2006 PLP (C (PLC(CS))

JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).--Necessary facts for the purpose of disposal of the appeal are that ?appellant joined Sindh Public Service Commission at Hyderabad as Deputy Secretary (Regulations) in BS-17 on 12-2-1987. The post along with its incumbent in the year 1993 was upgraded to BS-18 and appellant was allowed to continue on the said post. In the year 1995, appellant's services were transferred to the Sindh Provincial Secretariat Service (hereinafter .referred to as ' S. P. S. S. ' ). Firstly, he was posted as Deputy Secretary, Education Department and then in the same capacity in the Agricultural Department. He was then transferred and posted as Deputy Secretary (Budget) in Services and General Administration Department. On account of appellant's outstanding and meritorious performance, the Services and General Administration Department (hereinafter referred to as "S&GAD") at its own accord floated a summary to the then Advisor to Prime Minister on Sindh Affairs, for the transfer of the post of Deputy Secretary (Regulations) to the S&GAD permanently along with the incumbent to absorb appellant in the Sindh Provincial Secretariat Service. On approval of the said summary, the post of Deputy Secretary (Regulation) in the Sindh Public Service Commission and its incumbent namely appellant was by Notification dated 1-9-1999 transferred permanently to the S&GAD and appellant was absorbed in the Sindh Provincial Secretariat Service. His seniority was ordered to be reckoned from the date of issuance of notification i.e. 1-9-1999. While appellant was performing his duties as Deputy Secretary. (Budget) S&GAD his permanent absorption was cancelled through Notification dated 2-11-1999. In consequence thereof appellant was repatriated to the Sindh Public Service Commission. Feeling dissatisfied, appellant preferred review petition to the Governor of Sindh, (exercising the powers of Chief Minister of the Province), which remained un-responded. Hence, this appeal.

2. In support of appeal, learned counsel for the appellant vehemently argued that Notification dated 2-11-1999 whereby appellant's permanent absorption along with the post in the Sindh Provincial Secretariat Service was withdrawn being illegal ab initio null and void, issued in glaring violation of the principles of natural justice, carries no legal value in the eyes of law. He submitted that appellant's absorption in Sindh Provincial Secretariat Service was notified through valid and legal Notification issued with consent and approval of the then Advisor to Prime Minister on Sindh Affairs, who at the relevant time was exercising the powers of the Provincial Chief Minister, thus a valuable right was accrued to the appellant which cannot be snatched in such perfunctory manner. He contended that appellant was diligently performing his duties to the utmost satisfaction of his superiors and thus his performance was highly appreciated at all levels. He added that Sindh Public Service Commission being attached department of S&GAD, as such there was no wrong in transferring the post of Deputy Secretary from Sindh Public Service Commission to the S&GAD along with its incumbent especially when such transfer was made with the consent and prior approval of the competent Authority. While quoting Rule 9-A of the Sindh Civil Servants, (Appointment, Promotion. and Transfer) Rules, 1974, learned counsel contended that on abolition of post of Deputy Secretary in Sindh Public Service Commission by way of transfer along with its incumbent, the appellant who fulfills all the conditions enumerated in Rule 9-A of Rules of 1974, was rightly, lawfully and legally absorbed/appointed as Deputy Secretary in S&GAD, which order has been acted upon, therefore, under the Rule of 'Locus poenitentiae' the said order/ Notification cannot be cancelled/ rescinded/ withdrawn.

3. In rebuttal, learned Asstt. A.-G. while referring the written statement filed on behalf of respondents stated that transfer of post of Deputy Secretary along with its incumbent from Sindh Public Service Commission was made without the consultation of the Chairman. Besides, no consent for transfer of post was obtained from the Finance Department. Therefore, the whole process of transfer of the post along with its incumbent to the S&GAD was against the law and the rules. She contended further that post of Deputy Secretary in the Commission was/is very much essential as there were/are large number of Court cases to be handled by the Deputy Secretary, besides, Deputy Secretary used to assist the Commission and its Members in framing of recruitment rules and other policy matters. She, however, stated that Commission has no objection to the transfer of appellant to Sindh Provincial Secretariat Service but the transfer of post of Deputy Secretary to the S&GAD being in violation of the Rules may be set aside.

4. We have considered the above submissions and have gone through the material placed on the record. Appellant who was serving as Deputy Secretary (Regulations) in Sindh public Service Commission was transferred to Sindh Provincial Secretariat Service in the year, 1995 and remained posted' in the Provincial Secretariat as Deputy Secretary' in different departments for over 5 years. As it appears, the S&GAD at its own accord/suo motu on account of appellant's outstanding and meritorious performance moved a summary to the then Advisor to Prime Minister on Sindh Affairs, for the transfer of the post of Deputy Secretary (Regulations) along with its incumbent to the Sindh Provincial Secretariat Ser. ice. The then Advisor exercising the powers of the Chief Minister, under the law was competent to transfer a post and its incumbent fro n one department to another in exigencies of service, accorded approval to the said proposal and in compliance thereof, the post of Depty Secretary and the appellant were transferred to S&GAD as per Notificaition dated 1-9-1999. Admittedly, the said notification issued legal and competently was acted upon and appellant joined the Sindh Provincial Secretariat Service as Deputy Secretary (Budget) S&GAD, thus a valuable right was accrued to him, which under the B doctrine of 'Locus poenitentiae' cannot be snatched from him. In a case of Pakistan v. Muhammad Himayatullah, PLD 1969-SC 407, it was observed: "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 passed 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." (Underlining is ours) Similar was the view taken in the case of Chief Secretary v. Sher Muhammad Makhdoom, PLD 1991 SC 973, and in the case of Chairman King Edward University v. Wasif Zamir Ahmed Khan, 1997 SCMR

15. In another case of Mir Ghulam Ali Khan v. Pakistan, it was further observed that:-- "The case of the petitioner is further supported by the doctrine of locus poenitentiae. This principle is enshrined in section 21 of the General Clauses Act which unambiguously postulates that an authority which passes an order is competent to vary, rescind or cancel the order passed by it but this power is not absolute as it is subject to certain limitations. The minimum limitation is that when the order sought to be varied, rescinded or cancelled is communicated to other party and subsequent to that communication that party acts upon it, a very valuable right accrues to that party and, therefore, the authority in such circumstances becomes functus officio to vary, rescind or cancel its earlier order because the law does not allow "volte face" to the authority. This principle of law has been time and again recognized, accepted and 'enforced by the superior Courts of law." It may be stated that before rescinding/withdrawing the Notification dated 1-9-1999 through impugned Notification dated 2-11-1999, no show-cause notice or chance of personal hearing was provided to the appellant. It is by now a well-settled principle of law that if an impugned order has been passed without hearing and notice to the party whose presence is otherwise necessary before the authorities concerned, then the order will be a nullity in the eyes of law. Reference is invited to the case of Allandino v. Faqir Muhammad PLD 1969 SC 582.

5. The only reason assigned by the respondents for withdrawal of Notification of appellant's absorption in the Sindh Provincial Secretariat Service was that it was issued without consultation of the Chairman, Sindh Public Service Commission and the consent of the Finance Department. Be that as it may, it is suffice to say that Sindh Public Service Commission is attached/subordinate department of S&GAD and there is no rule that consultation with the subordinate or attached department before passing any order is a condition precedent. However, as it appears the Sindh Public Service Commission was in full knowledge of appellant's permanent absorption in the Sindh Provincial Secretariat Service who was already serving there. Like-wise there is no hard and fast rule that before absorbing a civil servant in the Sindh Provincial Secretariat Service, the consent of Finance Department is necessary. In any case, the competent Authority having itself absorbed the appellant in the Provincial Secretariat Service through a valid and legal Notification could not take benefit of its lapses, if any, to deprive appellant from his valuable legal and legitimate right of his future prospect in the Secretariat Service.

6. For the aforesaid reasons', the appeal is accepted, the impugned Notification dated 2-11-1999 is set aside and the Notification dated 1-9-1999 is restored. There shall be no order as to costs.

7. Announced in open Court. H.B.T./9/KST????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.