Through this petition the petitioner challenges the order dated 23rd December, 1978, by which the Additional Inspector-General, Police retired him from the post of Superintendent and the one dated 14th December, 1978 by which the previous order allowing him to cross---efficiency bar on 1st December, 1972, has been withdrawn retrospectively.
2. The brief facts leading to this petition are that the petitioner who was serving in the office of the I.-G. Police, Bahawalpur before the creation of the One Unit of West Pakistan, was absorbed in the office of the I.-G., Police, West Pakistan. Later, in pursuance to order No. FD.PR-2-27/74 dated 21st February, 1974 (Annex. A/2) issued under Punjab (Gazetted) Civil Service (Pay Revision) Rules, 1973, the petitioner opted for NPS 16. It was allowed and the petitioner was granted NPS 16 with effect from 1st March, 1972. By virtue of revision of pay scale, his pay was fixed at Rs. 750 on 1st March, 1972.
His next increment which fell due on 1st December, 1972, in the previous pay scale of Rs. 400-35- 750/50-1000 was also allowed. The respondent has after about 6 years, with held the increment given in 1972.
3. The petitioner had been promoted as Superintendent in 1968. In view of the letter Annex `A' the petitioner was given Secretariat Scale of Pay for Superintendent though he was working in a non- Secretariat Office. Para. (1) of the letter Annex. `A' reads as under:- "Ministerial Government servants of the previous integrating Secretariats or combined Secretariat- cum-Heads of Departments/ Offices who had been confirmed in the Secretariat scales on or before 13th October, 1955, and such of them who were officiating against permanent posts carrying the Secretariat scales and in clear vacancies on 13th October, 1955, will continue to draw pay in the Secretariat scales of pay in the offices of the Heads of Attached Departments in posts carrying lower pay scales but of corresponding status and responsibility. Such Government servants will not be reverted to lower scales."
According to Annex. A/2 referred to in para. 2 above, only those officers were entitled under the above Rules who had been promoted up to and including 17th December, 1973. The entitlement of the petitioner to promotion, fixation of his pay and his exercise of option to NPS 16 as pay scale corresponding to the one held earlier by him under the above Order have not been denied.
4. It is contended by the learned counsel that as the promotion of the petitioner as a Superintendent in the Secretariat scale of pay and his option to a corresponding NPS had never been denied or objected to, and as the petitioner had enjoyed a personal status of an officer holding NPS 16, the Additional Inspector-General had no authority in law to retire him from service.
It is further submitted that as the petitioner was entitled to his increment and as the same had been allowed, acted upon and enjoyed by the petitioner for about 6 years, it could not have been recalled.
5. In this view of the matter, it is argued, that the Government and not the Additional I.-G., was the competent authority to retire the petitioner from service. Rule 6 of the Punjab Civil Servants (Appoint. Merit and Conditions of Service) Rules, 1974 has been relied upon. Reference has also been made to a letter dated 2nd October, 1978 issued by the Home Secretary clarifying the position that the Government is the only competent authority to compulsorily retire a person in N.P.S 16 and above:
6. The learned Assistant Advocate-General admitted that the peti--tioner had opted for and is serving in NPS 16. He, however, submitted that according to the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 it is the `grade' of the petitioner and not the NPS which is relevant to find out who is his retiring authority. He referred to rule 2 (1) of the above Rules read with the definition of `grade' as given in rule 2 (c) of the Punjab Civil Servants (Change in Nomenclature of Services and Abolition of Classes) Rules, 1974 to say that as the petitioner "moved over to the next higher national scale of pay without change in the nature of duty and assumption of higher responsibilities or under prescribed conditions after reaching the maximum of the lower national scale of pay" his grade was the lowest national scale of pay admissible for his post. This statement, however, is not correct factually and goes against the documents placed on record even by the respondents.
7. The learned Assistant Advocate-General also referred to the Schedule attached to the Punjab Civil Servants (Pay Revision) Rules, 1977 and submitted that a Superintendent in the `Posts common to different Departments' as a non-secretariat post falls under NPS 11 and, therefore, the Additional 1.-G., was competent to retire the petitioner from service.
8. The learned Assistant Advocate-General, however could not refer to any record or document showing that the petitioner had moved over to N.P.S. 16 after reaching the maximum of the lower national scale of pay. The definition of grade relied upon is, therefore, not relevant to show that petitioner should be deemed to be holding grade 11. The 'note on factual position' submitted by the respondent shows that the petitioner was also allowed Secretariat Scale as personal to him. The Annex. A to the writ petition gives reason for it. That letter shows that though the petitioner was allocated to a non-secretariat office, yet he was for all practical purposes a Superintendent of the Secretariat. It is also admitted in para. 3 of the parawise comments that the petitioner was promoted as Superintendent in 1968 and was allowed to draw pay in Secretariat pay scale. The post of a Superintendent in the Punjab Civil Secretariat is shown at serial No. 41 of the Schedule referred to above. Its `existing and revised pay scale' given there is 16. The N.P.S. 16 awarded to the petitioner was therefore, corresponding to the scale held by him. The case of the peti--tioner is thus not concerned by the part of the definition of `grade' sought to be applied to this case. There is also a clear admission by the respon--dents of the position taken by the petitioner and the learned Assistant Advocate-General could not be allowed to take up a different position.
9. The learned Assistant-Advocate-General then referred to West Pak. Police Department Ministerial Service (Headquarters) Rules, 1964 to say that even before the present Rules were enforced, the petitioner was liable to be compulsorily retired by the Additional Inspector-General, who was his appointing authority. Rule 4 of the Rules was particularly referred to. Reliance to the same effect was also placed on Annex.' `A' filed with the comments of the respondent. None of the above references is relevant to the order passed in December, 1978. It is at the relevant time that a power entitling the Additional I.-G., to take the impugned action is to be spelt out. Obviously rule 6 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 shall apply at the relevant time. The power to retire a N.P.S. 16 officer undoubtedly vests in the Government. No such power has been delegated to the Additional I.-G. He is, therefore, not the Authorised officer to have taken tile impugned action.
10. The learned Assistant Advocate-General also assailed the main--tainability of this petition for the reason that there having been created a special tribunal under Article 212 of the Constitution read with Punjab Ad--ministrative Tribunals Act, 1974, with exclusive jurisdiction, the petitioner could not have invoked the Constitutional jurisdiction of this Court, without exhausting the right of appeal there. On principle the objection is very sound and cannot be controverted. However, the position in the case in hand is different. As found above, the Additional I.-G. Who passed the impugned order is not the competent authority to have retired the petitioner. The petitioner is, therefore, being restrained from performing his duties by or at the instance of an unauthorised public functionary. No appeal is provided against such an order before the Administrative Tribunal.
11. Reference may also be made to a Full Bench judgment of Baluchistan High Court in Mujeebuliah Aijaz v. D.G.T. & T. Department (PLJ 1978 Quetta 108) in which their Lordships laid down the following rule :----- "Analysing the relevant provisions it would appear that an appeal shall not lie to the Tribunal in the following cases :-----
(4) When the punishment imposed is other than the punishment of dismissal, removal, compulsory retirement or reduction to a lower post or time-scale ;
(6) when the order is not passed by a competent departmental authority and is for such reason void."
12. As for the order recalling the previous order allowing increment to the petitioner in 1972, it may be noted that no public functionary can, while exercising executive authority, pass such order as may affect vested rights. Reference be made to Pakistan v. Muhammad Himayat Ullah (PLD 1909 SC 407). The facts of that case and the law laid down being quite relevant to the case in hand it will be useful to reproduce the relevant finding :---- "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 poenitentfae, i. e. The power of reced--ing 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 pursuance 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.
In the present case, the order fixing the basic salary of Rs. 1,000 per mensem for the respondent Himayatullah Farukhi was made by the President on the 1st of October, 1959, when the 1956-- Constitution had been abrogated and the country was governed by the Laws (Continuance in Force) Order, 1958. Under clause (11) of Article 6 of that Order which was introduced by the Laws (Continuance in Force) (Sixth Amendment) Order, 1960, it was provided that nothing in that Article or in any rule or enactment relating to conditions of service, shall be construed to limit or abridge the power of the President or a Governor to deal with the case of any person in the service of Pakistan in such manner as may appear to him to be just and equitable, provided that where anything in this Article or in any such rule or enactment is applicable to the case of any person, the case shall not be dealt with in any manner less favourable to him that provided by this Article or the rule or enactment. Acting under this provision the President in the exercise of his supra- constitutional powers fixed the salary of the respondent at Rs. 1,000 per mensem, notwithstanding the fact that his earlier representation for the same purpose had been rejected by the Prime Minister of Pakistan. The order of the President was duly communicated to the Ministry of Communi--cations and the respondent and its implementation thus ensured became a part of the terms and conditions of the service of the latter (Himayatullah Farukhi) relating to his remuneration. By the time that the President made the second order on the 26th of August, 1962, revoking the earlier one, the Constitution of the Islamic Republic of Pakistan (1962), bad been enforced which contained a protective provision in Article 178 thereof, that the terms and conditions of service of a person in the service of Pakistan as regards his remuneration and age, shall not be varied to his disadvantage. The President's subsequent order was, therefore, void on that basis.
13. The impugned order can, therefore, be declared to be void and ineffective under the Constitutional jurisdiction of this Court and the respondents can be restrained from preventing the petitioner from exercis--ing his legal duties. The position would have been quite different if the Additional Inspector-General had been the functionary empowered to take the impugned action.
In that case, this petition would have been incom--petent and the petitioner would have to go to the Punjab Administrative Tribunal to raise all the other objections mentioned in the petition before it.
In view of the above, the impugned order is declared to have been passed without lawful authority and is, therefore, of no legal effect. The result is that the petitioner continues to be an employee of the Govern--ment. The petitioner is also entitled to his costs.