1981 SCMR 523 (PLP)

KARAM ELAHEE CHAUHAN, J.-Leaving aside the unnecessary details it will be sufficient for the purpose of the present judgment to state that the petitioner who was working as a Section Officer in the Punjab Civil Secretariat was offered a post of an E. A. C. in P. C. S. (Executive Branch) by a letter dated 27-1-1975 which reads as follows :- "Reference your representation dated the 20th October. 1974, addressed to the Chief Minister, Punjab, on the subject noted above. (2) It has beet: decided to appoint you as an E. A. C. on the express condition that you would not claim any benefit for the service rendered by you as Section Officer in the Punjab Secretariat and your seniority in the cadre of E. A. Cs. would be counted from the date of your actual appointment. Accordingly this offer is hereby made to you subject to the availability of a vacancy. This offer would not in itself entail any commitment on the part of the Government for your appointment as E. A. C. In case these terms are acceptable to you, your acceptance should be sent so as to reach this Department within a fortnight of the receipt of this communication along with necessary undertaking that you will not claim seniority from a earlier than your date of joining, failing which it shall be presumed that you are not interested in your appointment as E. A. C."

2. The appellant conveyed acceptance of the above offer on 5-2-19 7 5 (page 17 of the paper book) where after a regular appointment notification was issued on 7-3-1975, which is reproduced below :- "Government of the Punjab Services and General Administration Department. Lahore, the 7th March, 1975. No. 2-4/72 (SOPV).-The Governor of the Punjab is pleased to order in relaxation of Rules the appointment of Raja Muhammad Nawaz, Section Officer of the Punjab Civil Secretariat, as Extra Assistant Commissioner. (2) He shall remain on probation as prescribed under rule 8 of the "PCS"(EB) Rules, 1964 and will be required to complete training and pass such Departmental examinations as may be prescribed front time to time. He shall be governed by "PCS"(EB) Rules, 1964 and other rules, regulations and instructions applicable to his service has in force heretofore and issued in future. (3) The Governor of the Punjab is further pleased to order that Raja Muhammad Nawaz shall be treated as direct recruit of 1975 in the cadre of Extra Assistant Commissioners and will not be entitled to seniority prior to his actual date of taking over. (4) Raja Muhammad Nawaz, on appointment as an Extra Assistant Commissioner, is hereby posted as Extra Assistant Commissioner (UT), Rawalpindi. (Sd.) By Order of the Governor of the Punjab Prof. M. Rashid, Additional Chief Secretary to Government, Punjab."

3. It appears that the Governor of the Punjab at a latter stage reverted the appellant to his previous post of a Section Officer by a notification dated 13-7-1976 which stated that:- "The Governor of the Punjab is pleased to order that Raja Muhammad Nawaz, E. A. C., presently posted at Gujranwala, shall stand reverted as Section Officer in the Punjab Civil Secretariat with immediate effect. (2) He should report to the Services, G General Administration and Information Department for further posting."

4. The appellant challenged the aforesaid order by an appeal before the Punjab Service Tribunal, but without any success as it dismissed on 25-2-19,9 on the ground that the Government has rather done a favour to the appellant by providing him with a job of Section Officer because according to the Tribunal the appellant was still on probation and his service could have been terminated without issuing any notice.

5. The appellant has now come up in appeal to this Court by special leave which was granted on 2-12-1979. The leave granting order reads as follows:- "It is argued that the petitioner was appointed in the P. C. S. (Executive Branch) as an E. A. C. in "relaxation of rules" and was treated as a "direct recruit" as per order of the Government of the Punjab Annexure `C' at page 20 of the Paper Book). There being no defect in that appointment and as a matter of fact none having been found by any forum and there otherwise being no fault or misconduct on '' the part of the petitioner, he could not have on the facts and in the circumstances of this case, been reduced in rank or reverted as a Section Officer, especially, when the petitioner had agreed to and fulfilled the conditions of the said appointment which left no animus revertendi on the part of the Department to pass the impugned order of reversion. The point raised is of considerable importance of a public interest and is likely to effect a large number of cases of this nature. Leave to appeal is granted. Security Rs.

500. Early hearing."

6. The original record of the case was produced before us by the Departmental Representative and its perusal showed that the basic appoint ment of the appellant as an E. A. C. did not suffer from any lack of competence on the part of the concerned appointing authority. It further appeared that the aforesaid appointing authority had the power to make .A the appointment in relaxation of rules, and he competently relaxed the same on condition of certain undertakings and surrender of certain right which were contained in the appointment orders and which were duly fulfilled by the appellant as above-stated. These facts stood proved from the record and were also admitted by the learned counsel for the respondent. In these circumstances we asked the learned counsel for the respondent as to how the reversion of the appellant was brought about. After referring to the file he submitted that it was just a recall of the earlier appointment order of a competent authority by the successor of that authority on the assumption that the earlier appointment should not or could not have been made. If this is so then the so-called "recall" order suffers from an inherent defect vise and mistake both of law and fact which will vitiate the same. In this context, the plea raised by the learned counsel for the appellant would also have force that after the fulfilment of the relevant conditions e and undertaking by him there was left no animus revertendi on the part of the authority concerned to recall the earlier appointment order. For the principle and situations when an order can be recalled reference may be made to Shahbaz v The Crown (P L D 1955 F C 46), Lt. Col. G. L. Battacharya v. The State (P L D 1964 S C 503), Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (P L D 1969 S C (Pak.) 407) and The State v. Muhammad Ismail (1980 S C M R 268). As the law on the principle of animus revertendi or loco poenitentiae stands authoritatively settled by the aforesaid judgments of ibis Court, we do not feel the necessity of dilating any further on the subject aforesaid and it will be sufficient for our purpose to state that on the peculiar facts and the circumstances of this case the order of recall was without lawful authority.

7. When confronted with the above situation learned counsel for the respondent submitted that as the appointment of the appellant as an E. A. C. was on probation therefore under section 10 of the Punjab Civil Servants Act (VIII of 1974) his service could have been terminated by the Government. C It may be pointed out that this is not a case of termination of service but it pertains to the domain of the principle of animus revertendi or loco poenitentiae as above-stated viz. of the recall of basic appointment order, and on the facts and the circumstances hereinbefore mentioned, it has tot be decided with reference to that and that principle alone, because, the original file shows that the authority concerned too did not purport to act under section 10.

8. The result is that this appeal is accepted. The order of the Punjab Service Tribunal dated 26-2-1979 is set aside and the impugned order of reversion of the appellant dated 13-7-1976 is declared to be without lawful authority and of no legal effect against him. There shall be no order as to costs. Appeal allowed.