1999 PLP (C (PLC(CS))

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been directed against the order of the High Court dated 25‑2‑1997 whereby the writ petition filed by the appellant, herein, was dismissed.

2. The brief facts of the case are that the appellant was appointed as Lecturer vide Government order dated 8‑10‑1984 and subsequently he was confirmed as such in pursuance of the recommendations of the Public Service Commission on 30‑7‑1986. However, subsequently, a notification was issued on 7‑8‑1986 whereby the Notification dated 30‑7‑1986 was cancelled. Some of the other civil servants who were adversely affected by the cancellation of the Notification dated 30‑7‑1986 preferred objections/appeals to the Government against the Notification dated 7‑8‑1986; the same were accepted and, thus, Notification dated 30‑7‑1986 was again restored vide Notification dated 27‑7‑1993. The case of the appellant is that he made a joining report to the concerned authority but he was not allowed to join his service on one pretext or the other. Thus, he filed a writ petition in the High Court and also got an interim order to the effect that status quo should be maintained during the pendency of the writ petition. However, another notification was issued on 30‑11‑1993 whereby Notification dated 27‑7‑1993 was amended in terms that the Notification dated 27‑7‑1993 will be effective only to the extent of the civil servants who had filed some objections/appeals etc. against the cancellation of Notification dated 30‑7‑1986. Thereafter, the appellant amended his writ petition and also challenged the amending Notification dated 30‑11‑1993 as being mala fide.

3. We have heard the arguments advanced at the Bar. Mr. Muhammad Ibrahim Zia. Advocate, the learned counsel for the appellant, has argued that the Notification dated 27‑7‑1993 has been acted upon and, thus, the Government has no locus poenitentiae to rescind or amend the same afterwards vide order dated '10‑11‑1993. The learned counsel has cited following authorities in support of his contentions:‑‑ In case reported as Muhammad Nawaz v. Federation of Pakistan (1992 SCMR 1420), the Director‑General, Pakistan National Centre, passed an order as competent Authority on 15‑11‑1988 whereby he regulated the services of certain Programme Managers, on 3‑1‑1989, the same authority confirmed the services of some other persons. It was admitted fact that Director‑General was competent Authority to pass the aforesaid two orders. However, the said notifications were superseded by the Ministry of Information and Broadcasting by the subsequent Notification dated 19‑4‑1989. The subsequent notification was challenged by the aggrieved civil servant before the Service Tribunal, which upheld the contention of the aggrieved civil servant that the order issued by the Director‑General, who was competent Authority, had been acted upon and could not be recalled or superseded by the Ministry of Information and Broadcasting. A petition for leave to appeal was preferred to the Supreme Court against the aforesaid finding of the Service Tribunal. The Supreme Court upheld the finding of the Service Tribunal observing that the Ministry of Information and Broadcasting had no locus poenitentiae to supersede the orders of the Director‑General because the same had been acted upon. In case reported as Malik Zafar Ali v. Inspector‑General of Police (1995 SCR 234), it was observed by this Court that as the promotion order of the concerned Police officers had been acted upon and they had been performing the duties as Assistant Sub‑Inspectors in pursuance of the said order, the same could not be rescinded subsequently by the Inspector‑General of Police even if the same was of temporary nature. However, it was observed that if the promotion order was violative of law in the opinion of the Inspector‑General of Police, he could rescined the same after giving an, opportunity of hearing to the concerned officers. In case reported as Chief Secretary, Government of Sindh v. Sher Muhammad Makhdoom (PLD 1991 SC 973), it was observed that as the relevant notifications had been implemented and the concerned civil servants had also under bone the training in pursuance of the relevant notifications, the sane could not be rescinded on the principle of locus poenitentiae. The learned counsel for the appellant has submitted that the principle enunciated in the above authorities is attracted to the case in hand. According to him as the order dated 27‑7‑1993 had been acted upon and final step had already taken place towards its implementation, the amending Notification dated 30‑11‑1993 was without lawful authority.

4. In reply, Raja Shiraz Kayani, Advocate‑General, has controverted the arguments advanced by the learned counsel for the appellant. He has argued that after the issuance of the Notification dated 7‑8‑1986, whereby the Notification dated 30‑7‑1986 was cancelled, the appellant did not perform his duties as an ad hoc appointee or prefer an appeal/objection against the termination of his services as was done by some other civil servants. When he tried to take benefit from the Notification dated 27‑7‑1993 by joining his duties as a Lecturer, he was not allowed to do so. Therefore, he filed a writ petition in the High Court. Thus, the learned counsel maintained that it cannot be said by any stretch of imagination that as the Notification dated 27‑7‑1993 had been acted upon, the same could not be amended, rather when the appellant tried to join his service, he was not allowed to do so by the authority concerned. Therefore, the competent Authority had the locus poenitentiae to issue amending Notification dated 30‑11‑1993.

5. We have given due consideration to the matter. The main argument of the learned counsel for the appellant is that since the relevant order had been acted upon and decisive step had been taken, that could not be subsequently amended by Notification dated 30‑11‑1993. We have already noted that the appellant was not allowed to join his service. Thus, it cannot be said that the Notification dated 27‑7‑1993, had been implemented so far as it pertained to the appellant. Therefore, we are of the considered opinion that the respondents had the locus poenitentiae to amend the Notification dated 27‑7‑1993 vide Notification dated 30‑11‑1993, whereby only those civil servants were given benefit to join or remain in service who had preferred objections/appeals against Notification dated 7‑8‑1986.

6. The next point urged by the learned counsel for the appellant is that the amending Notification dated 30‑11‑1993 was issued despite the fact that a stay order to maintain statuts quo was issued by the High Court in favour of the appellant. No copy of the application, on which the stay order was issued, has been placed on the record. Thus, it cannot be ascertained as to what was the nature of the status quo which the High Court directed to be maintained. However, even if it is assumed for the sake of arguments that the stay order issued by the High Court was tantamount to restraining respondent No.l from issuing the amending Notification dated 30‑11‑1993, that would not invalidate the said notification. At the most, the appellant could initiate appropriate proceedings for the violation of the stay order in the appropriate forum.

7. Lastly, it has been argued by the learned counsel for the appellant that the amending Notification dated 30‑11‑1993 was discriminatory because the other concerned civil servants were given the benefit of the Notification dated 27‑7‑1993, while the appellant was denied the same. The argument has no force because the other civil servants who got the benefit from the aforesaid notification had preferred appeals/objections against Notification dated 7‑8‑1986 to the concerned authorities which resulted in the Notification dated 27‑3‑1993; while it is admitted by the appellant that he did not go up in any appeal etc. against the Notification dated 7‑8‑1986. An order passed in different circumstances cannot be regarded as discriminatory because it is not identical to the order relating to some others; it would be discriminatory only if different orders are passed in the identical circumstances or the distinction drawn between the two or more persons is artificial and unreasonable; no such eventuality exists in the present case. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with no order as to the costs. H.B.T./315/SC (AJ&K) ??????? ??????????????????????????????????????????????? ??????????? Appeal dismissed.