2010 GBLR 92 (PLP)

MUHAMMAD NAWAZ ABBASI, C.J.

This petition has been preferred against the judgment dated 18-6-2009 passed by learned Single Judge of the Chief Court in a Civil Revision arising out of Civil Suit in which respondents challenged their reversion from BPS-9 to BPS-7 as illegal and without lawful authority. The suit filed by the respondents was dismissed as time barred but in appeal they succeeded and appellate Court vide judgment dated 20-10-2008 decreed the suit. The petitioners being aggrieved of the judgment and decree of the appellate Court filed a Civil Revision in the Chief Court and learned single Judge in the Chief Court after a detailed discussion dismissed the Civil Revision. The learned Advocate-General submitted that none of the respondents was qualified to hold the post of teacher in BPS-9 and since their appointments were violative of the rule, therefore they were reverted to their original position by the competent authority. There is no cavil to the proposition that by virtue of the provision of section 21 of the General Clauses Act the power of rescinding an order is available to the government till decisive step is taken and an authority competent to pass an order is also empowered to undo such an order but this power cannot be exercised in respect of an order which having taken legal effect has created rights in favour of an individual, unless it is shown that it was a void or illegal order or has been passed without jurisdiction. The above principle envisaged in section 21 of the General Clauses Act has been affirmed by the Supreme Court of Pakistan in the cases titled Government of Pakistan v. Muhammad Himayat Ullah PLD 1969 SC 407, Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207, Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907 and in a number of subsequent judgments. The Chief Court on the basis of same principle placing reliance on 2009 SCMR page 775 dismissed the civil revision. The learned Advocate-General has not been able to point out from the record that either the initial appointment of the respondents in BPS-7 or their subsequent upgradation/appointment in BPS-9 on regular basis was illegal or was not in accordance with law. This is not deniable that the order of upgradation/appointment of respondents in BPS-9 was passed by the competent authority and the same baying taken effect has created valuable right in their favour therefore its subsequent withdrawal would be out of the ambit of power of competent authority of recalling/ rescinding the orders. The learned Advocate General has not been able to point out any material illegality or jurisdictional defect in the judgment of the Chief Court calling for our interference. This may be pointed out that the case of department was not properly conducted before the trial Court as neither the material facts have been brought on record nor proper pleas have been taken in written statement which would reflect upon the negligence of the counsel who represented the department and also the officials of the department who while dealing with the case have not properly watched the interest of department. The learned Advocate-General conceding the defects in the written statement and pleadings of department has stated that the negligence of the Government counsel and the concerned officials was apparent on the record. In view thereof the Secretary Education may initiate proceedings in the matter for the negligence of concerned persons for an appropriate action in accordance with law. The upshot of the above discussion is that this petition being without any substance fails and is accordingly dismissed. H.B.T./20/Glt. Petition dismissed.