' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).--- This appeal is directed against the notification, dated 27-1-2004 cancelling the earlier Notification dated 11-11-2003 whereby A appellant was allowed seniority in the rank of Assistant Commissioner from 18-11-1984 in terms of Rule 12(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975.
2. Relevant facts for the purpose of disposal of the instant appeal are that appellant after being declared successful in competitive examination conducted by the Federal Public Service Commission was selected in Information Group. He joined Civil Service Academy in November, 1984. However, in the year 1994, appellant's services were placed on deputation at the disposal of Government of Sindh. Subsequent thereto, on a D.O. Letter of the then Chief Minister, Sindh appellant was appointed by transfer as Assistant Commissioner (B-17) in Sindh Government vide Notification dated 20-10-1996 and he was assigned seniority in said cadre w,e,f, 20-10-1996.
Appellant thereafter, submitted an application to the then Chief Minister, Sindh, requesting for allowing seniority in the cadre of Assistant Commissioner w,e,f, 18-11-1984, i,e, the date when he joined the Federal Government. His such request was acceded to and vide Notification, dated 11-11- 2003 he was allowed seniority in terms of Rule 12(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, w,e,f, 18-11-1984. Immediately, thereafter on receipt of large number of representations from affected persons, the Notification dated 11-11-2003 was cancelled/withdrawn vide impugned notification, dated 27-1-2004. Feeling aggrieved, appellant after availing departmental remedy by filing review petition to the Chief Minister, Sindh, which remained unresponded has invoked the jurisdiction of this Tribunal.
3. During pendency of appeal, the private respondents Nos.5 to 16 moved separate applications for joining them as respondents, which by separate orders dated 1-6-2005 and 7-11-2006 were allowed. In pursuance thereof, appellant has filed amended memo. Of appeal impleading the intervenors as respondents.
4. In support of appeal, learned counsel for the, appellant mainly contended that appellant's permanent absorption in Sindh Government as Assistant Commissioner was made on the basis of a D.O. Letter of the then Chief Minister, Sindh coupled with No Objection Certificate given by Establishment Division, Government of Pakistan and that since appellant's appointment by transfer was made otherwise than on his own request he was legally and lawfully entitled to the benefit of his past regular service for the purpose of determining his seniority in terms of Rule 12(a) of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, which was rightly allowed to him vide notification, dated 11-11-2003. However, certain interested elements by misrepresentation of facts moved false and fabricated applications to the competent Authority for withdrawal of Notification dated 11-11-2003 and the competent Authority without going through the relevant record and without affording chance of hearing to the appellant cancelled/withdrew the said notification through the impugned Notification, dated 27-1-2004, which on the face of it is illegal, ultra vires against the mandatory provisions of law and principles of natural justice and thus, not sustainable. Learned counsel added that the Notification dated 11-11-2003 was legally acted upon/implemented and a valuable legal vested right was accrued to appellant, which under the principles of locus poenitentiae cannot be withdrawn. In support of his contention, learned counsel has relied upon (1) PLD 1969 SC 407, (2) 1994 SCMR 2232, (3) 1997 SCMR 15, (4) 2005 SCMR 678 and unreported judgment passed in Appeal No,56 of 2000 (M. Jaffar Abbasi v. Government of Sindh and others), dated 21-6-2006 by this Tribunal.
5. Conversely, learned counsel for private respondents and learned Assistant Advocate-General for official respondents while referring the summary floated to the then Chief Minister, Sindh, for appellant's induction in PCS-Executive Cadre in the Sindh Government, have argued that it is recorded fact that appellant's induction in Sindh Government was at his own request, therefore, his case falls under Rule 12(b) of the Sindh Civil Servants (Prohibition, Confirmation and Seniority.)
Rules, 1975, and his seniority would count from the date of his permanent absorption in Sindh Government. Further, they contended that appellant by concealment of material facts succeeded in getting benefit of Rule 12(a) of Rules of 1975, vide Notification, dated 11-11-2003, however, when the true facts were brought to the notice of the competent authority, the Notification, dated 11-11-2003 was withdrawn/cancelled vide impugned Notification, dated 27-1-2004 and that under section 21 of General Clauses Act, the Government was/is competent to vary, amend or rescind any notification, order, rule or bye-laws at any time. While referring two unreported judgments passed in Appeal No,274 of 1999 (Nisar Ahmed Shaikh v. Government of Sindh and others) dated 19-8-2005 and Appeals Nos.123-155 of 1998 (Mst. Sofia Shahabuddin Abro v. Government of Sindh and others) dated 23-12-2005, it has been contended that this Tribunal has already decided that civil servants appointed by transfer on their own request are not entitled to benefit of his past regular services.
6. While exercising right of reply, learned counsel for appellant contended that no such application said to have been submitted by appellant for his induction in Sindh Government has been produced by the respondents, which supports the plea of appellant that he had never moved such application but his induction was otherwise than on his own request.
7. We have carefully considered the above submissions minutely perused the case papers and have gone through the case-law referred to by the parties counsel.
8. Appellant Kazi Jan Muhammad an officer of Information Group (BPS-17) whose services lent on deputation in Sindh Government was initially posted as Public Relation Officer to Chief Minister and subsequently he was allowed to work as Press Secretary to Chief Minister Sindh in addition to his own duties. As it appears, on the request of appellant, a D.O. Letter, dated 19-3-1995 was written to Federal Government for his induction into PCS Executive Cadre without reference to Sindh Public Service Commission. On that a summary dated 30-3-1995 by Chief Secretary, Sindh was floated to the then Chief Minister, Sindh wherein appellant's induction in Sindh Government was highly resisted. Paras.6 and 7 of the said summary being very relevant are reproduced hereinbelow:-- "(6) It is pertinent to point out that the Supreme Court of Pakistan in the decision of Human Rights Case No,104 of 1992 have held the appointment made without observing proper procedure is violation of fundamental Human Rights. Even the request of Dr. Kazi cannot be considered for his appointment as Assistant Commissioner in BPS-17 due to non-availability of PCS Cadre (BPS-17) posts, as A.Cs. Are already working in excess and beyond the sanctioned strength which is also violation of the rules. Besides, he being an employee of Federal Government cannot be considered for appointment to any post in the control of Province without the prior approval of Federal Government (Establishment Division).
(7) With the above position as per rules in view, the request of Dr. Kazi is not tenable and he cannot be absorbed in any of the provincial service including that of the PCS Cadre (BPS-18), as he does not come within the ambit of a civil servant in terms of definition provided by the Act. On the other hand while submitting the position about the absorption made earlier/now being challenged, it has already been proposed to the Chief Minister not to entertain such appointments in future."
' The said summary at the first instance was ordered to be kept pending. However, once again at the request of appellant for his induction in PCS Cadre, an office note was prepared and marked to S.O.(V), who prepared draft summary, which was floated to the Chief Secretary on 25-6-1996 and after discussion it was ordered that it may be put up after two weeks. Again on 25-7-2006 the summary for Chief Minister, Sindh was prepared. The very first para. Of the same reads as under:-- "The Chief Minister, Sindh, may kindly refer to the summary earlier floated by this Department regarding the induction of Kazi Jan Muhammad in PCS Cadre (Annexure "A"). Now Kazi Jan Muhammad has again requested for his induction in PCS Executive Cadre (Annexure "B").
' It may be stated that Service and General Administration Department, vehemently opposed appellant's induction in Executive PCS Cadre, being in violation of rules. The Chief Minister, Sindh, however, allowed appellant's induction as Assistant Commissioner in Executive PCS Cadre. In any case, from the simple perusal of above two referred summaries floated to the then Chief Minister, Sindh, it is crystal clear D that appellant's induction in Sindh Government was made at his own request. Annexure "B" is the proof of same, which was an application of appellant requesting therein for his induction in PCS Executive Cadre. However, as it appears, the appellant being the beneficiary in collusion with some lower staff succeeded in removing the same from the file and then started claiming seniority.
9. After almost 7 years, appellant moved an application for assigning him seniority w,e,f, 18-11-1984 in terms of Rule 12(a) of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. A summary to the effect was floated to the then Chief Minister Sindh, on 14-10-2003 supporting appellant's case for assigning him seniority w,e,f, 18-11-1984. The said summary was approved on 4-11-2003 and in compliance thereof, Notification, dated 11-11-2003 was issued in favour of appellant. After issuance of said notification a large number of officers of Executive PCS Cadre showed their resentment and filed representations, wherein it was pointed out that appellant had concealed certain facts and could not point out that his appointment by transfer in Executive PCS Cadre was on the basis of his own written request. On that the record of the department was scrutinized and it transpired that appellant's appointment by transfer was on his own written request, therefore, he was not entitled to the benefit of Rule 12(a) but his case was covered under Rule 12(b) of the. Rules of 1975. Such summary was then floated to the Chief Minister, Sindh, who accorded necessary approval and the Notification, dated 11-11-2003 was withdrawn) cancelled vide impugned notification, dated 27-1-2004.
10. It is pertinent to state that appellant's complete silence for almost 7 years in claiming benefit of Rule 12(a), by itself is a proof that his induction in PCS Cadre was at his own request, otherwise, he could not have remained quiet and mum for such a long period of 7 years, during which several seniority lists were issued where he was shown junior to the above private respondents and many others not intentionally joined by appellant as a party in the instant appeal.
11. In view of the above recorded facts, since appellant's appointment by transfer in Executive PCS Cadre was made on his own request, he was, therefore, not entitled to the benefit of Rule 12(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975.
12. Contention that before rescinding/cancelling the notification, dated 11-11-2003 appellant was not provided chance of hearing, thus, the principles of natural justice were violated, had no force. It may be stated that at the time of appellant's induction in Executive PCS Cadre in 1996 so also at the time of allowing him benefit of Rule 12(a), none of other officers of Executive PCS Cadre was provided a chance of personal hearing. Moreso, appellant was in full knowledge that he by concealment of material facts and through underground method had succeeded in getting favourable notification issued in his favour, therefore, it was not necessary to provide him a chance of personal hearing before rescinding the same. In this regard reference is invited to a case of Nazir Ahmed Panhwar v. Government of Sindh and others 2005 SMR 1814, wherein the Honourable Supreme Court while maintaining the judgment of this Tribunal and referring the bunch of case- law on the point, has observed that:--- "Right of personal hearing to a person against whom an adverse order is to be made to be equated with fundamental right and an adverse order made without affording him an opportunity of personal hearing is to be treated as a void order application of said principle and its limitations.
Where the person against whom an adverse order is made has acted illegally and in violation of law for obtaining illegal gains and benefits through an order obtained with mala fide intention, influence, pressure and ulterior motive then the authority would be competent to rescind/withdraw/cancel such order without affording an opportunity of personal hearing to the affected party. Said principle though was always deemed to be embedded in the statute and even if there was no such specific or express provision it would be deemed to be one of the parts of the statute because no adverse action can be taken against a person without providing right of hearing to him. Principle of audi alterum partem at the same time could not be treated to be of universal nature because before invoking/applying the said principle one had to specify that the person against whom action was contemplated to be taken prima facie had a vested right to defend the action and in those cases where the claimant had no basis or entitlement in his favour he would not be entitled for protection of the principles of natural justice."
13. So far applicability of principle of locus poenitentiae, as pressed by learned counsel for the appellant is concerned it has repeatedly been held by our superior Courts that the rights, which have been acquired in an illegal manner, cannot be termed to be vested rights to attract the. Rule of locus poententiae. Beside, this rule will not be applicable in the cases in which the basic order is illegal. In a case of Engineer-in-Chief v. Jalaluddin PLD 1992 SC 207, it was observed that; 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. K.B.C.A. 1999 SCMR 2883, Abdul Haque Indhar v.
Province of Sindh and others 2000 SCMR 907 and Muhammad Hussain Shaikh v. University of Sindh and others 2002 PLC (C.S.) 696.
14. It may be stated that in a summary floated to the Chief Minister Sindh, the Chief Secretary, Sindh vehemently opposed appellant's induction in PCS Executive Cadre, as there was no provision for direct recruitment to these posts. Besides Rule 5 of the Sindh Public Service Commission Rules, 1975 applied on the posts meant for direct recruitment. Moreover, there was no post available in PCS Cadre at that time rather A.Cs. Were already working in excess and beyond the sanctioned strength. It is thus, clear from the perusal of said summary that neither there was any dearth of experienced persons nor his services were required in exigencies of public interest. It is also doubtful whether the services of the appellant were essentially required for his absorption to PCS Executive Cadre from the Federal Government or he possessed exceptional and extraordinary qualities.
15. It is worthwhile to mention here that appellant has not impleaded a large number of officers of Executive PCS Cadre who were necessary party, therefore, appeal filed without impleading necessary parties is not properly constituted and liable to dismissal on that such ground.
Reference is invited to the case of Manzoor Ahmed v. Muhammad Sabir 2001 PLC (C.S.) 50 and Muzaffar Hussain Khan v. Raja Hashmat Ali Khan and others, decided by Honourable Supreme Court of Azad Jammu and Kashmir, 2004 PLC (C.S.) 1117.
16. For the aforesaid reasons, the appeal being devoid of merits and not maintainable is hereby dismissed. Parties are left to bear their own costs.
17. Announced in open Court.