' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).---This appeal is directed against the original impugned order dated 9-9-1998 passed by respondent No,2 whereby order of appellant's promotion was cancelled and appellate order of respondent No,1 contained in letter dated 21-3- 2000 (communicated to appellant through letter dated 10-4-2000) whereby appellant's representation was rejected.
2. Briefly stated that facts of the appellant's case are that he joined defunct Karachi Metropolitan Corporation, Education Wing, under Sindh Local Government in 1972. While serving as Deputy Education Officer (Mover-over B-18), District Municipal Corporation-West, appellant's case for promotion to the post of Education Officer (B-18) was processed. Besides senior most Deputy Education Officer appellant possessed requisite experience and qualification of M. A. (Education), M.Ed. LL.B. Respondent No,2 also advised the Administrator, D.M.C. West to examine appellant's case as per rules and regulations vide letter dated 29-9-1997 followed by letter dated 11-10-1997.
Accordingly, a Departmental Promotion Committee under the Chairmanship of Municipal Commissioner, D.M.C. West was constituted, which examined appellant's case in its meeting held on 22-10-1997. The Committee recommended name of appellant for promotion to the post of Education Officer, which proposal was also endorsed by the Administrator of the D.M.C. West.
Ultimately, vide order dated 21-3-1998 appellant was promoted to the post of Education Officer against vacant post. Vide another order dated 24-3-1998 his pay in B-18 was also fixed w,e,f, 21-3- 1998. However, suddenly vide Notification dated 9-5-1998 the promotion order of appellant was kept in abeyance by the respondent No,2. Again vide impugned Notification dated 9-9-1998 the order of appellant's promotion dated 21-3-1998 was cancelled by respondent No,2. Feeling dis- satisfied, appellant preferred departmental appeal to respondent No,1 which, as stated in opening para, was rejected.
3. Respondents though served but despite sufficient time and opportunities they failed to file written statement in rebuttal. Accordingly, the matter was fixed for regular hearing.
4. In support of appeal, learned counsel for the appellant argued the matter at some length and also submitted written arguments. The crux of his arguments was that appellant was legally and validly promoted to the post of Education Officer (B-18) after observing all the codal formalities. His case was thoroughly examined by the appropriate Departmental promotion committee and was recommended for promotion, which recommendation was accepted and through valid and legal order appellant was promoted. The said order was implemented and acted upon. The appellant was posted as Education Officer (B-18) and his pay in B-18 was also fixed. Therefore, cancellation of promotion order without providing opportunity of hearing and issuance of show-cause notice to appellant being illegal, ab initio null and void, against the canons of justice, equity and principles of natural justice, is neither maintainable nor sustainable and may be set aside. He relied upon PLD 1969-SC 407; 1994 SCMR 2232; 1995 SCMR 950; 1995 SCMR 1008; 1996 PLC (C.S.) 862; 2000 TD (Service) 168 and 2003 SCMR 826.
5. Learned Asstt. A.G. Contended that appellant's departmental appeal was time-barred and was rejected as such, therefore, the instant appeal is also time-barred. She relied upon PLD 1990 SC 951.
6. Exercising right of reply, appellant's learned counsel argued that impugned notification dated 9- 9-1998 was communicated to appellant on 10-10-1998 and he filed departmental appeal on 15-10- 1998, it was thus well within time.
7. Before dilating upon merits of case, we have to decide point of limitation. In para-10 of departmental appeal, appellant stated clearly that he acquired knowledge of impugned Notification dated 9-9-1998 on 10-10-1998 and immediately thereafter on 15-10-1998 he preferred departmental appeal. In Ground-I of memo. Of appeal before this Tribunal, the same stance has been taken. There is, however, nothing in rebuttal that appellant was served with the impugned Notification dated 9-9-1998 prior to 10-10-1998. In the absence of such proof, we have no hesitation to say that departmental appeal filed by the appellant was well within time. Admittedly, appeal before this Tribunal from the date of rejection of departmental appeal is also within time.
8. On merits of the case, appellant's case in simple words is that he was validly and legally promoted to the post of Education Officer (B-18) after observing all the codal formalities and provided by law. His case was processed, examined and considered by the appropriate departmental promotion committee, which thoroughly scrutinized appellant's credentials and other qualifications etc., and then recommended his name for promotion. The said recommendation was duly approved by the competent authority and vide Notification dated 21-3- 1998 appellant was promoted. The said order was implemented/acted upon and appellant's pay was also fixed in B-18. Appellant thus acquired valuable and vested right, which in view of settled principle of law cannot be taken back/snatched without issuance of show-cause notice and providing opportunity of hearing. Admittedly, no such opportunity was ever provided to appellant.
Under Rule 16(1) of the Sindh Service Tribunals (Procedure) Rules, 1974, the respondents shall have to deliver within seven days immediately preceding the date of hearing specified in the notice his written statement to the Registrar during office hours, but despite lapse of over four years, the respondents failed to file their written statement. Like-wise under Rule 16 (3) of the said Rules, if any issue or fact is not denied specifically or by nenessary implication, the same shall be taken to be admitted by the respondent.
9. It is not the case of respondents that appellant was not eligible and competent for promotion to the post of Education Officer B-18 or he lacks qualification and experience. It is also not the case of respondents that appellant's case was not processed, examined and considered by the appropriate Departmental Promotion Committee or it was. Not recommended. Similarly, it is not the case of respondents that order of promotion was not implemented/acted upon. In the absence of any rebuttal, we are clear in our mind that appellant's promotion was valid, legal and perfect and was fully implemented/acted upon. Therefore, for recission of said promotion order there must be cogent, compelling and convincing grounds which are not forthcoming in the instant case.
Appellant thus acquired a legal and valuable right, which under the doctrine of "Locus Poenitentiate" cannot be snatched from him. In a case of Pakistan v. Muhammad Himayatullah Farukhi, PLD 1969 SC 407 it was observed.
"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 poenitentiae., i,e, the power of receding 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 therefore certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of these rights."
(Underlining is ours)
' Similar was the view taken in the case of Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973 and in the case of Chairman, King Edward University v. Wasif Zamir Ahmed Khan, 1997 SCMR
15. In another case of Mir Ghulam Ali Khan v. Pakistan, 2000 PLC (C.S.) 349, it was further observed that; "The case of the petitioner is further supported by the doctrine of locus poenitentiae. This principle is enshrined in section 21 of the General Clauses Act which unambiguously postulates that an authority which passed an order is competent to vary, rescind or cancel the order passed by it but this power is not absolute as it is subject to certain limitations. The minimum limitation is that when the order sought to be varied, rescinded or cancelled is communicated to other party and subsequent to that communication that party acts upoji it, a very valuable right accrues to that party and therefore the authority in such circumstances becomes functus officio to vary, rescind or cancel its earlier order because the law does not allow "Volte face" to the authority. This principle of law has been time and again recognized, accepted and enforced by the superior Courts of law."
' Admittedly, before cancelling the appellant's promotion order by way of impugned Notification, no show-cause notice or chance of personal hearing was provided to appellant. It is by now a well settled principle of law that if an impugned order has been passed without hearing and notice to the party whose presence is otherwise necessary before the authorities concerned, then the order will be a nullity in the eyes of law. Reference is invited to the case of Allahdino v. Faqir Muhammad PLD 1969-SC 582. Similar view was taken in the case of Mrs. Anisa Rehman v. P.I.A.C. And another, 1994 SCMR 2232, wherein it was observed that; "Maxim "audi alteram partenm" would be applicable to judicial as well as to non-judicial proceedings and it would be read into every statute as its part if right of hearing has not been expressly provided therein. Violation of the Maxim could be equated with the violation of a provision of law warranting pressing into service constitutional jurisdiction."
' In any case, the competent authority itself promoted appellant through a valid and legal process and order, the same could not take benefit of its lapses, if any, to deprive appellant from his valuable and legal rights.
10. For the aforesaid reasons, the appeal is accepted and impugned Notification/order dated 9-9- 1998 and dated 21-3-2000 are set aside and order dated 21-3-1998 is restored. Partiers are, however, left to bear their own costs.