' This appeal is directed against a decision of the learned VIth Labour Court, given on 25-10-1979, projecting the grievance petition of the appellant challenging his reversion from the post of the Stenographer Grade I, in N. P. S. 14, to that of Stegographer, Grade I, N. P. S. 11, and the appointment of the respondent No, 3, on retransfer from Lahore Office, in his place. In coming to this contention, the learned Labour Court was mainly influenced by the circumstances that the respondent was senior to the appellant by 7 years, that the promotion of the appellant was ostensibly made purely on the basis of merit, when the rule, as modified, required both merit and seniority to be taken into consideration and that further the appointment of the appellant was apparently made without consulting the Chief Engineer at Lahore, who in the Cadre Controlling Authority.
2. Now, as regards the respective length of service of the appellant and respondent No, 3, there is no dispute and upon comparison of the same, it is quite evident that the said respondent is far senior in service, as well as in every grade thereof, to the appellant. However, the seniority of the respondent would be material only if there was one grade of Stenographers or at least Stenographers, Grade I, in N. P. S. 14, for the Water Wing of WAPDA in whole of Pakistan.. It was strongly contended by Mr. Imam Ali Memon, the learned counsel for the respondent, that this was in fact the position. However, the learned counsel was unable to produce any rule or order of the WAPDA directing that there would be a common cadre of such officials,
3. Similarly, as regards the Chief Engineer at Lahore being the Cadre Controlling Authority in respect of Stenographers throughout Pakistan, no rule or order of the WAPDA was produced, though from the correspondence exchanged between the General Manager and the Chief Engineer at Lahore on the one hand and the Chief Engineer at Hyderabad on the other, it does appear that in service matters, the controlling voice was of the General Manager and the Chief Engineer at Lahore.
4. It would also appear to be correct that the appellant was promoted as Stenographer, Grade I, N.
P. S. 14, purely on merit, without taking into consideration the amendment made by WAPDA, vide its office order, dated 10-5-1976, that promotion to the Senior Scale Stenographer (N. P. S: 14), may be made strictly on the basis of "selection on merit with due regard to seniority." Since the office order, dated 5-12-1977, promoting the appellant to the post of senior scale Stenographer (N. P. S. 14), merely indicates that such promotion was being made on merit, without making a reference to seniority, the order apparently would appear to be in violation of the rule as amended. This fact, however, did not entitle the WAPDA authorities to revert the appellant without giving him an opportunity of showing cause against the proposed reversion. The principle of audi alteram portent is not well enshrined in or laws and unless its application is specifically excluded, it is deemed to form part of every law and rule having force of law. It was however, contended by Mr. Imam Ali Memon, that no question of giving of show-cause notice to the appellant arose as his reversion was not on account of punishment but in consequence of the fact that the promotion itself was wrongly made. That may be so, but since the appellant had been promoted to N. P. S. 14, and such promotion was not in an officiating or temporary capacity nor by an incompetent authority, he had a vested right to hold that post until that right was taken away from him in accordance with the law. It is possible that the appellant may have succeeded in convincing the authorities that appointments in N. P. S..14 were made on regional basis, as contended by him, and hence respondent Muhammad Aslam had lost his right of being taken in that appointment at Hyderabad upon his transfer to Lahore at his own request. This request was made on the basis that he had to look after his ailing parents at Lahore. It appears that the re-transfer of Muhammad Aslam to Hyderabad was also made on his request. The order of transfer, which is dated 29-8-1978, contains the note that Muhammad Aslam is not entitled to T. A. & D. A. As the transfer has been made on his own request. It is also the contention of the appellant that when any official seeks transfer from one region to another, he is required to fill in a Form which contains the undertaking that he will not have any objection of being placed as junior most in the cadrc to which the transfer is being requested. Mr. Imam Ali Memoni however, submitted that since respondent Muhammad Aslam was being transferred within the same cadre, he was not required to fill in such a form or give such an undertaking and in fact no such form was filled in by him. It is, however, not known whether this point was considered by the authorities before ordering the retransfer of respondent Muhammad Aslam to Hyderabad.
5. In my opinion, however, the whole case hinges upon the issue that the appellant was reverted from what clearly appears to be a permanent appointment to a junior post without giving him an opportunity of showing cause against such reversion, in violation of the principles of natural justice.
As already pointed out, since the order of his promotion did not specify tha he was being promoted on temporary or ad hoc basis, and it is not disputed that the promotion order was passed by the competent authority, i,e,, Chief Engineer, the promotion clothed the appellant with a vested right which could not be taken away from him on the principle of locus poenitentiae i,e,, teh power of receding till a decisive step is taken. In Pakistan v. Muhammad Himayatullah, Sajjad Ahmad, J., while repelling contention that the President had the right to revoke his order fixing the salary of Muhammad Himayatullah, which order had become effective, observed as follows :- "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 an1 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 thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."
' The rule laid down in above decision appears to be fully applicable to the facts of this case.
6. In view of the above petition, the order reverting the appellant from N. P. S. 14 to N. P. S. 11 cannot be sustained. I would accordingly set aside the impugned order and allow the appeal. It will, however, be open to the competent authorities in the WAPDA to revise or modify the order of promotion of the appellant after giving him an opportunity of showing cause against the same.
P L 111969 SC 407