2014 PLP (C (PLC(CS))

SHAH KHAWAR, J.

Through instant writ petition, the petitioner has sought direction to respondent No.2 to issue appointment letter to her for the post of Junior Instructor Computer Applications/ Office Professional Computer Software on regular basis.

2. Brief facts of the case are that the respondents-department advertised the posts of Junior Instructor Computer Applications/Office Professional Computer Software. The petitioner being Master in Computer Science having one year appropriate experience applied for the said post. She passed the NTS test, qualified interview and short listed by respondent No.1. Merit list was prepared whereby the petitioner was selected as Junior Instructor of CA and OP of VTI, Kot Mithan vide meeting of recruitment committee held on 30-8-2012 and she was issued offer of appointment.

3. The grievance of the petitioner is that as contemplated in the advertisement dated 27-4-2012, the said appointment was permanent in nature and was not on contract basis. Parawise comments were requisitioned which were accordingly filed on behalf of respondent No.1. In parawise comments, it is mentioned that the petitioner cannot be appointed on regular basis due to financial constraints. It is contended that since the petitioner has accepted the appointment on contract basis so she cannot claim to be appointed on regular basis and principle of promissory estopple is applied to the petitioner.

4. The reason assigned in the parawise comments is not tenable in law. In the advertisement, there is no mention of appointment on contract basis whereas the minutes of meeting dated 30-8-2012 reflect that the petitioner was selected against the post of Junior Inspector Computer Applications/Office Professional Computer Software on merits, on regular basis with a probation period.

5. Arguments heard. Record perused.

6. The principles of promissory estopple and locus poenitentia are not attracted in the present case as the appointment offered was on the regular basis. The petitioner after going through the test and interview was selected on merits and at the later stage she could not have been converted on contracts basis. The version of respondent No.1 that due to financial constraints the petitioner could not be appointed on regular basis is not convincing and cannot be accepted. A vested right by way of selection of the petitioner has been accrued in her favour and at the later stage, the respondents could not be allowed to take a u-turn.

7. Rather in section 21 of the General Clauses Act, 1897, the public functionaries have powers to make, include, to add, amend, vary or rescind orders, rules and bye-laws but same could be exercised within certain limitations, which have been interpreted by the Hon'ble Superior Courts. In a judgment reported as Mir Ghulam Abid Khan v. Pakistan through Secretary and another (2000 CLC 443) passed by learned Division Bench of Hon'ble Sindh High Court, it was held that "the principle enshrined in section 21 of the General Clauses Act, which unambiguously postulates that an authority which passes an order is competent to vary, rescind or cancel the order passed by it but this power is not absolute as it is subject to certain limitations. The minimum limitation is that when the order sought to be varied, rescinded or cancelled is communicated to other party and subsequent to that communication that party acts upon it, a very valuable right accrues to that party and, therefore, the authority in such circumstances becomes functus officio to vary, rescind or cancel its earlier order because the law does not allow 'volte face' to the authority. This view was also endorsed by the Hon'ble Supreme Court of Pakistan in case reported as Pakistan v. Muhammad Hamayatullah (PLD 1969 SC 407) wherein it was held that the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. This power is, however, 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 determent of those rights."

8. The case of the present petitioner also falls within the parameters enshrined by the Hon'ble Supreme Court of Pakistan. The vested right has been created in favour of the petitioner and after her appointment on regular basis she cannot be compelled to work on contract basis.

9. This is an admitted fact that every government department proceeds with the process of advertisement to fill up vacant posts, after soliciting approval from Finance Department and allocation of budget. The advertisement could not be issued by the respondents without approval from the Finance Department. The petitioner could not be made victim of the short comings of the department as the respondents are under the constitutional obligations to treat the petitioner in accordance with law.

10. So far as acceptance of job by the petitioner on contract basis is concerned, the same could not be made basis of withholding permanent appointment. The fact remains that due to prevailing circumstances of un-employment in the country, the petitioner had no other option but to accept the same. It does not mean that the petitioner lost her constitutional right to invoke the jurisdiction of this Court under Article 199 of the Constitution and in the same manner to preclude this Court from exercising powers of judicial review against such-like arbitrary actions of the executive

11. A vested right of petitioner has been accrued in favour of the petitioner. The contentions raised by learned counsel for the respondents are not tenable in law and the impugned order is hereby set-aside. Respondents Nos. 1 and 2 are directed to issue fresh appointment letter to the petitioner on regular basis w.e.f. the date she assumed the charge as Junior. Instructor Computer Applications/Office Professional Computer Software.

12. In above terms, the instant writ is allowed. SA/H-17/L Petition accepted.