1993 PLP (C (PLC(CS))

‑‑‑‑Art.199‑‑‑Punjab Small Industries Corporation Act (XV of 1973), Ss. 11 & 40‑‑‑Reversion of employee of Small Industries Corporation‑‑‑Maintainability of Constitutional petition‑‑Non‑filing of appeal‑‑‑Effect‑‑‑Appeal has been provided in the Act only against action taken on account of disciplinary lapses; such being not the position in the case, Constitutional petition was maintainable. Abid Hassan Minto for Petitioner. M.N. Baig for Respondents. Date of hearing: 28th March, 1993. This petition under Article 199 of the Constitution has been moved by Mr. Muhammad Aslam, Deputy Director (E&M) of the Punjab Small Industries Corporation, Lahore against the orders of his reversion to the post of Assistant Director.

2. The facts material to the matter in hand are that the petitioner joined the Punjab Small Industries Corporation (hereinafter referred to as the Corporation) as Assistant Director in BS‑16 w.e.f. 17‑5‑1982 and was confirmed as such on 15‑5‑1983. Later on by an order dated 29‑12‑1985 he was appointed as Deputy Director to which post he was confirmed after the completion of stipulated probation period of one year. Subsequently, on 13‑9‑1987, the appointment was revoked and he was reverted to the post of Assistant Director. In this behalf the contention of the petitioner is that in response to an advertisement of the Corporation for the recruitment of Deputy Director (Accounts) he had applied for direct appointment ‑as he possessed the requisite qualification for the purpose. He was interviewed and ultimately offered the appointment as Deputy Director. According to the petitioner the appointing authority had the power to change the designation, responsibilities or duties of an officer of the Corporation and, therefore, in view of petitioner's experience and suitability offered him the post of Deputy Director in general cadre instead of the Finance Wing. He worked there to the entire satisfaction of the authorities and on completion of one year probation period was confirmed as Deputy Director. It is thus alleged by him that the revocation of his appointment without any show‑cause notice was unlawful and unjustified.

3. The stand taken by the Corporation is that the petitioner was appointed as Deputy Director (BS‑17) in contravention of the rules and regulations without meeting the requisite qualification for the post of Deputy Director in the general cadre. It is alleged that the appointment being void ab initio, reversion of the petitioner did not require show‑cause notice. It has also been asserted in the written statement that the petitioner was not appointed by direct recruitment and was instead promoted in violation of the prevailing rules and the procedure applicable in his case. An objection has also been taken to the maintainability of the petition on the ground that the petitioner has a remedy by way of appeal against the impugned order.

4. The factum of petitioner's appointment as Deputy Director and his reversion to the post of Assistant Director is not denied by the respondent. The petitioner was no doubt earlier employed as Assistant Director but the Corporation advertised various posts including those of the Deputy Directors and the petitioner also submitted his application for that post in the Finance Wing. There is no dispute about petitioner's being in possession of requisite qualification for Deputy Director (Accounts). A perusal of the relevant rules shows that the vacancies in the Corporation are filled in by promotion or through initial recruitment depending upon the method of recruitment prescribed in that behalf. While the post of Deputy. Director (Accounts) was advertised for direct recruitment a certain proportion of the posts of other Deputy Directors was reserved for appointment by initial recruitment. It, thus, fallows that any employee of the Corporation would be eligible for appointment as Deputy Director against the direct quota if he qualifies for the same. The appointment of an in-service Assistant Director can, therefore, be validly considered against the quota reserved for direct recruitment despite the fact that such an Assistant Director is otherwise junior to others in order of seniority. Obviously, the inter se seniority is not relevant in case of direct recruitment. An exception can be taken by the rival contenders only to an appointment by promotion but not in case of initial recruitment. The proceedings recorded in the case of the petitioner's disputed appointment and relied upon by the respondent clearly indicate the intention of the "Authority" to appoint and adjust the petitioner as Deputy Director against the quota meant for direct recruitment. As such the petitioner, whether he was duly qualified or not, did not encroach upon the right of any other Assistant Director. The Assistant Directors on whose representation the impugned order has been passed, therefore, had least locus standi to grumble against petitioner's appointment as Deputy Director. They could have a valid grievance only if the petitioner had been given appointment against the quota reserved .for their promotion. As the petitioner as adjusted again direct quota, none else in the Corporation was adversely affected by it and the Corporation had no justification to reopen petitioner's case after the lapse and expiry of his probation period.

5. The impugned revocation of the order of petitioner's appointment is also violative of the principle of locus poenitentiae. The power to cancel or modify an order must inevitably be exercised within the limits by the provision conferring the power. Such power of receding an action is available only till a decisive step has not been taken. The criterion as to whether there is locus poenitentiae is whether the order has been acted upon or, in other words, whether the authority exercising such power has done that which is necessary for it to make the order effective. When such a step has been taken and the order has been acted upon, the subsequent order or its cancellation can have no legal effect. The petitioner was not only appointed as Deputy Director but was assigned his duties and later on confirmed as such. The order having been completely acted upon, it attained finality and the appointment could not be receded without due course of law and especially on the representation of those who had no right to agitate against his appointment on direct quota.

6. Under the relevant rules of 1981, the Managing Director was competent to make appointment of a Deputy Director (NPS‑17). Hence it could not be termed as void. The irregularities pointed out by the respondent; even if admitted, do not vitiate the validity of the appointment made by the Managing Director. In such a situation, the Authority cannot be absolved of its obligation to issue a show‑cause notice to the petitioner before passing an order to his detriment.

7. The impugned order patently shows that the petitioner was sought to be reduced in rank without notice and without affording an opportunity of being heard. This order is, therefore, arbitrary and without legal justification. The petitioner was a confirmed employee and could not be dealt with in the manner he has been treated. The reduction in rank was essentially a punishment which could not be inflicted on the incumbent by side‑tracking the due course of law.

8. The order passed against the petitioner simply states that the appointment as Deputy Director was against prevailing rules/procedure but it does not spell out as to what error in this behalf had been committed and how the appointment was vitiated. The Authority was competent to make the appointment and to assign the responsibilities it deemed appropriate to the candidate. The order of seniority of the Assistant Directors, or for that matter of any employee of the Corporation, was not relevant for direct recruitment. The arbitrary and without notice reversion of the petitioner was, therefore, unjustified and uncalled for and is not sustainable in law.

9. As regards objection to the maintainability of the petition for non- filing of appeal by the petitioner before the competent authority it may be observed that appeal is provided only against actions taken on account of disciplinary lapses which is not the position in the present case. Hence, this objection is not legally tenable. In view of the above, the writ petition is accepted with costs and the impugned order dated 13‑9‑1987 is declared to be without lawful authority and of no legal effect. A.A./M‑958/L Petition accepted.