TILE PROVINCE OF PUNJAB vs SHABBIR HUSSAIN
This matter concerns a petition for leave to appeal filed by the Province of Punjab against a judgment of the Punjab Service Tribunal regarding the retrospective application of a government notification affecting salary increments. The core legal question was whether a government notification dated 27-1-1976, which imposed a cap on the total number of advance increments for educational qualifications, was declaratory in nature and could be applied retrospectively to deprive a teacher of vested rights to increments earned prior to the notification. The Supreme Court held that the notification was not declaratory, as the prior rules did not contain such conditions. Consequently, the notification could not operate retrospectively to divest the respondent of rights already accrued. The Court affirmed the principle that new conditions imposed on existing entitlements cannot be treated as declaratory to justify retrospective application, particularly when such application would adversely affect the vested rights of an employee. Accordingly, the petition for leave to appeal was refused.
- Can a government notification imposing new conditions on salary increments operate retrospectively?
- Is a notification introducing a cap on previously uncapped advance increments considered declaratory in nature?
- Does a government notification have the power to deprive an employee of vested rights to salary increments?
- Article 212(3), Constitution of Pakistan 1973
- Pay Revision Rules, 1973
- Punjab (non Gazetted) Teaching Staff (National Pay Scales) Rules, 1973
ORDER
SHAFI-UR-REHMAN, J.-The Province of Punjab, seeks Leave to Appeal under Article 212(3) of the Constitution against the judgment of the Punjab Service Tribunal dated 25-10-1979 whereby an appeal filed by the respondent was allowed and retrospective effect was not given to Government of Punjab Notification No. FD-PR-10-71/72 dated 27-1-1976.
2. The respondent was promoted as Senior English Teacher w.e.f. 26-7-1967. At that time he was B.
A., B. Ed. He improved his qualification on 27-1-1970 by passing M. A. Examination and was given therefore, two advance increments as permitted under the Pay Revision Rules, 1963. On 8-11-1974 he further improved his qualification by passing M. Ed. Examination. The District Education Officer allowed him three more advance increments as from that date. The Punjab Government by a notification dated 27,1-1976 introduced a rider to the entitlement of advance increments on improving the qualifications'. The condition imposed was as follows :- "The maximum number of advance increments admissible for M. A., M. Sc. And M. Ed. Shall be three.
An advance increment or increment allowed for one qualification shall also be counted towards any second or third qualification and only differential increment or increments (if any) shall be allowed."
3. This condition was sought to be applied to the case of the respondent. He challenged it by appeal. The Service Tribunal upheld his right to receive the advance increments as admissible on the date he improved his qualification.
4. The learned counsel for the Province has urged that the condition imposed by the impugned notification was declaratory in nature, was already implicit in the rules applicable and had to be applied to the case of the respondent.
5. The rule applicable to the grant of advance increments as existing on 8-11-1974 when entitlement of the appellant was created was as follows :- "Pay Revision Rules, 1973.--Rs. 350-25-475/25-600/30-750.
Prescribed scale under National On advance increment for M.A( 2 Divn)
Pay scales Rules advance increment forfor M. Sc. (2nd Divn.) and three 1979 w.e.f.1-7-1973.Advance increments for M. Ed. Or M. Ed. (Tech), or M. A. (Edu.)."
The impugned notification dated 27-1-1976 is in following words :- "In exercise of the powers conferred by rule 11 of the Punjab (non Gazetted) Teaching Staff (National Pay Scales) Rules, 1973, the Government of the Punjab is pleased to make the following additions in the Schedule and footnotes appended thereto, namely
(a) In Part II of the Schedule, in the "Remarks" column against Serial No. 4(f) the following shall be added One advance increment for M. A. (IInd Division), two advance incre--ments for M. Sc. (IInd Division) and three advance increments for M. Ed. Or M. Ed. (Technical) or M. A. (Edu.) subject to a maximum of three advance increments as explained in Note (1-A) below.
(b) Between Notes (1) and (2), at page 13 of the Schedule the following shall be added Note (1-A).-With reference to existing entries in the "Remarks" column against Serial 5, of Part I of the Schedule, on page 7 and Serial 4(i) of Part II of the Schedule on page 12, the maximum number of advance increments admissible for M. A., M Sc. And M. Ed. Shall be three. An advance increment or increments allowed for one qualification shall also be counted towards any second or third qualification and only differential increment or increments (if any) shall be allowed. For example, if a holder of a post has already obtained one advance increment for M. A. Qualification and later obtains M. Sc. Or M. Ed. He will be allowed one increment for M. Sc. And two increments for M. Ed.
And, similarly, if he has obtained two increments for M. Sc. He will be allowed one increment for M.
Ed."
6. It is clear that before the impugned notification, the grant of advance' increment was uncontrolled by any condition except the passing of the examination in a particular Division. The conditions subsequently imposed were neither manifest nor followed by necessary implication. On no principle of construction could, therefore, the impugned notification bed considered declaratory. It could not operate retrospectively to deprive the respondent of his vested rights. The petition raises no such question of law as may require further examination in this Court. Leave to appeal is therefore refused.