1983 PLP (C (PLC(CS))

Pakistan v. Muhammad Himayatullah Farukhi P L D 1969 S C 407 rel: M. A. Muatti Siddiqui for Appellant. Hassan Akbar, A. A.‑G. for the Government. Date of hearing : 28th June, 1983. MUSHTAK ALI KAZI (CHAIRMAN).‑‑The appellant, a junior school teacher has preferred this appeal under section 4 of the Sind Service Tribunals Act, 1973, against the order of Director of School Educa tion, Karachi dated 21st February, 1982 reverting the appellant from the post of H. S. T. Grade‑14 to J. S. T., Grade‑8 with retrospective effect from 1st October, 1974 and directing recovery of the excess amount of salary. for the entire period. The facts in brief are that the appellant was promoted against one of the six vacant posts of H. S. T., Grade‑14 with effect from 1st October, 1974 by the District Education Officer, Zone `A' (Girls), i. e. South Zone (Female), Karachi. In the year 1977 the appellant who, was already a graduate passed B.Ed. Examination, second division. On 1st December, 1981 she was allowed to cross the Efficiency Bar in Grade‑

14. By an order of Director of School Education, Karachi, dated 1st February, 1982 the appellant was reverted to the post of J. S. T., Gradb‑8 retrospectively with effect from 1st October, 1974 without any notice and the difference or excess pay for the last 7 years was to be recovered from the appellant. The appellant preferred a departmental appeal and after waiting for 90 days filed the service appeal against the said order. It is the case of the appellant that she had been demoted on the ground that she was Inter C. T. and was not, therefore, eligible for promotion as H. S. T. and that the District Education Officer, Zone `A' was not compe tent to pass the orders of promotion. The case of the appellant is that she was not Inter C. T. but she bad obtained B. A. degree in the year 1972 and she was, therefore, eligible for promotion and at any rate she has passed B.Ed. in the year 1977 and improved her qualifications. The appellant has further stated that the District Education Officer has issued promotion orders in case of other teachers also which have been called in question. While reverting the appellant retrospectively the Education authorities have disregarded fundamentally principles of law and equity. An order of promotion can be recalled subsequently but where ‑the order has been acted upon and certain benefits have accrued to the person concerned under the order, the same cannot be withdrawn with retrospective effect to deprive that person of the accrued rights. This is based on the principle of animus revertendi or locus poenitentiae or power to recede. It was observed by Justice Sajjad Ahmad in Pakistan v. Muhammad Himayatullah Farukhi (P L D 1969 S C 407) as under :‑ "There can hardly be any dispute with the rule 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 with drawn or rescinded to the detriment of those rights". It is also a mandatory principle of law that order of amendment cannot operate retrospectively. The' appellant had actually worked as H. S. T., Grade‑14 for 71 years. She cannot suddenly be reverted to Grade‑8 an asked to refund the excess amount from her salary in Grade‑

8. Even if the original order was passed by mistake or against the rules, the amending order cannot be passed having retrospective effect. It can only have pros pective effect from the date of such order. It is only the Legislature that can give retrospective effect to what it ordains. Government Executive Authorities have only power to revert and power to revert does not imply power to say that reversion has been deemed to have taken effect on such and such date. Such order is not warranted by any law. Lastly, the order operates to the detriment of the appellant and amounts to reduction in rank. Such an order cannot be passed without hearing they person affected, by issue of a proper show‑cause notice. Thus the order is also opposed to principles of natural justice: For the reasons stated above the order of reversion is hereby set aside. It is directed that in case the appellant is still considered to be ineligible for the post of H. S. T., Glade‑14 she may be allowed an opportunity to be heard before passing of any such order of reversion which should be prospective and not retrospective. In the result the appeal is allowed with no order as to costs. A.S. Appeal allowed,