1985 PLP (C (PLC(CS))

MUSHTAK ALI KAZI (CHAIRMAN).‑‑The appellant, an Executive Engineer, N.P.S. 18 has preferred this service appeal for due seniority in the cadre of Assistant Engineers with consequential benefit of seniority as Executive Engineer, under the following circumstances:‑‑ The appellant, a S.E. from N.E.D. Engineering College, Karachi, joined West Pakistan Government Service as Supervisor and was posted at Hyderabad, with effect from 18‑1‑1956. He was then promoted as officiating S.D.O. on 25‑7‑1959. According to the appellant this was a Gazetted Class II post, though, this fact is disputed by the respondents. Thereafter, the appellant was appointed as temporary Assistant Engineer under an order, dated 19‑3‑1962 and he took over charge of this post on 17‑5‑1952. In the year 1967 West Pakistan Services of Civil Engineers Class‑II Rules were published. Under Rule 10 persons holding Class‑II Engineering posts in an officiating capacity at the time of coming into force of these rules were also included in the cadre of temporary Assistant Engineers, if found fit by the Commission. Rule 10 reads as under:‑‑ "

10. Appointment in the post in the temporary addition to the cadre‑‑Subject to the provisions of sub‑rule (1) of rule 8, all officiating Assistant Engineers, persons holding other Class‑II Engineer posts in the Department in an officiating capacity at the time of coming into force of these rules, Temporary Engineers and Supervisors of the former Sind who are Engineering graduates and are officiating as Sub‑Divisional Officers who have been considered fit by the Commission for appointment to the Service but could not be appointed for want of vacancies shall be appointed to the posts in the temporary addition to the cadre." The Secretary, Government of West Pakistan, Communication and Works Department, recommended the case of the appellant to the West Pakistan Public Service Commission for appointment in the cadre of Civil Engineers, Class II under rule 10 stating that the appellant was appointed a Supervisor by the former Sind Government, with effect from 18‑1‑1956. That he was a B.E. (Civil) and was officiating as Sub‑Divisional Officer continuously with effect from 25‑7‑1959. The West Pakistan Public Service Commission after going through the record of service of the appellant agreed to the absorption of the appellant into Class II (temporary), with effect from 25‑7‑1959 by letter dated 18‑6‑1970. On the advice of the Public Service Commission the appellant was appointed as temporary Assistant Engineer, Class II (Gazetted) on regular basis, with effect from 25th July, 1959 and this appointment was notified in the Sind Government Gazette of November 19, 1970. The Gazette Notification is as under:‑‑ "COMMUNICATION AND WORKS DEPARTMENT Karachi, the 14th November, 1970. NO.S.O.E.11/5‑12/70 (E.I.).‑‑On the advice of Public Service Commission, Mr. Ghulam Ahmad, T.A.E. Highways Department, is appointed as Assistant Engineer (Temporary) in Class‑II, on regular basis, with effect from 25th July, 1959 (A. N.) under rule 10 of the West Pakistan Service of Civil Engineers (B&R) (Class‑II) Rules, 1967. S.M. RAFI AHMAD, Secretary to Government of Sind." Thereafter, in the various seniority lists for the years 1972, 1975, 1976 and 1981 the date of regular appointment of the appellant as temporary Assistant Engineer was shown as 25‑7‑1959. The appellant was then promoted as officiating Executive Engineer under Notification, dated 29‑5‑1974 and this promotion was regularised, with effect from 16‑5‑1974. It is the case of the appellant that between 1959 and the year 1970 when he was regularised as Assistant Engineer, Class‑II, several Assistant Engineers, Class‑II, junior to the appellant were promoted over him as Executive Engineers. On being regularised, the appellant claimed his seniority as Executive Engineer on the basis of next‑below rule from 19‑12‑1969 on which date his next junior, Mr. M.A. Bari was promoted as Executive Engineer. Instead of redressing his grievance the date of regular appointment of the appellant as Assistant Engineer was altered from 25‑7‑1959 to 17‑5‑1962, without giving him an opportunity to show cause against his adverse, action. The appellant then preferred a departmental appeal against this alteration order and after waiting for 90 days he preferred this service appeal. Mr. Muhammad Yousuf, Advocate for the appellant has argued that after eleven years the seniority position of the appellant had been altered to his disadvantage without issue of even a show‑cause notice and without giving him an opportunity to be heard. That this is in violation of the principle of natural justice embodied in the Maxim "Audi alteram, partem". He has also relied upon the decision of the Supreme Court in the service case of Muhammad Himayatullah Farooqui reported in P L D 1969 S C

407. As observed by Sajjad Armad, J. in the course of that decision‑‑ "There can be hardly any dispute with the rule 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 lo 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." Mr. Naimatullah Qureshi on behalf of the respondents and Mr. A.A. Muhammadally for the Government have, on the other hand, argued that the then West Pakistan Government, Secretary, Communication and Works, made a reference to the West Pakistan Public Service Commission on the wrong assumption that the appellant was appointed as Supervisor by the former Sind Government when actually he was appointed as Supervisor by West Pakistan Government. That he was absorbed into Class‑II (temporary), West Pakistan Service of Civil Engineers, with effect from 25‑7‑1959 as Supervisor of former Sind. That this error was later on detected and the Government rectified the error by altering the date of regularization of the appellant as Assistant Engineer from 25‑7‑1959 to 17‑5‑1962. Regarding the question of the earlier order having been acted upon it has been stated that the order was being disregarded and for that very reason persons junior to the appellant were being promoted. A perusal of rule 10 of the West Pakistan Service of Civil Engineers (B&R), Class‑II Rules, 1967 would show that besides Supervisors of former Sind officiating as Sub‑Divisional Officers, all persons holding other Class‑II Engineer Posts in the Department in an officiating capacity were also entitled to the same benefit. The appellant has claimed that he was officiating as Sub‑Divisional Officer, Gazetted Class‑II. He has produced a salary slip, dated 3‑9‑1959 as Sub‑Divisional Officer, B & R, Leiah Sub‑Division, issued by the Accountant‑General, West Pakistan, Lahore. Only officers serving in Gazetted Class‑II posts were issued salary slips. This claim of the appellant has not been proved to be false or without any foundation. Therefore, even a wrong description of his history of service will not affect the decision of the Public Service Commission when even otherwise he would be entitled to the benefit of rule

10. In any case the service record of the appellant had been forwarded to the Public Service Commission and they has passed the order after scrutiny of his past record. Under the circum stances a mistake of fact otherwise immaterial cannot justify alteration of the order of regularization notified by the Government after a lapse of eleven years. Nor could it be said that this order had not been acted upon. The seniority lists that followed contained the date of regularisation as Assistant Engineer according to the notification of the promotion of the appellant. His promotion as Executive Engineer was actually based on those seniority lists. The said notification had, therefore, been acted upon and it could not be varied to his disadvantage after the lapse of eleven years, without issue of even a show‑cause notice to him. In the result the impugned notification showing the date of appointment of the appellant as Assistant Engineer on 17‑5‑1962 in‑stead of 25‑7‑1959 is set aside. The position of the appellant as Assistant Engineer in the seniority list under the earlier notifications is restored. The appellant would further be entitled to the due determination of his seniority as Executive Engineer under rule 13 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. The appeal is displaced of accordingly with no order as to costs. A. E. Appeal allowed.