1. ' MUZAFFAR ALI, J.--- Through this writ petition, the petitioner has evoked the aid of this Court to issue directives to the respondents Nos.2 to 4, regarding, restoration of the promotion order of petitioner dated 8-8-2003 by revoking the cancellation orders dated 23-8-2003, 10-9-2003 and 4- 7-2006 up to the effect to the petitioner.
2. ' The facts stated in the petition are as such that, on 27-5-1998, the respondent No,3 advertised in the newspapers for appointment against various posts of Teachers, vacant in the department and invited applications from the eligible candidates. Since the petitioner was having qualification as required, hence he applied for the vacant post of Teacher BPS-14 in the Middle School Phukuch Darel, the native village of the petitioner and passed the test/interview, but the respondents Without any legal justification and contravening and in reversal of the advertisement, issued appointment order of the petitioner as teacher BPS-7, instead of appointing him in BPS-14.
3. ' The petitioner being a jobless graduate was compelled to accept the appointment order, and performed his duties against the vacant post in BPS-14, though the same was a great miscarriage of justice against the petitioner, later on, the petitioner passed his B.Ed. Examination and was recommended for promotion against the vacant post of teacher in BPS-14, resultantly the petitioner was promoted vide office order, dated 8-8-2003 against the vacant post in BPS-14 as the petitioner was already performing his duties against the said post.
4. ' That on 23-8-2003, the respondent No,2 issued a general order and also cancelled the promotion order, dated 8-8-2003 of the petitioner, feeling aggrieved of the same the petitioner moved a departmental appeal before the Competent Authority, but for no avail, hence this writ petition before this Court.
5. ' The respondents submitted their written comments and denied the contention of the petitioner with the plea that, the petitioner had applied for the post of MT Teacher B-9 and passed test/interview. He accepted and joined his appointment as MT Teacher (BPS-7) instead of appointing him as MT Teacher B-9, the promotion order of the petitioner was also assailed by the respondents with the contention that, the same was issued by the then Ex-Secretary without fulfilling the formalities, i,e, DPC/Promotion policy etc. The respondents have attached two documents; one the initial application of the petitioner for his appointment and second, his joining report in support of their version.
6. ' We heard the learned counsel for the petitioner and learned Advocate-General for the respondents, also asked and confronted Legal Advisor of the Department and the respondent No,4, when needed clarification on certain points. The learned counsel for the petitioner built his case on the points as that:-
(a) The petitioner had applied for the vacant post of teacher in BPS-14 and qualified test/interview, as such, he was entitled to be appointed in BPS-14, but the respondents without any legal justification appointed him in BPS-7 and assigned him duties against the vacant post BPS-14 in the said school, hence the arbitrary act of the respondents is questionable as being against justice and without jurisdiction.
(b) The general order, dated 23-8-2003 was in connection with the fresh appointments/adjustments and do not cover the matters of promotion and this very fact has been conceded by the respondents, during course of enquiry, conducted in response to the departmental appeal, filed by the petitioner hence, the order 10-9-2003, being without jurisdiction is liable to be set aside.
(c) The reason given in the order dated 4-7-2006 is alien to the reason given in the order dated 23- 8-2003, hence the reason is altogether new, an afterthought and for the sudden surprise of the petitioner and if this was the reason to call the promotion order of the petitioner then it was incumbent upon the respondents to give sufficient, chance to the petitioner to meet the same situation, therefore, the order, dated 4-7-2006, being against natural justice is liable to be set aside.
(d) The petitioner has taken a specific plea in his petition to the effect that, the case of the petitioner does not come within the ambit of order dated 23-8-2003 and his name has been ironically included in the list of order, dated 10-9-2003, this version of the petitioner has not been denied categorically in the written comments filed by the respondents, rather the same has been conceded impliedly, hence the petitioner is entitled to be remedied as prayed for.
7. ' In response to the above points raised by the learned counsel for the petitioner, the learned Advocate-General urged as such that:--
(a) Since the petitioner has accepted his appointment as teacher in BPS-7 and has opted to join the same with his free consent as such, being a waiver could not claim any remedy from this Court.
(b) Since the promotion order of the petitioner was in violation of the rules as stated in the written comments of the respondents, as such, no matter whether the order comes within the ambit of general order, dated 23-8-2003 or not.
(c) The promotion order of the petitioner was without jurisdiction as such it was not necessary to give a chance to the petitioner to meet the situation.
8. ' We minutely scrutinized the above points urged by the counsel for the petitioner and encountered by the learned Advocate-General for the respondents and, also have gone through the record of the case and we are in consonance with the learned Advocate-General on the point that, though the petitioner had qualified test/interview for the vacant post of teacher in BPS-14 and he was entitled to be appointed against the same post, but the petitioner has accepted his appointment order in grade-7 and has joined the same on his own accord, therefore, he could not get any benefit of this issue, but at the same time it is observed by this Court that, the order dated 10-8- 2000 was a dictatorial one and the petitioner was entitled to be appointed in BPS-14 as he had fulfilled all the requirements termed in the advertisement published in "the daily Jang" Rawalpindi, dated 27-5-1998. It is also observed by this Court, that, the plea taken by the respondents in their written comments to meet this issue is wrong and pervasive in itself, for the reason that, the respondents have submitted the unattested photocopy of the application under which the petitioner had applied and the bare perusal of the same reveals that, the respondents have made a futile effort to tamper it by overwriting a figure "7" in place of BPS-14 in the application, the attitude is deplorable. We, at this stage confronted the matter with the respondent 4 present before the Court, he frankly conceded the issue.
9. ' Though, the learned Advocate-General tried with full diligence and professional skill, to meet the points "b", "c" and "d' raised by the learned counsel for the petitioner, but could not persuade us, for the reasons that (a) the general order, dated 23-8-2003 'was in regard to take action against' appointments/adjustments, made in the education department and the order, dated 8-8-2003 made in favour of the petitioner was a "promotion order" as such it was beyond the ambit of the *above general order and this logic has been conceded by the concerned officials of the Department as apparent on the record, furthermore, the respondents have not categorically denied this fact in their written comments.
10. ' Last but not the least, learned Advocate-General stressed on the point that, if it is conceded that the order, dated 8-8-2003, in favour of the petitioner is out of ambit of the general order, dated 23- 8-2003, then too, the revocation of the same is legal for the reason that, the order was made in violation of rules and procedure by the then Secretary of the Department. We seriously looked into the point urged by the learned Advocate-General, but came to the conclusion that, if for arguments sake, we take the point to be true, even again the order is not tenable in the eyes of law, for the reasons that (a) the case of the petitioner was jumbled ironically with the general order dated 23-8-2003 and the office order, dated 10-9-2003 issued by Mr. Ghulam Haider, Section Officer, has been passed in a very confusing manner rather a quick look at the order may give an impression of being terminated from his services, by cancellation of his order of appointment as teacher in the BPS-7 and it gives no impression to believe that, his promotion order dated 8th the August, 2003 has been cancelled (b) The order has been passed without assigning any show- caused notice with the purpose to give a proper chance to the petitioner to defend himself and as such the order is in violation of the well-settled principle of natural justice "Audi Alteram Partem" which is well-recognized by the Courts of law. (c) the order, dated 10-9-2003 and the order, dated 4-7-2006 are hit by the principle of "locus poenitentiae" meaning thereby is that, section 16 of General Clauses Act, 1897 empowers an authority to suspend or dismiss an appointment order, having power to make the appointment and section 21 of General Clauses Act, 1897 empowers to amend, vary, rescind, "orders" "rules" and notifications etc. If has power to issue such notifications, order or Rules etc., but the authority is debarred by the principle (supra) to dismiss, suspend, rescind etc. Under both the sections (supra) if the orders, rules and notifications have taken legal effects and certain rights are created in favour of any individual. In the case in hand, the promotion order in favour of the petitioner has been issued on 8-8-2003 and the cancellation order has been passed on 10-9-2003 after lapse of, at least one month, and during this period the order, dated 8- 8-2003 had its effects and rights accrued to the petitioner, particularly when it is apparent from the record that the petitioner was assigned duties against the same post from the very day of his appointment hence the principle of locus poenitentiae is available to the petitioner. In this context we are supported by the case-laws.
(1) 1982 PLJ Tr.C. (Service) page 165, (2) 1999 CLC page 723, (3) 1988 PLC (SC) page 786, (4) 1988 SCMR page 1745, (5) 1981 SCMR page 604, (6) 1992 SCMR page 1652 and (7) PLD 1969 SC page 407.
11. ' Before parting we would like to record general observation of this Court about the maladministrative acts of the officials of the respondent-Department, which came to the notice of this Court in various cases adjudicated. The officers in the Department either are ignorant of rules, laws and regulations or they think themselves to be above the all. Particularly while dealing with the cases of appointments, promotions and related actions against or in favour of the officials of the Department. This law and rules avoiding attitude always causes loss to the Government and create hurdles to the individuals. At present, it has come to the notice, that, an army man has been posted as Secretary of the Department, probably to bring into discipline the above casualties in the Department, hence the present Secretary is suggested to take into account the present case and the cases of like nature and we hope.
12. ' What the above discussion follows is that, the writ petition is granted by cancelling the orders dated 10-9-2003 and 4-7-2006 and the promotion order dated 8-8-2003 is to remain in the field as operative from the date of its issuance. No order as to cost. A copy of this judgment may be sent to the Secretary Education.