2007 PLP (C (PLC(CS))

MUHAMMAD NAWAZ ABBASI, J.

This appeal with the leave of the Court has been directed against the judgment, dated 4-10-2001 passed by Sindh Service Tribunal, Karachi, in a service appeal filed by the appellant under section 4 of Sindh Service Tribunals Act, 1973, against an order, dated 9-7-1998 by virtue of which the appellant was reverted from the post of Assistant Cotton Botanist (B.17) "Supervisory" Agricultural Research Institute, to the post of Assistant Research Officer (Non-Supervisory), Plant Breeding, Agricultural Research Department of Government of Sindh.

2. The petitioner oh selection by the Sindh Public Service Commission, was initially appointed as Assistant Research Officer, BPS-17 (Non-Supervisory), Plant Breeding in the Agricultural Research Department of Government of Sindh in 1983 but was posted in Horticultural Institute, Mirpurkhas with an additional assignment of Farm Manager, Horticultural Institute. The appellant was placed in the seniority list of the Officers of Horticultural Line of the Department and was also given promotion and move over in the next grade in the same line. Subsequently, he was reverted back to the Plant Breeding Line ill 1998 on the ground that initially he was appointed as Assistant Research Officer in the said line.

3. The appellant, after exhausting departmental remedies, filed an appeal under section 4 of Sindh Civil Servants Act, 1973 before the Sindh Service Tribunal and the Tribunal dismissed the appeal, vide impugned judgment with the observation that the appellant being basically belonged to Plant Breeding Line of the Department had no right to occupy the post in Horticulture Line of Agriculture Department.

4. Leave was granted in this appeal vide order, dated 14-12-2001 as under:

"This civil petition for leave to appeal is directed against judgment, dated 4-10-2001 in Appeal No.345 of 1998 (Bashir Ahmad v. Chief Secretary, Government of Sindh and others) passed by learned Sindh Service Tribunal, Karachi whereby appeal of the petitioner was dismissed maintaining respondents decision reverting him to his substantive post in Plant Breeding Line without affecting his scale of pay. (2) Brief facts of the case arc that the petitioner was appointed as Research Assistant Grade-16 in Potato Project against a temporary post vide order, dated 18-6-1977. Later on he was selected through Sindh Public Service Commission as Assistant Research Officer (Plant Breeding) Grade-17 on regular basis as per notification dated 26-3-1983 and was posted under Horticulturist, Sindh Horticulture Institute, Mirpurkhas as per notification dated 20-4-1983 where he also held assignment of Farm Manager, Horticultural Institute as per order, dated 16-7-1984. In final seniority List of the Officers BS-17 in Horticulture Line (Supervisory/Non-Supervisory), as on 1-1-1985 which was circulated, the petitioner was shown at serial No.11 of the Non-Supervisory Officers but the said list was not challenged and it attained finality. Thereafter the petitioner along with Muhammad Rafique Lashari and other colleagues were promoted in BS-17 (Supervisory Grade) on regular basis as per notification, dated 16-4-1987 in the Horticulture Line of Agricultural Research Wing which was also not challenged and such seniority list was circulated as on 31-12-1987 wherein petitioner was shown at serial No.12 of the Supervisory Officers which too was not objected or challenged and thereafter yet another seniority list as on 31-12-1988 was circulated wherein the petitioner was shown at serial No.10 and thereafter he was also allowed moveover from BS-17 to BS-18 as per notification, dated 29-5-1991. However, vide notification dated 9-7-1998 issued by respondent No.2 the petitioner was reverted as Assistant Research Officer BS-17 (Non-Supervisory) Plant Breeding Line and posted as Assistant Research Officer BS-17 at Sindh Horticultural Research Institute, Mirpurkhas against existing vacancy on his request as a special case maintaining his seniority in his parent line i.e. Plant Breeding Line which order was challenged before the Sindh Service Tribunal but before the said order he had also challenged the order, dated 26-10-1996 of respondent No.3 through Appeal No.821 of 1996 which appeal was disposed of on 30-12-1997 with the direction that competent authority should re-consider whether the petitioner was absorbed in the Horticulture permanently or not, because in ease he was absorbed in the said line his lien in the Plant Breeding Line should be terminated consequently his transfer to the Plant Breeding Line would not be sustainable. The impugned judgment passed in Appeal No.345 of 1998 has been challenged in this petition. (3) We have heard the petition in person and perused the record. (4) The main contention of the petitioner is that after his regular appointment by Sindh Public Service Commission he remained posted in Horticulture Line in Sindh and was also promoted by D.P.O. in Horticulture Line, and in three final seniority lists he was shown in Horticulture Line when none of his colleagues challenged the same for long eighteen years therefore the A respondents were not legally competent to revert the petitioner in Plant Breeding Line of the Department consequently the impugned judgment was liable to be set aside. (5) We prima facie find substance in the contention, consequently leave to appeal is granted to consider the above said contention."

5. The appellant while appearing in person has submitted that undoubtedly he was selected and appointed as Assistant Research Officer, Plant Breeding in the Agriculture Research Department, Government of Sindh, but immediately on joining the department, he was posted as Assistant Research Officer Horticulture and was also placed in the seniority list of (Supervisory, Non-Supervisory) Officers of the Horticulture Line of the Department. The appellant thus argued that he having continuously served for a period of more than fifteen years and earned promotion and move over in the Horticulture Line, would be deemed to have been permanently adjusted/absorbed in the, said line of department and the mere fact that his initial appointment was made in Plant Breeding, would not be a valid reason to revert him back to Plant Breeding Line of department at a belated stage.

6. The learned Additional Advocate-General, Sindh, on the other hand, has contended that in absence of an express order of permanent adjustment/absorption of appellant in Horticulture Line, he would not be entitled to claim permanent retention in Horticulture Line on the basis of wrong fixation of seniority and grant of promotion and move over to the next grade.

7. The Plant Breeding and Horticulture are certainly two independent lines in the Agricultural Research Department of Government of Sindh and the seniority of the Officers of two lines is not combined. There can be no dispute to the general rule that an incumbent of a post of a line cannot change his line without the permission of the competent authority in the Government of Sindh and similarly, it is not permissible to place a person on the strength of a line other than his own line to his disadvantage or without his consent. hi the present case, the appellant on initial appointment as Assistant Research Officer Plant Breeding was posted in Horticulture Institute as Assistant Research Officer and having been placed in the seniority list of Officer (Supervisory/Non-Supervisory) of Horticulture, he was allowed promotion and move over to the next grade in the said line, therefore, notwithstanding an express order of absorption, the continuous retention or appellant in Horticulture Line for a long period and grant of promotion and move over, there would suggest that he was permanently adjusted/absorbed in the said line of Agricultural Department. It was not the case of either party at any stage that the posting of the appellant in Horticulture Line of the department was temporary or it was a stop gap arrangement rather for all practical purposes, he was being considered an Officer of Horticulture Line of department throughout his service career and in absence of a specific rule placing restriction on the Officers of different lines of department not to change their line of service, the mere initial induction in a line would not create a bar to change the said line and consequently, the reversion of appellant vide notification, dated 9-7-1998 to the Plant Breeding Line on the ground that initially he belonged to that line being detriment to the valuable right accrued in his favour in the Horticulture Line, would not be justified. It is settled principle of law that if in consequence to an order passed by an authority competent to pass such an order, certain rights are created in favour of a person, the said order cannot be subsequently undone or withdrawn. The authority being responsible of passing of an order creating certain rights c would not be legally justified to take a turn and retrace the steps to undo the said order on the ground that it was passed in violation of rules or was a wrong order. The respondents, without pointing out any prejudice or substantial loss caused to any Officer of Horticulture Line of the department on account of the placement of appellant in the said line, reverted him back to Plant Breeding Line apparently on the force of principle of law that an authority which can pass an order can also withdraw the same but this principle can only be invoked before an. order has taken effect. The rule of locus poenitentiae is that the power of rescinding is available to the Government or the relevant authorities to retrace and undo the wrong order till a decisive step is taken and there is hardly any dispute that an authority which has power to make an order has also the power to undo it but this is subject to the exception that if an order has taken effect and certain rights have been created in favour of an individual, such an order cannot be rescinded or withdrawn to the detriment of the such rights. The provisions of section 21 of the General Clauses Act, 1956, envisages that the power to issue an order includes the power to rescind or vary such an order which co-relates with the authority to competently pass an order and also recall, rescind or cancel such an order but this is not an unfettered power to be used at any stage in any manner for undoing an order which having already taken effect, has created vested rights. The spirit of rule is that once an order is given effect and in consequence thereto certain rights are created in favour of a person, such rights cannot be subsequently taken away. This Court in a similar case Pakistan v. Muhammad Himayatullah PLD 1969 SC 407 held as under:

"There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."

8. Be that as it may, unless it is provided to the contrary in the rules governing a service, there can be no departure to the general rule that the change of cadre or line of promotion is neither allowed in routine nor can be claimed as of right but in exceptional circumstances and hardship cases, subject to the rules and rights of others, such a change is possible. In the present case, neither the appellant voluntarily opted for the change of line of promotion nor an express order was passed in this behalf but he with the implied approval of the concerned authorities, continued in Horticulture Line till the date of issue of notification of his reversion, therefore, the continuous retention of the appellant with placement of his name in the seniority list of Officers of Horticulture Line and grant of promotion and move over there would definitely create a valuable right of enjoying the status of an Officer of the strength of Horticulture Line. The principle of law laid down by this Court in Pakistan v. Muhammad Himayalullah PLD 1969 SC 407 and Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973 being fully applicable to the present case, the appellant would be entitled to the permanent absorption in Horticulture Line of the department.

9. For the foregoing reasons, we accept this appeal, set aside the impugned judgment of Sindh Service Tribunal as well as the notification, dated 9-7-1998 by virtue of which the appellant was G reverted back to Plant Breeding Line from Horticulture Line of the Agricultural Research Department, Government of Sindh. There shall be no order as to costs. M.H./B-11/SC Appeal allowed.