' As common question of law and facts are involved in the afore titled appeals, hence the same are being decided through this single judgment.
2. Brief facts as gleaned out from the memorandum of appeals are that on the basis of seniority list circulated in the year 2001, wherein names of the appellants were figured at Serial Nos. 135 & 136 respectively and on the recommendations of departmental promotion committee, appellants were promoted as Kanungo alongwith Respondent No. 3 Eisa Khan on officiating basis vide order dated 16.05.2001.
3. In the year 2006 fresh tentative seniority list of Patawaris was circulated, wherein names of the appellants were figu-ed at Serial No. 79 and 76 respectively but in the final seniority list as existed on 30.06.2006, the names of the appellants were fixed at Serial Nos. 89 & 86 showing them junior to their juniors.
4. On the basis of seniority list as existed on 30.06.2006, a meeting of departmental promotion committee was convened on 2.8.2006, whereby, after considering the names of juniors to the appellant, they (juniors) were promoted as Kanungo on regular basis vide order dated 02.08.2006 passed by. District Officer revenue Dera Ghazi Khan, while appellants were reverted from the post of Kanungo and posted as Patwari.
5. Appellants filed departmental appeal before Respondent No. 2, who remanded the matter vide order dated 21.06.2007 before Respondent No. 1 for deciding the same in accordance with law. As the Respondent No. 1 failed to decide the matter, hence the appellants filed service appeal Bearing No. 402/2009 before the service Tribunal Punjab, which was heard and vide order dated 31.05.2010, remanded the case to Respondent No. 1 for disposal of the case afresh.
6. The appellants again approached the Respondent No. 1 through representation dated 23.08.2010, who after hearing the parties, accepted the plea of the appellants while restoring the seniority qua to their juniors and set aside the seniority list issued in the year 2006 and consequently promoted the appellants as Kanugo on regular basis vide order dated 26.01.2011.
7. After passing of the order dated 26.01.2011, Respondent No. 3 filed review petition before Respondent No. 1 for setting aside reversion order to his extent and to promote him as Kanugo on regular basis but Respondent No. 1 rejected the review petition vide order dated 06.04.2011 being not maintainable under the rules. Being aggrieved from the order dated 06.04.2011, Respondent No. 3 filed Service Appeal No. 1783/11 before the Punjab Service Tribunal Lahore, which was dismissed vide order dated 03.07.2012.
8. Respondent No. 3, after dismissal of his service appeal on 3.7.2012, filed revision petition before Respondent No. 2, prayjng that he be also promoted as Kanungo on regular basis from the date, appellants were promoted but Respondent No. 2 vide his order dated 27.11.2012 set aside orders dated 26.01.2011 alongwith 06.04.2011 and remanded the matter before Respondent No 1 for deciding the case again after convening a meeting of departmental promotion committee as per fresh seniority list
9. Being aggrieved from order dated 27.11.2012, passed by Respondent No. 2, the appellants have challenged the same before this Tribunal by filing the instant appeal.
10. Learned counsel for the appellants contends that appellants were granted seniority and promotion as Kanungo by Respondent No. 1 qua to their juniors by calling for the record and both the seniority lists and after consultation of seniority list and hearing the parties the seniority of the appellants was restored and they were rightly promoted as Kanungo by the Respondent No. 1, brushing aside the order of Respondent No. 1 by Respondent No. 2 vide impugned order in one stroke of pen is against the norms of justice; Respondent No. 2 granted the relief, which was not prayed by him and thus Respondent No. 2 committed illegality; after the reversion of Respondent No. 3 who was in fact senior to the present appellants, did not challenged his reversion order and by not challenging his reversion order, he had forgo his right of seniority qua the appellant and now at this belated stage impugned dated 27.11.2012 could not have been passed; seniority is a vested right, which cant not be taken away on any ground in light of Section 21 of General Clauses Act, 1987; impugned order is nullity in the eye of law, therefore, by accepting this appeal, impugned order dated 27.11.2012 be set aside and the seniority as well as promotion granted to the appellants as Kanungo be declared to be restored.
11. Conversely, learned D.A. As well as learned counsel for the Respondent No. 3 vehemently opposed the arguments advanced by the learned counsel for the appellants and supported the impugned order dated 27.11.2012 by referring Notification No. SOR-III(S&GAD)1. 9/2011 dated 20th July, 2011 and prayed that as the appeal is without any substance, it be dismissed.
12. Arguments heard. Record perused.
13. The appellants, in order to support their claim mainly made their reliance on the principle of Locus Poenitentiae that once vested right accrued in favour of a civil servant, the same could not be taken away on the ground of fairness and propriety.
14. So far as the claim of the appellants mentioned above is concerned, this Tribunal has no Cavil with it but the principle of Locus Poenitentiae would not attract where the order was illegal and was passed in violation and contravention of any law/rule.
15. While interpreting the principle of Locus Poenitentiae, the Honble Supreme Court of Pakistan in case of Nazir Ahmad Panhwar Vs. Government of Sindh through Chief Secretar y, Sindh and others.
Reported in 2009 PLC (C.S.) 161, observed as follows:- "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 or a settled provision of law. Said principle would be applicable in respect of an order passed by an authority who was competent to pass an order in accordance with law and the order so passed was not in violation or contravention of any law or rules made thereunder."
16. In the present case as contended by, the appellants that they were promoted in the light of order dated 26.01.2011 passed by Executive District Officer (Revenue) Dera Ghazi. Khan, Relevant part of the said order is reproduced here under:- "The appeal is time barred. The delay is condoned in the light of direction passed by the Punjab Service Tribunal dated 31.5.2010. It is admitted fact that the combined seniority list prepared by the District Officer (Revenue) DG Khan in 2001 was not challenged by the respondents in any forum. So, the appellants are senior to the respondents. The EDO (Revenue) DG Khan reverted the appellants without considering, their merits including their officiating promotion from 2001 to 2006 as Kanungo from the last five years. Their reversion is not fair and just in the eye of law. I do not find any reason to disagree with the learned counsel for the appellants.
' In the prevailing circumstances the appeal is accepted and the impugned seniority list issued on 25.7.2006 to the extent of the appellant is set aside and their seniority position mentioned in seniority list issued in year 2001 is hereby restored. As a result, Muhammad Iqbal and Allah Diwaya Patwaris both appellants are promoted as Kanungos."
17. Careful scanning of order dated 26.01.2011, would bring, this fact on the surface that EDO (Revenue) DG Khan by setting aside the list issued on 25.07.2006, restored seniority issued in the year 2001 and instead of referring the case of the present appellants before departmental selection promotion committee, himself opted to promote the appellants in violation of the Provisions as contained in Punjab Civil Servant (Appointment & Conditions of Service) Rule, 1974.
18. When this order came under consideration on the departmental representation/Revision, filed by Respondent No. 3 Eisa Khan, Senior Member/ Member (Revenue) Board of Revenue, Punjab/ Secretary to Government of the Punjab, Revenue Department Respondent No. 2 set aside the same in the following fashion:-- "7. I have considered the arguments of the parties and perused record of the case. The petitioner is admittedly senor to the respondents as per relevant seniority list of Patwaris. It is not clear from the impugned order as to why the petitioner was ignored and the respondents preferred for promotion as Kanungo. Furthermore, the Punjab Service Tribunal vide order dated 31.5.2010 had directed that the issue of seniority amongst Patwaris should be sorted out by considering all the concerned Patwaris/Kanungos as party therein. It is evident from a perusal of the impugned order that this has not been done and the Executive District Officer (Revenue) has jumped to grant promotion to the respondents without first determining the issue of seniority in the feeding cadre of Patwaris. In any case, under the rules, promotion is to be decided by the departmental Promotion committee.
In view of foregoing, the impugned orders dated 26.1.2011 and 6.4.2011 are set aside and representation of the appellant is disposed of with the direction to District Collector DG Khan to decide the question of the seniority of the Patwaris of District DG Khan as per orders of the Punjab Service Tribunal within one month and thereafter convene meeting of departmental promotion committee to consider the matter of promotion of eligible Patwaris to the post of Kanungo in accordance with rules/policy on the subject."
19. It is settled principle that when law provide mechanism to do some lawful act, the said act is to be carried out in the light of the said mechanism or nor otherwise. In the present case, the Respondent No. 1 by ignoring the rules set out in the Punjab Civil Servant (Appointment & Conditions of services) 1974, himself granted promotions to the appellants and thus committed illegality.
20. I have gone through the order dated 27.11.2012 passed by Senior Member/ Member (Revenue)
Board of Revenue, Punjab/ Secretary to Government of the Punjab, time and again and did not find any material illegality/ irregularity in it. The order dated 27.11.2012 as mentioned above is in consonance with the Rule 4 of Punjab Civil Servant (Appointment & Conditions of Service), 1974 as well as Notification No. SOR-HI (S&GAD) 1-9/2011 dated 20.07.2011, hence can't be set aside.
21. In view of what has been discussed above, above titled appeals are dismissed being devoid of merits. Be consigned.