2008 PLP (C (PLC(CS))

JUSTICE (R.) ABDUL GHANI SHAIKH (CHAIRMAN).

Relevant facts for the purpose of disposal of the appeal are that appellant while serving as junior clerk in the office of the then Deputy Inspector-General of Police, Karachi, had applied for the post of Assistant Sub-Inspector. His application was forwarded to the then Inspector-General of Police, Sindh for favourable consideration on 17-1-1991. Pending appointment, appellant was deputed to undergo A.S.-I.Ps. training at Police Training School, Shandadpur as per order, dated 27-6-1991. While on training, appellant vide order, 6-10-1991 was appointed as Assistant Sub-Inspector of Police (B-9). Appellant successfully completed training and, as per Notification, dated 16-7-1992 he secured 1148 marks and as per merit his name was at Sr. No.3. Appellant then started performing' his duties as A.S.-I.P. Suddenly, after giving show-cause notice to appellant he was reverted to the post of junior clerk as per order, dated 18-8-1994 by the then Inspector-General of Police, Sindh. He challenged the said order in his departmental appeal, which remained pending for considerable long period. However, vide order, dated 28-9-2004, appellant and many others with the approval of the Chief Minister, Sindh, were restored to their original rank. After restoration of rank of A.S.-I.P. appellant was confirmed as such and admitted to List "E" vide Notification, dated 3-4-2006 and then with the approval of Competent Authority he was promoted as Officiating Sub-Inspector as per Notification, dated 14-6-2006. Once again suddenly without any legal proceedings, appellant was reverted to the post of junior clerk as per order, dated 28-11-2006 passed by respondent No.2. He challenged the said order but his request was turned down as per order/letter, dated 9-12-2006.

2. In support of appeal, learned counsel for appellant argued that appointment to the post of A.S.-I.P. was fresh one and not because of change of cadre, as such, there was no legal justification to revert appellant back to the post of junior clerk. He added that appellant was restored to the rank of A.S.-I.P. on the recommendation of 3 Members Committee constituted by the respondent No.1 and with the approval of the Chief Minister, Sindh, which order, dated 28-9-2004 was fully implemented and acted upon and appellant resumed his duties, he was.. confirmed as A.S.-I.P., admitted to List "E" and promoted as Officiating, Sub-Inspector of 14-6-2006, therefore, the second order of appellant's reversion to the post of junior clerk was quite unjustified, illegal, mala fide and not sustainable. He relied upon PLD 1969 SC 409, 1984 PLC (C.S.) 109 and 1985 PLC (C.S.) 133.

3. In rebuttal, learned Assistant Advocate-General simply contended that appellant's case was that of change of cadre from the post of junior clerk to the post of which under the law was not permissible and it was for that reason that he was reverted to his substantive rank of junior clerk, thus, no illegality has been committed by the department.

4. We have carefully considered the above submissions and minutely perused the case papers so also have gone through the case-law referred to by appellant's learned counsel.

5. Simple perusal of the Notification, dated 6-10-1991 of appellant's appointment as Assistant Sub-Inspector of Police, clearly reveals that his appointment was purely a fresh one, and not that of change of cadre. The condition No.1 of appointment Notification says that:-- "If he fails in the Basic Training Course, he will be discharged without any notice." Had his appointment as A.S.-I.P. been due to change of cadre then on his failure to complete basic training course, he should have been reverted to his substantive rank and not discharged from service. Besides, appellant who was earlier reverted to the post of junior clerk was restored to the post of A.S.-I.P. on a complete recommendation of 3 Members Committee " constituted for that purpose by a competent authority and the recommendations of the said Committee were placed before the Chief Minister, Sindh, who accorded approval and thereafter as per Notification, dated 28-9-2004 appellant was restored to the post of A.S.-I.P., then how the Provincial Police Officer, Sindh, being the subordinate of the Chief Minister could pass orders of appellant's reversion to the post of junior- clerk. Therefore, on the face of it, the original impugned order, dated 28-11-2006 passed by respondent No.2 reverting appellant to the post of junior clerk was absolutely "coram non judice" and by no stretch of imagination, same is sustainable. Perusal of impugned order, dated 28-11-2006 also reveals that respondent No.2 while deciding appeal of one Muzzafar Khan Bangash, junior clerk of Sindh Reserve Police, had reverted the present appellant, meaning thereby, that the respondent No.2 had exercised the suo motu powers, which under -the law are not available to him. Neither any of the application or appeal of the appellant was pending before him nor there was any reference made to respondent No.2 in this regard was under consideration, as such, order of reversion passed in the absence of appellant, under the law, has no legal value. Apart from above, the appellant has already acquired a legal, valuable and vested right in his favour, therefore, the rule of locus poenitentiae, i.e. the power of receding till a decisive step is taken, was not available to the respondent No.2. Under section 21 of General Clauses Act the authority that has the power to make an order has also the power to undo it (locus poenitentiae), 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. Reference is invited to the case of Pakistan v. Muhammad Himayatullah Farrukhi PLD 1969 SC 407, which is consistently being followed by all Courts/Tribunals of Pakistan. In a case of Abdul Aziz v. Director, Health Service 1984 PLC (C.S.) 109, it has been held that; if an order was passed for granting facility through mistake or against Rule it would stand, because the person so granted had been conferred a status in life and vested right which cannot be withdrawn subsequently. It may be stated that in the case in hand the order of appointing appellant as A.S.-I.P. was not due to any mistake but it was a legal and valid order. In another case of Syed Afzal Hussain v. Government of Punjab and others 1985 PLC (C.S.) 133, it has been held that; rights accruing to a person by appointment to a post and such appointment remaining operative, such appointment being unequivocal and unconditional, cannot be cancelled.

6. The upshot of the above discussion is that the impugned order, dated 28-11-2006 so far present appellant is concerned as well as appellate order contained in letter, dated 9-12-2006 are not sustainable and thus, hereby set aside. The appellant shall be restored to its rank of officiating Sub-Inspector from the date of reversion viz. 28-11-2006, with all back and consequential benefits. Appeal stands accepted. No order as to costs. H.B.T./8/SST Appeal accepted.