Locus Poenitentiae

However, upon returning and approaching the respondents, they informed him that the leave had been withdrawn through vide impugned order

Respondents argued that the petitioner was not entitled to the leave as he was appointed on a contract basis for one year

Validity

Before the petitioner had acted upon the leave sanctioning order, the competent authority could have rescinded it

However, once the petitioner had taken a decisive step by leaving his duty and proceeding abroad for higher studies, the principle of locus poenitentiae prevented the competent authority from withdrawing the leave sanctioning order

Impugned order was set aside

Since the contract period of the petitioner's colleagues had already been extended by the competent authority during the intervening period, the petitioner was also entitled to the same relief of an extension of his service

Constitutional petition was allowed accordingly.

An authority can exercise the powers of modification by re-visiting the order of instrument already passed but the power is not unqualified and subject to the condition that in case of implementation of such like order or instrument where decisions or steps have been taken as a result of which certain rights have been created in favour of a party, then exercise of power under this doctrine is not available.

Reversal of a validly issued legal instrument which creates certain rights in favour of other party and in furtherance of some decisive steps already taken could not be set at naught simply in the guise of discretionary powers, that too without disclosing any reason in this regard at the time of reversal of such like instrument.

Reversal of a validly issued legal instrument which creates certain rights in favour of other party and in furtherance of some decisive steps already taken could not be set at naught simply in the guise of discretionary powers, that too without disclosing any reason in this regard at the time of reversal of such like instrument.

Petitioners were employees at the University and were aggrieved of refusal to continue higher education via subsequent notification at the University

University assailed that petitioners had not sought "No Objection Certificate" to admission for higher education

Validity

Petitioners could neither show that they had ever applied through proper channel or had got "No Objection Certificate" or "leave certificate" from competent authority before applying for admission

Getting of admission by petitioners did not clothe them with a vested right when it was obtained in violation of University Rules and Instructions

Asserted right not obtained in accordance with law could not be termed as vested right, preventing authorities from exercising their locus poenitentiae

High Court declined to interfere in the matter

Constitutional petition was dismissed, in circumstances.

Receding back steps is available only where an action or representation is made erroneously.

Receding back steps is available only where an action or representation is made erroneously.

Principle of locus poenitentiae was meant to condone a bona fide mistake and could not be pressed into service for reaping the benefit of any fraud or to camouflage the same.

Once an order has taken effect and in pursuance thereof certain rights have been created in favour of a person, then such order cannot be withdrawn or rescinded to the detriment of rights created

Principle of locus poenitentiae can only be invoked in respect of order which is legal and not in any respect an order which is contrary to and in contravention of any provision of law or rules made thereunder

Principle of locus poenitentiae is applicable only in respect of order passed by Authority which was competent and in accordance with law.

Concept of locus poenitentiae is a power to recede till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and a past and closed transaction

If the order was illegal then perpetual right could not be gained on the basis of such an illegal order

Principle of locus poenitentiae can be invoked only in respect of an order which is legal and not in respect of an order which is contrary to and in contravention of any provision of law or the rules made thereunder or a settled provision of law

Said principle would be applicable in respect of an order passed by an authority who was competent to pass an order in accordance with law and the order so passed was not in violation or contravention of any law and/or rules made thereunder.

Concept of locus poenitentiae is a power to recede till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and a past' and closed transaction

If the order was illegal then perpetual right could not be gained on the basis of such an illegal order

Principle of locus poenitentiae can be invoked only in respect of an order which is legal and not in respect of an order which is contrary to and in contravention of any provision of law or the rules made thereunder or a settled provision of law

Said principle would be applicable in respect of an order passed by an authority who was competent to pass an order in accordance with law and the order so passed was not in violation or contravention of any law and/or rules made thereunder.

Connotation. Abdul Haque Indhar and others v. Province of Sindh and 3 others 2000 SCMR 907 ref.

Nobody should be allowed to get benefit of his own misdeeds and the principle of locus poenitentiae is not attracted in cases of ill-gotten gains or misdeeds.

Doctrine of locus poenitentiae belongs to gens of estoppel by record but is hardly attracted where both parties are equally placed to frustrate the terms of agreement

Where suit for damages is appropriate remedy, doctrine of locus poenitentiae is of limited application.

Application.

Civil servants, fully qualified for posts concerned were appointed on those posts on recommendation of Selection Committee without advertising said posts as at relevant time in Azad Jammu and Kashmir Logging and Sawmill Corporation Employees Rules, 1977, no provision existed to the effect that prior to appointment of any employee, vacant post would be advertised

Subsequently when after about nine years, Cabinet of Azad Jammu and Kashmir Government decided that civil servants appointed on posts without advertising same, should be removed from service, Authority, in light of said decision of Cabinet, issued notices to civil servants requiring them to explain as to why their appointments should not be cancelled

Validity

Civil servants who were appointed on respective post on recommendation of Selection Committee, their services were confirmed as their work and conduct were found satisfactory during probation period and no complaint was found against them

Service rights having been accrued to civil servants due to confirmation of their services after successfully completing probation period, they could not be deprived of their vested rights after nine years on basis of Cabinet decision

Show-cause notices issued to civil servants being illegal, were set aside in circumstances.

Rule of locus poenitentiae although was available to Authorities to undo a mistake but an order could not be undone, withdrawn or recorded if it had taken legal effect and had created certain rights in favour of an individual.

Employees who were recruited employer Corporation as temporary workmen against permanent posts, had served for a period extending for six months to two years in different posts, but their services were terminated without issuing them any show-cause notice and without affording them opportunity of hearing on ground that initial orders of appointments of employees were issued during the period of ban on fresh appointments and that Authority passing wrong orders could withdraw or cancel such orders

Orders of appointment of employees had been given effect to and employees had even worked against permanent posts from six months to two years

Held, once the order had taken effect and was acted upon, the power to recede or withdraw that order would cease and even issuing Authority could not cancel the same

Test for determination whether there was locus poenitentiae or not, was to ascertain whether a decisive step had been taken in pursuance of the earlier order which was sought to be recalled or rescinded

If the order had been acted upon and had been made effective, then could not subsequently be cancelled by the issuing Authority under S.21 of General Clauses Act, 1897

Services of employees, thus, could not be terminated merely because they were appointed during a period of ban on fresh appointment

Employees were rightly ordered to be reinstated by Labour Court, in circumstances.

Authority competent to make order would have power to undo it; but such order could not be withdrawn or rescinded once decision in pursuance thereof had taken legal effect and certain rights were created in favour of any individual and principle of locus poenitentiae was available to him.

Principle of locus poenitentiae (power of receding till a decisive step was taken) would be subject to pre-requisites that order in question itself, must be legal order and that it must have attained finality by having taken legal effect whereby definite legal right had, been created in favour of an individual

Only thereafter, no locus poenitentiae was left

Principle of locus poenitentiae would come into play only when first of all there was a legal order which had taken legal effect and created rights in favour of individual

Such view was founded on maxim "ubi jus ibi remedium (where there is a right there is a remedy)

Conversely where there was no right, there was no remedy.

Criterion as to whether there was locus poenitentiae was whether an order had been acted upon or, whether the Authority exercising such power had done all that which was necessary for it to make the order effective

When such a step had been taken and the order had been acted upon, subsequent order or its cancellation could have no legal effect

Order in question, having been completely acted upon, had attained finality the same could not be withdrawn or retracted from without due course of law.

Statutory and executive authorities have locus poentientiae to recall an order only if no effective step had been taken in implementation thereof.

[Administrative decision].

Statutory and Executive Authorities have locus poenitentiae to recall an order only if no effective step has been taken in implementation thereof.

Person once having been appointed and confirmed against substantive capacity his services were not liable to be terminated without providing him an opportunity to explain his viewpoint on principle of locus poenitentiae.

Principle of locus poenitentiae stipulates that the authority that has the power to make an order has also the power to undo it till a decisive step is taken.

Order of competent Authority duly passed and acted upon, could not subsequently be reviewed evee by superior Authority which otherwise had no jurisdiction to review, on principle of locus poenitentiae.

Where no right could be founded on the basis of an order or decision made by a person having no authority to do so, principle of locus poenitentiae had no application

No right could be claimed on the basis of an order which had no existence in law having been passed by a person not authorised to do so

Such order was not capable of being enforced nor could any benefit be claimed on its basis.

Power to rescind or withdraw.

Where the order had taken legal effect and in pursuance thereto certain rights had been created in any individual, "decisive step" would be deemed to have been taken and thereafter the order could not be withdrawn or rescinded to the detriment to these rights.

[Civil service].

Until provisional seniority list was finalized, competent Authority was free to make necessary notifications in respect of promotions, as per rule laid down by Supreme Court in Pakistan v. Muhammad Himayat Ullah reported as P L D 1969 S C 407.

Theory of locus poenitentiae not applicable in a case where decisive steps had already been taken.

Order validly passed by competent Authority and acted upon for quite a long period cannot be retracted on basis of `locus poenitentiae'

Authority passing order, should have been more vigilant from the very start and if Authority by its negligence allowed implementation of that order, it would constitute taking decisive step in terms of dictum `locus poenitentiae' and Authority would be deprived of power to recede from that order subsequently.

Petitioners name appeared in the list of recommendees of Public Service Commission .for appointment against post of Medical Officer

Petitioner's name was subsequently scored out and another candidate of the same name but with a different parentage and the District of origin, was recommended and appointed to the post

Record showed that person so substituted had secured more marks in the order of merit and had been successful in the interview while petitioner secured less marks and failed in interview

Petitioner's plea that rule of locus poenitentiae be stretched in his case, repelled

Rule of poenitentiae is to be pressed into service as a bar to rectification of the mistake or patent error which has the effect of seriously prejudicing an innocent person and depriving him of his legal rights

Doctrine of locus poenitentiae thus cannot be of any avail to petitioner for the purpose of helping him in depriving another deserving person of his legal rights which undoubtedly belonged to him

Discretionary jurisdiction cannot be exercised in favour of petitioner at the cost of deserving candidate by snatching away his lawful rights

Rule of locus poenitentiae, its applicability and discretionary jurisdiction of High Court to apply the rule, stated.

Principle of locus poenitentiae would extend to the orders made in exercise of powers vesting in the authorities passing them and not to the orders which were made by the authorities not competent to make them.

Existence of such power was necessary in case of all authorities empowered to pass orders, to retrace the wrong steps taken by them

Authority that has power to make an order has also the power to undo it, subject to exception that where such order had taken legal effect, and in pursuance thereof certain rights had been created in favour of any individual, such order could not be withdrawn or rescinded to the detriment of those rights.

Rule of locus poenitentiae, on which common law was based, held, was subject to limitations inasmuch as order to be recalled should not have been acted upon before being re-called and same should not have effect of destroying vested rights

Officers and employees of Road Transport Board being governed by statutory rules, had acquired certain rights under said rules which could not be taken away by dissolving such Board

Rule of locus poenitentiae would not be attracted in such case.

Power of receding available till decisive step is taken-Appellant initially appointed in 1975 as Assistant Director, Food (B.S.17) without clearance through Public Service Commission and such requirement relaxed by Chief Minister, subsequently not considered suitable for that post by Select Committee in pursuance of M.L.O.-55 and recommended for a lower post in Grade-l6 and thus appointed as District Food Controller in 1978-Seniority as District Food Controller fixed by placing senior all Officers then in Grade-16 in consultation and with approval of Chief Secretary in Services and General Administration Department-Appellant's case sent to Selection Committee for promotion being senior most but on appeal of some juniors previous order regarding fixation of seniority revoked by Chief Secretary assigning seniority from date of appointment in Grade 16-Held : (i) Previous order having been published and not merely remaining on file could not be withdrawn or cancelled, (ii) subsequent order passed as a result of departmental appeal of others without show-cause notice or opportunity of hearing to appellant would not be legal and binding on appellant being against principles of natural justice, and (iii) subsequent ex parte order passed without hearing of appellant being void, there could be no limitation against such order in matter of appeal before Tribunal -Impugned subsequent order in circumstances, set aside by Tribunal restoring earlier seniority position of appellant, however Government, held, would have option to re-hear departmental appeal against seniority of appellant after joining him as party and hearing him before deciding his case-General Clauses Act (X of 1897) S. 21Sind Service Tribunals Act (XV of 1973), S. 4.

Locus poenitentiae-Recalling of order-Order acted upon recalled to disadvantage of person concerned-Such action prohibited by law.

Locus poenitentiae-Power of receding till a decisive step is taken-Can be exercised only if no step taken to carry out order in question into effect-Government cannot withdraw an order where rights already accrued under such order and cannot give effect to a fresh order with retrospective effect-Notification regularizing ad-hoc appointment retrospectively issued and seniority fixed accordingly-Cancellation of such notification because of subsequent promulgation of Rules that ad hoc appointment cannot be regularized retrospectively, held, not open to Government-General Clauses Act (X of 1897), S. 21.

Locus poenitentiae-Power of receding available to authority making an order till a decisive step is taken-Order could validity be cancelled provided not yet acted upon - Police Constable dismissed from service by Superintendent of Police (Punishing authority)-Appeal rejected by D. I.-G. of Police-D. I.-G. subsequently without any power of review reviewing own appellate order and passing order for reinstatement

Reinstatement not yet made-Reinstatement order subsequently cancelled by D. I.-G. of Police-Reinstatement order having not been acted upon cancellation of such void order, in circumstances, held, not legally objectionable-General Clauses Act (X of 1897), S. 21.

Select list of Revenue staff for promotion as Mukhtiarkars prepared not merely upon basis of seniority but on basis of assignment of marks on experience, departmental examination and academic qualifications basis

Neither a promotion simpliciter on basis of seniority nor selection by initial recruitment

Governed by peculiar rules as distinguished from general rule of promotion

Notification issuing select list acted upon partly by some appointments

Any fresh notification to detriment of persons remaining on select list awaiting posting as Mukhtiarkar, in circumstances, held, could not deprive them of their accrued valuable right and no locus poenitentiae left in Government

Regulation regarding determination of seniority inter se governing such select list

Not inconsistent with provisions of Sind Civil Servants Act, 1973 hence valid until new rules framed

General rule of seniority on promotion viz. r. 11(b) of Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 not meant to be applicable to special case of .selection of Mukhtiakars and special rules would continue to be applicable in spite of general rule to the Contrary by application of Maxim "Generalia specialibus non derogant" (Special rule overrides general rule) New rules for preparation of select list even if made will not have retrospective effect and thus will not affect select list of Mukhtiarkars already prepared and not yet exhausted-Retrospective operation not to be given to any rule or regulation so as to impair an existing right or obligation

General rule is not to be taken as meant to rip up what special rule had before provided unless an intention to do so is specially declared in general rule and merely general rule is not enough even though by its terms it is stated so widely that it would, taken by itself, cover special cases

Special rule overrides general rule.

[Maxim].

Promotion order even not sanctioned by rules-Cannot be withdrawn if in meantime a valuable right had accrued to a Civil Servant.

Subsequently after three years promotion and confirmation cancelled on plea that post was not a selection post and promotion was required to be made on seniority-cum-fitness basis and promotion made on selection through selection committee resulted in ignoring seniors-Selection and confirmation having been acted upon and employee all along paid accordingly had acquired a right to maintain his confirmation

Railway Administration, in circumstances, held, had no locus poenitentiae to revise such Order, hence subsequent Order, held, not sustainable.

B class al' Military Engineering Service allowed pay in NPS-11 and pay so fixed drawn for about 7 years but subsequent pay refixed in NPS-7 on plea that he was not entitled to NPS-11

Departmental authorities, in circumstances, held, had no valid power of receding orders of fixation of pay in NPS-11.