2005 PLP (C (PLC(CS))

Through the instant writ petition, Muhammad Sadiq Bashir, the petitioner, has challenged the correctness of order dated 13th May, 2003 passed by Joint Director (Admn) by which the petitioner, who was appointed and holding the post of Deputy Director in Punjab Small Industries Corporation, Rahimyar Khan was demoted to Assistant Director.

2. The brief facts as narrated by the learned counsel and found from the record are that Muhammad Sadiq Bashir had joined the service of Punjab Small Industries Corporation in the year 1967 as grade-II Clerk in pay scale No.7. He was promoted as Deputy Director in 1997 in basic pay scale No.17 through an order dated 24-4-1997 passed by Senior Director (Admn). This order was withdrawn through the impugned order dated 13-5-2003 by the Joint Director (Admn.) Hence, this writ petition.

3. Learned counsel for the writ petitioner submits that after working on the post as Deputy Director for more than five years, the petitioner could not be demoted and his promotion could not be withdrawn on the basis of rule of locus poenitentiae. He has referred to PLD 1969 Supreme Court 407 (Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi).

4. On the other hand, learned counsel appearing on behalf of respondents Nos.1 to 4 has replied, that against the order dated 24-4-1997, an appeal was filed by Muhammad Rafique before the next higher official of the department wherefrom the promotion order dated 24-4-1997 was set aside, as, having been passed illegally, upon which the impugned order dated 13-5-2003 was passed. As per learned counsel, the rule of locus poenitentiae cannot be extended to the case of the petitioner because the order passed in favour of petitioner on 24-4-1997 was illegal. He has got support for this proposition by referring to 2000 SCMR 907 (Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department Karachi and 3 others) 2004 CLC 324 (Dilawar Hussain, and others v. District Co-ordination Officer, Okara and others 2003 PLC (C.S.) 1146 (Akhtar Mehmood v. The Deputy Commissioner, Gujrat and others).

5. After considering the arguments of the learned counsel and from the perusal of the record, I have found that the order dated 24-4-1997, which was passed in favour of writ petitioner had come under fire through a representation/appeal, which was filed by Muhammad Rafique, respondent No.5, so the impugned order dated 24-4-1997 had not become final and was sub judice before the higher competent authority of the Department. It is not the case of the petitioner that the order passed by Joint Director (Admn) on 13th of May, 2003 was passed without jurisdiction by the aforesaid officer. It is well-settled principle of law that when an appeal is filed, the whole matter reopens, as the order dated 24-4-1997 was under scrutiny before the higher officer/official of the department before whom the representation/appeal was filed and. pending, therefore, the rule of locus poenitentiae was not applicable to the case. The rule of locus poenitentiae could be invoked when an order had become final or could be treated as having attained finality and the chapter of it was closed due to non-filing of appeal/revision/review/ representation, whichever was applicable. It is not a case of receding of taken steps but it is a case in which it would be presumed that no decisive steps were taken, and the order of promotion had not become final. It may be kept in view that the above rule is not applicable and cannot be invoked in case of illegal orders. An order which is illegal, c unlawful, based on fraud, void ab initio or passed without jurisdiction cannot create any right to be defended. Rule of locus poenitentiae would not be attracted to such cases. So, the order dated 13th of May, 2003 cannot be held illegal or unlawful. Therefore, the writ petition is dismissed with no order as to costs. M.H./M-1056/L Petition dismissed.