MUHAMMAD IJAZ KHAN, J. Petitioner has filed the instant constitutional petition, under Article 199 of The Constitution of Islamic Republic of Pakistan 1973, with the following prayer; "It is therefore, humbly prayed that on acceptance of the instant writ petition; -
(i) The impugned order dated 22.10.2020 of the respondent No.3 may kindly be declared as illegal, unlawful, unconstitutional, arbitrary, whimsical, against the services law and void-ab- initio.
(ii) The respondents/department may kindly be directed to re-instate and allow the petitioner to resume his charge on strength of appointment order dated 26.12.2018 with all back benefits.
(iii) The service of the petitioner may kindly be regularized alike his colleagues if regularized during the pendency of the instant petition.
(iv) Any other relief which this Honorable Court deems fit and proper in the circumstances may also be very kindly granted.
2. Precisely the case of the petitioner is that in response to an advertisement for the post of Certified Teacher (hereinafter referred to as "CT") he being a qualified candidate applied for the same and after going through the process of test and interview he was appointed by respondent No. 3 vide order dated 26.12.2018 at Government Middle School Malai District Dir Lower and later on he was transferred and adjusted at Government Middle School Ganjala Rabat vide order dated 26.04.2019. It is further pleaded in the petition that he was performing his duty as a teacher when he applied for the grant of extra ordinary leave for proceeding abroad for higher education which was accordingly granted and sanctioned by the competent authority/ respondent No. 3 vide order dated 24.10.2019. After sanctioning of the leave and fulfilling of all other requirements the petitioner proceeded to China for higher study. It is further pleaded that after completion of the leave when he approached the respondents, where the respondent No. 3 informed him that his extra ordinary leave has since been withdrawn vide the impugned order dated 22.10.2020. The petitioner submitted departmental appeal to respondent No. 2 against the aforesaid order but the same has not been responded till date. The petitioner has now challenged the aforesaid order through the instant petition.
3. When this case was taken up for hearing on 16.02.2022 respondents were directed to file their para-wise comments, which they have accordingly submitted where their stance was that the petitioner was not entitled for the grant of extra ordinary leave as he was appointed for contract period of one year commencing from 01.03.2019 to 29.02.2020.
4. Arguments of learned counsel for the petitioner as well as learned Astt: A.G. appearing on behalf of the official respondents were heard in considerable detail and the record perused with their able assistance.
5. The record would show that the present petitioner along with 104 other candidates were appointed as C.T by respondent No. 3 vide order dated 26.12.2018 and soon after the issuance of the aforesaid appointment order the petitioner assumed the charge of his duty and was regularly performing his duty and it was during the course of his service when he applied for the grant of extra ordinary leave for study abroad which was duly sanctioned by the competent authority vide order dated 24.10.2019 with effect from 25.10.2019 to 25.10.2021 (730-days) and thereafter he proceeded to China for the higher study.
6. The record further shows that it was much before the cut-off date of the leave i.e. 25.10.2021, when the respondent No. 3 issued the impugned order dated 22.10.2020 i.e. almost in the middle of his sanctioned leave thereby prematurely withdrawn the sanctioned leave of the petitioner and directed him to resume his duty without further delay when by then he was abroad and was busy in his study. The impugned order being relevant for the present controversy, the same is reproduced below;- "Leave sanctioned w.e.f 25.10.2019 to 25.10.2021 vide this office order No. 11264-65 dated 24.10.2019 in respect of Mr. Asmat Ullah Khan CT GMS Ganjala (appointed through NTS vide Order No. 13391- 13402 dated 26.12.2019) is hereby withdrawn and he is directed to resume his duty without further delay. Being NTS appointee on one year contract, per condition No. 3 of the appointment order further extension in service shall not be granted to him."
The aforesaid order which was passed on 22.10.2020 would show that respondent No.3 has directed the petitioner that he should resume his duty without further delay and simultaneously condition No. 3 of his appointment order has also been pressed into service by stating that no further extension could be granted to him and as such the impugned order is self-conflicting in its contents.
7. The record also shows that there is another order available on file dated 07.04.2020 where all other colleagues of the petitioner who were appointed along with the petitioner through the same order have been granted extension from 01.03.2020 to 28.02.2021 but there too, the name of the petitioner has not been mentioned which shows that there too, the petitioner has not been handled evenly. Such conduct on the part of respondents would show that they have not exercised their authority in a fair and just manner as on one hand when the competent authority sanctioned the leave for two years and when by then the petitioner has already left for abroad and when he was busy in the middle of his study, all of sudden his leave was cancelled and he was required to resume the duty immediately and simultaneously it-was also stated in the impugned order that no extension could be granted to him. It is obvious that when the impugned order was passed the petitioner was not in the knowledge of such an order and thus the same has been passed at his back, therefore, from whatever angle it is seen the impugned order appears to be unreasonable, illogical, illegal and is a classical example of improper exercise of authority vested in respondents and as such the impugned order could not sustain in the eyes of law.
8. The record also shows that the petitioner on one hand was one of the exemplary employee of the respondents/department as no complaint whatsoever has ever been made against him from any quarter and on the hand when he, with the permission of the competent authority, has proceeded abroad, then the impugned order should have not been passed without issuing him a notice through his last known address within the country or abroad asking him to resume his duty and as such the impugned order which has practically taken back vested rights of petitioner qua acquiring his higher qualification as well as to continue with his service.
9. It may also be noted that admittedly respondent No.3 was the competent authority to sanction the leave which was accordingly sanctioned in favour of the petitioner through a lawful order and soon after getting the leave sanctioning order the petitioner has changed his position as he has left his service and proceeded to China to get his higher education but then in the middle of his sanctioned leave the impugned order was passed. It may be noted that respondent No. 3 may have rescinded the leave sanctioning order but before when the petitioner has not yet started acting upon it but once when the petitioner has taken a decisive steps by leaving his duty and proceeded to China for higher study then under the principle of locus poenitentiae respondent No. 3 could not rescind or withdraw the leave sanctioning order. It may also be noted that the principle of locus poenitentiae will not come into play where the order has either been passed by an incompetent authority or that the order has been obtained through fraud or misrepresentation or concealments of any facts.
10. Section 21 of The General Clauses Act, 1897 would be relevant for the present controversy, the same is reproduced below;-
21. Power to make to include power to add to amend, vary or rescind, orders, rules or by-laws.
Where by any (Central Act) of Regulation, a power to [issue notifications], orders, rules, or by- laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add, to amend, vary or rescind any [notification], orders, rules or by-laws so [issued]."
The aforesaid section of law clearly mandates that a competent authority who has passed a lawful order can rescind, alter or withdraw the same unless it has not been acted upon. In the case of "Inspector General of Police, Quetta and another v. Fida Muhammad and others" reported as 2022 SCMR 1583 it was held by the Hon'ble Apex Court that appointment order was issued by the competent authority but same was withdrawn in omnibus style and without affording an opportunity of hearing to the appointee and as such it was held that the appointing authority has acted against the due process of law as embodied in the principle of locus poenitentiae. In the case of "Province of Punjab through Secretary Finance Lahore and others v. Atta Muhammad Zafar and others" reported as 2021 SCMR 1195, the Hon'ble apex Court has held that we note that the learned High Court has laid a lot of emphasis on the point that a decisive step taken by the authorities cannot be withdrawn and that once a right is created by extending a benefit for no default of a person the same cannot be taken away on the whims and fancy of any executive authority and that the doctrine of locus poenitentiae would be attracted. We are unfortunately unable to agree with the simplistic and over generalized view taken by the High Court in the impugned judgment. This Court has in a large number of judgments clearly and categorically held that locus poenitentiae is the power of receding till a decisive step is taken but is not a principle of law that an order once passed becomes irrevocable and it is a past and closed transaction. If an order is illegal then, a perpetual right cannot be created on the basis of such illegal order. Similarly, in the case of "Shakeel Ahmad Zaidi and others v. Secretary Education, Higher Education, Government of Punjab Lahore and others" reported as 2021 SCMR 474, the Hon'ble apex Court has declared that in the instant case, the basic requirements which are sine-qua-non for the exception to the principle of locus poenitentiae being attracted namely issuance of a lawful order by the competent authority is missing. Further, we are not convinced that despite clear and unambiguous language of the notification, the appellants were unaware that they were being paid an allowance to which they were not lawfully entitled and was being paid on the basis of a notification which was not applicable to them. We are therefore of the view that the High Court had valid reasons and lawful justification to hold that the appellants had a right not only to stop further payment of the allowance but also recover the same in easy installments from the appellants so as not to overly burden them financially. Likewise, in a suo motu case titled "Contempt Proceedings against Chief Secretary Sindh and others" reported as 2013 SCMR 1752, the Hon'ble apex Court has reiterated the same rational by holding that after careful consideration of his submission, we are of the opinion that a person/litigant, who -has availed benefit for promotion under section 9-A without application of the criteria laid down under Rule 8-13 by way of underhand means or by any mode other than merit, cannot get protection of such benefit on the principle of locus poenitentiae, unless he could show that the benefit availed by him was in accordance with law; in good faith and without any ulterior motive or mala fide. The Hon'ble apex Court in the case of "Secretary Ministry of Finance v. Muhammad Ilamatullah Farooqi reported as PLD 1969 Supreme Court 407 has held that an authority which had the power to make an order had also the powers to undo it, but subject to the exception that where the order had taken legal effect and in pursuance thereof certain rights were created in favour of an individual. The order could not be withdrawn or rescinded to the detriment of those rights. This exception does not however remains available in all the cases, where the basic order is without jurisdiction, void, unlawful or obtained on fraud, the exception to exercise of powers under section 21 of the General Clauses Act shall not be invocable.
In the case of "Executive District Officer (Education) Rawalpindi v. Muhammad Younas" reported as "2007 SCMR 1835" the Hon'ble apex Court has reiterated the same rational by holding that where the order of appointment was secured by fraud and misrepresentation than principle of locus poenitentiae is not attracted as law laid down by this Court in Jalal-ud-Din's case PLD 1992 SC 207.
In view of the above exposition of law if applied to the case of petitioner then it is established on record that the leave was granted and sanctioned by a competent authority and thus it was a lawful order and when that order has not been obtained by administering any fraud or concealment of facts and when the petitioner has acted upon it by leaving his station of duty and proceeded to China then the protection under the principle of locus poenitentiae fully attracts to his case.
11. In view of the above discussion, the instant writ petition is allowed and consequently, the impugned order of respondent No.3 dated 22.10.2020 being the result of an unlawful exercise of authority vested in him, is declared as illegal and unlawful and consequently the same is set aside and since the contract period of the colleagues of the petitioner has already been extended by the competent authority during the intervening period, therefore, petitioner too is entitled for the same relief of extension of his service at par with his colleagues. Order accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.