1981 PLP (C (PLC(CS))

6. The concessions allowed originally vide letter of 27th August, 1968 were withdrawn by the impugned order primarily on the ground that same were not admissible under the policy laid down by the Finance Department in their Letter No. 1252/PP‑1‑57, dated 6th June, 1957, operative part of which runs asunder: ‑ "The liberal War service concessions were intended for those who offered to assist in the National Emergency and who successfully completed the period of service required of, them. The concessions were therefore not allowed to those who were discharged or removed from Military Service for having been found unfit by a Medical Board. The cases of those who secured discharged at their own request or on compassionate grounds, cannot be treated differently. Release on compassionate ground was largely secured because of their own pressing need at home. Accordingly discharge on compassionate ground should be considered as `Discharge on own request'." Since release of the appellant from the Army was admittedly on compassionate grounds, therefore, he was not entitled to the war services concessions under the War Amendment Rules, 1943. It is on this ground that the concessions allowed to the appellant were withdrawn on 5th March, 1970 after a lapse of about 11/2 years.

7. The learned counsel for the appellant submits that the original order dated 27th August, 1968 granting benefits of war service to the appel lant was issued by the competent authority and was acted upon and remained in force for over 1 years. Government have no locus poenitentiae to recede from the earlier orders. The learned counsel also assails the aforementioned policy letter of Finance Department of 1957 on the ground that there was no mandate in the War Amendment Rules, 1943 for such restriction as imposed in the said letter. The war service entitling a person to the consequential benefits has been defined in clear‑cut terms in rule 2 of the 1943 Rules and it is not the case of the respondents that the appellant's service did not fall within the said definition. The war service concessions as originally granted to the appellant ride order dated 27th August, 1968 were withdrawn only in obedience to the instructions issued in the policy letter of Finance Department of 1957. It is contended that there is no authority in the War Amendment Rules 1943 for limiting the scope of grant of war service concessions and there is also no authority for excluding such war service from the definition in rule 2 where the release from the Army was secured on own request or on compassionate grounds. Thus it is urged that the instructions issued by the Finance Department are without authority, illegal and of no effect. In support of this proposition the appellant relies on the case cited as P L D 1961 S C

166. Further objection by the learned counsel on the aforesaid instructions of the Finance Department is that the original War Amendment Rules, 1943 were issued in the name of the Governor by the Home Department deriving authority from section 241 of Government. of India Act, 1955. Such rules, according to the learned counsel could not be overridden by a subordinate authority, i.e. the Finance Department. The learned counsel has also placed on record a printed booklet of Government of Punjab titled : VACANCIES RESERVED FOR WAR SERVICE CANDIDATES IN SUBORDINATE AND INFERIOR SERVICES. This booklet, inter alia, contains the following `Introduction' at the very beginning: ‑ "In order to safeguard the interest of persons joining the forces during the war, a number of vacancies in posts under the Punjab Government have been reserved for candidates with `war service'. It is proposed to fill those reserved vacancies gradually as demo bilization proceeds details of vacancies in subordinate and inferior services reserved for war service candidates are given in this pam phlet; this list supersedes that relating to subordinate and inferior posts published in the Punjab Government pamphlet `Concessions to Soldiers'." The above booklet on page 24 under the heading "Education Depart ment" indicates that for the posts of `English Masters (including ADIS, ADIS for P T, Science masters, Agricultural Masters, Clerical and Commer cial Masters, P.Ts etc.) there were 200 war reserved vacancies available on that date. From this the learned counsel seeks to establish that there was no lack of war reserved vacancies at the relevant time and such post was available for appointment of the appellant.

5. The learned Government Pleader in the first place urges that the appeal was originally preferred to the defunct Civil Services Appellate Tribunal and has come on transfer to the Punjab Service Tribunal under section 10 of the Punjab Service Tribunals Act so that the scope of the Tribunal in deciding this case is limited to the scope that was available to the defunct Civil Services Appellate Tribunal which was to originally adjudicate upon this appeal. The learned Government Pleader argues that Finance Department under the Rules of Business was the rule‑making authority so that modification through letter of 1957 was validly made and could not be questioned. The learned counsel submits that an administrative error can be rectified by Government at any time and this was a clear case of such an error as the concessions were erroneously allowed to the appellant in violation of a clear‑cut policy already laid down by the competent authority. The learned Government Pleader further argues that since the appellant was taken as a direct recruit with effect from 6th May, 1962 in PES‑II, hence he broke nexus with his previous service and could not claim ‑any further benefit of war service to that class of service. According to Government Pleader the concessions if at all admissible could be limited only to S. E. S. grade. However, the learned counsel for the appellant seeks to rebut this conten tion by urging that his claim is that he should be considered for promo tion to P. E. S. II on the relevant date and given benefit of next below rule as laid down in para. 4.13 of C. S. R. Punjab, Vol. I, Part I in respect of his juniors promoted earlier than him. In support of this contention the: appellant has cited case (Writ Petition No. 1098/66) decided on 7th July, 1966 by his Lordship Mr. Justice Anwarul Haq re : S. Irshad Hussain Shah v. Governor of West Pakistan in his favour.

9. After the outbreak of World War II in 1939, the erstwhile British rulers of the United India who were the principal party in the said war were hard‑pressed to mobilize and raise their colonial army to face the enemy. To persuade the maximum number of persons to join the Army, it was found necessary to provide incentives to young men by holding out assurances that by sacrificing their career on the civil side to join the war effort, they will not be the losers as on demobilization they would be given liberal allowances in respect of age and qualifications and shall be given preference over other non‑war service candidates in the matter of recruitment to the civil services. Consequently the rules known as Government Service (War) Amendment Rules, 1943 (hereinafter referred to as War Service Rules (1943) were promulgated by the Governor by a notification dated 18th January, 1943 of the Home Department deriving authority from section 241 of the Government of India Act, 1935. These rules were made applicable to all services under the rule‑making control of the Punjab Government. As from the day of promulgation of these rules, direct recruitment on substantive basis to all posts under the Punjab Government was banned except with the sanction of the Punjab Govern ment for special reasons to be stated by the administrative Department concerned. All posts found necessary to be filled in public interest were to be filled on temporary basis and all vacancies occurring during the period the aforementioned War Service Rules, 1943 remained in force; were to be kept reserved for war service candidates. These vacancies 4ere to be thrown open to persons who had rendered `war service' as liberally defined in rule

2. A number of concessions were allowed to the' war service candidates. Length of war service rendered by them was to be excluded while computing the age for appointment. For persons invalidated during war, a further period intervening between invalidation arid 'the date of application for appointment was also to be excluded. Such 'war service personnel were not to be considered ineligible for selection to 'service merely for not possessing the prescribed educational or other qualifications and the appointing authority could certify that the candidate was in possession of technical qualifications equivalent to those provided in the relevant rules and that he had acquired by experience or otherwise qualifi cations equivalent to those prescribed in the rules. They were also exempt ed from appearing in the written tests given by the Public Service Commis sion for the purposes of recruitment to various services. A broad princi ple was laid down that every candidate with war service appointed for a service in the province shall be assigned a place in the cadre (with due regard to age and period of war service allowed to be deducted by, tote Rules) to a position as near as may be, corresponding 'with the place which he would have occupied if war had not intervened arid he had qualified in the normal way. By a subsequent order of the Governor, dated 16th January, 1968 it was clarified that the benefits of war service were admissi ble irrespective of the nature of the vacancy, i.e. whether it was permanent or temporary, the only relevant factor being that the vacancy fell between the stipulated period starting from 18th September, 1943 and ending on the date the rules ceased to be in force. The Heads of the Departments were also required to maintain a list of vacancies left unfilled or filled on temporary basis for recruitment from amongst the persons with war service to their credit and submit the same to the P. S. C. not later than 15th May, of each year. After the promulgation of the Rules various instruc tions in respect of implementation and application of the aforesaid Rules were issued by the Government of Punjab from time to time. Ultimately there was a letter from the Chief Secretary to Government of Punjab dated 5‑4‑1946 communicating to all Departments that it had been decided that rule 3 of the Government Service (War) Amendment Rules, 1943 should terminate with effect from 1st January, 1946 so that from that date onward there was to be no longer any reservation of vacancies to be filled by war service candidates. This was followed by a notification of the Punjab Government dated 11th June, 1976 under section 241 of the Government of India Act, 1935 ordering that ‑the .operation of rule 3 of', the' Punjab Government Services (War) Amendment Rules, 1943. It was, however, held by the Supreme Court in case cited as P L D 1961 S C 166 that by the aforesaid letter of 5th March., 1946 and subsequent notification `dated 11th June, 1946, only rule 3 of the War Amendment Rules, 1943 ceased to be operative and rest of the rules continued to be‑3n force as before.. In view of the aforesaid finding of the Supreme Court, Government of Punjab promulgated Ordinance XLI of 1963 whereby the War Amendment Rules were deemed to have been repealed with effect from 1st day of January, 1946 `notwithstanding any judgment, decree or order of any Court or authority'. However, actions already taken under the said Rules w 0e saved. It was also provided in the Ordinance regarding the seniority of the Government servants to whom the rules applied on appointment to a war reserved vacancy that they shall as nearly as possible, be assigned a place in the respective services, in accordance with rule 6 of the repealed Rules. However, the aforesaid Ordinance XLI itself stood repealed on the expiration of the period prescribed under clause 4 read with clause 6 of Article 79 of 1962 Constitution because the Assembly of the Province neither approved nor disapproved the Ordinance. Thus by virtue of Article 250 of the Constitution of 1962 repeal of the Ordinance did not revive the Government Services (War). Amendment Rules, 1943 the repeal of which rules continued to be effective from 1st January, 1946.

10. It is in the background of the above sequence of events that the issues in the present case have to be viewed. We may observe here at the outset that nothing has been brought before us to rebut the contention of the appellant that war service reserved vacancies were available at the time of the appointment of the appellant and that he was appointed against one of such vacancies. The crux of the matter in the case before us is whether the Finance Department's Letter No. 12:2 PP/1‑57, dated 6th June, 1957 which has already been reproduced in para 6 above had legal validity and was issued with due authority under the law. In this case we find much weight in the contentions of the learned counsel for the appellant. In the first place War Amendment Rules, 1943 were duly issued under the name of the Governor of the Punjab deriving authority from section 241 of the Government of India Act, 1935 and had thus statutory validity. On the other hand we find that the letter of the Finance Department in question emanates from Finance Secretary. Government of West Pakistan and addressed to the Accountant‑General, West Pakistan with reference to the latter's letter of 20th January, 1957. It has not been shown that this letter had any higher authority behind it than that indicated in it. We are of the view that the concessions made available by statutory rules could not be curtailed by a mere letter of instructions so that we are constrained to hold that the instructions of the Finance Department vide letter dated 6th June, 1957 are without proper authority and are illegal and of no effect. In our view we are supported by the ruling of their Lordships of the Supreme Court in case cited as P L D 196! S C

166. In the said case the letter of the Chief Secretary dated 16th February 1949 whereby concession of seniority which was available to the war service candidates appointed to non‑reserved ‑vacancies was withdrawn, was under challenge. Their Lordships had earlier observed that the Government Services (War) Amendment Rules were made by the Government of Punjab under the power derived under section 241 of the Government of India Act, 1935 and are, therefore, `the rules of the highest statutory validity'. With regard to the validity of the aforesaid letter of the Chief Secretary dated 16th February, 1949 their Lordships observed that: ‑ "It follows from the foregoing discussion that the letter of the Chief Secretary dated the 16th February, 1949 conveyed an instruction which contravened the provisions of the statutory Rules of 1943; which were then and are still in force. The concession of seniority which was by this letter withdrawn from 'war service candidates appointed to. non‑reserved vacancies' was one which was provided for them by the statutory Rules of 1943, and could not be withdrawn by a mere instruction. If the Government bad desired to make the change, they could only have done so by amending the Rules or making a `fresh rule, and the question might then have been raised whether the withdrawal of concession could be made with respect to persons already in service with retrospective effect." We respectfully follow the above ruling, with the above result. It may be observed that repeal of these rules firstly by Ordinance XLI of 1963 and subsequent repeal of ibis Ordinance, which facts were not present at the time of pronouncement of the judgment of the Supreme Court, have no effect on this cage as the instructions of 1957, which are in issue in this case were issued when the War Amendment Rules were in force (except for rule 3 thereof) and rights of the parties have to be determined with effect from the date such benefits fell due to the incumbent concerned. It may also be observed that instruction of the Finance Department of.1957 has no independent existence as it simply purports to define the scope of rule 3 of the aforesaid. Rules of 1943. These instructions could, therefore, have no independent application. In this view we are supported by the dictum of their Lordships of the Lahore High Court in Writ Petition No. 1098 of 1966 re : Syed Irshad Hussain Shah v. Government of West Pakistan and others, copy of which order has been placed on record by the learned counsel for the appellant.

11. As regards the question of locus poenitentiae, me are of the view that the contentions on behalf of the appellant must prevail. The concessions considered admissible to the appellant on the basis of war service rendered by him in the light of the War Amendment Rules were allowed to him vide order dated 27th August, 1968 of the Director Education. The appellant was given pro forma dates for his joining service, and his promotion and confirmation in the selection grade, and he was also allocated a position in the seniority list. In our view nothing more remained to be done to put these orders into motion. These orders were thus duly acted upon and remained in force till 5th March, 1970 when these were ordered to be withdrawn by the same authority which had issued earlier orders of 27th August, 1968.

12. We are clearly of the view that in this case the locus poenitentiae under the provision of section 21 of the General Clause Act was not available to the Government or the relevant authority. The orders in this case were issued by the competent authority duly acted upon creating vested rights in favour of the appellant. In these circumstances the order could not be rescinded or withdrawn unilaterally without recourse to show‑cause notice to the appellant. The order of the Director Education dated 5th March, 1970 is therefore bad in law also on this ground. In this view we are supported by the ruling laid down by their Lordships of the Supreme Court to the case cited as P L D 1961 S C 407 which runs as under: "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 in 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." Therefore, viewed from this angle also, the withdrawal of the concessions granted to the appellant in 1958 was illegal and of no effect.

13. It is also contended on behalf of the appellant that the fact that he was taken as direct recruit in PES Class II with effect from 6th May, 1962 on the advice of the Public Service Commission should 'not stand in the way of his being considered for promotion, i.e. with effect from 24th August, 1959. This, according to the appellant, is the logical corollary of restoration of his rights with respect to war service as originally allowed to him in the letter dated 27th August, 1968. In support of this the appellant has cited the dictum of their Lordships of the Lahore High Court in W. P. No. 1098/66 and Civil Miscellaneous No. 1/66 in re : Syed Irshad Hussain Shah v. Government of West Pakistan and 3 others (copy of the order has been placed on record by the learned counsel for the appellant). In our view the arguments of the learned Government Pleader that since the appellant had been appointed to class 11 as a direct recruit, he could not reap the benefits of his war service in that class of service is altogther fallacious. Denial of the advantage of seniority in the matter of promotion is in our view repugnant to the very concept of seniority. Without this advantage seniority becomes a meaningless attribute. In terms of the order of the Director Education dated 27th August, 1968 para. 4. thereof, the said order was without prejudice to the claim of the appellant for promotion to PES Class 11 with effect from 24th August, 1959 which question was left open for the express reason that "this issue is to be decided by the Government in consultation with the West Pakistan Public Service Commis sion on its merits". In our view the restoration of the aforesaid letter dated 27th August 1968 automatically restores the effectiveness of Part IV of the said order and we feel that the. Government is under an obligation to consider the case of promotion of the appellant to PES Class 11 and we direct accordingly. In this view we are supported by the following observations of the Lahore High Court in W. P. No. 1098/66 and Civil Miscellaneous No. 1/66, relied upon by the learned counsel for the appellant :‑‑‑ "Once a presumptive seniority is assigned to the respondents, in the grade of junior clerks, it is clear that on the basis of that seniority they are entitled to be considered for promotion to the next higher rank. If they are not so considered then the entire concept or seniority underlying rule 6 would be a meaningless affair. As junior clerk it makes little difference to a person whether he is placed below or above certain junior clerks except in so far as his placing in the list has bearing on his prospects of promotion to the next higher rank." It tray be observed that in this order the relief provided by us does not travel beyond the prayer of the appellant in his appeal filed before the Civil Services Appellate Tribunal and also falls within the four corner: of the jurisdiction of that Tribunal under section 4 of the Punjab Civil Services (Appellate Tribunals) Ordinance. In the circumstances the controversy about the scope of jurisdiction of this Tribunal in cases transferred to it under section 10(2) of the Punjab Service Tribunals Act does not arise and we do not feel ourselves called upon to adjudicate upon this issue.

14. The upshot of the above discussion is that the appeal succeeds to the extent that the impugned order of the Director Education, Lahore Region dated 5th March, 1970 is without lawful authority, illegal and of no effect and we set aside the same with the result that the earlier letter of the same authority dated 27th August, 1968 remains operative entitling the appellant to consequential benefits. There are no orders as to costs.