Muhammad Yasin Vs Auditor General of Pakistan etc.

StereoHCJDA 38

Judgment Sheet

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.83386 of 2023

Muhammad Yasin Versus Auditor General of Pakistan & others

JUDGMENT

Date of hearing: 24.09.2026.

Petitioner by: Ch. Abdul Ghaffar, Advocate.

Respondents by: Mr. Tahir Mahmood Ahmad Khokhar, Deputy Attorney-General for Pakistan.

SHIREEN IMRAN, J: - Through the instant

constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (“the Constitution”), the petitioner has called in question letters dated 02.01.2023, 26.01.2023 and 22.02.2023, whereby recovery of the amount paid to him on account of advance increments has been ordered and consequential deductions are being made from his pension.

2.Learned counsel for the petitioner submits that while serving in the Wafaqi Mohtasib Secretariat, the petitioner acquired the qualification of LL.B., whereupon he was granted

two advance increments vide Office Order dated 06.10.2000, with effect from 26.07.2000. The said benefit remained available to him throughout his service and continued even after his retirement until 31.01.2023. It is contended that the benefit having been extended by the Department itself and enjoyed by the petitioner for more than two decades, its subsequent withdrawal followed by recovery from his pension is arbitrary and legally unsustainable. Learned counsel emphasizes that neither fraud nor misrepresentation or concealment of any material fact has ever been attributed to the petitioner in obtaining the benefit. Reliance has been placed upon the cases reported as Shams ur Rehman v. Military Accountant General, Rawalpindi and another (2020 SCMR 188) and Government of the Punjab, Education Department through Secretary Higher Education, Punjab Civil Secretariat Lahore and others v.

Muhammad Imran and others (2019 SCMR 643).

3.Conversely, learned Deputy Attorney-General submits that the petitioner had already been granted two advance increments on account of his M.A./M.Sc. qualification and, therefore, grant of another two increments upon acquiring LL.B., which was treated as equivalent to M.A./M.Sc. for the limited purpose contemplated by the relevant policy, resulted in conferment of a benefit not admissible under the governing

instructions. It is maintained that an erroneous grant contrary to the applicable policy does not mature into an indefeasible right merely because it remained undetected for a considerable period. Reliance in this regard is placed upon Syed Azam Shah v. Federation of Pakistan through Secretary Cabinet Division, Cabinet Secretariat, Islamabad and another (2022 SCMR 201) to contend that a benefit wrongly extended on account of mistake, misconception of law or otherwise contrary to the applicable policy cannot be claimed in perpetuity by invoking the principle of locus poenitentiae.

4.Arguments heard. Record perused.

5.. The controversy essentially raises two questions. First, whether, after having received two advance increments on the basis of M.A./M.Sc. qualification, the petitioner could lawfully claim another two advance increments upon acquiring an LL.B.

degree. Second, if the latter benefit was not admissible under the applicable policy, whether the amount paid pursuant thereto could subsequently be recovered from him.

6.The first question is no longer res integra. The Hon’ble Supreme Court, while examining substantially the same issue in Senior General Manager, Pakistan Railways and others v.

Muhammad Pervaiz (2024 PLC (C.S.) 508), considered the

relevant policy governing grant of advance increments for higher educational qualifications and has inter-alia held as under:-

6.Heard the arguments. In order to resolve the bone of contention, we would like to refer to the relevant Standing Instruction (SI.) No.32, available at page 1043 of the Estacode (2007 Edition), Volume-II as under:-

CHAPTER 10

PAY, ALLOWANCES AND OTHER BENEFITS

Sl. No. 32

Grant of Advance Increments to Officials for Possessing/Attaining Higher Educational Qualifications **[(a) (i) From 1-6-1991 onwards, advance increments shall be allowed without the condition of the second Division to the officials] ***[in BPS 1-16] for possessing or acquiring higher educational qualifications over and above prescribed qualifications in the relevant Recruitment Rules to the extent given below:- Number of advance increments for obtaining Matric F.A./F.Sc. B.A./B.Sc. M.A/M.Sc.

Where the prescribed qualification is 2 4 6 8 a) Non-Matric.

Where the prescribed qualification is Nil 2 4 6 b) Matric.

Where the prescribed qualification is Nil Nil 2 4 c) F.A/F.Sc.

Where the prescribed qualification is Nil Nil Nil 2 d) B.A/B.Sc.

The advance increments already allowed in terms of para 6 of O.M.No. F.1(7)Imp-II/87, dated the 1st July, 1987 would be doubled from 1-6-1991.

(ii)The advance increments shall be allowed at the time of recruitment or acquisition of higher qualification, whichever is later. In cases where the employee is already at the maximum of the scale, he may be allowed the number of advance increments beyond the maximum of the scale as personal pay to be absorbed at the time of his move-over/promotion. Those employees who had acquired higher qualification in 3rd Division prior to 1- 6-1991 and were not granted advance increments earlier would henceforth would be allowed advance increments w.e.f. 1-6-1991.

(b)Engineers and doctors shall also be allowed four advance increments in case they possess or acquire a post-graduate degree in their relevant field for which they have not been allowed any qualification pay.

(c)The advance increment/increments shall be allowed at the time of recruitment or acquiring higher qualification during service. In cases where the employee is already at the maximum of his pay scale, he would be allowed the requisite number of increments as personal pay to be absorbed on moving over/promotion to higher pay scale.

[Authority: Finance Division O. M. No. 1/7/Imp.II/87, dated 1-7-1987] The two relevant Office Memorandums (O.M.) pertaining to the advance increments policy of the appellant- department are also reproduced as under (at page 27 of the paper-book):-

“Office Memorandum The undersigned is directed to refer to the Ministry of Railways O.M.No.E-IV/94-IC/(E-I) dated 19-10-2000 on the above subject and to say that in terms of Finance Division s O.M.No.F.3(6)Imp/97 dated 12-1-2000 (copy enclosed) advance increments on acquiring L.L.B degree are admissible to the employee of Courts only.

Sd/- (Abdul Sattar Sadiq) Deputy Secretary (R:II)

Copy of Finance Division s Islamabad s O.M.No.F.3(6)Imp/97 dated 12-1-2000 addressed to all Ministries/ Divisions .

Office Memorandum

In partial modification of this Division's Office Memorandum Nos.F.1/7/Imp. II/87 dated 1-7-87, 1(12) Imp. II/91 dated 29-6-91 and 6(10) Imp/91-Vol-III dated 8-7-96, the undersigned is directed to convey the approval on the competent authority to allow 2 advance increments on acquiring LLB Degree being equal to MA/M.Sc to all the officials, with immediate effect who are working in the organizations which are either dispensing justice or directly connected with the work of dispensing justice.

Sd/- (Abdul Sattar Sadiq) Deputy Secretary(R.II) Copy of Ministry of Communications and Railways (Railway Division) Islamabad's letter No. E-II/94-10(E-

II)dated 16-1-2001 addressed to the G.M/P.P.R.Hd Qrs. Office, Lahore .

“7.*****It is an admitted fact that the respondent has been allowed the benefit of two increments on attaining the qualification of M.A. in accordance with the instructions contained in SI. No.32. Moreover, according to the aforementioned O.M. dated 12.01.2000, the policy of granting advance increments on acquiring L.L.B. degree was only available to the employees of the courts. The O.M. dated 16.01.2000 on the other hand conveyed the approval of the competent authority for allowing two advance increments on acquiring L.L.B. degree, being equal to a M.A./M.Sc. degree, to all the officials working in the organizations which are either dispensing justice or directly connected with the work of dispensing justice, with immediate effect. The learned counsel for the respondent neither argued that the respondent was ever engaged in or assigned any duty which was directly related to court work or directly connected with the work of dispensing justice, nor was she able to highlight that any other persons were granted advance increments on qualifying L.L.B. in addition to, or in spite of already

having been granted advance increments on qualifying M.A./M.Sc.”

The ratio emerging from the above pronouncement squarely governs the controversy at hand. The policy did not envisage an unrestricted accumulation of advance increments merely on acquisition of successive qualifications. More importantly, the concession attached to an LL.B. degree was confined to officials working in organizations dispensing justice or directly connected with the work of dispensing justice. Nothing has been brought on record to establish that the petitioner, while serving in the Wafaqi Mohtasib Secretariat, was performing duties falling within the category contemplated by the relevant Office Memorandum. The petitioner had already availed two advance increments on the strength of his M.A./M.Sc.

qualification.

7.There is yet another aspect of the matter. The grant of advance increments is essentially regulated by the policy framed by the competent authority. Constitutional jurisdiction does not permit this Court to substitute its own view regarding the wisdom, suitability or adequacy of a policy for that of the authority entrusted with its formulation. Judicial review is attracted where the impugned policy or action is shown to suffer from illegality, arbitrariness, discrimination, mala fide or

any other recognized ground warranting constitutional interference.

8.Another question which requires determination by this Court is as to whether this Court can interfere in policy decision. The Hon’ble Supreme Court of Pakistan in the afore- referred case has dilated upon the said question in the following manner:-

“10. The ambit and purview of judicial review of government policies is now well settled and defined and thereunder the Court can neither act as an appellate authority with the aim of scrutinizing the propriety, suitability, and/or adequacy of a policy, nor may it act as an advisor to the executive on matters of policy which they are entitled to formulate. The object of judicially reviewing a policy is to ascertain whether it violates the fundamental rights of the citizens, or is at variance to the provisions of the Constitution, or opposed to any statutory provision, or demonstrably arbitrary or discriminatory. The court may invalidate laws, acts and governmental actions that are incompatible with a higher authority, or an executive decision for being unlawful which maintains a check and balance. Such a declaration can be sought on the ground that the decision-maker misdirected itself in law, exercised a power wrongly or improperly or purported to exercise a power that it did not have, which is known as acting ultra vires; a decision may be challenged as unreasonable if it is so unreasonable that no reasonable authority could ever have come to it, or due to a failure to observe the statutory procedures. The dominance of judicial review of the executive and legislative action must be kept within the precincts of the constitutional structure so as to avoid any misgivings or apprehension that the judiciary is overstepping its bounds by engaging in unwarranted judicial activism. In the present case we do not find any justification to cause any interference in the policy decision of the appellant-department which does not

seem to be unjust or discriminatory and is applicable across the board.”

Tested against the above principles, nothing has been pointed out from the record to demonstrate that the relevant policy is discriminatory, arbitrary or otherwise contrary to law. No exceptional circumstance has been established which may justify interference with the policy in exercise of constitutional jurisdiction.

9.This brings the Court to the second limb of the controversy, namely, whether the amount paid to the petitioner pursuant to an inadmissible grant can subsequently be recovered. Learned counsel for the petitioner has laid considerable emphasis on the fact that the petitioner neither misrepresented nor concealed any fact and that the increments were granted by the Department itself. Absence of fraud or misrepresentation on the part of an employee is undoubtedly a relevant circumstance; it does not, however, by itself convert a benefit granted contrary to the governing law or policy into a vested or perpetual right. The distinction between a benefit validly conferred and one extended without lawful entitlement is material. Where the very foundation for grant of a recurring monetary benefit is absent, its continuation over time cannot

cure the initial defect or prevent the competent authority from correcting the mistake in accordance with law.

10.Coming to the question whether the increments already granted to the petitioner can be recovered, the Hon’ble Supreme Court of Pakistan, in Shakeel Ahmad Zaidi and others v.

Secretary, Higher Education, Government of Punjab, Lahore and others (2021 SCMR 474), dealt with the consequences flowing from grant of a benefit lacking legal foundation. The said view has also been followed by the Sindh High Court in Ashfaque Ali v. District and Sessions Judge, Kamber Shahdadkot and others (2026 PLC (CS) 29). Section 21 of the General Clauses Act, 1897 also embodies the general principle that the power to issue an order includes the power, exercisable in the like manner and subject to like conditions, to add to, amend, vary or rescind such order. Thus, mere continuation of an administrative order does not, in itself, place it beyond correction where the authority subsequently finds that the benefit was extended contrary to the applicable legal or policy framework.

11.The matter may also be viewed in the light of the principle that an illegality cannot become the source of a continuing enforceable right merely by passage of time. The

Hon’ble Supreme Court of Pakistan in the case of Syed Azam Shah v. Federation of Pakistan through Secretary Cabinet Division, Cabinet Secretariat, Islamabad and another (2022 SCMR 201) while dealing with perpetuity of rights gained illegally has inter-alia observed as under:- “If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. In the case of (Contempt proceedings against Chief Secretary, Sindh and others) (2013 SCMR 1752), it was held that if the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The Court also referred to the cases of Muhammad Nadeem Arif and others v. Inspector General of Police, Punjab, Lahore and others (2010 PLC (C.S) 924) and Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin (PLD 1992 SC 207) wherein it was held that principle of locus poenitentiae would not be attracted in a case under which the benefit has been extended by a law which was violative of the provisions of the Constitution.”

12.The above principle answers the petitioner’s contention founded upon prolonged receipt of the increments. Longevity of an erroneous benefit cannot provide it with a lawful foundation where none existed at its inception. Nor can the principle of locus poenitentiae be invoked to perpetuate a benefit which was not admissible under the governing policy.

13.In the present case, the petitioner had already received two advance increments on account of his M.A./M.Sc.

qualification. The subsequent grant of another two increments

on acquisition of LL.B. was not supported by the policy governing his service, particularly when the concession relating to LL.B. was confined to officials working in organizations dispensing justice or directly connected with such work. No material has been pointed out showing that the petitioner fulfilled that requirement. The grant was, therefore, without lawful entitlement.

14.It is equally significant that the petitioner does not challenge the policy on any legally sustainable ground; rather, his case substantially rests upon the duration for which the benefit remained available to him and the absence of fraud or misrepresentation on his part. These circumstances, in the peculiar facts of the case, cannot override the express terms of the governing policy or confer a right contrary thereto.

15.For what has been discussed above, this Court finds no legal infirmity in the impugned action warranting interference in exercise of constitutional jurisdiction under Article 199 of the Constitution. Consequently, the instant petition, being devoid of merit, is dismissed.

JUDGE

Approved for reporting.

JUDGE

Jamil*