' SALAHUDDIN CHAUDHRI (MEMBER).--This appeal filed by Khadim Hussain, Assistant Director, Federal Investigation Agency, is directed against the orders contained in notification dated 7-3- 1985 of the Ministry of Interior whereby an earlier notification issued by the same Ministry on 11-11- 1982 was cancelled. The appellant's departmental appeal against the impugned order remained responded to and so he filed on 11-6-1985 the appeal to this Tribunal which is now before us.
2. Khadim Hussain was Field Officer (Law) Grade-16, Ministry of Religious Affairs, holding the appointment on ad hoc basis. On 19-8-1975 he submitted an application to the Director-General, Federal Investigation Agency, for the post of Assistant Director. This application had been recommended by the then President of Pakistan. The post of Assistant Director was in Grade-17 but because the Director-General, Federal Investigation Agency, was not competent to appoint an officer in Grade-17, the appellant was taken on deputation on 27-8-1975 in Grade-16, the same grade which he had held in the Ministry of Religious Affairs. Sometime later when the Ministry of Religious Affairs intimated that it had not retained any lien for the appellant and that he had severed all connections with the Ministry, the Director-General, Federal Investigation Agency, appointed Khadim Hussain as Assistant Director, Legal (Grade-16) on purely ad hoc basis vide Federal Investigation Agency's notification dated 12-3-1976. The reason for appointing the appellant on ad hoc basis was that under rule 17 of the Federal Investigation Agency (Appointment, Promotion and Transfer) Rules, 1975, all appointments by direct recruitment were required to be made through Federal Public Service Commission. In 1979 in the course of the review under section 12-A of the Civil Servants Act, 1973, of appointments made during the period 1-1-1972 to 5-7-1977, the cases of persons appointed in the Ministry of Interior, including that of the appellant, were referred to the Review Board. The said Board found that four appointments including that of the appellant, which were required to be made with approval of the Federal Public Service Commission had been made without reference to the Commission and were, therefore, irregular. The Board recommended that these cases be referred to the Commission to determine the appointees' suitability or otherwise for the posts. Accordingly, the appellant's case was referred to the Federal Public Service Commission for advice. Through their letter dated 21-11-1979, the Establishment Division informed the Ministry of Interior that the competent authority had declared Khadim Hussain, Assistant Director, (Legal) Grade-16, suitable for retention in the Federal Investigation Agency. Under notification dated 20-7-1981, the appellant and six others were promoted as Assistant Directors (Grade-17) with effect from 15-7-1981.
3. The appellant felt aggrieved by the notification of 15-7-1981 on the ground that he claimed entitlement to BPS-17 with effect from 27-8-1975. He, therefore, filed Appeal No, 113(R) of 1981 before this Tribunal on 1-11-1981. The prayer in para. 12 of the said appeal reads as under:-- "12. It is accordingly prayed that the record of the case may be summoned and the respondents be directed:
(a) to amend the order dated 15-7-1981 to notify the appointment of the appellant as Assistant Director in Grade-17 w,e,f, 27-8-1975.
(b) to grant seniority to him in Grade-17 from 27-8-1975.
(c) to adjust his pay by granting him arrears due to difference in pay scales of Grades 16 and 17 from the same date."
' The Tribunal disposed of the appeal vide its judgment dated October 12, 1982. The operative part of the order is reproduced below: "3. Though the appointment of the appellant made initially to serve in Grade-17 post and drawing the pay of Grade-16 post, was illegal, nevertheless, the appellant continued to serve in a Grade-17 post for no fault of his. Under FR-31, a person appointed to officiate in a post has to draw the pay of that, though by a special order under FR-35, his pay can be curtailed. The learned counsel for State on the strength of FR-35 contends that from the date of appointment in Grade-16, namely, 27- 81975, the appellant can be given the minimum of Grade-17 post, but that he cannot be given increments or a regular Grade-17 post from a date earlier than the date on which a formal order of his appointment in Grade-17 was made. We see no substance in this contention. The appellant had been continuously performing the duties of a Grade-17 officer, but was drawing the pay in Grade- 16, though the appointment was irregular. There is no formal order of curtailing his pay in Grade-17, as provided for under FR-35. There is neither a general order nor a special order in this respect. We are, therefore, of the opinion that the appellant shall be entitled to draw the pay of Grade-17 together with the increments as raised from time to time, with effect from the date of his appointment.
4. The appellant in his appeal also claimed seniority, but at the time of arguments he contended that his was an isolated post and his interest does not conflict with any other officer. Anyhow, since other Grade-17 officers have not been made party, we do not pass any order with regard to appellant's seniority vis-a-vis others."
' In the Ministry of Interior the judgment of the Tribunal somehow was interpreted to mean that the appeal had been accepted allowing Khadim Hussain promotion to Grade-17 with effect from 27-8- 1975 i,e, the date of his initial appointment as Assistant Director, Grade-16. Accordingly, a proposal was sent to the Establishment Division under U.O. No, 3/90/76-FIA-II, dated 20-10-1982 seeking advice whether a notification be issued by the Ministry of Interior allowing the appellant Grade-17 with effect from 27-8-1975. For the sake of convenience the said U.O. Note reads as follows:-- "Subject:-Representation for promotion to Grade-17, with effect from the date of appointment (27- 8-1975)--Case of Mr. Khadim Hussain, Assistant Director (Legal), F.IA. Reference Establishment Division's U.O. Note No, 32/2/80-C-III(B), dated 5-10-1981.
2. Mr. Khadim Hussain has since filed an appeal (No, 113(R) of 1981) with the Service Tribunal, Islamabad. The Tribunal has accepted his plea in the order passed by them on 12th October, 1982, a copy of which has been sent by the Tribunal's office to the Establishment Division vide No, 138, dated 14-10-1982.
3. On the basis of the said decision of the Tribunal, Mr. Khadim Hussain has assumed charge as Assistant Director (Grade-17), with effect from 27th August, 1975 i,e, the date of his initial appointment as Assistant Director (Grade-16). The F.IA. HQ have,, forwarded the charge assumption report for issue of a notification. Establishment Division arc requested to advise whether a notification, as above, be issued by this Ministry."
' The Establishment Division vide their U.O. No, 14/5/80-Lit/82, dated 3-11-1982 replied to the Ministry of Interior as under:-- "Reference Ministry of Interior's U.O. No, 3/90/76-FIA-11, dated the 20th October, 1982 on the abovenoted subject. In this connection it is stated that unless an appeal is intended to be filed in the Supreme Court by the F.IA. Against the judgment of the Federal Service Tribunal in the case of Mr. Khadim Hussain, Assistant Director (Legal) F.IA., the orders of the Tribunal may be implemented."
' On November 11, 1982, the Ministry of Interior issued the following notification appointing the appellant as Assistant Director, (Grade-17) w,e,f, 27-8-1975 and until further orders:-- "Islamabad, the 11th November, 1982.
NOTIFICATION ' No, 3/90/76-FIA-II.--In partial modification of this Ministry's Notification No, 3/90/76-FIA-II, dated 20th July, 1981, Mr. Khadim Hussain, is appointed as Assistant Director (Grade-17), Federal Investigation Agency, Islamabad, on regular temporary basis, with effect from 27th August, 1975 and until further orders."
' Shortly thereafter Khadim Hussain started approaching the Ministry of Interior and the Establishmert Division requesting for promotion as Deputy Dir,:ctof Grade-18 with effect from the 20th of August, 1980, the date on which he had completed five years' service in Grade-17. No action appears to have been taken on this representation till 7-3-1985 when the impugned notification was issued by the Ministry of Interior cancelling the earlier notification of November 11, 1982, whereby the appellant had been allowed Grade-17 with retrospective effect from 27-8-1975:-- "Islamabad, the 7th March, 1985.
NOTIFICATION "No, 1/90/76-FIA-II.--This Ministry's Notification No, 1/90/76-FIA-II, dated 11th November, 1982 (which was in partial modification of this Ministry's notification of same number, dated 10th July, 1981) appointing Mr. Khadim Hussain, as Assistant Director (BPS-17) on regular temporary basis, with effect from 27th August, 1975, is hereby cancelled."
' Against the orders contained in the above notification the appellant addressed a representation to the Establishment Secretary on 13-3-1985. Receiving no reply, Khadim Hussain preferred on 11-6- 1985 the appeal to this Tribunal now before us.
4. The appellant argued his case in person. The main ground pressed before us was that the notification dated 7-3-1985 had been issued by the Ministry of Interior without lawful authority because, as he maintained, an order once passed under which certain rights had been created in favour of an individual could not be rescinded or withdrawn to the detriment of these rights. It was submitted that no doubt the authority that has the power to make an order has also the power to undo it. But, urged the appellant, where the order had taken legal effect it could not be withdrawn.
According to the appellant, by issuing notification dated 11-11-1982, allowing him Grade-17 with effect from 27-8-1975, a decisive step had been taken and in view of that the orders already passed could not be withdrawn two and a half years later. The appellant concluded that the action taken on 7-3-1985 was totally wrong and of no legal effect. In support of his contentions he placed reliance on the cases reported as PLD 1964 SC 503; Lt.-Col. G.L. Battacharya v. The State, the Chief Secretary to Government of East Pakistan and another, PLD 1969 SC 407; Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1985 (Azad J & K) 17 and Syed Muneeb Nazir Shah v. Azad Kashmir Government through its Chief Secretary and another and PLD 1956 FC 46 Shahbaz v. Crown.
5. The respondents have strongly refuted the contentions raised by the appellant. The learned counsel appearing on their behalf submitted that this Tribunal while deciding the appellant's earlier Appeal No, 113(R) of 1981, had never allowed his claim to Grade-17 with effect from 27th of August, 1975. Nor it had allowed him seniority with any retrospective date. The only benefit allowed by the Tribunal was the appellant's entitlement to draw the pay of Grade-17 together with increments as raised from time to time with effect from the date of his appointment as Assistant Director. That being so, argued the learned counsel, the question of appointing the appellant to Grade-17 with effect from 27-8-1975 with a view to implementing the Tribunal's judgment did not arise at all. He added that by sheer mistake the Tribunal's judgment was misread by the Ministry of Interior as a result of which the notification of 11-11-1982 containing wrong and illegal orders was issued which could not have any validity in the eye of law. It was urged that by virtue of such a notification, the appellant did not acquire any right whatsoever. When the mistake came to notice, the notification of 11-11-1982 was cancelled by the same authority which had issued it. The action taken, maintained the learned counsel, was strictly in accordance with law. In this connection he relied on section 21 of the General Clauses Act, 1897, under which the authority which has the power to make an order has also the power to withdraw or rescind it.
6. We have very carefully considered the contentions raised from both the sides and have perused the relevant record. There is no doubt that in its judgment in Appeal No, 113(R) of 1981, this Tribunal had only allowed pay of Grade-17 with effect from 27-8-1975. The claim for appointment to Grade- 17 with effect from the said date was clearly disallowed. It is strange that such a clear and unambiguous order was somehow misread in the Ministry of Interior. Not only that, a note was submitted to the Establishment Division seeking its approval to allow the appellant Grade-17 from a retrospective date on the ground that the Tribunal had accepted the appellant's appeal. Through their note dated 3-11-1982 the Establishment Division said nothing about the proposed appointment to Grade-17 but it simply advised that the Tribunal's judgment be implemented unless an appeal was intended to be filed in the Supreme Court against the judgment of the Federal Service Tribunal. It appears that the authorities concerned decided not to contest the Tribunal's judgment. Thus, the only step left to be taken was to issue orders allowing the appellant the benefit of pay in Grade-17 for the relevant period. Instead, the Ministry of Interior issued the notification dated 11-11-1982 appointing the appellant to Grade-17 with effect from 27-8-1975. That the orders issued through this notification were patently wrong needs no emphasis.
7. It is also very clear to us that the notification dated 11-11-1982 was made without jurisdiction.
Under rule 11 of the Federal Investigation Agency (Appointment, Promotion and Transfer) Rulvs, 1975, the appointing authority in the case of appointments to Grade-17 and above is the Prime Minister.
That the appellant's appointment to Grade-17 with effect from 27-8-1975 had not received the approval of the Prime Minister or any designated authority cannot be controverted. As we have seen, when the proposal was submitted to the Establishment Division it was returned without conveying the approval of the competent authority for the grant of Grade-17 to the appellant. It appears that the Ministry of Interior assumed the power unauthorized and issued the said notification. It is most probably for this reason that the Tribunal in its judgment dated October 12, 1982, extracts from which have been reproduced in an earlier part of this order, described the appellant's appointment to Grade-17 as "irregular".
8. From the discussion so far, it is clearly established that the order passed vide notification dated 11-11-1982 was wrong, illegal and without jurisdiction. Therefore, the competent authority by virtue of the power vested under section 21 of the General Clauses Act, 1897, had the power to amend, vary or rescind the notification or the orders. The appellant has taken the pica that no doubt the authority which has the power to issue a notification has also the power to rescind it but the power is not absolute. It is subject to the limitation that if a decisive step has been taken, then the power to recede is no longer available to the authority. It was contended by the appellant that once the notification had been issued and he had submitted his charge report in token of having taken over the charge of a Grade-17 post, the decisive step had been taken with the result that the authority issuing the notification had ceased to have the power to recede. Thus, according to him, the subsequent cancellation of the notification was without any legal authority. We, however, cannot persuade ourselves to agree with the appellant's line of reasoning. The Federal Court of Pakistan has defined locus penitential in the well-known case of Shahbaz v. Crown PLD 1956 FC 46 as under:-- "Locus penitential in law refers to the powers of receding till a decisive step is taken. If a decisive step is taken other considerations would arise, but if that step is yet to be taken we see no reason to restrict the power to modify or cancel."
9. In the instant case a notification allowing Grade-17 to the appellant with effect from 27-8-1975 was issued on 11-11-1982. The power to recede would no longer have been available to the respondents had any decisive step been taken to give effect to or in pursuance of the orders contained in the notification. Nothing of this sort happened till 7-3-1985 when the orders contained in the notification dated 11-11-1982 were withdrawn. As to the appellant's plea of submission of a charge report, it is entirely without substance. A charge report is merely a part of the accounting procedure. It is not a step that could be said to have conferred any vested right on the appellant in the context of the issue in dispute nor for that matter, it can validate any illegal order. It might have been a different case had the appellant been promoted to Grade-18 as a consequence of the notification of 11-11-1982, before its cancellation on 7-3-1985. Then perhaps it could be argued that a decisive step had been taken and so the power to recede was no longer available to the authority concerned.
10. The appellant has relied on a number of cases referred to in para. 4 of this order. The facts of those cases and that of the instant case are quite distinguishable and, therefore, the decisions in those cases do not advance the appellant's case.
11. The upshot of the above discussion is that the power to recede was available to the respondents when they issued the impugned notification of 7-31985 cancelling the earlier notification of 11-11- 1982 whereby, as a result of misreading of this Tribunal's judgment, the appellant had been allowed BPS-17 with retrospective effect from 27-5-1975. The appellant's grievance, therefore, is misconceived.
12. There being no merit in the appellant's case we dismiss this appeal but without any costs.
13. Parties to be informed accordingly.
' SYED ALLY MADAD SHAH (CHAIRMAN).--I agree that the appeal merits dismissal. The broad facts of the case are stated in the judgment initiated by the learned Member. It was clearly held by a Bench of this Tribunal in Appeal No, 113(R) of 1981 filed by the appellant that order of the initial appointment of the appellant in Grade-16 against a post in Grade-17 was illegal; and he was allowed relief to the extent of pay of the post in Grade-17 he had served in. There was no order of appointment of the appellant in Grade-17 post by the appointing authority who was the Prime Minister under Rule 11 of the Federal Investigation Agency (Appointment, Promotion and Transfer) Rules, 1975, or the Establishment Secretary as per Rule 6 of the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973, as substituted vide Notification No, SRO-399 (1)/79, dated the 10th May, 1979. The notification dated 11-11-1982 of the appellant's appointment as an Assistant Director (Grade-17), F.I.A., on regular temporary basis, with effect from 27th August, 1975 issued by the Ministry of Interior was, therefore, without any lawful authority. Now the question arises whether this notification dated 11-11-1982 could not be cancelled vide notification, dated 7th March, 1985, because the appellant had submitted his charge report of the post of Assistant Director (Grade-17) in pursuance of the former notification dated 11-11-1982. The appellant has placed reliance on the following authorities:- -
(1) AIR 1937 Privy Council 27;
(2) Shahbaz v. The Crown PLD 1956 FC 46;
(3) Lt. Col. G.L. Battacharya v. The State PLD 1964 SC 503;
(4) Pakistan v. Muhammad Himayatullah Farukhi PLD 1969 SC 407;
(5) State v. Muhammad Ismail and another 1980 SCMR 268;
(6) Muhammad Aslam v. Vice-Chancellor, Gomal University PLD 1980 Pesh. 128;
(7) Firdous Spinning and Weaving Mills Ltd. v. Federation of Pakistan PLD 1984 Kar. 522 (538);
(8) 1984 PLC (C.S.) 395;
(9) Muneeb Nazir Shah v. Azad Kashmir Government PLD 1985 (Azad J & K) 17;
(10) Federal Service Tribunal Appeal No, 245 (R) of 1984, decided on 8-7-1986 filed by Tauqir Ahmed v. Director, F.I.A.;
(11) Abdul Jalil v.
1.-G. Police 1983 PLC (C.S.) 1042;
(12) 1986 PLC (C.S.) 582.
' In the cases at S.No, 2 to 7 and 9, the principle of locus poeinetentiae has been enunciated extensively and it has been held that an order passed by a competent authority cannot be recalled in case a decisive step has been taken in pursuance thereof. In the other case, except that at S.No, 1, the same principle has been followed. The case at S.No, 1 i,e, AIR 1937 Privy Council 27, could not be laid hands on. In my humble opinion, the principle of locus poeinetentiae enunciated in those cases extends to the orders made in exercise of powers vesting in the authorities passing them and not to the orders which are made by the authorities not competent to make them. This view gets support from admission order by the Supreme Court in Civil Petition for Leave to Appeal No, 228-R of 1987 against the judgment/order of this Tribunal dated 5-7-1987 in Appeal No, 453 (R) of 1984, admitted to consider, amongst other grounds, whether--"the order of fixing respondent's pay in NPS-11 was illegal a initio and, therefore, the principle of locus penitential is not attracted, for it would cover only those actions which fall within the law and not contrary to it This matter is reported in 1989 SCMR at page 441. In the instant case, the notification dated 11-11-1982 to the effect that the appellant stood appointed as an Assistant Director (Grade-17), F.I.A., on regular temporary basis with effect from 27th August, 1975 was not issued by or under the orders of the competent authority, as discussed above. It was given effect only to the extent that the appellant had submitted a charge report of having held the post of Assistant Director (Grade-17) with effect from 27th August, 1975 by virtue of that notification, otherwise he was already holding the post of Assistant Director in Grade-17 under notification dated 20-7-1981. He was already allowed pay of .Grade-17 with effect from 27-8-1975 by this Tribunal vide judgment dated 12-10-1982 in Appeal No, 113(R) of 1981, but he had not earned any promotion on the basis of that notification of 11-11-1982 which was cancelled by the impugned notification dated 7-3-1985. The notification dated 11-11-1982 having been issued without lawful authority could, therefore, be cancelled by the impugned notification dated 7-3-1985 which was issued under the advice of the Establishment Division conveyed to the Ministry of Interior under U.O. No, 1/19/84-R.4, dated 3-3-1985.
14. In conclusion, the appeal is dismissed. No order is made for costs.