1995 PLP (C (PLC(CS))

SYED HAIDER ALI PIRZADA, J: ‑‑This is a petition by Mumtaz Ali Mangi under Article 199 of the Constitution praying that the impugned order dated 31‑3‑1992 be declared to be without any lawful authority and of no legal effect and to quash the same. The facts giving rise to this petition shortly stated were these: The petitioner was appointed on 13th June, 1977 as Grade‑III Officer in the respondent No. 1 and his appointment as Grade‑III was subsequently confirmed. He was posted at various branches. It is the case of the petitioner that he was promoted as Grade‑II Officer on 1st July, 1983. As Grade‑II Officer he has been posted at various branches. He has been discharging his duties to the entire satisfaction of all his superiors. The petitioner alleges that he was promoted as Grade‑1 Officer on 1st January, 1990 i.e. after seven years. Although he was due for promotion after 3 years after his promotion without any reason whatsoever in the normal course. The petitioner further alleges that on 16th February, 1992 the respondent No. 2 interviewed him and after being fully satisfied on the working of the petitioner in various grades as officer, and there being no adverse A.C.Rs. against him at any time, the Departmental Promotion Committee comprising respondents Nos. 2 to 4 recommended promotion of petitioner and with retrospective effect, he was promoted vide letter dated 20th February, 1992 with effect from .1‑1‑1991, the said letter was received by him on 22‑2‑1992. He is working as Manager, Liberty Market Branch, National Bank of Pakistan, Hyderabad. His pay was fixed accordingly and copy of the fixation of his pay was given to him. It is his further case that he has drawn his pay in the revised pay scale and he was also given one increment due on 1‑1‑1992. The petitioner submits that vide letter dated 31st March, 1992, the respondent without any reason, any show‑cause notice or any other factor treated the promotion granted to him vide Annexure `D' as cancelled. The petitioner submits that, the respondents having promoted him having given him all his salaries and allowances cannot cancel the order of promotion more particularly without any show‑cause notice and revert him to his original position as Grade‑I Officer. Such an action is violative of the principles of natural justice, Articles 4, 24 and 25 of the Constitution as well as violative of 1973 statutory rules of respondent No.

1. The respondents contested the petition by filing counter‑affidavit. The respondents contended that the action taken by them is, not violative of the National Bank of Pakistan (Staff) Service Rules. The case of the respondents, as set out in para. 7 of the counter‑affidavit, is that "on or about 15‑2‑1992 was received at the Head Office of the respondent No. 1 a letter dated 13‑2‑1992 on fax purporting to be from the Special Assistant to the Prime Minister to the Secretary, Finance, Government of Pakistan and endorsed by the latter to the President of respondent No.

1. The letter contained the directions that the petitioner be promoted as A.V.P. with effect from 1‑1‑1991 out of turn at once as a special case. The office note dated 16‑2‑1992 was prepared. Its last para. states that in compliance of the directives of the Prime Minister of Pakistan, "the petitioner be promoted as A.V.P. with effect from 1‑1‑1991 out of turn and as a special case'. Paras. 8 and 9 of the counter‑affidavit read as under:‑‑ "

8. That as was decided through the said office note dated 16‑2‑1992 and reported in the said letter . dated 16‑2‑1992, the petitioner was informed that he had been promoted as Assistant Vice‑President with effect from 1‑1‑1991. However, on or about 31‑3‑1992 a letter was addressed by the Deputy Secretary (Bkg.) of the Finance Division of the Government of Pakistan‑to the President of the respondent No. 1 in which it was stated that the said letter dated 13‑2‑1992 appeared to the forged and that therefore, no action should have been taken on the same. The letter further required that the order promoting the petitioner be cancelled immediately. Therefore, a further office note dated 31‑3‑1992 was prepared and in the last para of this office note it was stated that in compliance of the aforesaid instructions of the Ministry of Finance of the Federal Government of Pakistan, the order for the promotion of the petitioner be cancelled.

9. That the respondents verily believe that the promotion of the petitioner as A.V.P. was done out of turn and as a special case on the basis of an order believed to have emanated from the Hon'ble Prime Minister of Pakistan but which order was subsequently appeared to be forged. Therefore, the respondents are advised that the cancellation of the said promotion order ‑immediately after the above fact had become known, was just and proper and the petitioner is not entitled, in law or equity, to make a grievance against the order cancelling his promotion as A.V.P. I am advised and verily believe that since the order cancelling the promotion had only rectified the error caused by letter appeared to be forged, the petitioner is not entitled to‑invoke the discretionary Constitutional jurisdiction even though the order of cancellation was made without a show‑cause notice or a hearing to the ' petitioner." The respondents denied the allegations made in para. 4 of the petition. The respondents specially denied that the petitioner was interviewed by the respondent No.2 to determine the petitioner's entitlement to promotion or that the Departmental Promotion Committee had considered the petitioner for promotion and had recommended the promotion of the petitioner. The respondents contended that the promotion of the petitioner as A.V.P. was made in the manner demonstrated by Annexures R/1. R/2, and R/3 and since the promotion was subsequently discovered to have been caused on the basis of an order appeared to be forged, the promotion was cancelled as soon as the forgery became known. We have heard Mr. M.L. Shahani, learned counsel appearing for the petitioner and Mr. Noor Muhammad, learned counsel appearing for the respondents. We have carefully considered the submissions of the learned counsel appearing on either side. It is not disputed that promotion of officer to a higher grade is regulated by Rules called the National Bank of Pakistan (Staff) Service Rules (see Rule 21 of the Rules). The power to promote under the Rules is vested in the competent authority. The promotion is required to be made on the recommendation of the Departmental Promotion Committee comprising three members. Before the commencement of the process of promotion, the Heads of Departments are required to intimate the Departmental Promotion Committee the number of vacancies that are available for promotion. The Departmental Promotion Committee interviews the persons who are due to be promoted to the higher grade. The Departmental Promotion Committee shall send a list of promotees to the competent authority. It is only after the Departmental Promotion Committee forwards the list of promotees, the competent authority could promote the officers out of that list and no other person could be promoted in the upper grade. This is undisputed procedure for promotion prescribed by the Rules. The Special Assistant to the Prime Minister, however, disregarded the authority of the Departmental Promotion Committee to promote and by passed the power of the Selection Committee to promote the petitioner as A.V.P. in the National Bank of Pakistan. He took upon himself the power of both the authorities of recommending promotion as well as appointment by way of promotion as A.V.P. The Secretary, Ministry of Finance vide remarks on the letter of Special Assistant to Prime Minister, instructed the National Bank of Pakistan for compliance of the directions of the Prime Minister as A.V.P. with effect from 1‑1‑1991, out of turn‑and as a special case. The method of promotion followed by the Special Assistant to the Prime Minister appears to be without parallel. The Deputy Secretary (Bkg.) vide his letter dated 31‑3‑1992 directed the President, the National Bank of Pakistan for cancellation of the promotion order on the ground that letter dated 13‑2‑1992 purported to be issued from the office of Special Assistant to the Prime Minister appears to be forged and, therefore, no action should be taken on the same. The competent authority treated its letter No. PW/1‑Prom/590, dated 20‑2‑1992 as cancelled. It seems that the promotion was in violation of statutory rules. From the foregoing‑narration of events and by the rules of promotion, it seems to us that there cannot be two opinions on the conclusion reached by the President of National Bank of Pakistan. The methodology adopted by the Special Assistant to the Prime Minister was manifestly wrong and it was doubtless deviation from the course of law, which the Bank has to protect and pursue the Rules. It is admitted by the parties that as a result of the Court order, the petitioner is continuing to draw salary, allowances to which A.V.P. of the said Bank would have been and is entitled. Having reached the conclusion about the invalidity of the impugned promotion made by the Bank, we cannot, however, refuse to recognise the consequences that involve on reversion to low grade. Mr. M.L. Shahani, counsel for the petitioner while highlighting the human problems involved in the case pleaded for sympathetic approach and made an impassioned appeal for allowing the petitioner to continue as A.V.P. He has also referred to us several decisions of the Hon'ble Supreme Court and of this Court where equitable directions were issued. It is a well‑settled legal 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 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 been acted upon. This principle was recently considered by the Hon'ble Supreme Court in the Engineer‑in‑Chief Branch v. Jalaluddin 1989 SCMR

441. After referring to the above principle, it was observed:‑‑ "It is therefore, clear that the Tribunal has also not disputed the contention of the appellant that respondent was not entitled to be fixed in Grade‑11 of National Pay Scale. The principle of locus poenitentiae was invoked by the learned Tribunal in aid of the respondent. Having gone through the facts of the case, we have come to the conclusion that this principle is not attracted in the present case. Additionally, under section 21 of the General Clause Act, the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order. The order under which the payment was made to the respondent had no sanction of law. Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The appellants when came to now that on the basis of incorrect letter, the respondent was granted Grade‑11, they withdrew the said letter. The principle of locus poenitentiae would not apply in this case. However, as the respondent had received the amount on the bona fide belief, the appellant is not entitled to recover the amount drawn by the respondent during the period when the latter remained in the field." The dictum laid down in the above case is applicable to the facts of the instant case. For the reasons stated above, we dismiss the petition. However, as the petitioner had received the salary and other benefits on the bona fide belief, the respondents are not entitled to recover the salary and other benefits drawn by the petitioner during the period. We consider that as far as the recovery of 11 the salary and other benefits in question are concerned, the principle of locus poenitentiae would be applicable and the respondents are not entitled to the same and 11 continue to pay the same. Order accordingly. H.B.T./M‑1982/K Order accordingly.