SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Gulzar Ahmed 
Mr. Justice Munib Akhtar 
 
 
C.P.No.4439 of 2017 and CMA No.8554 of 2017 
[Against the order dated 17.10.2017, passed by the Federal Service Tribunal, Islamabad in 
R.P.No.176/2017 in Appeal No.394(P)CS/2015] 
 
 
Shams ur Rehman. 
…Petitioner(s) 
Versus 
Military Accountant General, Rawalpindi and 
another. 
…Respondent(s) 
 
 
For the Petitioner(s) 
: Mrs. Misbah Gulnar Sharif, ASC 
Syed Rifaqat Hussain Shah, AOR 
 
  
For the Respondent(s) 
: Mr. Sajid Ilyas Bhatti, Addl.A.G 
Imran Feroze, D.R. AAO, Litigation 
 
  
Date of Hearing 
: 18.10.2019 
 
O R D E R 
 
 
Gulzar Ahmed, J.— The petitioner was appointed as 
Senior Auditor in BPS-11 and was granted selection grade BPS-15 
on the basis of MAG letter dated 15.11.2006. The selection grade 
was granted to 136 Senior Auditors and the name of the petitioner 
appeared at Sr.No.109 of the list of said Senior Auditors. Pay was 
fixed vide letter dated 21.12.2006 pursuant to which the petitioner 
started getting pay of selection grade BPS-15. Vide letter dated 
11.02.2015, the pay of the petitioner was refixed in BPS-11, on 
cancellation of his selection grade of BPS-15, which was 
erroneously granted to him w.e.f. 25.03.1996. This letter was 
challenged by the petitioner before the Federal Service Tribunal, 
Islamabad (the Tribunal), who vide its judgment dated 18.09.2017 
2-C.P.No.4439 of 2017 and CMA No.8554 of 2017 
 
 
 
 
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dismissed the service appeal of the petitioner. The petitioner filed 
review petition that too was dismissed vide impugned order dated 
17.10.2017.  
2. 
 
The only submission of the learned counsel for the 
petitioner is that the petitioner continued to work in selection 
grade BPS-15 and was being paid emoluments of the said grade 
not on account of his own fault but on account of measures taken 
by the department itself and that for almost 9 years the petitioner 
had served in the position of BPS-15 and was paid the benefits of 
such post and now through letter dated 11.02.2015 while 
cancelling selection grade and reverting the petitioner back to BPS-
11, the respondent cannot recover salary and benefits paid to him 
on the principle of locus poenitentiae and in this regard she has 
relied upon the judgment of this Court in the case of the 
Engineering-in-Chief Branch through Ministry of Defence and 
another vs. Jalaluddin (PLD 1992 Supreme Court 207).  
3. 
 
Learned Additional Attorney General, on the other 
hand, has contended that the very judgment was not challenged by 
the petitioner but only the review petition was filed and the 
Tribunal having found no ground available for review and 
dismissed the same. He further contended that the petitioner 
cannot retain benefit of selection grade BPS-15 as it was 
erroneously granted to him.  
4. 
 
Be that as it may, we have noted that in the judgment 
of the Tribunal this very aspect of the matter has been dealt with 
in para-10, where it was observed that the principle of locus 
poenitentiae does not mean that the benefit once accrued illegally 
2-C.P.No.4439 of 2017 and CMA No.8554 of 2017 
 
 
 
 
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in favour of any person would stand protected for all times to 
come. Learned counsel for the petitioner states that this very part 
of the judgment was sought to be reviewed but the Tribunal 
incidentally did not appreciate the same. For almost 9 years the 
petitioner has served in selection grade BPS-15 and has received 
the emoluments and benefits of such post. It is not in dispute that 
the selection grade BPS-15 was granted to the petitioner by the 
department itself and the petitioner apparently had no role in 
obtaining the post of selection grade BPS-15 for that no such 
allegation whatsoever is made against him. The respondents have 
merely pleaded mistake, as only 25% of posts from BPS-11 were 
required to be filed in the selection grade BPS-15 and it was 
subsequently realized by the department itself that the petitioner 
did not fall within the 25% quota and thus was recalled from the 
post of selection grade BPS-15 and reverted him back to the post of 
BPS-11. For 9 years the petitioner performed the work of a higher 
post of selection grade BPS-15 and thus on the principle of locus 
ppoenitentiae the benefits paid to him could not be recovered from 
him for that such principle would not apply. Further, in our view 
the principle of estoppel will also be applicable as against the 
department from recovering the emoluments and benefits of BPS-
15 from the petitioner. In the case cited by the learned counsel for 
the petitioner, this Court has observed as follows:  
 
“Locus poenitentia is the power of receding till a 
decisive step is taken. But it is not a principle of 
law that order once passed becomes irrevocable 
and it is past and closed transaction. If the order 
is illegal then perpetual rights cannot be gained 
on the basis of an illegal order. The appellants 
when came to know that on the basis of incorrect 
2-C.P.No.4439 of 2017 and CMA No.8554 of 2017 
 
 
 
 
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letter, the respondent was granted Grade-11, 
they withdrew the said letter. The principle of 
locus poenitentiae would not apply in this case. 
However, as the respondent had received the 
amount on the bona fide belief, the appellant is 
not entitled to recover the amount drawn by the 
respondent during the period when the latter 
remained in the field.”    
 
 
 
Further in a similar case of Mst. Sajida Javed vs. Director of 
Secondary Education, Lahore Division and others (2007 PLC (C.S) 
364), this Court held as follows:  
“Appointment of the petitioner to the post of 
Senior School Teacher in BS-16 vide office order 
dated 11.03.1996 is not disputed. It is also not 
disputed that she actually served against this 
post in different Girls Middle Schools wherever 
posted. The fact that the department realized its 
mistake after about four years would show that 
petitioner herself was not at fault in procuring the 
appointment or her posting in different schools in 
Sheikhupura District by unfair 
means. By 
accepting the offer validly made to her by the 
Department on the basis of her qualification and 
training in the relevant field, a valuable right had 
accrued to the petitioner and she could not be 
made to suffer for the mistake or error of the 
officials of respondent-Department. Indeed, the 
offer had been accepted and actually acted upon 
for almost four years. The case would, thus, be 
governed by the principle of locus poenitentiae 
and, in our view, the Department cannot retrace 
the steps already taken and lawfully acted upon 
by the petitioner.” 
 
5. 
 
Thus, keeping in view the above principles as 
enunciated by this Court in the two cited judgments, the finding of 
the Tribunal by which it has allowed recovery of emoluments and 
benefits from the petitioner that of a selection grade BPS-15, was a 
blatant mistake apparent on the face of the record of the Tribunal 
judgment and the Tribunal in exercise of its review jurisdiction 
ought to have noted the same and also rectified such mistake from 
its judgment. By not doing so the Tribunal apparently has failed to 
2-C.P.No.4439 of 2017 and CMA No.8554 of 2017 
 
 
 
 
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exercise its review jurisdiction, which was available in the case in 
hand and by not doing so, there is apparent illegality in the 
impugned order of the Tribunal. Thus, we are persuaded not to 
agree with the impugned order of the Tribunal to the extent as 
noted above. The impugned order of the Tribunal dated 17.10.2017 
is, therefore, set aside. The petition is converted into an appeal and 
is allowed to the extent as noted above.     
 
 
JUDGE 
 
 
 
Bench-II 
ISLAMABAD 
18.10.2019 
APPROVED FOR REPORTING 
Rabbani*/ 
JUDGE