' CH. MUHAMMAD IQBAL, J.--- This Intra Court Appeal is directed against the order dated 18.5.2015 passed by the learned Single Judge-in-Chamber whereby Writ Petition No.7335/1991, filed by the appellant challenging the Notification No.5278-91/2927-E(F)1 dated 25.8.1991 whereby he was reverted to his original post of Junior Clerk, was dismissed.
2. It has been contended on behalf of the appellant that while passing the impugned order, the learned Single Judge-in-Chamber has not appreciated the fact that the matter pertains to fitness of the appellant, therefore, it does not fall under the ambit of terms and conditions of service but the learned Single Judge-in-Chamber has erred in law to hold that the writ petition is not maintainable under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973; and that a miscellaneous application was filed by the appellant but the same was not decided by the learned Single Judge-in-Chamber while finally deciding the writ petition whereas it is settled law that miscellaneous applications should be decided before passing any final order, as such, the impugned order is illegal on the face of it.
3. On the other hand, the learned law officer submits that the impugned order has rightly been passed by the learned Single Judge-in-chamber; and that the authority which passes an order can recall the same when found to be unlawful.
4. Heard. Record perused.
5. It is an admitted fact that the appellant is a civil servant who was appointed as Junior Clerk (BPS-5) and subsequently, pursuant to the approval of the Chief Minister Punjab, he was promoted/appointed as Tehsildar vide Notification No.5278-91/1510-E(F)1 dated 7.5.1991. Thereafter, the Secretary, Government of the Punjab, Revenue Department, vide Notification No.5278- 91/2927- E(F)1 dated 25.8.1991 withdrew the earlier Notification dated 7.5.1991 and reverted the appellant to his original post of Junior Clerk (BPS-5). The appellant challenged the said Notification dated 25.8.1991 through Writ Petition No.7335/1991 before this Court and on 23.10.1991, this Court suspended the operation of the impugned Notification dated 25.8.1991 and till onward the appellant remained working as Tehsildar (BPS-16) i.e. About twenty five years. On 18.5.2015, the said writ petition was came up for hearing before the learned Single Judge-in-Chamber, who dismissed the same on the ground that the matter pertains to the terms and conditions of the service and under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, this Court has no jurisdiction to decide the issue in question, as such, this writ petition is not maintainable. For the facility of ready reference, the operative part of the impugned order is reproduced as under:- "(8) In the light of all above discussion, this writ petition is dismissed being not maintainable under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973."
' On our question whether this Intra Court Appeal is maintainable, the learned counsel for the appellant submits that as the matter pertains to fitness of the appellant for the post of Tehsildar and the appellant has no remedy of appeal, or representation, therefore, this Intra Court Appeal is maintainable but this plea has no force for the reason that basically the appellant has challenged the reversion order dated 25.8.1991 whereby the Secretary, Government of the Punjab, Revenue Department has withdrawn the earlier Notification dated 7.5.199-1 regarding appointment/promotion of the appellant as Tehsildar (BPS-16) and reverted him to his original post of Junior Clerk (BPS-5), which is appeal able under Section 21 of the Punjab Civil Servants Act, 1974 and for the facility of ready reference the same is reproduced as under:- "21. Right of appeal or representations.--- (1) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions ,of his service is allowed to a civil servant by any rules applicable to him, such appeal or application shall, except, as may otherwise be prescribed, be made within sixty days of the communication to him 'of such order.
(2 Where no provision for appeal or review exists in the rules in respect of any order, a civil Servant aggrieved by any such order is made by the Governor, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order.
' Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post".
' The Section 4 of the Punjab Service Tribunals Act, 1974 is also very significant and the same is also reproduced as under:- "4. Appeal to Tribunals.--- (1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later prefer an appeal to the Tribunal: ' Provided that.
(a) Where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974 or any rules against any such order no appeal shall be to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to a departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade; and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969.
(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred.
(a) in the case of penalty of dismissal from service, removal from service, compulsory retirement or reduction to lower post or time scale or to a lower stage in a time scale, to a Tribunal referred to in subsection (3) of Section 3: and
(c) in any other case to a Tribunal referred to in subsection (7) of Section 3 and where no such Tribunal is established, to a Tribunal established under subsection (3) of that section".
' Hence, the appellant has the remedy either to file departmental representation or appeal before the Service Tribunal, as such, under Section 3 of the Law Reforms Ordinance, 1972, this Intra Court Appeal is barred by law and is not maintainable. The proviso of Section 3 of the Law Reforms Ordinance, 1972 is reproduced as under:- ' Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal (or one revision or one review) to any Court, Tribunal or authority against the original order"
' Moreover, the matter in issue is regarding reversion of the appellant to his original post of Junior Clerk and not his fitness, as such, the case law referred to by the learned counsel for the appellant is not applicable in the instant case as those are proceeding on different facts and circumstances of the case. So far as the contention of the learned counsel for the appellant that miscellaneous application was not decided by the learned Single Judge-in-Chamber while passing the impugned order, it is submitted that when the main writ petition itself was not maintainable under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, then there is no need to decide the miscellaneous application.
6. It will not be out of place to mention here that when it came to the knowledge of the competent Authority that the appellant was not appointed/promoted under the law, then it has withdrawn the appointment/promotion Notification dated 7.5.1991 on the principle of locus penitential and in the light of provisions of Section 21 of the General Clauses Act, 1897, which is reproduced as under:- "21. Power to make to include power to add to amend, vary or rescind, orders, rules or bye-laws.-- Where by any [Central Act] or Regulation, a power to [issue notifications], orders, rules, or bye- laws is conferred, then that power includes a power, exerciser id the like manner and subject to the like sanction and conditions (if any) to add to, amend, vary or rescind any [notifications], orders, rules or bye-laws so [issued] ".
' In this regard, reliance is placed on the cases of "The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin" (PLD 1992 SC 207) wherein it has been held as under:- "Locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction."
6. The nutshell of the above discussion is that the learned Single Judge-in-Chamber has rightly passed the impugned order and he has not committed any illegality or irregularity because it is not the case of fitness rather it is the case of reversion of the appellant to his original post of Junior Clerk, which certainly falls under the ambit of terms and conditions of the service, as such, the appellant has the remedy before the Service Tribunal. In this regard, reliance is placed on the case of Inspector General of Police and another v. Ahmad Mustafa (1990 SCM R 1238) and for the facility of ready reference, the relevant portion thereof is reproduced as under:- "After considering the arguments we are of the view that this appeal must succeed. Admittedly the case pertained to the terms and conditions of services of the respondent and under Article 212(2) of the Constitution the only authority which could have been approached in the matter was the service tribunal. The writ petition was not competent and thus the impugned order cannot be sustained."
' Further reliance is placed on the cases of "Pervaiz Aslam v. Ilyas Hussain Shah and another" (1999 SCM R 784) and "Ali Azhar Khan Baloch and others v. Province of Sindh and others" (2015 SCM R 456).
6. Resultant, the instant Intra Court Appeal is dismissed being not maintainable.