Muhammad Anwar Khan Vs Vice Chancellor/Governer Syndicate through its Registrar, the University of Agriculture, Peshawar and others.

JI,DGMENT SHEET

PESHAWAR HIGH COURT. PESHAWAR

JI,DICIAL DEPARTMENT

W.P No.3352-P of 2023.

Muhammad Anwar Khan Vs.

Vice Chancellor/Governer Syndicate through Its Registrar, the University of Agriculture, Peshawar and others.

Date of hearing 25.04.2024.

Petitioner(s) by: Mr. Bilal Ahmad Kakaizai, Advocate. Respondent(s) by: Mr. Naveed Akhtar, Advocate, for the respondents.

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JUDGMENT

IJAZ AI\-WAR. J. This writ petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer: -

"It is, therefore, requested that a proper writ be issued to the elfect that the impugned minutes of 1 1 th Meeting of Syndicate to the ertent of the petitioner as well as impugned order dated 11.07.2023 are not in accordance with law hence the same may please be set aside, in conseqaence whereof the petitioner be allowed to. receive and draw his full pension by including all the allowed (Advance Increments Irom initial Appointment and Annual increments pertaining to year 1994, 1995) and any recovery or withholding of a portion of pension /commutation from the petitioner is declared to be illegal and uniustilied' wtth such a other relieli, as may deem lit in the 1 circumstances of the case, may also be ( granted", 2 In essence, petitioner is aggrieved of the impugned notification dated 11.07.2023, whereby, he was

held not entitled to the advance increments granted to him during adhoc period of employment in the respondent University and recovery was ordered from his pension.

Petitioner being aggrieved approached the respondents and filed an appeal, but to no avail., hence the instant writ petition.

3.Comments were called from the respondents, who furnished the same wherein they opposed the issuance of the desired writ asked for by the petitioners.

4.Arguments heard and record perused.

5.The only issue involved in the instant case is that as to whether the petitioner during the period of holding the post on adhoc basis in the respondent University was entitled to the advance increments w.e.f 13.06.1993 to 22.04.1996.

6, The record transpires that petitioner was initially appointed as Assistant Editor/Lecturer on fixed pay basis w.e.f oz.ol.tgg3, he was, however, appointed vide office order dated 13.06.1993 on adhoc basis and thereafter he continued in the said capacity till 11.06.1996 after being \ ,.gularized on the recommendation of the selection board holding I unathe syndicate. At the relevant time, when he was 4 the post on adhoc basis was granted advance increments by

( the competent Authority permissible to employees holding

higherpostsonaccountoftheirqualifications.

v

7.During the course of his service, he was appointed as Assistant Professor (BPS-19) w.e.f 01.01.2005, then again appointed/promoted as Associate Professor (BPS-20) w.e.f 28.04.2012 and was lastly appointed as Professor (BPS-21) vide Office Order dated 01.03.2016 w.e.f 13.05.2015 and continued his service in the said capacity till his retirement on 07.03.2022.

8.While preparing the pension papers it was objected that during the period from June 1993 till June 1996, he was wrongly granted advance increments, and as such, recovery was ordered from his pension. We when asked the learned counsel for the respondent University, as to whether a period during which petitioner was holding the post on adhoc basis was countable towards the pension, he frankly conceded that though the adhoc service of the petitioner was countable towards his pension, however, he is not entitled to the grant of advance increments, as he was not holding the post on substantive basis.

9.We have gone through Office Memorandum

No.F-1(1)-IMP/83 dated 18.08.1983 which says that:- r "Advance increments are admissible to Doctors, Engineers, Educationists, Management Ac c o untants, E c o no mtsts, S cientists, G e o lo ghts, Meteorologists, Archaeologists, Experts in Agricalture, Animal Husbandry, and Forestry working in Universities Colleges, Research Institutions or Technical Departments who possess or acquire while in service, higher qualiJicattons and are drawing pay in BPS-|7,.

10.The same O.M. was adopted by the University of Agriculture in its statutes, it also being relevant is reproduced as under:-

i.Those with fuLUfuI.ScJM.S or its equivalent from a foreign UniversiE or M,Phil or its equivalentfrom a University in Pakistan will receive four (4) Advance increments on appointment in BPS-17 only.

ilFor tn-service University Teachers two (2) advance increments for fuLUfuI.SC/1W.5 or its equivalentfrom aforeign University and two for M.Phil or its equivalentfrom a University in Pakistan.

iii, , monthly allowance of Rs.1000/- (now Rs.5000/-) will be admissible to all those University teachers who posses a Ph.D/D.Sc degree, irrespective of their grades, with the condition that the advance increments if any already granted to them on possessing a Ph.D/D.Sc degree will be adjusted, provided that a teacher obtaining both M,S. and Ph.D degree will be entitled to a qualiJication allowance of Rs.1000/- (now Rs.5000/-) only. iv.In order to attract talent to the University, two (2) increments over the initial stage will be given to afresh entrant as teacher in pay scale 17 tf he/she is a tirst-class or he/she is Jirst divisioner throughout i.e. from matric to M.A/IVI.Sc (Hons)/IuLSc/B.sc. (Engg/B.Sc. (Hons) Agriculture, and one (1) incrementfor a percon who has secured tirst division in three out of lour or two out of three Public Examinations, as the case may be; or first

I

class ftrst in two (other than IWIVI.Sc. I (Hons)/tuI.ScJB.Sc. (Engg)/B.Sc. (Hons)

I

Agric ulture Examin ation s ".

11.Thus, the above referred Federal Govemment O.M. as well as the University Statutes does not prohibit the grarfi of advance increments to adhoc employees who have continued their service till their regularization.

12.Interestingly, the adhoc service of the petitioner has been considered as countable for the purpose of pension, as such, under no circumstances the validly drawn advance increments can be ordered to be recovered after about three decades.

13.It is pertinent to mention here that the superior Courts are consistent on the point that even where certain amount is paid on account of incorrect orders perpefual benefits though cannot be granted, albeit, no recovery can be effected from such employees when there is no allegation that such an employee has either played fraud or made manipulation in obtaining such orders, in this regard, reference can be made to the cases titled "Shams Ur Rehman Vs Militarv General, Rawaloindi and another" (2020 SCMR I8$: "Abdul Homeed and others Vs Speciol Secretarv Education. Government of Puniab, Lahore and others" (2017 PLC (C.St 697): 'Ministrv of Finance throush Secretarv and others Vs Sved Afroz 4 Akhtar Rizvi and others" (2021 SCMR 1546t: Secretarv.

Ministrv of Finance. Islomabad and others Vs Tawaba Halim Subhani and others" Q022 SCMR 77t.

14.While in the instant case, as stated above, the petitioner was having prescribed qualification for which advance increments were permissible but the only objection

v is that he was serving on adhoc basis. when once the respondent university has counted adhoc services of the petitioner for the purpose of pension then under no circumstances for such services advance increments can be denied.

15.we are thus of the view that the petitioner has made out a case for interference of this court and the impugned order, whereby, recovery has been effected from the pension of petitioner for the advance increments granted to him for his adhoc service w.e.f 13.06.1993 to 22.04.1996, is illegal without legal authority and of no legal effect, and as a consequence, the recovery if effected, shall be reimbursed to the petitioner.

16.This writ petition is allowed in the above manners.

Announced.

Dated. 25.04.2024,

r Senior Puisne Judge

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J+e (Anb Shehzad)' (DB) Hon'ble Mr. Justice ljazAmvar and Hon'ble Mr. .lusdce Shahid. Khan