' JAVED IQBAL, J.---This petition for leave to appeal is directed against judgment dated 1-7-2010 passed by learned Punjab Service Tribunal, Lahore, whereby appeal preferred on behalf of Malik Asif Hayat (respondent) has been accepted.
2. Precisely stated the facts of the case are that "the appellant joined Punjab Police as ASI on 24-1- 2009 and while serving as such he proceeded on 90 days leave in 1994. The appellant was to report back to his department on 21-4-1994, however he did not report back and applied for extension in heave which was not further sanctioned and ultimately S.P. Headquarter taking ex parte decision dismissed the appellant vide order dated 5-7-1994. The appellant after exhausting departmental remedy preferred service appeal before this Tribunal which was rejected. However in 2005 he submitted Mercy Petition before the Chief Minister, Punjab who vide serial No,20 of Scheduled VII Part A Rules of Business 1974 issued a directive for reinstatement of the appellant into service which was duly implemented by the then Inspector-General of Police Punjab/respondent No,2 and the appellant was reinstated into service on 28-6-2005. Accordingly the appellant joined the department on 11-7-2005 and transferred to Investigation Wing where he completed one year "D" Course. He was made confirmed as ASI vide order dated 11-11-2005 w,e,f, 24-1-1990 and his name was entered into list "E" accordingly. He was further promoted to the post of Sub-Inspector on 2-1-2006 w,e,f, 30-9-1997. He was confirmed in the rank of Sub-Inspector w,e,f, 30-3-1997 vide order dated 11-6-2007. However, the department issued him a show cause notice on 24-7-2007 that 'he was wrongly reinstated into service by the Chief Minister and he has withdrawn his earlier directive hence why his order of reinstatement dated 28-6-2005 may not be withdrawn'. The said show-cause notice was challenged by the appellant through Writ Petition No,7352 of 2007 in Hon'ble Lahore High Court, Lahore and during the pendency of this writ petition department itself withdrew the show-cause notice by a speaking order dated 31-3-2009 and subsequently the name of the appellant was also entered into list "F" and even promoted to the rank of Inspector vide order dated 7-8-2009. The writ petition was disposed of vide Hon'ble High Court order dated 22-6-2009. Again respondent No,2 dismissed the appellant w,e,f, 5-7-1994 vide order -dated 2-1-2010 on the same grounds. The appellant preferred departmental appeal which is still hanging fire. After availing the statutory period he filed the instant appeal before this Tribunal under section 4 of the Punjab Service Tribunal Act, 1974." As mentioned hereinabove, the appeal preferred on behalf of respondent has been accepted hence this petition.
3. Ch. Khadim Hussain Qaiser, learned Additional Advocate-General, Punjab entered appearance on behalf of Government of Punjab and contended that legal and factual aspects of the controversy have not been appreciated in its true perspective resulted in serious miscarriage of justice. In order to substantiate the said contention, it is urged with vehemence that the appellant approached after exhausting all the departmental remedies and preferred appeal before the learned Service Tribunal which was rejected after affording him proper opportunity of hearing against which no appeal was filed before the Supreme Court of Pakistan and accordingly the order so passed by the learned Punjab Service Tribunal had attained finality. It is next contended that though a mercy petition was filed yet the Chief Minister has no power to get the respondent reinstated as Schedule VII Part A, Rules of Business, 1974 does not empower the Chief Minister to pass such an order being a past and closed transaction. It is also contended that Inspector- General of Police has full authority to withdraw the orders dated 28-6-2005, 2-1-2006 and 7-8- 2009 with retrospective effect i,e, 5-7-1994 which amounts to rectification of error irrespective of the fact whether it is intentional or inadvertent. It is also pointed out that the principle of locus poenitentiae would be applicable in this case and respondent could have been dismissed as no legal right whatsoever had accrued in his favour. It is further contended that the directive issued by the Chief Minister qua reinstatement of respondent in service and subsequent orders relating to the promotion of respondent would have no substantial effect on merits of the case as the Chief Minister had no authority to exercise such a jurisdiction which was never conferred upon him under any law and thus. The order made by him was absolutely without any lawful sanctity. It is further argued that the provisions as enumerated in sections 13, 14, 20 and 21 of the General Clauses Act, 1897 have been misinterpreted and misconstrued by the learned Punjab Service Tribunal causing serious prejudice.
4. Mr. Pervaiz Inayat Malik, learned Advocate Supreme Court entered appearance on behalf of Malik Asif Hayat (respondent) and supported the judgment impugned for the reasons enumerated therein with the further submission that no dismissal order could have been passed with retrospective effect by the Inspector-General of Police in view of the principle of locus poenitentiae as reinstatement order passed at the direction of Chief Minister was not only implemented but the respondent was promoted to the rank of Inspector which is indicative of his hard labour and professional skill. It is next contended that the principle of locus poenitentiae cannot be invoked as order once passed and implemented cannot be rescinded without any lawful justification which is absolutely lacking in this case. It is next argued that the show-cause notice was withdrawn hence no further proceedings could have been initiated on the same grounds which amounts to double jeopardy.
5. We have carefully examined the respective contentions as agitated on behalf of the petitioners and for respondent in the light of relevant provisions of law, record of the case and perused the judgment impugned carefully with the eminent assistance of learned counsel for the parties. It is an admitted feature of the case that the respondent joined Punjab Police as ASI on 24-1-2009 and on account of absence from duty, dismissed from service by means of order dated 5-7-1994. The respondent approached the learned Punjab Service Tribunal but his appeal was dismissed. In the year 2005, a mercy petition was filed and accepted by the Chief Minister Punjab pursuant whereof the respondent was reinstated in service on 28-6-2005 and re-joined the Department on 11-7- 2005. The respondent was subsequently transferred to Investigation Wing and completed successfully his course namely "D" Course. The respondent was confirmed as Assistant Sub- Inspector by means of order dated 11-11-2005 and resultantly his name was also included in the list "E". The respondent was promoted on the post of Sub-Inspector on 2-1-2006 and subsequently confirmed as such by means of order dated 11-6-2007. The petitioner woke up from a deep slumber and issued a show-cause notice to respondent on 24-7-2007 which is indicative of the fact that his reinstatement was wrong as the Chief Minister has withdrawn his earlier directive dated 28-6-2005 pursuant whereof the respondent was reinstated. The respondent, fold redressal of his grievances, approached the learned High Court by invocation of writ jurisdiction. The Police Department, however, withdrew the show-cause notice vide order dated 31-3-2009 and the matter was closed. The name of respondent was brought in the list "F" and promoted as Inspector on 7-8- 2009. The writ petition preferred on behalf of respondent was subsequently disposed of by the learned High Court on 22-6-2009. Once again the same exercise was repeated by the Police Department and the respondent was dismissed again by the Inspector-General of Police Punjab vide order dated 2-1-2010 with retrospective effect i,e, 5-7-1994. The respondent approached the Service Tribunal as his departmental appeal could not be decided and ultimately succeeded. It is not understandable how the services of respondent could have been dismissed once the show cause notice was withdrawn pending adjudication before the High Court and subsequently he was also promoted to the rank of Inspector. The learned Additional Advocate-General was asked pointedly that how retrospective effect could be given to order dated 2-1-2010 and respondent could be removed w,e,f, 5-7-1994 and what legal authority was available to Inspector-General of Police but no satisfactory answer could be given. It is well settled by now that "termination of service could not be with retrospective effect unless Competent Authority was expressly empowered in this regard by some statute or rules made thereunder". In this regard we are fortified by the dictum laid clown in the following cases:-- ' Syed Sikandar Ali Shah v. Auditor-General of Pakistan (2002 SCM R 1124), Noor Muhammad v.
Member Election Commission (1985 SCM R 1178), Noor Muhammad v. Muhammad Abdullah (1984 SCM R 1578), Dr. Muhammad Abdul Latif v. The Province of East Pakistan (PLD 1964 Dacca 647), Nawab Syed Raunaq Ali v. Chief Settlement Commissioner (PLD 1973 SC 236).
6. We have not been persuaded to agree with the learned Additional Advocate-General that rectification of wrong can be made at any time as such practice would be dangerous for the service structure and in fact action should be initiated against those who are responsible for such wrong which could not be rectified after a long period during which the respondent had not only performed his duties diligently but also earned few promotions and rose to the rank of Inspector as mentioned hereinabove.
7. Insofar as the principle of locus poenitentiae is concerned that has been relied upon by the learned counsel for the parties. Let we make it clear that it is not the first occasion when we are interpreting the principle of locus poenitentiae which has been examined time and again by the courts and judicial consensus seems to be as follows:-- "There can hardly be any dispute with the rule 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 an 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."
' Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407), Chairman, Selection Committee v. Wasif Zamir Ahmad (1997 SCM R 15), Miss Safia Hameed v. Chairman, Selection Committee Medical College, Quetta and 6 others (PLD 1979 Quetta 12), Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others (PLD 1991 SC 973), Government of Sindh v. Niaz Ahmed (1991 SCM R 2293).
8. It is an admitted feature of the case that the respondent was reinstated at the directive of the Chief Minister which should have not been implemented by the Inspector-General of Police but no moral courage worth the name could be shown at opportune moments and the order was obeyed at a belated stage which could have been resisted conveniently. The petitioner cannot take refuge behind the provisions as enumerated in sections 13, 14 and 21 of the General Clauses Act, 1897. It is worth-mentioning that the respondent was reinstated into service in 2005 while he was dismissed finally on 2-1-2010 with retrospective effect i,e, on 5-7-1994. The learned Additional Advocate- General could not justify the action initiated at such a belated stage especially after the disposal of the writ petition by the learned High Court during the proceedings which were challenged by the respondent after issuance of show-cause notice which was withdrawn. It is not known why this drama of hide and seek continued for years together. A careful scrutiny of the entire record would reveal that it is also confirmed by the learned Additional Advocate-General that the respondent has unblemished service record and promoted from the rank of ASI to that of Inspector. It may not be out of place to mention here that the petitioner had already exercised his powers as conferred upon him under section 21 of the General Clauses Act by issuance of show-cause notice which was withdrawn during the proceedings remained pending in the High Court and thus in our view the matter was closed once for all which cannot be re-opened without any lawful justification which is absolutely lacking in this case. Where any order passed by the Competent Authority had taken effect and confer a legal right that cannot be rescinded subject to certain lawful exceptions which are not available in this case.
9. The upshot of the above discussion is that the petition being IF meritless is dismissed and .