1984 PLP 126 (CLC)

‑‑ S. 16 read with Schedule of Powers No. 1035, para. 3(b) ‑Board of Directors delegating its powers and authority to Directors and Officers mentioned under section 16 including General Manager Project‑Order of promotion and redesignation of employee of Authority made by General Manager Project, held, not in excess of jurisdiction especially when no abnormality found in said order. Constitution of Pakistan (1973), Art. 199. ‑‑ Art. 199‑Order of promotion and redesignation of petitioner validly passed and petitioner not instrumental in securing his promo tion or higher scale or committing any fraud upon Authority‑Res cinding order of promotion of petitioner, held, hit by principle of locus poenitentiae.‑[Locus poenitentiae‑Civil service]. Locus poenitentiae i. e. the power of receding till a decisive step is taken is available to the Government or the relevant authorities. "But this 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effect and in pursuance thereof certain rights have been created in favour of any indivi dual such an order cannot be withdrawn or rescinded to the detriment of those rights". Pakistan through Secretary Ministry of Finance v. Muhammad Himayatullah P L D 1969 S C 407 ; P L D 1956 F C 46 and P L D 1979 Quetta 131 rel. ‑‑ Audi alteram partem‑Order of promotion of petitioner creating vested right in him‑Rescinded by authority without issuing show cause notice or affording proper opportunity of being heard‑Order of rescision, held, bad in law and violating principle of audi alteram partem as promotion order of petitioner could not be recalled without affording proper opportunity of hearing‑‑[Civil service]. JUDGMENT ALI HUSSAIN QAZILBASH, J.‑Muhammad Ishaq, an employee of Sarhad Development Authority, has challenged the order of Manager (Admn.) Sarhad Development Authority No. SDA/1027‑31, dated 15th February, 1977 whereby the orders issued by the General Manager (Cold Storage) No. G‑4/8738‑41, dated 5th October, 1976 promoting and redesignating him as a Private Secretary to the General Manager, Sarhad Development Autho rity was cancelled with retrospective effect, as illegal, ultra vires and with out jurisdiction. 2 Brief facts emanating from this petition are that Muhammad Ishaq petitioner joined the Sarhad Development Authority as stenographer on 13th May, 1975. On 5th August, 1976 he was promoted in scale No. 15 carrying a time‑scale of Rs. 400‑35‑750/50‑1,000 and his pay fixed at Rs 645 and redesignated as Private ,Secretary to the General Manager (Cold Storage) Sarhad Development Authority with effect from 1st October, 1976 vide order Annexure I ; that vide the impugned, order dated 15th February, 1977 issued by respondent No. 1 his (petitioner's) orders of pro motion were cancelled with retrospective effect ; that proper representation by the petitioner was made to respondent No. 1 but to no effect, therefore, the present writ petition.

3. The petition was contested by respondent No. 1, i.e. Chairman, Sarhad Development Authority but rather supported by respondent No. 3, i.e. General Manager (Cold Storage) Sarhad Development Authority by submit ting their written statements. The stand of the petitioner was supported by respondent No. 3 in his written statement alleging therein that the petitioner was rightly promoted by him and that he was competent to order the said promotion under para 3(b) of the Schedule of Powers No. 1035, dated 1st March, 1976 yet respondent No. 1 has vehemently disputed the claim of the petitioner on the questions of law and facts in that the stand of respondent No. 1 is that the General Manager was not competent to promote an incumbent from scale 11 to scale 16 and that the General Manager of the Project was delegated the powers to grant only normal promotion and not an abnormal promotion as in the case of the petitioner which is in violation of the Rules and Regulations ; that the General Manager concerned had no authority, whatsoever, to create a post of Private Secretary as this matter is within the exclusive jurisdiction of the Board of Sarhad Development Authority who in its meeting held on 21st August, 1973 had decided that the deserving stenographer to the Directors and Secretary of Sarhad Development Authority be given scale No. 15 of the National Pay Scales and designated as Private Secretaries and since the General Manager was not entitled to have a Private Secretary, therefore, the promotion of the petitioner to National Pay Scale No. 16 and his redesignation to the post of Private Secretary is in utter violation of the Rules and Regulations and thus without lawful authority.

4. After hearing the learned counsel for the parties at length for and against the writ petition we have come to the conclusion that the writ peti tion must succeed. The petitioner and the respondents do not dispute the Schedule of delegation of powers approved by the Board of Directors. According to the Schedule of powers approved by the Board of Directors in their meeting held on 4th February, 1976 it had delegated its powers and authority to Directors and officers mentioned, under section 16 of Sarhad Development Authority Act of 1972 (which also includes the General Manager of the Project) to grant to all staff normal increment, promotion, transfers, suspension and various types of punishment vie. withholding of increments, suspension and termination of service. It was under the above delegated powers and authority that respondent No. 3 ordered the promotion and redesignation of the petitioner to the post of Private Secretary. "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae i. e. the powers 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 to 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 persuance 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." This decision is based on an earlier decision of the Federal Court reported in P L D 1956 F C 46 and is being consistently followed by the Superior Courts and the latest authority in this regard is reported in P L D 1979 Quetta 131.

5. The order, of respondent No. 1 dated 15th February, 1977 is also bad in law in that the order of promotion of the petitioner dated 5th October, 1976 had created vested right in him and it could not be recalled unless he was afforded proper opportunity of being heard. In this case before the issuance of the impugned order, neither any notice was served upon the petitioner nor he was afforded any opportunity of being heard which has violated the principles of audi alteram partem and, therefore void and ineffective as against the rights of the petitioner.

6. The view, therefore, that we take in this writ petition is that the same is accepted and the order of respondent No. 1 dated 15th February, 1977 set aside with costs. M.Y.H Petition accepted.