1989SCMR441 (PLP)

‑‑‑S.9‑‑Constitution of Pakistan (1973), Art.212(3)‑‑Promotion/fixation of pay‑ Withdrawal of order after lapse of 7 years‑‑Effect of‑‑Wrong fixation of pay on promotion‑‑Pay refixed after lapse of seven years‑‑Order set aside by Service Tribunal on ground that order of fixation of pay having been given effect to, no locus poenitentiae was left and departmental authorities had no valid power of rescinding the order‑‑Leave to app al granted to consider contentions: (i) that order of fixing of respondent's pay was illegal ab initio, and therefore principle of locus poenitentiae was not attracted, for, it would cover only those actions which fall within the law and not contrary to it; (ii) that principle of locus poenitentiae is not attracted to facts of the case because promotion is not a vested right; and (iii) moreover respondent could not be allowed to continue to receive benefit of an illegal promotion to the prejudice of his seniors in service. Sajjad Ahmed Sipra, Deputy Attorney‑General for Pakistan instructe y Manzoor Ilahi, Advocate‑on‑Record for Petitioners. Nemo for Respondent. Date of hearing: 21st June, 1988. ABDUL KADIR SHAIKH, J.‑‑This is a petition for leave to appeal from the judgment of Federal Service Tribunal dated 5‑7‑1987 by which an appeal filed by respondent was allowed. Respondent was appointed' as $a Draftsman, Class‑C, in M.E.S. Department of petitioners on 1‑3‑1971 and on his promotion in Class‑B his pad was fixed in Grade‑11 with effect from 13‑5‑1976. In 1983, first petitioner pointed out to the Military Accountant‑General that respondent's pay was wrongly fixed in Grade‑11 and therefore his pay was re‑fixed in NPS‑

7. Respondent filed a departmental appeal and after awaiting the results for the statutory period, he filed an appeal before the Service Tribunal which succeeded on the ground which may be reproduced hereunder: "Be that as it may, however, it is a welt‑settled era position that a public authority which can pass an order, is empowered to vary, amend or rescind that order. But this power to recede can be exercised only till a W decisive step to carry out that order is taken. If; however, the order has been given effect to, so that no locus poenitentiae is left, there will be no occasion for exercise of such power. Thus the power to amend or cancel an order cannot be carried into effect if the order has teen acted upon. In the present case the pay of the appellant was duly feed in NPS‑11 in 1976 which was being paid to him for about seven year. Therefore, the departmental authorities had no valid power of rescinding the orders of fixation of the appellant's pay in NPS‑11 which was fly pied into effect. Consequently we hold that the impugned action is incompetent and unjust" Mr. Sajjad Ahmed Sipra, learned Deputy Attorney‑Geaeral submits in support of this petition that Federal Service Tribunal has failed to appreciate that the order of fixing of respondent's pay in NPS‑11 was illegal. ab initio and therefore the principle of locus poenitentiae is not attracted, for it would cover only those actions which fall within the law, and not contrary to it. Learned counsel further submits that even the principle of locus poenitentiae is not attracted to the facts of this case for the reason that it is well‑settled that promotion is not a vested right and moreover respondent cannot be allowed to continue the benefit of an illegal promotion to the prejudice of his seniors in service. These, amongst other points, raised in support of the petition, deserve consideration. We, therefore, grant leave to appeal and allow the petition. M.I./E‑7/S Leave granted.