' M. TABASSUM AFTAB ALVI, J.--- The supra titled constitutional petitions have been addressed under section 44 of The Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. As common questions of facts and law are involved in these constitutional petitions, therefore, we proposed to decide them through this single judgment.
3. Precise facts giving rise to Writ Petition No, 1423 of 2010 are that petitioner being senior most Judge of the Azad Jammu and Kashmir Supreme Court was appointed as Acting Chief Justice vide Government Notification bearing No,/Law/A.D/1762-77/2010 dated 3-4-2010 who was retired as such on tendering his resignation vide Notification No,LD/AD/46-60/2010 on 11-5-2010. It is claimed that Accountant General-respondent after due process of law on the opinion of law department issued PPO No,13327/C vide No,865/AccountsPension/2009 dated 15-6-2010. It is stated that the petitioner's pension was fixed at the rate of Rs,206407.37 by the Accountant General and National Bank Civil Secretariat Branch Muzaffarabad was directed to pay pension at the above rate vide Letter No,17 dated 14-7-2010. It is further claimed that on the basis of the above letter, commutation amount was accordingly paid at the above rate and the petitioner is receiving pension accordingly from the date of retirement. It is also stated that Secretary Law-respondent No,3 conveyed direction of Minister Law-respondent No,2 to Secretary Finance-respondent No,4 alleging therein that the petitioner was entitled to pension and privileges as Judge, not as Chief Justice and that the amount of pension drawn in excess thereof be recovered vide impugned Script No,AD/Law/2661-61 dated 8-9-2010. It is claimed that on having knowledge of the above, the petitioner wrote a letter to Minister Law, Justice, Parliamentary Affairs and Human Rights Department explaining the Constitutional Position vide No,128 dated 21-10-2010. It is averred that instead of replying the above letter, the petitioner was furnished with a copy of Letter No,3828 dated 11-11-2010 issued by Accountant General-respondent to Manager National Bank of Pakistan Civil Secretariat Branch Muzaffarabad, directing to pay pension at the rate of Rs, 198461.86 to the petitioner and to recover the amount received in excess thereof, hence, feeling aggrieved from the above letter dated 11-11-2010 (Annexure "G") and letter dated 8-9-2010 (Annexure "E"), the petitioner was constrained to file the instant writ petition before this Court on 12-11-2010.
4. The writ petition was contested by the respondents through written statement, wherein it is stated that the petitioner resigned from office, as such not entitled for pensionery benefits. It is also stated that writ petition is hit by the principles of estoppel and laches and the petitioner has also no locus standi to file the writ petition. It is further stated that although the petitioner performed his duties as Acting Chief Justice of the Azad Jammu and Kashmir, however, despite that was not entitled to pensionary benefits of Chief Justice.
5. Precise facts giving rise to Writ Petition No,1453 of 2010 are that the petitioner being senior most Judge of the High Court of Azad Jammu and Kashmir was appointed as Acting Chief Justice vide Notification No,LD/3/01/2002-AD/2006 dated 28-9-2006, who retired as such vide Notification No,LD/AD/1218-40/2009 dated 31-12-2009. It is stated that Accountant General-respondent No,5 after due process of law and obtaining opinion of law department issued PPO No,13387/C in favour of the petitioner as Chief Justice of High Court of the Azad Jammu and Kashmir. It is claimed that the petitioner's pension was fixed at the rate of Rs,172549 and the concerned Bank was also directed to pay the same at the afore-mentioned rate. It is further stated that Accountant General- respondent issued the impugned letter No,4072/Accounts/ Pension/2010 dated 29-11-2010, whereby pension of the petitioner was again fixed as Rs,167,732 as retired Judge and not as Chief Justice. It is claimed that the petitioner remained as Acting Chief-Justice of High Court of Azad Jammu and Kashmir for a period of 3 years 3 months and 3 days and worked as Chief Justice throughout the above period and for all practical purpose he was Chief Justice of the High Court. It is averred that the petitioner, deliberately and malafidely was not appointed as Chief Justice of the Azad Jammu and 'Kashmir High Court by the respondents. The petitioner has challenged the vires of impugned letter dated 29-11-2010 for having been passed without lawful authority, hence, having no legal effect.
6. The respondents, after admission of writ petition, filed written statement on 21-2-2011, wherein it is stated that the writ petition is hit by principle of estoppel, hence, the same is not maintainable. It is also stated that the petitioner does not have any locus standi to file the instant writ petition. It is alleged that no violation of law is proved, therefore, writ petition is bad in law. It is alleged that even otherwise this Court does not have jurisdictional powers to settle the terms and conditions of member of the higher judiciary. On facts, it has been admitted that the petitioner remained as Acting Chief Justice for more than 3 years, however, it is stated that the petitioner is entitled to pensionary benefits as Judge and not as Chief Justice of High Court.
7. The learned counsel for the parties has filed written arguments. The precise arguments of the petitioners are that petitioner Justice (R) Syed Manzoor Hussain Gillani remained as Acting Chief Justice of Azad Jammu and Kashmir, therefore, he was granted pensionary benefits as Chief Justice by the Accountant General-respondent vide PPO No,13327/C dated 15-6-2010. By following the said PPO, the petitioner also received commutation and pension from National Bank of Pakistan Civil Secretariat Branch on 14-7-2010. It is pressed into service that as after due process of law and opinion of Law Department, the order of PPO was issued which was also acted upon, therefore, the impugned letters dated 11-11-2010 and 8-9-2010 were issued contrary to principle of locus poenitentiae which are liable to be quashed. The contention of the learned counsel for the petitioner Justice (Retd.) Sardar Muhammad Nawaz Khan is that vide Government notification dated 28-9-2006, being senior most Judge of the High Court, he was elevated as Acting Chief Justice of Azad Jammu and Kashmir High Court who on completion of superannuation age stood retired on 31-12-2009, therefore, admittedly remained as Acting Chief Justice for 3 years 3 months and 3 days. It is emphasized that during the above period he performed all duties of Chief Justice, therefore, on the basis of opinion of law department was granted pensionary benefits as Chief Justice vide PPO No,13387/C, hence, the impugned letter No,4072/Accounts/Pension/2010 dated 29- 11-2010 was unlawfully issued. The reliance was placed on the following case law:---
(i) Al-Jehad Trust v. Federation of Pakistan and others [PLD 1996 SC 324],
(ii) Chairman Selection Committee/Principal King Edward Medical College Lahore and 2 others v.
Wasif Zamir Ahmad and another [1997 SCM R 15],
(ii) Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others [PLD 2008 SC 522] and
(iv) Saleh Shah v. Superintendent Jail and others [PLD 2009 Peshawar 33] ' In Al-Jehad Trust's case, following guidelines were laid down for appointments of Judges and Chief Justices of the superior judiciary:---
(iii) That the permanent vacancies occurring in the offices of Chief Justice and Judges normally should be filled in immediately not later than 30 days but a vacancy occurring before the due date on account of death or for any other reasons, should be filled in within 90 days on permanent basis.
(iv) That no ad-hoc Judge can be appointed in the Supreme Court while permanent vacancies exist.
(v) That in view of the relevant provisions of the Constitution and established conventions/ practices, the most senior Judge of a High Court has a legitimate expectancy to be considered for appointment as the Chief Justice and in the absence of any concrete and valid reasons to be recorded by the President/Executive, he is entitled to be appointed as such in the Court concerned.
(vi) An Acting Chief Justice is not a consultee as envisaged by the relevant Articles of Constitution and, therefore, mandatory Constitutional requirement of consultation is not fulfilled by consulting an Acting Chief Justice except in case the permanent Chief Justice concerned is unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness.
(vii) That Additional Judges appointed in the High Court against permanent vacancies or if permanent vacancies occur while they are acting as Additional Judges, acquire legitimate expectancy and they are entitled to be considered for permanent appointment upon the expiry of their period of appointment as Additional Judges and they are entitled to be appointed as such if they are recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan in the absence of strong valid reason/reasons to be recorded by the President/ Executive.
(viii)That an appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court under Article 203-C of the Constitution without his consent is violative of Article 209, which guarantees the tenure of office. Since the former Article was incorporated by the Chief Martial Law Administrator and the latter Article was enacted by the framers of the Constitution, the same shall prevail and, hence, such an appointment will be void.
(ix) That transfer of a Judge of one High Court to another High Court can only be made in the public interest and not as a punishment.
(x) That the requirement of 10 years' practice under Article 193(2)(a) of the Constitution relates to the experience/practice at the Bar and not simpliciter the period of enrolment.
(xi) That the simpliciter political affiliation of a candidate for judgeship of the superior Courts may not be a disqualification provided the candidate is of an unimpeachable integrity, having sound knowledge in law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan.
(xii) That it is not desirable to send a Supreme Court Judge as an Acting Chief Justice to a High Court in view of clear adverse observation of this Court in the case of Abrar Hussain v. Government of Pakistan and others PLD 1976 SC 315 at 342.
(xiii) That since consultation for the appointment/confirmation of a Judge a Superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution is mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid."
' In Chairman Selection Committee/Principal King Edward Medical College's case, at pages 17 and 18 it was laid down by the apex Court of Pakistan as follows:--- "3. We have heard the learned counsel for the parties and have also perused the record with their assistance. We do not find any substance in the arguments of the learned counsel for the petitioners and as such, these are repelled. The above narration of facts demonstrates that respondent No,1 was presumably given admission on merits by the competent College authorities after considering his case. The requisite fee was accepted by them in lieu of valid receipts. He was directed to join 1st year class of MB.B.S. It is admitted that the respondent is likely to complete the second year course of MB.B.S. This being the position, by lapse of time, the respondent had obtained a valid right to continue his studies. In the given situation, he could not be held to be at fault. It is well-settled that once a right is created in favour of a litigant, in due course of time, it cannot at all be taken back arbitrarily. In the case in hand, admission was given to respondent No,1 by accepting his credentials and in the result; necessary dues were accepted by the concerned authorities. The learned High Court was eminently justified in accepting the plea of respondent No,1 to meet the ends of justice. The petitioners cannot be allowed to approbate and reprobate in the same breath. To begin with, they accepted respondent No,1 to be entitled to get admission and at the belated stage, they took a turn by stating that respondent No,2 had been accommodated by giving admission instead of respondent No, 1 . This was not possible for the petitioners to do so under the settled law. If this was so, it surely occurred because of their gross negligence for which the respondent could not be held responsible. The decision of the petitioners to give admission to the respondent No,] was implemented in letter and spirit. He, therefore, cannot be deprived of his vested right which he had earned on the basis of act of the petitioners."
' In Accountant General Sindh and other's case it was held at pages 541 and 542 as under:- "24. In the broader sense; the concept of independence of judiciary is not confined to the extent of disposal of cases by the Judges and discharging of the judicial functions rather in the extended meaning, the concept of independence of judiciary is complete separation from executive authorities of the State in all matters including pay and pension which is an essential component of independence of judiciary but unfortunately as is evident from judicial history of Pakistan Executive Authorities instead of acting in aid of judicial independence and taking remedial steps for judicial reforms have always behaved with step- motherly attitude towards judiciary and its independence of obvious reasons of maintaining their will and supremacy through administrative devices even at the cost of damaging the judicial system. This may be pointed out that all financial matters concerning with the judiciary including the pay and pension as well as other privileges of Judges are under the direct control of the Executive Authorities and it has been observed that the Executive Authorities, without recognizing the independent status of judiciary as an important Organ of State, treat it as their subordinate department in such matters. This Court in Al-Jehad Trust V. Federation of Pakistan (PLD 1996 SC 324), Zafar Ali Shah v. Pervez Musharraf Chief Executive of Pakistan (PLD 2000 SC 869) and Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607), while dealing with the subject of independence of judiciary vis-a-vis the appointment of Judges of superior Courts and their removal from office and financial as well as administrative independence, held that consultative process for appointment of Judges of the superior Courts as provided in the Constitution must not to be interfered and interrupted by the Executive by ignoring the opinion of the Chief Justices concerned and Chief Justice of Pakistan.
The Judges of superior Courts, cannot be removed from their offices except in accordance with the provision of Article 209 of the Constitution but since they are not immune from accountability, therefore, if situation arises and President also considers necessary, the proceedings can be initiated against a Judge with respect to his conduct in terms of Article 209 of the Constitution."
' In case of Saleh Shah, at page 36, the principle of locus poenitentiae was considered and it was observed as under:--- "S. The principle of locus poenitentiae has been subject to discussion and interpretation of the superior Courts since long. However, by now it is well-settled principle that the authority competent to grant a concession or to confer a benefit on a party or an individual cannot rescind or make retrace by withdrawing it at a stage when it has reached to a logical conclusion and the order has been acted upon whereby irreversible vested right is accrued to the beneficiary of the order. We have also no cavil with this legal proposition.
6. What is important to be determined is the legal sanction of law investing the authority with powers to grant concession or confer benefit/benefits on a party or an individual."
8. The learned counsel for the respondents has also filed written arguments on 2-3-2012. The precise arguments addressed on behalf of the respondents are that although both the petitioners performed their duties as Acting Chief Justice of Azad Jammu and Kashmir and High Court of Azad Jammu and Kashmir respectively, however, as they were not confirmed, hence, not entitled to pensionary benefits as Chief Justices' It is emphasized that although legal opinion was granted by the law department in favour of the petitioners for grant of pension as Chief Justices which was not correct, therefore, pension was re-determined by Accountant General- respondent and as no right was vested in the petitioners to obtain pensionary benefits, hence, writ petitions be dismissed.
9. After examining the written arguments of the learned counsel for the parties, we have gone through the contents of writ petitions and examined the appended record with utmost care.
10. A glance perusal of record reveals that the petitioner Justice (Retd.) Syed Manzoor Hussain Gillani was appointed as Acting Chief Justice of Azad Jammu and Kashmir vide notification dated 3-4-2010 who performed his duties as such till 11-5-2010 and was granted pension by Accountant General-respondent vide PPO No,13327/C dated 15-6-2010. The petitioner Justice (Retd.) Sardar Muhammad Nawaz Khan was appointed as Acting Chief Justice of the Azad Jammu and Kashmir High Court vide notification dated 28-9-2006 who performed his duties as such till completion of superannuation age of 62 years and retired vide notification dated 31-12-2009. The respondents have not denied their appointments as Acting Chief Justices, however, their version is that as both the petitioners were not confirmed Chief Justices, hence, were not entitled to pension as Chief Justice of Azad Jammu and Kashmir and Chief Justice of the High Court respectively. The appointment of Chief Justice of Azad Jammu and Kashmir is to be made under section 42(8) of The Azad Jammu and Kashmir Interim Constitution Act, 1974 which is reproduced as under:- "At any time when the office of Chief Justice of Azad Jammu and Kashmir is vacant, or the Chief Justice, is absent or unable to perform the functions of his office due to any other cause, the President shall appoint the most senior of the other Judges of the Supreme Court of Azad Jammu and Kashmir to act as Chief Justice of Azad Jammu and Kashmir."
' Likewise the appointment of Acting Chief Justice of High Court of the Azad Jammu and Kashmir is regulated by section 43(A) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 which is also reproduced as under:--- "Acting Chief Justice:- At any time when:---
(a) the Office of Chief Justice of High Court is vacant; or
(b) the Chief Justice of High Court is absent or is unable to perform A the functions of his office due to any other cause, the President shall appoint the Senior most of the other Judges of the High Court to act as Chief Justice. "
' A bare reading of the above constitutional provisions makes it clear that at any time when the office of the Chief Justice is vacant or the Ghief Justice is absent or is unable to perform functions of his office due to any other cause, the President shall appoint senior most Judge as Acting Chief Justice. The controversial issue in the instant petitions is that whether an Acting Chief Justice is entitled to the pensionary benefits as Chief Justice. The point in question came under consideration before the Government of Pakistan in case of Mr. Justice (Retd.) Saad Saood Jan. It appears that after considering law laid down in Al-Jehad Trust's case the following notification was issued on 21-6-1999 which is reproduced as under:--- "Government of Pakistan Law, Justice and Human Rights Division ' Islamabad, the 21st June, 1999.
NOTIFICATION No,F.1(2)186-All.- The President is pleased to approve that Mr. Justice (Retd.) Saad Saood Jan shall be deemed to have retired as Chief Justice of Pakistan on the 10th June, 1996 for the purpose of pension and retiring benefits.
(Ch. Irshad Ahmed) Secretary'
' On the basis of the above-mentioned notification pensionary benefits were given to Mr. Justice Saad Saood Jan as Chief Justice although he served as Acting Chief Justice. Thus, in view of the provisions of Fourth 'and Fifth schedules of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the petitioners are entitled to solicited relief. The above schedules are reproduced as under:-- - Fourth Schedule "The Chief Justice and the Judges of the Supreme Court of Azad Jammu and Kashmir shall be entitled to the same Salary, Allowances, Privileges and pension as are admissible to the Chief Justice and the Judges of the Supreme Court of Pakistan.
Fifth Schedule "The Chief Justice and the Judges of the High Court of Azad A Jammu and Kashmir shall be entitled to the same Salary, Allowance, Privileges and pension as are admissible to the Chief Justice and Judges of the High Court in Pakistan."
' A combined study of the above-mentioned schedules makes it crystal clear that Chief Justice and Judges of the Supreme Court of Azad Jammu and Kashmir as well as Chief Justice and Judges of the High Court of Azad Jammu and Kashmir are entitled to the same salary, allowances, privileges and pension as are admissible to the Chief Justice and the Judges of the High Court of Pakistan respectively. Mr. Justice Saad Saood Jan, as his lordship then was, denied his right to become Chief Justice of the Lahore High Court in 1986 and instead was elevated as Judge in the Supreme Court of Pakistan. However, despite the most senior amongst the other Judges of the Supreme Court of Pakistan he was again illegally denied his right to become the Chief Justice of Pakistan due to his principle stands on all matters. Mr. Justice Jan was, however, appointed as Acting Chief Justice of Pakistan from 15-4-1994 to 4-6-1994 for a short time, hence, Government of Pakistan was pleased to approve that he shall be deemed to have retired as Chief Justice of Pakistan for the purpose of pension and retiring benefits as is evident from notification dated 21-6- 1999. Admittedly both the 'petitioners remained Acting Chief Justices of the Supreme Court and High Court of Azad Jammu and Kashmir respectively, therefore, on strength of phraseology of the above constitutional provisions read with notification of Government of Pakistan dated 21-6-1999, whereby Mr. Justice Saad Saood Jan Acting Chief Justice of Pakistan was granted pension and retiring benefits as Chief Justice the petitioners are entitled to pension and other benefits as Chief Justice of the Supreme Court and High Court of Azad Jammu and Kashmir.
11. As stated above both the petitioners were admittedly granted pension and retiring benefits as Chief Justices of the Supreme Court and High Court of Azad Jammu and Kashmir by Accountant General-respondent after due process of law and the same were also received by the petitioners which fact was not denied in written statement/arguments. A perusal of record also reveals that petitioners were neither issued any show cause nor opportunity of hearing was provided for re- fixing their pension, therefore, the impugned letters issued by Accountant General-respondent are contrary to principle of locus poenitentiae as was held by the Hon'ble Supreme Court of Azad Jammu and Kashmir in case titled Malik Zaffar Ali v. Inspector General Police [1995 SCR 234]. At page 236 it was held as under:--- "8. The order of promotion of the appellant, although conditional/ temporary in nature, had been acted upon inasmuch as the appellant has performed duties as Assistant Sub-Inspector. If the Inspector-General of Police was of the view that order may be withdrawn due to some illegality or invalidity he could not do so without giving an opportunity to the appellant to show cause against the proposed action. This proceeding is different and independent of the powers of the Inspector- General of Police which are available to him to deal with a probationer. Since the said officer passed the order without hearing the appellant the order cannot be sustained and must be set aside. "
' The principle of locus poenitentiae was also considered by the full bench of Hon'ble Supreme Court of Pakistan in case titled Pakistan through Secretary, Minister of Finance v. M. Hamayatullah Farooqi [PLD 1969 SC 407], at pages 412 and 413 of the report it was laid down 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 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.
' In the present case, the order fixing the basic salary of Rs,1,000 per mensem for the respondent Himayatullah Farukhi was made by the President on the 1st of October 1959, when the 1956- Constitution had been abrogated and the country was governed by the Laws (Continuance in Force) Order, 1958, Under clause (11) of Article 6 of that Order, which was introduced by the Laws (Continuance in Force) (Six Amendment) Order, 1960, it was provided that nothing in that Article or in any rule or enactment relating to conditions of service, shall be construed to limit or abridge the power of the President or a Governor to deal with the case of any person in the service of Pakistan in such manner as may appear to him to be just and equitable, provided that where anything in this Article or any such rule or enactment is applicable to the case of any person, the case shall not be dealt with in any manner less favourable to him that provided by this Article or the rule of enactment. Acting under this provision the President in the exercise of his supra-constitutional powers fixed the salary of the respondent at Rs,1,000 per mensem, notwithstanding the fact that his earlier representation for the same purpose had been rejected by the Prime Minister of Pakistan.
The order of the President was duly communicated to the Ministry of Communications and the respondent and its implementation thus ensured became a part of the terms and conditions of the service of the latter (Himayatullah Farukhi) relating to his remuneration. By the time that the President made the second order on the 26th of August, 1962, revoking the earlier one, the Constitution of the Islamic Republic of Pakistan, 1962 had been enforced which contained a protective provision in Article 178 thereof that the terms and conditions of service of a person in the service of Pakistan as regards his remuneration and age, shall not be varied to his disadvantage.
The President's subsequent order was, therefore, void on that basis.
' The second contention of Mr. Shah Jamil Alam that the first order of the President suffered from the infirmity of not having been made in consultation with the Ministry of Finance as required by rule 10 of the Business Rules (1950), is without any practical effect. There is no reason to think that when the President made the first order, he was not fully posted with the facts of the case, including the circumstance that the Prime Minister had already rejected the respondent's representation. If in spite of that the President accepted the respondent's representation, obviously he did so, consciously. But even if the Finance Ministry had not been consulted, it did not have any effect on the validity of the President's order.
' For the reasons stated above, we are in agreement with the High Court that the order of the President dated 26th of August 1962, reversing his earlier order made'in favour of Himayatullah was without lawful authority."
' The principle again reiterated by the apex Court of Pakistan in case titled Chief Secretary Government of Sindh and another v. Sheer Muhammad Makhdoom and others [PLD 1991 SC 973] and at page 975 of the report it was laid down that:- "It is quite apparent that restrictions imposed in para.4 of the Revenue Department's notification mentioned above, pertain to the appointment as Mukhtiarkar and in the cases under consideration will have no bearing for the reason that respondents were granted exemptions in accordance with circulars, requirements of which were duly fulfilled by them and not only that but exemptions were implemented and they received necessary training, as such valuable rights had accrued to them which could not be interfered with. In this context, reference can be .Made to section 20 of General Clauses Act and guidelines laid down in the case of Pakistan v. Muhammad Himayatullah Farukhi (PLD 1969 Supreme Court 407), in which it is held that principle of locus poenitentiae is available to the Government or relevant authorities and further authority which is competent to make order has power to undo it, but such order cannot be withdrawn or rescinded once it has taken legal effect and created certain rights in favour of any individual. It appear that Service Tribunal has allowed appeals of the respondents mainly on this ground with cogent reasons in support thereof view taken by the Service Tribunal is correct and we find no reason whatsoever to interfere with the impugned judgment, which is hereby upheld and leave is refused.
In the circumstances, petitions are dismissed."
' Similarly in case of Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. Chittagong [PLD 1970 SC 439], at page 444, it was held as under:- "The next question which arises in this case is whether the Notification of the 28th February 1964, which purported to des-troy completely the rights vested in the respondent by the Notification dated the 30th June, 1961 and the 17th May, 1963 is valid in 'law. It is a settled rule that an executive authority cannot in exercise of the rule-making power or the power to amend, vary or rescind an earlier order, take away the rights vested in the citizens by law. This very question fell for decision before the Court in Civil Appeal No,3-P of 1965 (Government of Pakistan v. Messrs Mardan Industries Limited). Dealing with the validity of the latter Notification dated the 19th May 1964, it was observed: "It is well-settled that no statute shall be construed so as to have retrospective operation unless its language is such as plainly to require such construction. We understand that 1 7 lacs cigaerettes which had been seized before issue of the impugned notification, have been released and the Excise Department do not claim any excise duty in respect of the said cigarettes."
' The respondent had acquired a vest right of exemption from the levy of excise duty on all the goods produced or manufactured by it for a period of four years under the Notification of the Central Government referred to above. That vested right could not, therefore, be taken away by an executive action. The Notification dated the 28th February 1964, being completely destructive of the right vested in the respondent-company was in this view without lawful authority and of no legal effect."
' Likewise in case of The State v. Muhammad Ismail and another [1980 SCM R 268], at page 268-C it was held as under:- "The principle of locus poenitentiae, i,e,, the right in law to recede till a decisive step is taken, was also referred to by this Court in the case of Lt. Col. G.L. Bhattacharya v. The State [PLD 1964 SC 503] and given effect to even in the case of an order of a Provincial Government which was issued under a misconception.
' Applying this principle to the facts of the present cases, it seem to us that even in the case of Muhammad Ibrahim Parekh, the decisive step was taken in so far as the earlier order for departmental enquiry was, in fact, given effect to and an Enquiry Officer was appointed in pursuance of that order. It cannot, therefore, be said that there was any locus poenitentiae left in the Government to revise that order. In the case of Masood Husain (Appeal No, K-32 of 1969) the position was, if anything, worse. Here a delegatee had competently exercised the power delegated to him and in exercise of that power refused to grant the sanction. It was clearly not open to a higher authority thereafter to revise that decision, because, the decision of the delegatee was in fact to be deemed to be the decision of the delegator and the power became clearly exhausted by the decision of the delegatee."
For the foregoing reasons we are constrained to hold that the impugned letters dated 11-11-2010, 8- 9-2010 and 29-11-2010 are without lawful authority, arbitrary and capricious, therefore, the same are hereby set-aside by accepting both the writ petitions with no order as to costs.