Professional Documents
Culture Documents
Ms. Naghma Adeeb Appeal - 30.11.2017
Ms. Naghma Adeeb Appeal - 30.11.2017
Appeal No._______(R)CS/2017
………….Appellant
VERSUS
………Respondents
<<<<<<>>>>>>
APPEAL UNDER SECTION 4 OF THE SERVICE
TRIBUNALS ACT, 1973.
Respectfully Sheweth:
FACTS
1. That the appellant started service career by joining the Federal Government
Higher Secondary School, G-8/4 Islamabad as Lecturer (BS-17) on ad-hoc
basis on 24.08.1989 for a period of six months. The ad-hoc appointment
was extended and despite the fact that she always performed her duties with
honesty, dedication and beyond the call of her normal duties, her services
were terminated w.e.f. 29.12.1990 but later on in pursuance of the policy
decision of the Federal Government regarding ad-hoc appointees she was
reinstated on 23.12.1993 and she remained in service till 20.12.1999 when
her services were again dispensed with and she was relieved of her duties.
3. That pursuant to the above direction of the Hon’ble Tribunal the case of the
appellant was sent to the FPSC where the appellant was also associated in
the process of interview to determine her fitness and the FPSC vide its
order dated 13.06.2007 decaled her fit for retention in service against the
3
4. That one of the colleagues of the appellant named Mrs. Naheed Naushahi
who was appointed as Lecturer alongwith the appellant, was relieved from
service alongwith the appellant in similar manner and was reinstated in
service through like process of determination of fitness by the FPSC and
was similarly placed with the appellant filed a Service Appeal No.1052(R)
CS/2006 in the Federal Service Tribunal, Islamabad for payment of all back
benefits from 20.12.1999 to 28.12.2005. The appeal was accepted vide
judgment dated 24.03.2009 with the direction to the respondent that the
appellant shall be entitled to the payment of full back benefits from
20.12.1999 to 28.12.2005 and the seniority in accordance with law. The
decision of the Tribunal was assailed by the Government in the Hon’ble
Supreme Court which was decided by the Hon’ble Court vide judgment
reported as 2010 SCMR 11 titled Federation of Pakistan Vs. Naheed
Naushahi. The operative part of the judgment is as follows:
5. That Mrs. Naheed Naushahi was accordingly allowed arrears of pay and
allowances for the period with effect from 20.12.1999 to 28.12.2005
alongwith other benefits. Although the appellant had not approached any
court of law but she had applied for extending of the benefit of the
judgment in the case of Naheed Naushahi and grant of payment of arrears
of pay and allowance from 20.12.1999 to 13.07.2007 and have pursued the
same from time to time. As the appellant and Mrs. Naheed Naushahi were
similarly placed in the matter of appointment, relieving and determination
of reinstatement / retention through the FPSC the appellant was entitled for
the similar treatment in the light of the judgment of the Hon’ble Supreme
Court of Pakistan.
7. That in the meanwhile the appellant stood retired from service w.e.f.
02.07.2017 and result of her representation pending with the respondents /
state functionaries ultimately translated in the shape of an order of the
respondent No.4 in the form of issuance of Revised Pay Slip four and half
months after her retirement whereby she has been treated as a fresh
appointee on 13.07.2007 and her pay was accordingly revised from
13.07.2007 to 02.07.2017 and her last pay drawn has been reduced from
Rs.60690/- to Rs.55570/- and as a result of this re-fixation an overpayment
of Rs.1,330,686/- has been worked out and indicated as recoverable in the
last pay certificate issued on 22.11.2017 which is totally unjustified.
8. That the pay which has been drawn by the appellant was duly authorized by
the respondent No.4/AGPR and the same was drawn through computer
payroll of the AGPR throughout and not a single penny was received by the
appellant which had not been authorized by the AGPR Islamabad from time
to time. The DDO of the College had always remained in loop in the matter
of drawing pay and allowances from the AGPR and the appellant has not
operated independently at any point of time. Downward sliding of the pay
and working out overpayment on basis thereof is unjustified and is a total
5
somersault by the AGPR, Islamabad and that too after the retirement of the
appellant. Even otherwise the amounts received in good faith are not
recoverable.
11. That it is also pointed out that Last Pay Certificate (LPC) represent the
payment last drawn by an officer and the rate and scale of pay indicated in
the Last Pay Slip issued on 22.11.2017 was never drawn by the appellant. It
is not the LPC but instead a hypothetical certificate issued by the AGPR,
Islamabad.
12. That the reduction of pay and allowances have been effected by the AGPR
Islamabad when the appellant was not in service and stood already retired
on 02.07.2017 and that too without any Show Cause Notice and
opportunity of personal hearing and that too after over four months of the
retirement of the appellant which is nullity in law per-in-curium because
she is no more a civil servant and no penalty whatsoever can be imposed
upon her after retirement. The payment drawn by the appellant under the
6
13. That the appellant is entitled to the identical treatment as has been meted
out to Mrs. Naheed Naushahi which has also been extended to her through
departmental action but on the direction of the Hon’ble Supreme Court of
Pakistan. There is no denial that the appellant is similarly placed with Mrs.
Naheed Naushahi and she cannot be discriminated on the only ground that
she has not invoked litigation against the Government.
14. That it is well settled law in the case of Hamid Akhtar Niazi Vs. The
Secretary Estt. Division, Govt. of Pakistan and others reported as 1996
SCMR 1185 if the Service Tribunal or Supreme Court has decided certain
question of law that the benefits of the same should not be restricted to the
civil servants who litigated but to all similarly placed in the like
circumstances. The case of the appellant therefore fulfill the criteria set out
in the above judgment and she is entitled for all back benefits of service
including payment of arrears, grant of seniority and the promotion under
the prevalent service rules.
15. That even if the representation is rejected and the benefits of judgment in
case of Mrs. Naheed Naushahi are not extended to the appellant, there is no
occasion or cause of sliding down her pay which was duly authorized by
the AGPR Islamabad on 13.07.2007 on the basis of her pay last drawn on
20.12.1999 and which graduated with the passage of time till date of
retirement of 02.07.2017. The order of re-fixation is illegal, unlawful and is
nullity in the eye of law.
16. That the appellant has no other remedy except to seek the kind indulgence
by this Hon’ble Tribunal inter-alia on the following:
GROUNDS
SCMR 1185). Tara Chand and others Vs. Karachi Water and
Sewerage Board, Karachi and others (2005 SCMR 499) and
Government of Punjab through Secretary, Education Civil
Secretariat, Lahore and others Vs. Sameena Parveen and others
(2009 SCMR – 1).
f) The appellant has not been dealt with in accordance with the
law, which is violative of Article 4 of the Constitution of Islamic
Republic of Pakistan, 1973.
9
the matter has been finalized and the other party has also
acted upon it, valuable rights created thereby cannot be
jeopardized by rescinding such order. [ p. 238] B.
The provision of the said section, which does not include the
power of review, cannot be stretched on the rule of beneficial
interpretation, which cannot be claimed on unreasonable
construction of law. Reliance in this respect is placed on
Messrs New Shaheen Trading Company through Managing
Director v. Government of Pakistan through Secretary
Ministry of Commerce and 2 others (2008 SCMR 17).
vi) [2010 PLC (CS) 1391 & 2011 PLC (CS) 852].
It is also pertinent to mention here that section 21 of General
Clauses Act, 1897 postulates that an authority which passes
an order is competent to vary, rescind or cancel the order
passed by the authority but such power is not absolute as the
same is subject to certain limitations. Where the order sought
to be varied or cancel is communicated to other party, a very
valuable right accrues to the party and the issuing authority
becomes functus offico to vary, rescind or cancel its earlier
2005 SCMR 25
“By Article 2-A of the Constitution, which has been made its
substantive part, it is unequivocally enjoyed that in the state of
Pakistan principle of equality, social and economic justice as
enunciated by Islam shall be fully observed which shall be
guaranteed as fundamental right. The principle of policy
contained in Article 38 of the Constitution also provide, inter
alia, that the state shall secure the well being of the people by
raising their standards of living and by ensuring equitable
adjustment of rights between employees and employer and
provide for all citizens, within the available resources of the
country, facilities for work and adequate livelihood and reduce
disparity in income of individuals”.
P R A Y E R:
i) Set aside the impugned Revised Pay Slip dated 17.11.2017 whereby the
pay of the appellant has been slashed downward and also Last Pay
Certificate dated 22.11.2017 indicating rates of pay which were
never drawn by the appellant and recovery amount of Rs.1,330,686/-
on account of overpayment of pay and allowances from 13.07.2007
to 02.07.2017 being illegal, unjustified, void ab-initio, whimsical,
capricious, arbitrary, without lawful authority, in colourable exercise
of power/ discretion virtually coram-non-judice.
iv) Any other relief which this Honorable Tribunal deems just and
appropriate in the circumstances of the matter may also be granted in
favour of Appellant and against the Respondents in the public
interest and interest of justice; and
THROUGH:
AND
Appeal No._______(R)CS/2017
AFFIDAVIT
College for Girls, G-10/4, Islamabad, R/o House No.20, Street No.14,
declare that the contents of the “accompanying appeal” are true and correct
to the best of my knowledge and belief and nothing has been concealed or
misrepresented there-from.
DEPONENT
Verified on oath at Islamabad on this _____ day of December, 2017 that the
contents of above Affidavit are true and correct and nothing has been
misrepresented therein.
DEPONENT
19