2000 PLP (C (PLC(CS))

Date of hearing: 5th July 1999. The relevant facts for the decision of this Constitutional petition are that the petitioner was an employee of the Agricultural Department. He was sent on deputation to the respondents/ Authoirty and afterwards made Additional Director‑General (Horticulture) with effect from 1‑12‑1993. The petitioner served to the entire satisfaction of all concerned, therefore, vides office order dated 16‑9‑1996 he was permanently absorbed in the L.D.A. as Additional Direcotr‑General Horticulture (BS‑20) with immediate effect. The grievance was that the petitioner was being sent back to Agricultural Department. He filed this petition and also moved for temporary injunction. The writ came up for hearing on 30‑12‑1996 when it was admitted to hearing and injunctory order was issued. The respondents have appeared and contested the petition.

2. The learned counsel for the petitioner argued that the petitioner was absorbed in the L.D.A. on permanent basis, therefore, he could not be repatriated. It is added that in any case no such order could be passed without show‑cause notice and hearing the petitioner. It is added that the order was passed mechanically and in utter disregard of the injunction order issued by this Court on 30‑12‑1996, therefore, repatriation was void.

3. On the other hand, learned counsel for the respondents argued that after the dismissal of the People's Party Government the Care‑takers directed that the appointments made by the previous Government without observing the merit, should be scrutinized and dispensed with. It is added that the order was passed in accordance with the policy of the Government.

4. I have given my anxious consideration to the arguments and gone through the record. It was not an appointment. In fact the petitioner was permanent employee of the Agricultural Department and was on deputation with the L.D.A. He after absorption became permanent employee of the L.D.A., therefore, the order of repatriation was without jurisdiction, void and passed without applying mind‑to the facts, therefore, liable to be set aside. The petitioner has a vested right to continue in the L.D.A. after his permanent absorption vide order dated 16‑9‑1996, therefore, in any case he was entitled to hearing and show‑cause notice before any order adverse to his service career was passed. This is not all. The order dated 16‑9‑1996 having been acted upon the respondents have lost locus poenitentiae. In this behalf, , reference can be made to the judgment in the case of Muhammad Nawaz v. Federation of Pakistan and 61 others (1992 PLC (C.S.) 1127). The relevant I portion reads as under: "

6. The Service Tribunal noted that in the case the competent Authority, namely, the Director‑General, Pakistan National Centre, passed the order, dated 15‑11‑1988, regularising the service of certain Programme Managers and the same competent Authority confirmed the services of some officers on 3‑1‑1989 and that the two orders, having been passed competently, had taken effect and created valuable rights in favour of the persons mentioned in the orders and, accordingly, held that the cancellation of these two orders by the Ministry of Information and Broadcasting was, therefore, not valid and thus, allowed the appeals."

5. The Court vide order dated 30‑12‑1996 has restrained the "respondents from passing any order detrimental to the present service of the petitioner. The respondents were appearing in this writ petition and represented, therefore, the impugned order dated 17‑11‑1997 could not be passed. It is relevant to mention here that the petitioner continued on the basis of the injunction order in the L.D.A. till 23‑11‑1998 when he retired from the service. He is now claiming pension and other benefits. Once the petitioner was absorbed in the L.D.A. on permanent basis on 16‑9‑1996 he became employee of the L.D.A. Thereafter, he cased to be an employee of the Punjab Government and, therefore, could not be repatriated. In this behalf, reference can be made to the judgment dated 20‑1‑1993 in Writ Petition No.2880‑S of 1991, "Mian Muhammad v. The Chairman, L.D.A. etc.", which was again L.D.A. case. The relevant portion of the judgment reads as under: "

17. Once the policy decision dated 12‑2‑1990 was duly approved, the benefits accruing thereunder automatically extended to the petitioner and nothing else was required to be done. There is; therefore, no force in the submissions of the learned counsel for the respondents that the principle of animus revertendi or locus poenitentiae was not applicable here. Also refer Raja Muhammad Nawaz v. Government of the Punjab (1981 SCMR 523), Shahbaz v. The Crown (PLD 1955 FC 46), Lt.‑Col. G. L. Battacharya v. The State (PLD 1964 SC 503), Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407) and the State v. Muhammad Ismail (1980 SCMR 268), in which the law on the principle of animus revertendi or locus poenitentiae has been authoritatively settled ...."

6. The upshot of the above discussion is that this writ petition is accepted with no order as to costs. The order of repatriation of the petitioner dated 17‑11‑1997 passed by respondent No.3 is declared C illegal. The result is that the petitioner continued as an employee of the L.D.A. till his retirement, therefore, he is entitled to pension and other benefits. The respondents are directed to settle the claim of the petitioner H.B.T/M-122/L Petition accepted.