1999 PLP (C (PLC(CS))

This order shall dispose off the supre‑titled Writ Petitions Nos.337 and 376 of 1996 as both of them raise common questions of law and are directed against the identical nature of show‑cause notices issued by the Managing Director, AKLASC, Muzaffarabad to the petitioners. In order to understand the controversy raised by Azfer Yasin petitioner in Writ Petition No.337 of 1996, it would be proper to have a cursory glance of the facts forming background of the dispute. The petitioner is qualified B.Com. from the University of Punjab. According to him, he was engaged by the Crescent Group of Industries as their Accountant and worked with them for two years. On July 3, 1989, he submitted an application before the Managing Director, AKLASC, for his appointment as Accountant in B‑

17. His application was examined by the Selection Committee who found him a deserving person to be appointed on the said post. On the basis of the recommendation made by the Selection Committee, the Managing Director, AKLASC appointed him as Accountant vide his order, dated January 18, 1990 on Ad'hoc basis. He was kept on probation for a period of one year. However, vide order, dated January 20, 1991, the petitioner No.l was confirmed against the said post. The order reads as follows:‑‑ In condition No.3 of the original order of appointment of the petitioner, it was laid down that the Corporation shall be entitled to change his place of posting, designation and responsibility. On account of this condition the post of Accountant B.17 was redesignated as Assistant Manager Finance and Accounts. The petitioner since then is occupying this post. The AKLASC is being run under the Azad Kashmir Logging and Sawmill Corporation Ordinance, 1968 (hereinafter referred Ordinance). In order to carry out the purposes of this Ordinance, the Azad Jammu and Kashmir Logging and Sawmill Corporation Employees Service Rules, 1977 (hereinafter referred Rules) were framed by the Board of Directors of the Corporation in exercise of the powers conferred by section. 7 read with section 17 of the Ordinance At the time when aforesaid rules were framed, the Appointment and, Conditions of Service Rules, 1977 were not framed under section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976. In the Rules, there was no such provision laid down"' that prior to the appointment of any employee in" the AKLASC, the vacant post shall be advertised. The AKLASC administration had been filing in all the posts on the recommendation of its Selection Committee out of the candidates who on the basis of their qualification had applied for their appointment in the AKLASC. Applications were only invited from the candidates for their appointment on the post of Assistant Manager Forest, AKLASC for deputing them to obtain training from the College of the Forest. Like many others, the petitioner was inducted in service on the recommendation of the Selection Committee without advertising the post. The Cabinet of Azad Jammu and Kashmir Government vide its decision, dated 18‑8‑1996, decided that all those civil servants who were appointed in post in violation of the Service Rules, shall be removed from the service. This policy decision of the Cabinet was extended to the Statutory Corporation vide Cabinet decision of September 1, 1996. The Managing Director, AKLASC, in the light of the Cabinet decision, issued notice to the petitioner requiring him to explain as to why his appointment may not be cancelled. This notice has been assailed by him in this petition. The grievance of the other petitioner, Muhammad Rashid Qureshi, is almost identical. He applied for his appointment on the post of General Manager Finance and Accounts. The Board of Directors of AKLASC vide its meeting held on 23‑1‑1992 constituted a Selection Committee. The Selection Committee had not yet submitted its recommendation when one Mahmood ul‑Hassan filed a writ petition in the High Court and obtained a stay order. This writ petition was finally dismissed by the High Court. The petitioner therein assailed the said decision in appeal before the Supreme Court. His appeal was dismissed by the Apex Court of Azad, Jammu and Kashmir vide its judgment, dated' 10‑3‑1993. Muhammad Rashid Qureshi, petitioner due to favourable recommendation made by the Selection Committee, was inducted in service against the above referred post which was subsequently re‑designated as General‑Manager Finance and Accounts. Since then, he is performing his duty on the said post. On 22‑12‑1996, a notice was issued to him by the Managing Director, AKLASC, Muzaffarabad whereby he was asked to appear before the Selection Committee for his test and interview. This order has been assailed by him before this Court. Raja Muhammad Hanif Khan, learned counsel for the petitioners argued that under rule 7 of the Rules read with section 17 of the Ordinance, the Board of Directors of AKLASC had the authority to prescribe the procedure for appointment and also laid down the terms and conditions of service of their employees. The service rules were framed by the Board of Directors of AKLASC on 8‑6‑1977. These Rules were amended from time to time by the Board of Directors of AKLASC. The respondents have so far not adopted the object of the Cabinet decision; dated 18‑8‑1996. According to the learned counsel, the Government, on the other hand, has got no legal competence to extend its decisions upon the AKLASC. Therefore, notices issued by the Managing Director, AKLASC to the petitioners in the Light of the Cabinet decision are illegal, and without jurisdiction as such liable to be quashed. It was further contended by the learned counsel for the petitioners that respondent‑Managing Directors, AKLASC who issued the impugned notices to his clients, was Member of the Selection Committee of the AKLASC. The petitioners have applied on the basis of their qualifications against vacant posts in the AKLASC. If any irregularity was committed while inducting them in service, it was committed by the Managing Director of AKLASC and not by the petitioners. Both the petitioners were inducted against two different posts on the recommendation of the Selection Committee. The work and conduct of his clients was found satisfactory during their probation period. Resultantly they were confirmed on their respective posts and till today, there is no complaint against them. They cannot, therefore, be deprived from their vested rights after nine years on the basis of Cabinet decision which legally has got no binding force upon the petitioners. The Managing Director of AKLASC being a Member of the Selection Committee, cannot justify his conduct to issue show‑cause notices to his clients, after nine years of their appointments. The learned counsel for the petitioners further argued that there was and is no provision in the relevant law that prior to making appointment in AKLASC, the posts shall be advertised. Even if, any irregularity in this field was committed, the same cannot be attributed to his clients as after putting satisfactory service of about nine years, the petitioners cannot be deprived from their service rights. According to the learned counsel, show‑cause notices issued to the petitioners cannot be justified as these are discriminatory in nature. One Mahmood Akhtar Jan was inducted in service without advertising his post. However, show‑cause notice has been recalled on the ground that the rules of the AKLASC have not postulated that before inducting any person in AKLASC the post shall be advertised. The same view was taken in respect of Arshid Mahmood and Iftikhar Ahmed but as the petitioners have got no political backing as such notices issued to them have not been recalled. On the other hand, Ch. Muhammad Ibrahim Zia, learned counsel for the respondents argued that it cannot be assumed that the petitioners were only qualified persons and no other had the requisite qualification. According to him, under Rule 3 of the AKLASC Service Rules, 1977, the method of recruitment has been laid down. There was no bar for the AKLASC from advertising the posts so that candidates having requisite qualifications should have contested on merits for their induction in service. An arbitrary procedure was adopted by the Board of Directors of AKLASC while making appointments in the AKLASC. The petitioners cannot claim the benefits for unguided and arbitrary conduct of the members of the Board of AKLASC. According to him, the Managing Director of the AKLASC had issued notices to the petitioners in compliance of the cabinet decision, dated August 18, 1996 that shows that the Board has impliedly accepted the application of the cabinet decision. He further argued that Managing Director, AKLASC has got un limited powers to revise any order passed by him in the past, if the same was not issued in accordance with law. I have heard the learned counsel for the parties and perused the record. 'In this case both the petitioners have applied for their induction to service against the posts which were vacant at that time. In their application they disclosed their qualifications and other particulars. The applications were referred to the Selection Committee and later on, on the recommendation of the Selection Committee both the petitioners were inducted in service. At the relevant time, as rightly pointed out by the learned counsel for the petitioners, the Appointment and Condition of Service Rules, 1977 were not framed In my view these rules can be made applicable only if the Board of Directors of AKLASC specifically adopts them, because the AKLASC is presently being run under the AKLASC Ordinance, 1986 and Rules made thereunder for carrying out the purposes of the Ordinance. No notification was brought to my notice by the learned Additional Advocate‑General or Ch. Muhammad Ibrahim Zia, learned counsel for the respondents, by which the Board of Directors had adopted the service laws applicable in Azad Kashmir at the time when the present petitioners were inducted into service without advertising the posts. It is, therefore, not permissible to have resort too or place reliance on service rules made to exercise of powers under section 23 of the Civil Servants Act, 1976: The arguments advanced by Ch. Muhammad Ibrahim Zia, learned counsel for the respondents that the Board of Directors as well as the Managing Director, AKLASC have got unfettered powers to revise orders passed by them in the past, therefore, notices issued by them to the petitioners cannot be questioned in view of section 21 of the General Clauses Act which provides that any authority competent under law to pass order, has also power to very or revise that order. This argument is without substance in the light of the facts of the present case. The right of locus poeniteniae i.e. the powers of receding till a decisive step is taken, is available to the authority if the previous order passed by it has not been acted upon. The order of‑induction of petitioners was passed some nine years back. Both the petitioners were kept on prohibition for a certain period. Later on their services were confirmed as during prohibition period their work was found satisfactory. These orders therefore, have become effective and have created vested rights in favour of the petitioners. The respondents have got no competence to revise these orders. In support of this proposition the reliance can be placed on a case titled "Pakistan through the Secretary Ministry of Finance v. Muhammad Himayatullah Farukhi" PLD 1969 SC

407. The fact of this case were that Muhammad Himayatullah Farukhi a Member of Madras Civil Service on migration to Pakistan was appointed in the General Administrative Reserve. He joined service of the Ministry of Economics Affairs. On the assurance that he would get starting salary per mense in the time scale applicable to the G.A.R. Service. Subsequently a formal order was issued fixing his initial pay at Rs.620 per mensem. It was specifically mentioned that it was without, prejudice to his representation for the fixation of his initial pay at a higher level. His representation was turned down by the Prime Minister of Pakistan. He, however, continued to press representation which was finally accepted by the President of Pakistan. The Secretary to the President conveyed him the favourable order passed by the President. When this order was not implemented, he filed a writ petition in the High Court. While answering this writ petition, it was contended that the order of the President was withdrawn by him through a subsequent order. The petition was allowed by the High Court. An appeal was filed by the Government before the Supreme Court of Pakistan. While dismissing the same Mr. Justice Sajjad Ahmad, J. expressed the view of the Court in the following words:‑‑ "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 it 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 withdrawn or rescinded to the detriment of those rights. " Identical question came for decision before the Supreme Court of Pakistan in a case titled "Shahbaz v. The State" PLD 1956 FC

46. In this case the Government had ordered the remission of the sentence of Shahbaz w.e.f. 14‑8‑1954. This order was rescinded on 13‑8‑1954. It was held by the Supreme Court that the order rescinding the remission was not open to any objection. In case of Lt.‑Col. G. L. Battacharya v. The State and 2 others PLD 1964 SC 503, it was held by Mr. Justice Cornellus, C.J., Supreme Court of Pakistan as under:‑‑ "The remission of sentence becomes effective when duly communicated to the Superintendent of Jail, who is duty bound to give effect to it in accordance with the Prisoners, Act." This case was also a case of remission of sentence under section 401 of the Criminal Procedure Code. It was held that the remission of sentence became effective when it was duly communicated to the Superintendent of Jail who under law was duty bound, to give effect to it to accordance with the Prisoner Act. Therefore, the order rescinding it was held illegal. Besides abovereferred authorities, I have also gone through the reports of the following cases:‑‑ (1) Pakistan and another v. S. Hussain Ali Shah A. Fazalani PLD 1960 SC 31,0; (2) Sheikh Muhammad Nawaz v. The Secretary, Irrigation and Power; Government of Balochistan, Quetta and another PLD 1973 Quetta 14. (3) Munir Ahmad v'. University of Balochistan and another PLD 1979 Quetta 131. (4) The Province of East Pakistan v. Muhammad Yaseen Qureshi and another PLD 1963 Lah. 53; and (5) Fareed Khan v. The State PLD 1965 Pesh.

31. After, going through the case-law, I have noticed that the consensus of case‑law. developed over the years, is that the principle of locus poenitentiae can be invoked till decisive stage is not reached. In the present case, the petitioners were inducted, in service on the basis of the recommendations made in their favour by the Selection Committee. They were kept on probation for one year. Later on, on the completion of probation period, their orders of appointment were confirmed. This shows that the orders passed in favour of the petitioners have been acted upon. Thus the service rights have accrued to them by virtue of these orders. Now the respondents are precluded from depriving them from their vested rights. In view of the above, while allowing these petitions with costs, impugned notices issued by the Managing Director, AKLASC to the petitioners on 1‑12‑1996 and 22‑11‑1996 respectively, are held to be without lawful authority and of no legal effect as such are set aside. H.B.T./165/AJK Petitions allowed.