Setting a side Recovery of Overpayment ROP – Judgment dt 09.10.2023
OFFICE MEMORANDUM
Subject: Recovery of Overpayment
Muhammad Nawaz son of Haji Muhammad Ramzan, Accountant, Printing Press Bahawalpur, resident of P.O Khas, Tehsil Kehrore Pacca, District Lodhran.
…… PETITIONER
VERSUS
- Government of the Punjab through Controller of Printing & Stationary Punjab-Lahore.
- Secretary S & GAD, Punjab-Lahore.
- Secretary Finance Punjab-Lahore.
- Superintendent Government Printing Press Bahawalpur.
- District Account Officer, Bahawalpur.
…… RESPONDENTS
Muhammad Nawaz Versus Govt. of Punjab, etc.
| S.No. of order/ proceeding | Date of order/ Proceeding | Order with signature of Judge, and that of parties of counsel, where necessary. |
|---|
09.10.2023 Mr. Muhammad Asif Mehmood Pirzada, Advocate for petitioner.
Rai Mazhar Hussain Kharal, Assistant Advocate General.
By means of instant petition under Art.199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have made the following prayer:
“In view of above, it is most respectfully submitted that by accepting this writ petition, the impugned ROP (Return of pay) of Rs.6,35,691/- dated 01.05.2023 by respondent No.5 may kindly be set aside and declared as having been passed illegally, mala fidely, without lawful authority, having no legal effect and inoperative upon the rights of petitioner and as a consequential relief in the interest of justice and fair play…”.
- Clipping aside unnecessary details, the facts necessary for the disposal of instant petition are that petitioner was appointed as Estimate Casting Assistant in BS-14 in the respondent department; that in the year 2017, said post was upgraded to BS-16 w.e.f. 01.07.2016 in the light of Notification dated 04.01.2016 issued by the Finance Department. Later on, respondent No.4 on 01.12.2022 recalled/withdrawn the petitioner’s upgradation in BS-16 and was reverted back in BS-14; feeling aggrieved, the petitioner filed Writ Petition No.1382 of 2023 which was dismissed vide order dated 22.02.2023; thereafter, respondent No.5 issue Return of Payment (ROP) dated 01.05.2023 according to which, Rs.6,35,691/- were shown to be recoverable from the petitioner in thirty-six installments each Rs.17,658/- per month from his salary. Hence, instant petition.
- Learned counsel for the petitioner, while relying upon Shams ur Rehman Vs. Military Accountant General Rawalpindi and another (2020 SCMR 188) contends that in the light of dictum laid down by the Apex Court in the aforesaid case, the recovery in the name return of payment from the petitioner is not justified.
- Learned Law Officer contends that in view of the facts of the case, the petitioner cannot seek protection under the principle of locus poenitentiae. He also places reliance on case law reported as 2022 SCMR 797 and 2023 SCMR 418.
- Arguments heard. Available record perused.
- It is observed that the petitioner was performing his duties on upgraded post in BPS-16 in the respondent’s department and was being paid emoluments of the said grade in lieu of that, when the department came to know that the post of Estimate Casting Assistant does not fall in the scheme of upgradation mentioned in the Notification dated 04.01.2016 and has mistakenly been upgraded. Resultantly, through impugned ROP, while cancelling/withdrawing pay scale of the petitioner and reverting him back to BS-14, recovery of aforementioned amount was ordered to be made from him. Admittedly, the petitioner performed his duty on a higher post of BS-16 for almost five years, received salary and other emoluments permissible to him under the law after the approval of competent authority, therefore, on the principle of locus poenitentiae, the benefits paid to him cannot be recovered from him as he received the amount in question on bona fide belief.
- Thus, keeping in view the dictum laid down by the Apex Court in Shams ur Rehman vs. Military Accountant General Rawalpindi and another (2020 SCMR 188) and Mst. Sajida Javed vs. Director of Secondary Education, Lahore Division and others (2007 PLC (C.S.) 364) issuance of impugned ROP by respondent No.5 is not justified.
- In view of above, while allowing this writ petition, the impugned ROP dated 05.01.2023 qua recovery of aforementioned amount from the petitioner is set aside.
