2012 PLP (C (PLC(CS))

NASIR-UL-MULK, J.

This appeal by leave of the Court is directed against the judgment of the Federal Service Tribunal dated 16-1-2003, whereby the appeal of the appellant, Ghulam Rasool, against the orders dated 4-10-2000 and 11-10-2000 was dismissed. Leave to appeal was granted on 2-3-2005 in the following terms:-- "The petitioner was appointed as Sanitary Inspector (BPS-10) where from he was transferred to and designated as Food Inspector (BPS-12) on 15-12-1996. On completion of a trial period of six months he was permanently absorbed as Food Inspector vide order dated 21-6-1997 and 24-6-1997, re-designated him as Food Inspector w.e.f. 15-12-1996. His name was excluded from the seniority list of Sanitary Inspectors vide letter dated 25-8-1998 but subsequently on 11-10-2000 his entire re-designation and absorption in a higher scale was annulled despite the fact that he had worked on such post for four years. After hearing the arguments of learned counsel on either side and in view of 2004 SCMR 1864, we propose to grant leave to consider, inter alia, the following questions:-- (a) Whether a civil servant after promotion to a higher grade, after absorption and having worked against such post for four years, could be reverted to the lower post? (b) Whether the principle of locus poenitientiae is attracted in the instant case? (c) Whether any change in rules or policy can have retrospective effect? And (d) Whether a civil servant can be reverted to a post where reduction in pay has become obvious?"

2. The facts in brief have already been narrated in the leave granting order and the legal points clearly formulated.

3. We heard the learned counsel for the parties. The learned counsel appearing for the appellant reiterated and elaborated the points on which leave was granted. The learned counsel for the respondent referred to the comments filed by the respondents before the Service Tribunal, wherein the respondents had taken the stand that the Cantonment Executive Officer, who had ordered the absorption of the appellant as Food Inspector, was not empowered to pass such an order as it was the Director Military Lands and Cantonments, the appointing authority of the appellant, who alone had the authority to pass the order of absorption of the appellant.

4. The only question for determination in this appeal is whether the appellant's absorption as Food Inspector was liable to reversal. To answer this question, certain documents and correspondence placed on file need to be examined. The first in line is the office order dated 15-12-1996 by the Executive Officer, Rawalpindi Cantonment, where appellant, then Sanitary Inspector, was re designated as Food Inspector in the Cantonment Board Rawalpindi, in his own pay and scale, with the proviso that he would be considered for absorption on permanent basis as Food Inspector on successful completion of probation period (trial period for six months). On 21-6-1997, the Executive Officer issued another office order, ordering the appellant's permanent absorption as Food Inspector upon completion of his trial period, against a sanctioned post of Food Inspector in BPS-12. Another important document is a letter dated 24-6-1997 addressed by the Executive Officer to the Director-General, Military Lands and Cantonments Department, Rawalpindi, through Director Military Lands and Cantonments, Rawalpindi Region, furnishing information about the re-designation of the appellant as Food Inspector against existing vacancy w.e.f. 15-12-1996 with a request that his name be excluded from the seniority list of the transferable category staff. This request was acceded to through letter of 25-8-1998 by the Assistant Director-General Military Lands and Cantonments, informing the Director Military Lands and Cantonments, Rawalpindi Region, that the name of the appellant has been deleted from the list of Sanitary Inspectors and that he will be never considered for promotion in that cadre. Notwithstanding the above correspondence, the Ministry of Defence by order dated 4-10-2000 annulled the absorption letter of the appellant dated 25-8-1998, declaring it as void ab initio on the ground that the same was issued in violation of the provision of the Cantonment Pure Food Act, 1966 (hereinafter referred as to the Act) and the Rules made thereunder. The letter, however, did not mention the provision of the Act or the Rules that was violated. It was only in the comments before the Tribunal that the respondents clarified that the Executive Officer of the Cantonment had no authority to absorb the appellants as Food Inspector. The learned counsel for the respondents at the hearing of the appeal submitted that the Director Military Lands and Cantonments, being the appointing authority of the appellant, was alone empowered to order the absorption of the appellant.

5. The appellant was initially appointed as Sanitary Inspector and later absorbed as Food Inspector. The absorption was neither a fresh appointment nor is it claimed by the respondents that the same was promotion. The learned counsel for the respondents did not refer to any provision of the Act equating absorption with the appointment or promotion to support his contention that the appointing authority alone was empowered to absorb the appellant against another post in the same Department. Be that as it may, the appointing authority, namely, the Director Military Lands and Cantonments, was duly informed by the Executive Officer as far back on 24-6-1997 through letter addressed to the Director-General Military Lands and Cantonments regarding the re-designation of the appellant as Food Inspector against an existing vacancy. Furthermore, the request made in the said letter was accepted by the Director General in a letter addressed to the Director Military Lands and Cantonments (appointing authority) that the appellant's name from the list of the Sanitary Inspectors was accordingly deleted. The appointing authority was aware about the appellant's absorption and by taking further action in the matter he had, therefore, accepted the validity of the absorption. The appellant's absorption was made with implied, if not expressed, approval of the competent Authority. If the argument of the learned counsel for the respondent that the appointing authority alone had the power to order the absorption of the appellant is accepted, the order of 4-10-2000 by the Ministry of Defence was not issued by the competent authority. Even otherwise this is a classic case where the principle of locus poenitentiae would be attracted as the appellant, having been initially appointed on trial basis on the recommendations of a committee and having completed successfully the trial period, was formally absorbed against an existing vacancy and the relevant authority accepted this absorption by deleting the appellants name from the list of Sanitary Inspectors. It was, therefore, too late in the day for retracing the steps taken four years preceding the impugned order of 4-10-2000.

6. In view of the foregoing, we have no doubt in our minds that the order of 4-10-2000, reversing the appellant back to the post of Sanitary Inspector and the consequent order of 11-10-2000 transferring the appellant to Cantonment Board Lahore were unlawful. As a consequence, the appeal is allowed, the impugned judgment of the Service Tribunal as well as the orders of 4-10-2000 and 11-10-2000 are set aside and the absorption letter of 24-8-1998 stands restored. S.A.K./G-6/SC Appeal accepted.