Naeem Rizwan etc. vs Govt.Of Pb.

Form No.HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

WP No. 3688 of 2017/BWP

Naeem Rizwan & another vs The Govt. of Punjab & 4 others

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 28.11.2019 Mr. Nadeem Iqbal Chaudhry, Advocate for petitioner. Ch. Shahid Mehmood, AAG with Zakar Hussain, Litigation Officer, Bahawalnagar.

Through this constitutional petition, the petitioners have called in question order dated 25.04.2017 passed by Secretary Services and General Administration Department, Government of Punjab, whereby Government of Punjab has refused to make payment of salary of the petitioners by including allowances etc. permissible to the petitioners in terms of pay protected under Para 17 & 18 of the appointment letters of the petitioners dated 05.12.2014 and para 19 & 20 of the letter dated 23.07.2014. Further seek a direction to the respondents to make payment of said allowances.

2.Brief facts of the case are that Naeem Rizwan/ petitioner No.1 was serving in the Education Department as SSE (Science) in BS-16 and was promoted as Headmaster in BS-17 while Maqsood Ahmad/ petitioner No.2 was serving as SST(Eco) in BS-17 in different schools. The respondents offered contract appointment to the petitioners for the post of Deputy District Education Officers, Senior Headmasters etc., for which

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the petitioners applied and were recruited through recommendation of the Punjab Public Service Commission vide letter dated 05.12.2014 and were appointed as Deputy District Education Officers (EE-M) in Fort Abbas and Chistian. As per terms of the contract, they were entitled to claim pay protection i.c. Basic Pay Scale, increments and allowances lastly drawn against their substantive post, which were paid to them for about 10 to 12 months of their respective contractual appointments which subsequently were withheld by accounts office. Earlier they filed WP Nos. 8017 and 8018 of 2017 to challenge withholding of the afore referred pay and allowances which were disposed of vide order dated 22.11.2016 with a direction to respondent No.1 to treat the same as a representation filed on behalf of the petitioners to be decided within 60 days. Thereafter vide order dated 25.04.2017, respondent No.1 has declined their claim necessitating filing of present constitutional petition.

3.The comments were called for in which the respondents have stated that the petitioners are not entitled to receive the said allowances as provision for protection of pay inserted vide para 2(2)(ii) in the Contract Appointment Policy, 2004 by Regulations Wing, S&GAD's letter dated 02.08.2007 was omitted by the Regulations Wing S&GAD vide another letter dated 05.04.2013 before petitioners were appointed on the basis of contract on 05.12.2014, therefore, while following the omission of pay protection through afore referred rules, which are to be implemented by the Finance Department, the petitioners are not entitled to any relief.

4.It is observed that although through letter dated 05.04.2013 the Regulations Wing of S&GAD had

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omitted protection of pay provided by its earlier letter dated 02.08.2007 but despite that when the petitioners were offered terms and conditions accepted by them for conversion of their appointment from regular side to contract as Senior Headmasters/Deputy District Education Officers in BS-17 vide column Nos. 17 and 18 of appointment letter of the petitioners dated 05.12.2014 and similar terms vide column Nos. 19 and 20 of the letter dated 23.07.2014, their pay, allowances and other monitory benefits provided to them in terms and conditions while they were in regular service were protected in the following terms:

17.Pay and A confirmed civil servant shall draw allowances pay and allowances as per terms and conditions of the contract. However, he shall be entitled to claim any protection of the basic pay scale, increments and allowances last drawn by him against his substantive posts; and an existing contract appointee of the Federal or Provincial Government shall be entitled to get his pay and allowances fixed after adding the increments which he may have earned during the preceding contract appointment, provided there is no gap between previous contract appointment and fresh contract appointment.

18.Terms and i) Contract appointment of a civil conditions of servant shall be governed by the contract terms and conditions as provided in the contract, including issues of leave, TA/DA, medical facilities etc.

ii)A civil servant when appointed on contract against any post shall not be entitled to claim any benefit as allowed to the civil servants, under any rules, unless such rules are specifically applicable to him under the terms and conditions of his contract.

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5.Although the respondents were fully aware while entering into the said contract with the petitioners that vide order dated 05.04.2013, earlier notification for pay protection had been withdrawn, still they offered the aforesaid terms relating to pay protection to the present petitioners which were accepted by them and they left their regular service to join as contract employees in the afore referred scales subject to said terms and conditions mentioned in the contract. As decisive steps had been taken by the petitioners upon representation of the respondents by converting their regular appointment to contract appointment, on the basis of principle of locus poenitentiae the respondents were not justified to unilaterally withdraw the terms of contract offered by them to the petitioners mentioned in Column Nos. 17 and 18 of letter of appointment already reproduced above. Reliance in this regard is placed on the judgment reported as Federation of Pakistan through Secretary Capital Administration and Development Division, Islamabad and others vs. Nusrat Tahir and others (2018 SCMR 691) wherein it is held that payment of the health allowance to the respondents has conferred a vested right upon them. In such circumstances, the executive is barred by the rule of locus poenitentiae from unilaterally rescinding and retrieving the benefit availed by its recipients. Consequently, withdrawal of pay protection at a subsequent stage by the respondents to the extent of the petitioners is without any legal justification in the present case and is, therefore, declared to be without lawful authority and of no legal effect with the observation that both the parties are bound by terms and conditions of contract settled between them. This view is further fortified by the assertion of the petitioners that

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had the respondents not offered such terms, the petitioners may not have agreed to accept the offer made by the respondents to convert their regular appointment to contract basis.

6.For what has been discussed above, it is held that the respondents have no authority to unilaterally change the terms and conditions of the offer to the petitioners after the said offer had been accepted and had been converted into a binding contract between the parties. Hence, the impugned orders are set-aside as having been passed without any lawful authority and the petitioners are held entitled to protection of their pay and allowances in terms of their appointment letters.

7.In the foregoing terms, instant constitutional petition is allowed.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Naveed *