1. JUSTICE (RTD) MUNAWARALI KHAN (CHAIRMAN).- This judgment, will dispose of six identical appeals; namely, appeal No: 20/89, filed by Mr. Ghulam Mohammad Bhambhro, appeal No.21 /89 filed by Mohammad Usman Sathio, appeal No:22/89 filed by M. Mukhtar Ahmad Qureshi, appeal No:23/89 filed by Mr. Sher Mohammad, appeal No: 26/89 filed by Mr. Jan Muhammad Shaikh and appeal No; 27/89 filed by Mr. Mohammad Ilyas. All the appellants were holding sub-ordinate ministerial posts in various Revenue Offices when on different dates they were granted exemptions from passing Revenue Qualifying Examination (hereinafter referred as RQE) for the purpose of promotion to Mukhtiarkar posts. The Senior Member, Board of Rcvenue/Secretary, Revenue Department (hereinafter referred as SMBR) who by six separate orders had allowed them the benefit of exemption, passed a single consolidated order No: 12- 187-87-Eslt:-IV, dated 18.8.1987 whereby exemptions granted to as many as 46 persons including the six appellants were cancelled. Some of the appellants challenged this order in writ petition No: D-902 of 1987 in the High Court. As a result of the said petition, the order of withdrawal of the exemptions was vacated by the SMBR vide his order No:12-187-87-EStl:-IV, dated 19.10.1987. Consequently the writ petition was not pressed and it was disposed as having become infructuous.
2. Two days after vacating of the order of withdrawal four of the appellants namely, M/s. Ghulam Mohammad, Mohammad Usman Sathio, Mukhtar Ahmed Qureshi and Sher Mohammad were served with Show-cause notice dated 21.10.1987 calling upon them to furnish explanation within 14 days as to why, in view of the deficiencies and irregularities specified in the notice, the exemptions granted to them should not be cancelled. Similar notice dated 4.11.1987 was also issued to the remaining to appellants namely M/s. Jan Mohammad and Mohammad Ilyas. After considering the explanations submitted by the appcllatnt in reply to the show-cause notice and liearig them personally, the SMBR passed four separate orders on 7.9.1987 whereby the exemption granted to the appellants M/s. Ghulam Mohammad, Sher Mohammad, Jan Mohammad and Mohammad Ilyas were cancelled. Likewise the exemptions granted to appellants Mohammad Usman and Mukhtar Ahmad Qureshi were revoked by orders dated 22.9.1988 and 19.9.1988 respectively. All the appellants filed departmental appeals against the orders of cancellation of their exemptions and after waiting for 90 days for decision of the said appeals, they approached this Tribunal in the appeals mentioned above.
3. We heard the arguments of M/s. Manzoor All Khan and Mr. M. Aqil Awan on behalf of the appellants and Mr. Salmah Ansari for the official respondents. We also carefully went through individual file of each appellant's case.
4. The arguments made at the bar crystali/.Ed to the following averments; i. That the appellants possessed the requisite eligibility for the grant of exemptions and therefore cancellation of the exemptions granted to them was absolutely unjustified. ii. That once the exemptiosn granted by the competent authority were implemented, valuable rights accrued to the grantes and thereafter they could neither be withdrawn nor cancelled. iii. That the same authority namely SMBR who had granted the exemptions had no power of review and hence the impugned orders of cancellation passed by the said authority were illegal. iv. That although in some cases exemptions granted in similarcircumstances were maintained, the exemptions granted to the appellants were indiscrimnately cancelled. v. That the impugned orders travelled beyond the scope of eligibility spell out in the Govt, notification dated 2t)th January, 1973.
5. Vi. That the impugned orders were not based on the so-called irregularities/difficiencies pointed out in the show-cause notice.
6. In these appeals have to decide if the orders of cancellation of the exemptions granted to the appellants from passing the ROE were legally correct. The exemptions in question were admittedly granted to the appellants in pursuance of the Revenue Department's circular No: 3-47/67-H/47, dated 6th September, 1952, as modified by the same department's circular No: 12-187-73- Estt:-Ill, dated 20.1.1973. Both these circulars will hereinafter be collectively referred as the said circulars, lt would be advantageous to reproduce the said circulars. The relevant portion, of the original circular issued in 1952 reads as"Government have decided that in future requests for grant of exemption will be considered only if the following conditions are ful filled: For promotion for G&D grades........................................................ For promotion to B grade and general exemption the clerk concerned, should have over 25 years service and should be over 45 years of age. In all case the clerk should have a good record."
7. The amending circular issued in 1973 is couched in the following words:-"The Government of Sind in the Revenue Department is pleased to decide that the provisions for exemption from passing the Revenue Qualifying Examination for promotion to B grade and General exemption, contained in the Govt, of Sind, Revenue Department Circular No: 3-47/67-H/47, dated 6th September, 1952 shall be .
8. Modified as under; 'The Clerk concerned should have over 20 years service and should be over 40 years of age'.
9. It would appear from the said circulars that the eligibility for the grant of exemption from FQE was nothing but fulfilment of three conditions: first, service over 20 year; second, age over 40 year; ad third; good service record. Accordingy the fore-most consideration that should engage our attention is to see if the appellants ful-filled these conditions when they were granted the exemptions. For this purpose it may be convenient to divide the appellants into to groups: one group comprising the appellants who did not satisfy the said conditions and another of those who did fulfil the conditions.
10. It seems to first group included M/s. Ghulam Mohammad, Mukhtar Ahmed Qureshi and Muhammad Usman Sathio. The show-cause notice served on appellant Ghulam Muhammad, Inter-alia mentioned that he did not fulfil the condition of length of service. This is not disputed even by the appellant himself. As stated in para 3 of memo of his appeal, he was granted controversial exemption by order No. 10.1.82-IV, dated 31.8.1986. Again in para 1 of his memo of appeal, it is stated that "the appellant joined Govt, service as Stenotypist with effect from 1.5.1971".
11. Thus according to the appellant's own admissions made in the memo of appeal the total length of his service was a little over 15 years on the date when he was granted exemption. In this way he did not fulfil one of the mandatory conditions for becoming eligible for grant of the exemption.
12. As for appellant Mukhtar Ahmad Qureshi, the show-cause notice served on him discussed five deficiencies/irregularities, his case was said to have suffered from. The deficiency/irregularity at serial No.1 reads as follows "that you do not fulfil the conditions of age and service length". In para 3 of his memo of appeal the appellants is shown to have been granted exemption from AQE on 21.4.1987. On perusal of his service book it was found that he was born on 1.11.1956 and entered Govt.
13. Service on 30.6.1973. Thus according to the entries of his service book he was over little 30 years of age with service of nearly 14 years te his credit on the date he was allowed the controversial exemption from the RQE. Even in his application that he apparenty made directly to the SMBR from grant of the exemption he mentioned his age to be 33 years and length of service put in by that the as 14 years. Thus according his own admissions he neither fulfilled the condition with regard to age no that relating to length of service withim the meaning of the said circulars.
14. Coming to appellant Mohammad Usman Sathio it was found that he was allowed general exemption from passing 10.3.1987 when he had hardly put in 19 years of service. This is clear from para 1 read with para 3 of his memo of appeal. His service book further confirmed that his length of service was 18 years 7 months and 23 days on the date when he was granted the exemption. Even in his application that he had directly made to the Chief Minister for grant of the exemption he made no secret about his length of service which he mentioned as 19 years. So this appellant to, did not meet the mandatory requirement of the length of service as part of the eligibility for grant of exemption from the RQE.However, the argument advance on behalf of the above three appellants was that since the exemption was granted to them by the competent authority and it was also put into effect by posting them as Assistant Mukhtiarkars for necessary training, valuable rights had accrued to them and as such the exemptions could not be cancelled to the determined of those rights. In support of this argument, the learned counsel also cited some precedent cases.
15. The above argument is far from convincing. The carefull persual of the said circulars under which the exemptions \were granted would show that exercise of the jurisdiction by the SMBR was dependent upon the satisfaction of the conditions specified therein. There was no provisions in the said circulars for relaxation of the conditions. Since the above three appellants did not fulfil the mandatory conditions the orders passed by the SMBR granting them exemption were without jurisdiction and hence void. Consequently any action taken in pursuance of such orders was also invalid. Accordingly the authorities cited at the bar were inapplicable.
16. It was further submitted on behalf of the above three appellants that same authority namely SMBR who had granted the controversial exemptions possessed no power to review the same and as such he could not yet rescind the exemptions granted by his predecessor. This argument was also without any force. As pointed out earlier, as the orders in question were passed in utter disregard of the jurisdiction, they were without any legal effect. Such orders could be recalled or rescinded by the authority who had passed them. Even then before cancelling the said orders the appellants were given apportunity of showing cause against their cancellation and were also heard personally by the learned SMBR in compliance of the principle of natural justice. Above all this, the learned SMBR had also taken into confidence the Chief Minister Governor about cancellation of the exemptions vide his summary dated 11.8.1987.
17. One more contention raised by the appellants' learned counsel was that it appeared from the impugned orders that besides non-fulfilment of the conditions specified in the said circulars, they were based on other grounds which were beyond the scope of the said circulars. Mere mentioning of the grounds not relevant for cancellation of the exemptions, in our opinion, would not affect the validity of the impugned orders which were clearly based on the ground of nonfulfilment of the mandatory conditions. Such extraneous grounds could be ignored.
18. In the other group of the appellants who fulfilled the conditions laid down in the said circulars fell M/s. Sher Muhammad Jan Muhammad find Mhammad Ilyas. The exemption granted to appellant Sher Mohammad was cancelled inter- alia on the ground "that he was guilty of violating rule 29 of the Sind Government Servants Conduct Rules 1966" vide SMBR's order No: 10-1-82/Estt.IV, dated7.9.1988. The said rule reads as under: "Use of political or other influence-No Government Servant shall bring or attempt to bring political or other outside influence, directly or indirectly, to bear on Government or any Government servant in support of any claim arising in connection with his employment as such."
19. The question would arise how and in what manner appellant Sher Mohammad brought or attempted to bring influence on the authorities concerned for granting him exemption from the RQE. The show-cause notice served on this appellant before cancellation of his exemption just contained repetition of the allegation that the appellant was guilty of violation of rule 29 of the Conduct Rules. There was no further elaboration in the notice to show what the appellant had done to be saddled with that a charge. We have aso minutely searched the written statement filed on behalf of the official respondents for answer to the above querry but that to is absolutely silent in this regard. Obviously in absence of any tangible evidence to prove the above charge it would be difficult to hold that the appellant Sher Muhammad was guilty of violation of Conduct Rules. The other to reasons assigned for cancellation of the exemption granted to him were extraneous to the sad circulars and therefore could not form the valid basis for the cancellation. As has been gathered from his personal service file he was born on 31.12.1938 and had entered Government service on 21.1.1958. Thus he fulfilled the conditions with regard to age and length of service necessary for grant of exemption from RQE. It was disclosed from the departmental file that his service record was also satisfactory. Accordingly he was rightly granted exemption vide SMBR's order dated 23.4.1987.
20. Similarly it is not disputed that the remaining to appellants namely M/s. Jan Mohammad and Mohammad Ilyas satisfied the conditions about age as well as length of service when they were granted exemptions from passing RQE. It is confirmed from the departmental file that the birth date of Mr. Jan Mohammad was 8.2.1938 and the date of his entry in Government service was 27.2.1962, whereas he was granted the exemption on 12.4.1987. Both the Commissioner and Deputy Commissioner Hyderabad Division had strongly recommended for grant of exemption to him. The departmental file relating to appellant Mohammad Ilyas disclosed his birth date as 8.1.1937 and the date of his entry in Government service as 29.12.1958, whereas the date of granting exemption to him was 4.2.1987. It was also ascertained from the departmental file, that their service record was upto the mark. For all these reasons the grant of exemption from the RQE to the said appellants appeared to be fully justified.Despite 'he ".Hove poiiion. The exemption granted to M/s. Jan Muhammad and Mohammad Ilya.- were cancelled on the following dcfficiencies and irregularities.
(1) that they do not possess the proven experience of Revenue Work (2) That they do not possess good personality and suitability, disposition as required by the conditions prescribed for selection to the post of Mukhtiarkars. As discussed above these tow conditions do not find mention in the said circulars. Therefore they could not be held to have formed valid basis for the orders of the cancellation.
21. It was true that satisfaction of the three conditions specified in the said circulars would not automatically entitle the appellants to the grant of exemption from the RQE. The said conditions only constituted eligibility for grant of the exemption. If the appellants possessed the requisite eligibility it was still within the discre tion of the learned SMBR to grant or refuse the exemption. It may be noted here that eligibility for exemption from RQE should not be confused with the eligibility for promotion to Mukhtiarkar's posts. The latter eligibility includes the Former eligibility but not vice versa. In otther words a person eligible for grant of exemption from the RQE may still not be eligible for promotion to Mukhtiarkar's post because in the case of promotion apart from having exemption from the RQE he has to satisfy "other conditions" mentioned in para 4 of the Revenue Department's notification No: 12-223-73-Estt:III, dated 4.9.1977. It is a short para and is reproduced as under:- "No person shall be eligible for appointment as Mukhtiarkar unless he possess initiative, strength of character and good personality and is fit for out door and office duties and to hold independent charge of the post"
22. Keeping the above requirements in view, we had no doubt in our mind that while the learned SMBR cancelled the exemptions granted to above appellants on the grounds not mentioned in the said circulars he had obviously in mind the appellants suitability for promotion to the post of Mukhtiarkar. But question before him was with regard to possessing of eligibility for exemption from passing the RQE. As stated above the three appellants namely M/s. Sher Mohammad, Jan Mohammad and Mohammad Ilyas had fulfilled the conditions mentioned in the said circulars and therefore possessed the requisite eligibility for exemption from the RQE. Once the learned SMBR granted exemption to such appellants possessing the required eigibilily and in implementation thereof they were put under the necessary training, valueable rights accrued in their favour.
23. Thereafter no order could be passed to distrub or in any manner interfer with such rights. In this connection reference may be made to section 20 of the Sind General Clause Act which reads as under; "where, by any West Pakistan Act a power to issue notification, orders rules, scheme, form and or bye-laws is conferred then that power includes a power exercisable in the like manner and subject like sanction and conditions (if any), to add to, amend, vary, or rescind, any notifications, orders rules, scheme, form by laws so issued."
24. The above section is based on the principle of peoenilientiase (i.e. Power of receding till e decisive step taken). This principle was considered by the Supreme Court in the case reported as Pakistan Vs. Muhammad.Himayatullah Farooqi (PLD 1969 SC 407) wherein it was held; "The authority that has the power to make an order has also the power to undo it. But this is subject to the exemption 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 can not be withdrawn or rescinde to the detriment of those rights." lt was submitted on behalf of above three appellants that following the grant of exemptions to them, they were posted as Assistant Mukhtiarkar for the purpose of necessary training and as such the orders of grant of exemptions were implemented. This is not denied in the written statement filed on behalf of the official respondents. Accordingly we held that consequent upon implementation of the exemptions orders, valuable rights were creatd in favour of the above three appellants which could not be withdrawn or cancelled as has been done by passing the impugned orders by the learned SMBR. Accordingly the said orders of cancellation fo the exemptions were not legally corruct.
25. For the above reasons the orders cancelling the exemptions granted to the appellants Ghulam Mohammad, Mukhliar Ahmad and Mohamad Usman were correctly made and are therefore maintained. The appeals of the said three appellants being without any merit are dismissed with no order as to costs. However, the orders whereby the exemptions granted to the remaining three appellants namely M/s. Sher Muhammad, Jan Mohammad and Muhammad Ilyas were cancelled were not cori ect and are therefore hereby set aside. Their appeals are allowed with no order as to c'osts.Given under our hands and the Seal of this Tribunal on this 11th Day of October, 1990 at Karachi.