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JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE


JUDICIAL DEPARTMENT

Writ Petition No.19547/2010


(Abdul Majeed etc. vs. Secretary Higher Education etc.)

JUDGMENT

Date of Hearing: 17.06.2011

Petitioners by: Mr. Sharjeel Adnan Sheikh, Advocate.

Respondents/State by: Mr. Muhammad Azeem Malik,


Additional Advocate General.

CH. SHAHID SAEED, J:- By way of instituting this

petition under Article 199 of the Constitution of Islamic Republic

of Pakistan, 1973, the petitioners have called into question the

legality of order dated 19.07.2010 whereby they have been

directed to refund the salary and other emoluments given to

them on account of back-benefits.

2. Facts leading to the filing of this petition are that the

petitioners were employed as lecturers on ad hoc basis in the

Education Department in the year 1993-96 but their services

were terminated vide order dated 05.08.2000. The petitioners

approached Service Tribunal through appeals which were

dismissed. Feeling dissatisfied, they filed petitions before the

Hon’ble Supreme Court of Pakistan, which were converted into

appeals and the Hon’ble Supreme Court vide judgment dated

25.09.2002 passed in case Dr. Naveeda Tufail and 72 others

vs. Government of Punjab and others (2003 SCMR 291)


Writ Petition No.19547/2010 2

directed the Government of Punjab to initiate process of

regularization of the petitioners through Punjab Public Service

Commission within a period of one month.

3. The Government of the Punjab sought review of judgment

dated 25.09.2002 which was dismissed vide judgment dated

09.01.2033 with the direction to implement the judgment dated

25.09.2002 within one month.

4. In compliance with the above judgments of Hon’ble

Supreme Court of Pakistan, Punjab Public Service Commission

invited applications for regularization and on the

recommendations of the Commission, services of 520 lecturers

were regularized. However, the petitioners’ services were not

regularized as the Commission did not deem them fit for

regularization.

5. Afterwards, the petitioners filed Writ Petition No.143/2004,

which was allowed by this Court with the direction to implement

the above-mentioned judgments of Hon’ble Supreme Court.

The Government of Punjab filed CPs No.1086-L, 1571-L, 1572-

L, 1573-L and 1875-L/2008 which were dismissed on

25.03.2009 by the Hon’ble Supreme Court of Pakistan with the

direction to concerned authorities to implement the

aforementioned judgments within three days. Accordingly, the

services of the petitioners were regularized and the intervening

period, i.e. from date of termination to the date of joining, was

considered as on duty with full financial and service benefits


Writ Petition No.19547/2010 3

vide order dated 28.03.2009 issued by the Secretary High

Education Department. The petitioners reported for duty and

were also paid salaries and other emoluments. However, the

Secretary Higher Education Department vide order dated

19.07.2010 declared that the intervening period of the

petitioners, i.e. from the date of termination to the date of

joining, has been treated as leave without pay and directed the

petitioners to refund the arrears in monthly installments from

their salaries not exceeding one third of their basis pay. Feeling

aggrieved of the order dated 19.07.2010, the petitioners have

filed this constitutional petition.

6. Learned counsel for the petitioners have chiefly

contended that the benefit once granted by the competent

authority cannot be withdrawn. There is no provision in the

Punjab Civil Servants Act or the rules framed thereunder

authorizing the government to withdraw the amount once

granted. Further contends that the petitioners were willing to do

their duties but they were stopped to do so by the respondents

so, the petitioners cannot be punished for the illegal act of the

respondents. Learned counsel avers that the petitioners

received the salaries and other emoluments under the order

passed by the competent authority which could not be recalled

as principle of locus poenitentiae is attracted. Learned counsel

next argues that the petitioners had remained unemployed from

05.08.2000 to 29.03.2000 and were locked in litigation with the

government. In order to maintain themselves and their families,


Writ Petition No.19547/2010 4

they had obtained loans which were paid back on receipt of

arrears, therefore, the writ petition be allowed and the

impugned order be set aside. In support of his contentions,

learned counsel has relied upon the judgments passed in cases

The Engineer-in-Chief Branch through Ministry of Defence,

Rawalpindi and another vs. Jalaluddin (PLD 1992 SC 207),

Asad Ali Alvi vs. Secretary, Government of Punjab,

Irrigation and power Department, Lahore and 8 others

(2007 PLC (CS) 924), Shaukat Ali vs. District government

through Nazim/Chairman Selection Committee and 4 others

(2005 PLC (CS) 790), Muhammad Anwar vs. Director Lahore

Museum (2009 PLC (CS) 572), Mirza Inayat Beg vs. The

WAPDA through Chairman and 3 others (2002 PLC (CS)

1237) and Controlling Authority, NWFP Board of Technical

Education, Peshawar and another vs. Abdul Salam

Secretary, NWFP Board of Technical Education (PLD 1993

SC 200).

7. On the contrary, learned Additional Advocate General

appearing on behalf of the respondents has contended that the

Hon’ble Supreme Court of Pakistan had ordered to regularize

the services of the petitioners but there was no specific order

for awarding back-benefits to the petitioners, as such, awarding

back-benefits to the petitioners was not in accordance with the

direction of the Apex Court. Further contends that there was a

direction of the Hon’ble Apex Court to regularize the services of

the petitioners within three days. As there was a very short time
Writ Petition No.19547/2010 5

available for consideration, the mistake occurred and the

petitioners were unlawfully awarded back-benefits.

Subsequently, a committee was constituted to reconsider the

award of back-benefits to the petitioners, who found that the

order whereby the petitioners were granted back-benefits was

not in line with the directions of the Hon’ble Apex Court and

recommended recalling of the same to that extent. Learned

Additional Advocate General asserts that the competent

authority has all the powers to withdraw an order issued by him

earlier in time. Moreover, the petitioners did not perform their

duties during the period in question, therefore, they are not

entitled to the salary or any other benefit for that period.

Learned Law Officer avers that the petitioners were granted

back-benefits erroneously and unlawfully, so they are bound to

refund the said amount of arrears. Learned Additional

Advocate General prays that this writ petition has no force, it be

dismissed.

8. I have heard the arguments advanced by learned counsel

for the parties and have also perused the record. The law cited

at bar has also been examined.

9. The record highlights that the petitioners alongwith others

were employed as ad hoc lecturers in Higher Education

Department in 1993 to 1996. The services of ad hoc lecturers

were terminated vide order dated 05.08.2000 who approached

Punjab Service Tribunal who dismissed their appeals. Feeling

dissatisfied, they approached the Hon’ble Supreme Court of


Writ Petition No.19547/2010 6

Pakistan who allowed the petitions vide judgment dated

25.09.2002. The operative para of judgment dated 25.09.2002

passed by the Hon’ble Supreme Court of Pakistan is

reproduced hereunder:

“We deem it proper to direct that the respondents


while seeking guidance from the scheme of
regularization of ad hoc employees of Federal
Government referred above, will initiate the process
of regularization of the petitioners through PPSC
giving the concession as mentioned in the reply filed
by the respondents in the Punjab Service Tribunal
within a period of one month and meanwhile without
prejudice to the rights of the selectees of the Public
Service Commission for appointment on regular
basis, the posts which were being held by the
petitioners shall not be filled. It is clarified that the
cases of the petitioners shall be sent separately to
the PPSC and shall not be tagged with the direct
recruits. In case any of the petitioners is not found
suitable by the PPSC, he shall not be entitled to be
retained in service.”

10. It is ex facie clear from bare perusal of the above that the

Hon’ble Supreme Court of Pakistan has nowhere directed that

the ad hoc lecturers will be granted back benefits on their

regularization.

11. In compliance with the judgment supra, the Punjab Public

Service Commission invited applications and on the

recommendations of the Commission, services of 520 lecturers

were regularized but they were not granted any back-benefits.

However, the Punjab Public Service Commission did not

consider the petitioners suitable for regularization either they

did not appear before the Commission or they could not qualify

the suitability test. So, the petitioners again filed a writ petition

which was allowed. The government’s Civil Petitions before the


Writ Petition No.19547/2010 7

Hon’ble Supreme Court of Pakistan failed and the Hon’ble

Supreme Court directed the respondents/concerned authorities

to regularize the services of the petitioners within three days.

Apparently, there was a shorter time of only three days, so the

Secretary, Higher Education Commission issued notification

dated 28.03.2009 and regularized the services of the petitioners

in a hasty manner allowing them the back benefits.

12. It is pertinent to mention here that 520 lecturers who were

found suitable by the Punjab Public Service Commission for

regularization were not granted any back-benefits but the

petitioners who were not found suitable for regularization by the

Commission were granted back-benefits which itself is a

discrimination with those who were earlier regularized on the

recommendations of the Commission and were not given back

benefits. Moreover, a long practice of a department has also

the force of rule. If the petitioners are allowed back-benefits for

the period they did not serve, this will open flood-gate and a

large number of such employees will claim for the same relief

on the basis of having been discriminated. In that case, it will

not be possible for the government to manage such claims.

13. The contention of learned counsel for the petitioners that

the benefits once granted cannot be withdrawn is misconceived

as it is not a principle of law that order once passed becomes

irrevocable. It is well settled law that a public authority which

can pass an order is amply empowered to vary, amend or

rescind that order, so recalling of earlier order by Secretary


Writ Petition No.19547/2010 8

Higher Education and directing the petitioners to refund the

amount received by them as back benefits is fully in

accordance with law. Furthermore, a party may claim numerous

reliefs but it is the discretion of the court to grant all or some of

those reliefs. It is established law that where a court does not

grant a specific relief, it would be assumed that such relief has

been refused.

14. Another contention of learned counsel for the petitioners

is that the petitioners remained in litigation for a long period and

had obtained loans for their existence, so, the impugned order

directing them to refund the amount they have received and

spent is harsh one. This court observes that the Secretary,

Higher Education Commission while passing the impugned

order has already taken into consideration the hardships of the

employees and directed that the amount received will be

refunded in installments and an installment will not exceed one-

third of the basis pay of that employee, which can be managed

by the petitioners.

15. It has been held by the superior courts that in a case,

where an employee receives some financial benefits on a bona

fide belief that he was entitled to it but on the basis of an

incorrect order and during that period, he also performs his

duties, he will be entitled to those benefits till that order

remained in field. But it is not the case of the petitioners. The

services of the petitioners were terminated and they did not

serve from the date of termination to the date of joining, so they


Writ Petition No.19547/2010 9

are not entitled to payment of salary and other emoluments for

the period during which they did not serve.

16. The law relied upon by learned counsel for the petitioners

is not applicable to the case in hand and distinguishable for the

reason that in all those cases, the employees had been

performing their duties as regular employees, so the recovery

of financial benefits on account of incorrect order was

disallowed by the superior courts. But in the instant case, the

petitioners could not perform their duties, so they are not

entitled to the relief of back-benefits.

17. The epitome of the whole discussion is that since the

petitioners did not perform their duties during the intervening

period, i.e. from the date of termination to the date of joining,

they were not entitled to back benefits. That is why the Hon’ble

Supreme Court of Pakistan had not ordered for the grant of

back benefits and asked for simple regularization of the

petitioners. The competent authority has ample powers to recall

his order, so the impugned order dated 19.07.2010 is in

accordance with law and policy and there is no illegality in it. As

a result, this constitutional petition being without any substance

is dismissed.

(CH. SHAHID SAEED)


JUDGE
Approved for reporting.

Judge

Akram*