' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).--The appellant has filed this appeal under section 4 of Sindh Service Tribunals Act, 1973, challenging the order dated 27-3-2001 of Withdrawal of promotion of appellant issued by the Respondent No.3.
2. Brief facts of the case as disclosed in the memo. Of appeal, are that on administrative grounds, as alleged, the post of Assistant Director, P.R.O. (BS-17) Parks and Recreation Department, District Municipal Corporation, Malir was transferred to Advertisement Department with change of nomenclature as Deputy Director, Advertisement (BS-17) and in lieu thereof, the post of Assistant Director, Advertisement Department (BS-16) was transferred to Parks and Recreation Department.
On account of above said administrative change of posts, appellant vide order dated 10-5-2000 was promoted from the post of Assistant Director., Advertisement (BS-16) to that of Deputy Director, Advertisement (BS-17). However, through the impugned order dated 27-3-2001 the order of promotion of appellant was cancelled/withdrawn. Initially, appellant assailed the said order before Honourable High Court of Sindh, Karachi in C.P. No.D-622 of 2001, but it was dismissed on the sole ground that matter relates to terms and conditions, the remedy lay before the Sindh Service Tribunal, Appellant then preferred departmental appeal to the Respondent No.1 and on getting no response within 90 days' stipulated period, has filed the present appeal.
3. Learned counsel for the appellant argued that order of promotion dated 10-5-2001 passed by the Competent Authority was implemented and remains in force for about a year; appellant's pay was also fixed in BS-17, which along with other benefits the appellant had drawn and thus the appellant acquired a legal vested right, the same under the principle of locus poenitentiae cannot be taken back. While referring to resolution of Karachi Metropolitan Corporation, letter dated 28-2-2000 of Municipal Commissioner, D.M.C. Malir addressed to the Secretary, Govt. Of Sindh, Local Government Department, recommending appellant's case for re-designation of the post of Assistant Director (BS-16) as District Advertisement Officer (BS-17) and requisite approval accorded by Respondent No.1 contained in letter dated 14-4-2000, and B inter-departmental. Correspondence relating to appellant's promotion to the re-designated post, learned counsel for the appellant submitted that all the requisite formalities, were complied with coupled with the approval of the Competent Authority. Therefore, for all purposes and intents, the promotion of the appellant attained finality and cannot be rescinded/cancelled/withdrawn by the Respondents. He prayed that impugned order of withdrawal of appellant's promotion being illegal, ultra vires, ab initio null and void may be set aside and the Respondents may be directed to allow the appellant to continue work against the redesignated post.
4. On the other hand, Mr. Shahzad Nawab, learned counsel for Respondents Nos.2 and 3, contended . That no doubt that appellant's request for re-designation of his post of Assistant Director (BS-16) to that of District Advertisement Officer (BS-17) was considered at the level of District Municipal Corporation, ,Malir and was also acceded too but it was subject to the final approval of the Government and that appellant's case for approval was also recommended to the Government and on receipt of such approval contained in letter dated 14-4-2000, the appellant was promoted to the post of Deputy Director, Advertisement (District Advertisement .Officer) in BS-17 vide order dated 10-5-2000. However, subsequent thereto, the District Municipal Corporation, Malir received another letter dated 19-2-2001 from the Government of Sindh, Local Government Department, that the contents of their letter dated 14-4-2000 were changed and any order/letter issued by the D.M.0 on the basis of letter dated 14-4-2001 be withdrawn immediately. It was in these circumstances, the learned counsel for the Respondents argued that appellant's order of promotion was withdrawn, thus the D.M.C. Committed no wrong:
5. We, have considered, the above submissions and have very minutely gone through the documents placed on the record, particularly the two letters of even number dated 14-4-2000 and 19-2-2001 of Government of Sindh, Local Government Department. Perusal of letter 19-2-2001 reveals that the real contents of letter dated 14-4-2000 were materially changed. The contents of real letter dated 14-4-2000 read as under: "I am directed to refer to. Your letter No.DMC/MC/M/ ADMN/ .1439/2000 dated 28-2-2000, on the subject noted above" and to state that the officer in any other department in BS-17, may be assigned charge of Advertisement Officer."
' In the letter dated 14-4-2000 (received in the office of D.M.0 Malir under inward No.915 dated 15-4- 2000), the words "Charge of" were not mentioned and as it appears from letter dated 19-2-2001, the same were scored off for the obvious reasons to benefit the appellant. In fact, the Local Government Department directed the District Municipal Corporation, Malir, to assign the charge of the ,post of Advertisement Officer (BS-17) to any other officer of the Department holding the post of BS-17. There was nothing in the said letter that appellant who was working against the post of BS-16 may be assigned the post of Advertisement Officer (BS-17). Therefore, the order of promotion dated 10-5-2000 based upon the fake, managed, fabricated and manipulated letter of Government was rightly and legally withdrawn/cancelled through another order dated 27-3-2001. So far rule of locus poenitentiae as pressed by learned counsel for the appellant, we may observe that, it has been repeatedly held that the rights which have been acquired in an illegal manner cannot be termed to be vested rights to attract the rule of locus poenitentiae. By now it is settled law that the rule of locus poenitentiae will not be applicable in the cases in which the basic order is illegal. The said principle was laid down by the Honourable Supreme Court in the case. Of The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207. In the said case certain employees were granted Grade-11 on the basis of incorrect information. However, when the real facts came to the notice of the department, they withdrew the said letter and the action was approved by their Lordships of Honourable Supreme Court. It was observed as under:- "The principle of locus poenitentiae was invoked by the learned Tribunal in aid of the respondent.
Having gone through the facts of the case, we have come to the conclusion that this principle is not attracted in the present case. Additionally, under section 21 of the General Clauses Act, the authority which can pass an order is entitled to vary, amend, add to or rescind that order. The order under which the payment was made to respondent had no sanction of law. Locus poenitentiae is power of preceding till decisive step is taken. But it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on, the basis of an illegal order."
' Similar was the view taken in the cases of Ardeshir Cowasjee v. Karachi Building Control Authority (KBCA), 1999 SCMR 2883 and Abdul Hague Indhar v. Province of Sindh, 2000 SCMR 907. All the above noted reported cases were referred to in the case of Muhammad Hussain Shaikh and others v. University of Sindh and others by the Honourable High Court of Sindh reported in 2002 PLC (C.S)
696.
6. For the aforesaid reasons, we are of the considered view that appeal is misconceived and is hereby dismissed. There shall be no order as to costs.
7. Announced in open Court.