1994 PLP (C (PLC(CS))

7. It appears that the appellant had also filed a department; representation to the President of Pakistan on 26‑6‑1991 against his reversion to the Accounts Group vide Notification dated 3‑2‑1991. This representation was never decided. However, on the dismissal of his petition by the Honourable Supreme Court the present appeal was filed by the appellant on 27‑7‑1991.

8. The appellant, Mushtaq Ahmed Sheikh, after qualifying the Central Superior Services Competitive Examination which was held by the Federal Public Service Commission in 1987, had been allocated to the Accounts Group vide letter dated 12‑11‑1988. He accepted the offer and accordingly took general training at the Civil Services Academy, Lahore. After successful completion of his common training, the appellant joined the Audit an Accounts Training Institute on 5‑7‑1989 for specialised training for the Accounts Group. However, during the period of his training in the said Institute, the appellant received a letter dated 7‑11‑1939 from the Establishment Division reallocating him to the District Management Group and thus he joined the Civil Services Academy (DMG Campus) on 12‑11‑1989 for specialised training in the said Group. He also cleared the Final Passing Out Examination for the District Management Group. Subsequently, by a Notification dated 14‑6‑1990 the appellant was allocated to the Province Balochistan where he was appointed as Assistant Commissioner (under training), Lasbela, and completed his on job training. The appellant, however completed his probationary period on 11‑11‑1990 during the training. He was awaiting his posting orders as Assistant Commissioner, meantime, notification was issued on 3‑2‑1991 by the Establishment Division whereby the order dated 7‑11‑1989 regarding his allocation to the District Management Group was cancelled and he was "reverted to his original Group of allocation i.e. the Accounts Group with immediate effect".

9. Feeling aggrieved by the said order the appellant filed a Writ Petition No. 31 of 1991 before the High Court of Balochistan, Quetta. He also filed a Misc. Petition No. 135 of 1991 whereby the operation of the Notification dated 3‑2‑1991 was suspended by the High Court of Balochistan on 13‑3‑1991. However, when the Writ Petition came up for hearing before the said Court it was dismissed in view of the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan. Thereafter, the appellant filed a C.P. No. 17 -Q of 1991 before the Honourable Supreme Court but that too was dismissed confirming the High Court's judgment that in such matters the Service Tribunal has the exclusive jurisdiction and no other forum can entertain such petitions. During the intervening period the appellant filed a departmental appeal. He, however, filed the present appeal before this Tribunal on 24‑7‑1991.

10. The brief facts of the case are that the appellant, Tanvir Ahmed Qureshi, passed the Central Superior Services Competitive Examination in 1988 and was allocated to the Foreign Service of Pakistan. Accordingly, he joined the Civil Services Academy, Walton, Lahore, for Common Training Programme. The appellant was likely to complete his training when he was re allocated to the District Management Group vide letter dated 23‑7‑1990. He then obtained the requisite training in the relevant field in the Civil Services Academy, DMG Campus, Lahore. On 9‑9‑1990, however, the appellant was allocated to the Province of Balochistan and was posted as Assistant Commissioner under training, Lasbela Apprehending his reversion the appellant had also approached the Sindh High Court and obtained stay order but ultimately he could not succeed as his writ petition was dismissed for want of jurisdiction. The appellant was, however, reverted to‑his original Group i.e. Foreign Service of Pakistan vide Notification dated 3‑2‑1991. After exhausting the departmental remedy, the appellant filed the present appeal on 31‑3‑1992. Appeal No. 324(R) of 1991 (New Appeal No. 255(L) of 1993)

11. The facts of this appeal are that the appellant, Aftab Ahmed Cheema, appeared in the Central Superior Services Competitive Examination held by the Federal Public Service Commission in the year 1987 and was declared successful. He was allocated to the Accounts Group. While he was undergoing Common Training at the Civil Services Academy, Lahore, he was reallocated to the Commerce and Trade Group which was his first preference. He also joined the Foreign Trade Institute, Islamabad, for specialised training and after the completion of the prescribed training he was appointed as Assistant Controller (BPS‑17) in the Commerce and Trade Group. On 5‑8‑1990, on his own representation, the competent authority allocated him Police Service of Pakistan's Group and an offer was made in this respect which had been accepted and consequently his services were placed at the disposal of Province of N.‑W.F.P. He assumed the charge of the post of Training Reserve at Peshawar on 7‑8‑1990 and was attached to Peshawar District for the purpose of pay etc. He was then sent to National Police Academy, Sawan, Islamabad, and completed his training on 5‑5‑1991. He also cleared the Final Passing‑Out Examination of the Police Group held in May, 1991.

12. On 4‑2‑1991, another notification was issued by the Establishment Division whereby he was reverted to the Commerce and Trade Group by cancelling earlier Notification dated 5‑8‑1990 whereby he was allocated to the Police Group. The appellant challenged his reversion to the Commerce and Trade Group by filing a writ petition in the Peshawar High Court. The said High Court allowed interim relief to the appellant, which was subsequently confirmed. In the meantime, the appellant also filed a departmental representation on 27‑6‑1991.

13. While the writ petition was pending before the Peshawar High Court, the appellant filed the present appeal before this Tribunal on 29‑9‑1991 challenging the order of his reallocation dated 4‑2‑1991. He also sought interim relief which was contested by the Government but this Tribunal vide its order dated 8‑10‑1991 ordered the maintenance of status quo. The objection of the respondents was that the appellant's petition before the High Court was pending and, therefore, interim relief could not be granted to him by the Tribunal. The appellant, however, gave the undertaking that he would withdraw the petition from the High Court as on the basis of a recent decision of the Supreme Court in the cases of Dr. Fazlullah Pechuho and Mushtaq Ahmed Sheikh v. The Federation of Pakistan, and others (C.P. No. 16‑Q/91 and 17‑Q/91), it has been finally decided that in such matters only the Service Tribunal and no other Court has the jurisdiction. Anneal No. 325(R of 1991 (New Appeal No 256(L) of 1993)

14. Sanaullah Abbasi, the appellant in this case, appeared in the Central Superior Services Competitive Examination held by the Federal Public Service Commission in 1987. He secured overall 44th position and 7th position among Sindh (Rural) candidates to which region he belonged. Ordinarily on the basis of his choice and merit he should have been allocated to the Police Group, nevertheless, he was not allocated that Group and another officer of the same region, who was at Serial No. 9, was allocated to the said Group. The `appellant was, however, allocated Income‑tax Group which was his lower preference. Resultantly the appellant made a representation to the Government whereupon vide letter, dated 15‑6‑1989 he was reallocated to the Police Service of Pakistan. He was also warned that he would not be allowed to seek reversion to his former Group or service. The appellant accepted the offer whereupon he was appointed as Assistant Superintendent of Police vide Notification dated 3‑7‑1989 and was subsequently allocated to the Province of Punjab by letter dated 5‑7‑1989. The appellant joined the National Police Academy, Islamabad, in July, 1989, and successfully completed the specialised training. He also passed the final Passing‑Out Examination. Thereafter, the appellant was appointed as Assistant Superintendent of Police under training at Multan for a period of nine months. Another Notification was issued on 18‑12‑1990 whereby the appellant's services were placed at the disposal of the Ministry of State and Frontier Region and he was posted as Assistant District Officer of Frontier Constabulary with effect from 1st January, 1991. This was also a post in the Police Service of Pakistan.

15. On 3‑2‑1991 yet another notification was issued whereby orders dated 15‑6‑1989 and 3‑7‑1989 allocating the appellant to the Police Service of Pakistan were rescinded and he was reverted to Income‑tax Group. The appellant felt aggrieved by the said order dated 3‑2‑1991 and challenged the same before the Peshawar High Court by way of a writ petition. This was admitted for regular hearing and the order of 3‑2‑1991 was suspended. Resisting the writ petition the respondent‑Department challenged the jurisdiction of the High Court. The appellant had also filed a departmental representation on 17‑6‑1991. While the writ petition was pending before the Peshawar High Court the Supreme Court observed as a consequence of the order of the Balochistan High Court that the matter pertains to the jurisdiction of the Service Tribunal and the High Court had no jurisdiction because of the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan. Consequently, the appellant filed the present appeal before this Tribunal on 29‑9‑1991 under section 4 of the Service Tribunal Act, 1973.

16. In all these appeals, the common questions which fall for determination are whether the appeals are within time and whether the order of allocation having once been passed in favour of the appellants allocating them to particular Groups or services could be rescinded or recalled without their consent by the competent authority.

17. As regards the question of limitation, the main submission of the respondents is that all the appellants have wasted sufficient time in pursuing their remedies before the High Courts and as such the appeals before this Tribunal were filed clearly beyond the period of limitation. It is also contended that the appellants were not diligent enough and did not pursue in good faith and with due care and caution their remedies and thus the appeals which were clearly filed beyond the prescribed period of limitation, deserve to be dismissed.

18. The submission of the learned counsel for the appellants is that certain doubts in filing appeals before this Tribunal had arisen as the Service Tribunal had itself, in similar circumstances, in the case of Abdur Qadir Memon v. Secretary, Establishment Division and another (Appeal No. 284(R) of 1984) held that in such cases this Tribunal has no jurisdiction. In support of their contentions they have placed reliance on the following passage of the Tribunal's own judgment: "This is a case of first appointment to a particular post. The appointing Authority has decided to appoint the appellant to the Foreign Affairs Group. This, in a way, is a decision determining the fitness of the appellant for appointment to a particular post/group and, as such, the Tribunal has no jurisdiction to interfere. The learned counsel for the appellant, however, contends that when the Federal Public Service Commission found the appellant fit for appointment to Foreign Affairs Group, his fitness had been decided and that Secretary, Establishment Division could not reject the Commission's recommendations. We are afraid, there is no substance in this argument; for the Commission is an advisory body and decision to appoint a person to a particular post in B‑17 lies with the Secretary, Establishment Division. The said Secretary having made the decision, the Tribunal has no jurisdiction to interfere." It was stated that subsequently when the appellant in that case approached the Lahore High Court, Rawalpindi Bench, Rawalpindi, in a writ petition, the Court decided the writ in his favour. The learned counsel maintains that it was in these circumstances that the appellants approached the High Courts and thus the period spent in seeking remedy was not deliberate and wilful but was due to the Tribunal's own decision in the cases of Abdul Qadir (supra) which may be condoned.

19. We agree with the submissions of the learned counsel as on this particular aspect of the matter, this Tribunal in the earlier cases, referred to above, had declined jurisdiction in somewhat similar circumstances. Since the question involved could be interpreted as suitability for appointment to a particular post and as these were border line cases in which unless a final decision by the Supreme Court was given, the question of jurisdiction was not far from doubt. There had been contradictory decisions on the specific point and, therefore, in our view, the appellants' action in first approaching the High Courts in writ petitions is condonable as this Tribunal has itself in the case of Sarfraz Khan v. WAPDA and others (1991 PLC (C.S.) 9) held that where there is a confusion regarding the question of jurisdiction, the time spent in prosecuting the matter before the wrong forums in, good faith, deserves to be condoned. Similar view was taken by the Lahore High Court in the case of Mahboob Khan and 242 others v. Government of Pakistan (1991 PLC (C.S.) 415). Since in all these cases there was a confusion in filing the appeals, we, relying on the above judgments, condone the delay.

20. On the second question, whether the notification of allocation, once issued and acted upon, can be cancelled, what emerges is that when an order has been passed and is acted upon, the power to rescind was available to the Government in much the same way as was allocation to different Groups made in favour of the appellants. No doubt, under section 21 of the General Clauses Act, the Authority which has the power to pass an order has also the power to rescind or modify that order but that power cannot be exercised when a vested right is created and the order which is sought to be cancelled has taken legal effect. In the case reported as 1991 SCMR 973, the Honourable Supreme Court has observed as follows:‑ .In this context, reference can be made to section 20 of the General Clauses Act and guidelines laid down in the case of Pakistan v. Muhammad Himayatullah Farukhi (PLD 1969 Supreme Court 407), in which it is held that principle of locus poenitentiae is available to the Government or relevant authorities and further authority which is competent to make order has power to undo it, but such order cannot be withdrawn or rescinded once it has taken legal effect and created certain rights in favour of any individual. It appears that Service Tribunal has allowed appeals of the respondents mainly on this ground with cogent reasons in support thereof. View taken by the Service Tribunal is correct and we find no reason whatsoever to interfere with the impugned judgment, which is hereby upheld and leave is refused " In all these appeals the orders of reallocation of the appellants to District Management Group and the Police Service of Pakistan had been made by the' Prime Minister, who is, without dispute, competent Authority to allocate or re allocate a Group. This fact is itself admitted by the Establishment Division in para. 8(iii) in the objections filed by them in Writ Petition No. 188/90 (M/s. Ghulam Sarwar Jamali; Mushtaq Ahmed Mahar etc.). Moreover, under Item 20 of Schedule V‑A of the Rules of Business, 1973, first appointment to all BPS‑17 posts under the Federal Government, including posts in All Pakistan Unified Grades, are to be submitted to the Prime Minister. In consequence, it is he who has the power to make first appointment in BPS‑17 posts. Therefore, the power of re‑allocation on first appointment shall also be deemed to vest in the Prime Minister. The Prime Minister, thus validly and within his authority allocated the Groups to all these officers in the District Management Group and the Police Service of Pakistan and he having once made it and his orders having been acted upon, locus poenitentiae or power to recede was not available to him under section 21 of the General Clauses Act. In the present cases, no doubt, the appellants had completed the requisite training in their respective fields and thus vested right had created in their favour. In our, opinion, therefore, no locus poenitentiae, as already stated, was available to the Government to cancel those orders which had already been acted upon. In somewhat similar circumstances, the Honourable Supreme Court in the case of Raja Muhammad Nawaz v. Government of Punjab 1981 SCMR 523 had held that in such circumstances an order of appointment could not be recalled. Reliance was also placed on several cases reported as PLD 1955 FC 46, PLD 1969 SC (Pak.) 407, PLD 1964 SC 503 and 1980 SCMR 268. 21 In the result, we accept all these five appeals and hold that the orders impugned therein are without lawful authority and are of no legal effect. Consequently, the appellants Dr. Fazalullah Pechuho, Mushtaq Ahmed Sheikh and Tanvir Ahmed Qureshi shall continue to serve in DMG while the others Aftab Ahmed Cheema and Sanaullah Abbasi will remain in Police Service of Pakistan.

22. No order as to costs,

23. Parties to be informed accordingly. ABDUL RAZZAQ A. THAHIM (CHAIRMAN): ‑‑I have gone through the leading judgment of Mr. S.M. Ishaq, Member and concurred by Mr. M. Ilyas Lodhi, Member. I agree with the conclusions arrived at.

24. I would like to add that in Appeal No. 77(K)/91 filed by Dr. Fazalullah Pechuho, the appellant was selected in Accounts Group in 1985. He again appeared in 1986 and improved his position and he succeeded in second attempt and got 9th position and was entitled to be allocated District Management Group from Urban Sindh quota, but was not allocated to DMG, in spite of his entitlement, whereas one of his colleagues Mr. Rizwan Ahmed who got 390 merit position as against the appellant having overall merit 258 in Pakistan, was allocated District Management Group and the appellant, in my view, was unjustifiably ignored. The respondent department have not said any word about this discrimination in Comments. As rightly observed by my learned brother, it is clear that he was deprived of his allocation to District Management Group in 1986 and in spite of the powers of the Prime Minister, even on merits, his reallocation to Accounts Group appears to be not justified in 1991 when he qualified for DMG in 1986, and this fact, perhaps, had not been brought to the notice of the competent authority. H.B.T./897/Sr.F Appeals accepted.