Syed Bilal Ahmed, Member.--in this appeal filed on 24.10.2005, the appellant has assailed impugned order dated 13.10.2004 through which the appellant was informed that "appointment/transfer of Mr. Sajjad Ahmad Khan in the cadre of UDC was not approved as he was not eligible in term of qualification. Director General, P.P.O Islamabad has clarified vide their letter No, P.21-6/99 dated 13-March2000. In presence of explicit orders of D.G. P.P.0 there is no forum left with the applicant except F.S.T."
2. Brief facts of the case as given in the memo of appeal are that the appellant was appointed as Mail Guard SRO, RMS "M" Division Multan. He was promoted and posted on acting charge basis as Sorter (BPS-7). He requested for transfer from Multan to Postal Circle, Southern Punjab due to the requirement of newly established Centre, where he could be adjusted in the interest of service. His request was accepted and he was transferred to the office of Postmaster General South Punjab, Multan subject to the availability of post of UDC. The appellant retained his lien in the previous Unit till his permanent absorption in the new Unit. He was shown as Serial No, 7 in the Seniority List of Southern Punjab Circle, Multan as corrected upto 1.4.1997, as Upper Division Clerk (BPS-7). His pay was enhanced by one stage w,e,f, 8.4.1996, the date he joined as UDC in Circle Office, Multan. He was placed in Selection Grade (BPS-9) w,e,f, 5.10.1998 on the basis of seniority subject to fulfilment of required qualification for the post of UDC. The Director General, Post Office, Islamabad was requested for waving the condition of qualification so that he could avail the benefit of Selection Grade (BPS-9) and other consequential benefits arising therefrom. The Postmaster General Southern Punjab Circle, Multan recommended case of the appellant on the grounds that "the Chairman, Pakistan Postal Service Corporation, who was the rule making authority as such relaxation in qualification/experience could be inferred in his case." However, the request was turned down vide letter dated 13.10.2004 reproduced in para 1 supra.
3. The impugned order has been assailed on the following grounds:--
(i) The appellant was transferred from MST Circle, Multan to the office of Postmaster General, Southern Punjab, Circle Multan after proper NOC and in the interest of service with the approval of competent authority.
(ii) The respondents accepted his appointment as UDC by placing him in the Seniority List of UDC cadre. Selection Grade was only an extension of the substantive grade to which the appellant had already been appointed. Therefore, he cannot be denied Selection Grade.
(iii)He was appointed as UDC. The authority cannot approbate and reprobate on the same issue.
Reliance was placed on 2004 UC 179 & 310.
(iv)Appointee cannot be punished for omission/commission on the part of the department.
Reliance was placed on 2005 TD (Service) 113.
(v) Postmaster General Southern Circle Punjab, Multan clearly stated in his recommendatory letter dated 24.7.1999 that "transfer of the appellant of the applicant was made on the personal recommendation/orders of the Chairman Pakistan Postal Service Corporation who was the rule making authority as such relaxation in qualification/experience can be inferred in his case.
(vi)That the order of authority for appointment of the appellant as UDC was acted upon and rights had accrued in his favour. Such order cannot be withdrawn/rescinded or cancelled under the principle of locus poenitentiae. Reliance was placed on 1997 SCM R 15,2003 SCM R 410.
4. In reply, Respondent No, 3 stated that the appellant was working as Sorter BPS-7 on acting charge basis in Multan DMO who approached the Chairman Pakistan Postal Service Corporation vide his application dated nil on which the Chairman PPSC recorded the following orders:-- "As some staff is still surplus with MST, he may be transferred and his services be placed at the disposal of PMG Multan along with the post".
That the DPC 'recommended the appellant for grant of Selection Grade (BPS-9) subject to fulfilment of the conditions such as qualification prescribed in the rules for recruitment to the post of UDC (BPS-7). The recommendation of DPC was subject to fulfilment of conditions. The relevant condition was educational qualification of FA/FSc. He was not eligible for appointment in the cadre of UDC (BPS-7) because he did not possess qualification of Intermediate. The appellant, submitted departmental representation with the request to relax the conditions of educational qualification which was not accepted and he was repatriated to his parent unit i,e, Mails, Sorting and Transportation Multan DMO. The appellant joined his parent department on 2.8.2001. That the instant appeal was concealment of facts and is hopelessly time barred.
5. Arguments heard and record perused.
6. The appellant has prayed for grant of Selection Grade (BPS-9) in the cadre of UDC w,e,f, 5.10.1998 with all consequential benefits. This prayer is not tenable for the following reasons:--
(i) He was recommended Selection Grade (BPS-9) w,e,f, 5.10.1998 vide Postmaster General Southern Punjab, Multan Memo dated 18.3.1999 with the proviso that the official fulfils the required qualification for the post of UDC." It was also stated in this very order that "these orders are liable to be changed/modified/withdrawn/ cancelled on disclosure of any new facts remained un- C noticed. " It is, therefore, established that the recommendation for grant of Selection Grade (BPS-9) was conditional. The appellant did not fulfil the condition of qualification for the post of UDC. As stated by Respondent No, 3 the conditional orders of Selection Grade were not implemented and his pay was not fixed in BPS-9.
(ii) The principle of locus poenitentiae is not applicable on the appellant. It has been held by the Hon'ble Supreme Court in 2005 SCM R 1814 that "concept of locus poenitentiae is a power to recede till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and a past and closed transaction. If the order was illegal then perpetual right could not be gained on the basis of such an illegal order. Principle of locus poenitentiae can be invoked only in respect of an order which is legal and not in respect of an order which is contrary to and in contravention of any provision of law or the rules made thereunder." The order for transfer/change of Unit was made on the written request of the appellant. It is indeed surprising to note that the appellant who was working as Sorter BS-7, that too on acting charge basis, addressed his application to the Chairman, Pakistan Postal Services, Corporation for, his transfer. The Chairman obliged him vide orders reproduced in para 4 supra. Decision of the Chairman smacks of favouritism in violation of rules. The appellant was not eligible for transfer to a post, the qualification of which he did not possess. The appellant lacked eligibility on another count. He was working as Sorter in BS-7 OD acting charge basis. He was thus not holding the post in substantive capacity or on regular basis. He could, therefore, not be transferred to BS-7 post in another cadre.
(iii) The appellant was repatriated to his parent department vide order of the DG, Pakistan Post Office dated 13.3.2000. Respondent No, 3 stated that the appellant joined his parent department on 2.8.2001. Therefore, he cannot claim Selection Grade of a cadre when he ceased to be in that cadre consequent upon repatriation to his parent unit in August 2001.
7. The upshot of the above discussion is that the appeal has no merit and is dismissed.
8. No order as to costs. Parties be informed.