects that Accountant shall be allowed qualification allowance of Rs.100/- P.M. on qualifying S.A.S or equivalent examination. This allowance shall continue to be admissible as a separate entity even after their promotion to higher posts. Learned counsel further contended that though after reaching superannuation, petitioner has been retired from the service but through letter dated 28.04.2010 issued by the Director Services (Power) the respondents have directed to recover Rs.64103/- from the commutation value of the petitioner’s pension which is contrary to the rules. He emphasized that once the petitioner has availed the above allowance under rules, the respondents under any circumstances cannot recover the same under the doctrine of “locus poenitentiae” as provided under section 21 of General Clauses Act.

Conversely Mr. Muhammad Arshad Pathan learned counsel for the respondents contended that by virtue of article 17 of the Notification issued by the respondents, the petitioner was entitled to get S.A.S/equivalent allowance till he remained as Accountant but while he was in service, he applied for the post of Jr. Officer (Revenue) and subsequently he was appointed as Jr. Officer (Revenue) on fresh terms and conditions. Per learned counsel the petitioner’s appointment as Jr. Officer (Revenue) was made on fresh terms and conditions and subsequently he joined his new post but not only this , he lost his lien for the post of Accountant. He further went on to say that the petitioner was not promoted from the post of Assistant Accountant to Jr. Officer (Revenue) but he applied through proper channel and got his appointment vide office order No.FO(B & F)/10-G-142(C) Vol/II/7272-77 dated 10.05.1980. He lastly contended that S.A.S/equivalent allowance was subject to the condition of qualifying such examination in particular field. Since he abandoned the field of Accounts and Audit and entered in commercial/revenue era as such he was not entitled for the said allowance from 1983 and onwards as he left his previous field till his retirement.

We have heard learned counsel for the parties and perused the record. No doubt under article 17 of the Notification issued by the respondents, the petitioner was entitled to S.A.S allowance subject to qualifying S.A.S/ or equivalent examination, this article further reflects that petitioner being accountant was entitled to get such allowance as a separate entity even after his promotion to higher posts. However, the appointment order dated 17.07.1979 reflects that he was selected for appointment as Jr. Officer (Revenue) under the West Pakistan Water & Power Development Authority under certain conditions. Learned counsel for the petitioner emphasized that the petitioner was promoted from the post of Assistant Accountant to Jr. Officer (Revenue) but appointment order (supra) negates the version of the petitioner, therefore, respondents cannot be restrained from recovering the amount from the petitioner which he availed under article 17 of the Notification. With profound respect, principle laid down by apex Court in PLD 1992 SC 2007 as relied upon by the learned counsel for the petitioner, is not applicable or helpful to the case of petitioner as in the above case their lordships held that the authorities could not recover the amount paid to the employee on the basis of incorrect order and recipient on receiving the same had a bonafide belief that he was entitled to it whereas in the case in hand it was the petitioner who made representation to the respondents and consequently received the allowance from the respondents.

Apart from above, there is another aspect of the matter that the petitioner is a retired employee and no more in service. On one hand it was the petitioner who got S.A.S allowance under the garb of article 17 of the Notification and on the other hand it was the responsibility of the respondents to examine the representation of the petitioner keeping in view his post and to pass appropriate order but apparently they did not bother to discharge their duties properly and in a mechanical manner accepted the representation of the petitioner, consequently he was paid such allowance due to negligence on the part of the officials of the respondents. In other words petitioner as well as officials are equally responsible for that mishap, therefore, we dispose of this petition with directions that the amount of Rs.64103/- be recovered equally from the petitioner as well as delinquent officers, who did not take noticed it timely. Consequently the respondents are directed to recover 50% of the above amount from the petitioner and 50% from the concerned officer(s), who allowed such allowance in haste and in utter violation of said article and the Rules.

JUDGE

A.K