' SYED TAHIR ALI SHAH (MEMBER)..----Instant petition for leave to appeal is directed against the order dated 25-5-2006 passed by the Northern Areas Chief Court in writ petition No,13 of 2004 filed by the petitioner whereby the vires of order dated 23-8-2003 passed by respondent No,2 challenged.
2. Precisely stated the facts forming the background of the petition in hand are that Muhammad Jamil the present petitioner was serving in the Education Department Northern Areas in the capacity of Upper Division Clerk holding BPS-7. In pursuant of an advertisement published in the Newspaper in the year 2000 for appointments against the vacant post of MT&FACT, petitioner also tried his luck by appearing in the proficiency test. Luckily he qualified the test and interview and was thereby offered an appointment against a vacancy of matric trained teacher. The said post carrying BPS-7 did not suit the petitioner as he was already holding a post of the same scale, he rejected the offer. It is also stated that the petitioner could not be adjusted in BPS-14 as TUGT in spite he had qualified the test and interview. The reason advanced by the department was that no seat was available in the cluster.
3. The petitioner, some times later, as the record reveals made another attempt to get his cadre changed from BPS-7 to 14 as TUGT. On such request respondent No,2 constituted a Departmental Promotion Committee comprising the Deputy Director Education Gilgit as Chairman and DIS and Headmaster High School No,1 Gilgit as members of the committee. The recommendations of the said committee available on the file whereby it revealed that the committee strongly recommended the case of petitioner for change of cadre. Respondent No,2 was very kind to accede the recommendation and vide his office order No,Sec.Edn-2(14)/2002, being the competent authority issued appointment order to the petitioner as TUGT on 6 August, 2003. The petitioner accordingly, making no mistake joined to his new assignment on 8-8-2003 which is evident from the joining report on the file.
4. On 23 August, 2003 the petitioner was surprised to know that his name was also included in the list of those whose appointments were cancelled by respondent No,2. The reason furnished in such cancellation order, which is now impugned before us, seems that the order issued by the predecessor in office of respondent No,2 dated 6 August, 2003 was made without observing the procedure/formalities of the rules framed for such appointments. Petitioner filed a service appeal to respondent No,2 on 27-8-2003 but to his bad luck it did not accept appeal and the competent authority regretted his request calling it unjustified and lacking equity. It was also learnt during argument that petitioner has been adjusted in BPS-9 and serving as such.
5. The petitioner, according to him not legally and competently being satisfied filed a writ petition before the Chief Court Northern Areas against his grievances. It would not be out of place to mention here that the Government has not been able to constitute a service tribunal for the people of Northern Areas in spite of the clear order of august Supreme Court of Pakistan through verdict given in a service matter. The writ forum is an exceptional one which can only be availed where no other forum available. However, the learned Chief Court did not agree with the contention of the petitioner and declined the petitioner, entitled for any relief.
6. Felt aggrieved with the findings so returned by the Chief Court the petitioner has approached the Appellate Court challenging the order of the Chief Court dated 25-5-2006.
7. Mr. Haji Mirza Ali, learned counsel vehemently contended that order passed by respondent No,2 is illegal, without authority and mala fide. He further contended that the rule of Locus Poenitentiae applies to the case in hand and that the respondent cannot take benefit of their own lapses committed during the petitioner appointment.
8. The learned Advocate-General, on the other hand controverted the submissions made by the petitioner and reiterated that the impugned order passed by respondent No,2 is within the four corners of the rules framed for appointments and no exception can be made to this legal order. He further contended that since the period of recommendation by the DPC was expired hence the petitioner has rightly been removed from the post through an order competently made.
9. We have, besides a patient hearing to parties also given our anxious consideration to the submissions made by the parties and gone through the record minutely, available in the case:
10. The undisputed aspect of the case as shrined from the record poses that the petitioner being unsuccessful to get an appointment in the result of a proficiency test made another attempt to get his cadre changed through representation to the respondents whereupon competent authority (respondent No,2) constituted a DPC and on the strong recommendation by the DPC the representation was allowed and he was adjusted in BPS-14. It is also undisputed that the competent authority has approved the recommendations made by the DPC. It is shocking to note that a DPC has been constituted for a single person and the recommendation is also for the said figure brushing aside all the rules without any alternate candidates.
11. It is an admitted position of the case that the validity of expiry of the recommendation of the DPC was well within the knowledge/notice of the competent authority while issuing the order dated 6- 8-2003. It cannot even be denied that the petitioner in compliance with the order dated 6-8-2003 availed the opportunity flowing from the said order issued by competent authority by joining the post and thereby a valuable right has been created in him. The petitioner has suffered a lot without any fault on his part due to the misuse of the powers by the competent authority which is regrettable and speaks a volume about the efficiency and good governance of the department concerned. It was not a case of lack of qualification as the petitioner is equipped with all the qualification inter se the post. Department would itself appointed/ adjusted the petitioner on the basis of recommendation of an alleged expired DPC in sheer violation of rules cannot be allowed to take benefit of its lapses in order to terminate service of the petitioner merely because it had itself committed irregularity in violating procedure governing such appointment. It would further show that the department has been acting mechanically, without application of mind, therefore, petitioner cannot be made to suffer the whimsical and mechanical acts of the respondents.
12. The points raised by the learned counsel for the petitioner that any order issued by the competent authority cannot be withdrawn, recalled, rescinded, amended or varied when as the result of such order an individual gets a certain rights has every force in it. The rule of Locus Poenitentiae fully attracts in the present case. The philosophy behind the dictum is that authority, competent to make order had power under section 21 General Clauses Act to undo the same but the order could not be withdrawn or rescinded once it had taken legal effect and certain rights were created in favour of an individual and that the principle of locus poenitentiae would be attracted in such situation. It is disturbing to note that a part from the legal aspect of the impugned order weighed in the golden scale of justice, it swindles the exercise of authority and slapdash of dealing with the day to day business. It also reflects the scary situation to be faced in future as the illegalities are committed under the nose of controlling authorities and that repeatedly too. The lack of accountability and fixation of responsibilities are major factors deviating from the concept of good governance. Illegalities in appointments as often noticed are bluntly committed and misusers not dismayed scale over the limits of accountability.
13. In the result whatever discussed above we are inclined to alloy, this petition which is accordingly converted into an appeal. Impugned order of Chief Court dated 25-5-2006 cannot hold the field and set aside. Order passed by respondent No,2 Secretary Education No,Sec.Edu-2(14) 2003 dated 23-8-2003 held incompetent and without authority to the extent of petitioner. Petitioner is reinstated to the post of TUGT (BPS-14 fixed) with full back-benefits. No order as to costs. These are the reasons of our short order dated 22-8-2006.