' CH. HASAN NAWAZ (MEMBER).--We are concerned, in this judgment, with the disposal of nine appeals under section 4 of the Service Tribunals Act, 1973, giving rise to identical questions of law and facts.
2. The appellants in all the nine appeals namely Manzoor Ahmad, Ilyas Akhtar, Ikramuddin, Muhammad Ramzan, Bashir Ahmad, Rafiq Insari, Muhammad Rafique, Abdul Sattar and Naeem Athar were recruited as Telephone Operators on 25-11-1960, 8-4-1961, 1-6-1960, 24-5-1961, 27-8- 1960, 12-9-1961, 2-5-1961 and 1-6-1960 respectively. They were all deputed on different dates for training in T.O-I Course for three months' duration. In each case, the order of deputation said that their services are terminated and they were entitled to draw stipend per month at different rates during the period of training. After the conclusion of training course they were appointed as Telephone Operators on regular basis against existing vacancies in different divisions.
3. Through covering letter dated 21-9-1982 (Annexure A/9), tentative seniority list of Telephone Operators was issued by the department. The letter said that the list was based on substantive appointments as Telephone Operator and that it has been prepared in accordance with the directions issued by the Director General, Telegraph and Telephone through letter No, Staff (I) 13- 10-74 dated 15-8-1975. With the exception of Ikramuddin of Appeal No,155(L)/86, the appellants were mentioned in the aforementioned order, against serial numbers 400, 401, 406, 398, 474, 413, 411 and 472 of the list.
4. Then, through covering letter dated 13-5-1985, two other provisional seniority lists were circulated. List-A was of those Telephone Operators who had been appointed uptil 19-11-1962 whereas list-B was in respect of Telephone Operators appointed from 20-11-1962 to 5-2-1964. The list attached by the appellants with this letter is incomplete and it is not clear in which of the two categories it falls. Anyway, the appellant's names have been mentioned in the same order against serial numbers 275, 276, 273, 278, 274, 299, 284, 282, and 298 of the list. Like in the case of previous list, objections, if any, were invited from all concerned against the list. It may be mentioned that in accordance with the appellants' case. Their names were shown in these lists in accordance with the dates of their original appointments as Telephone Operators, before their deputation to the training course.
5. By order dated 13-7-1985 (Annexure A/11), the appellants were granted BPS-9 (Scale: 600-29- 1200) after clearance by the Departmental Promotion Committee and approval of the competent authority "with immediate effect or from the dates they took over charge at their respective stations." The order said that they continued to be borne on the strength of Telephone Operators.
This order was given effect by the office of Divisional Engineer Telephone (Services) Faisalabad, as is borne out by letter dated 8-8-1985 (Annexure A/12), which said that BPS-9 had been granted to them with effect from 1-1-1984. It may be pointed out as a matter of fact, that under order dated 13- 7-1985, there was a note to the effect that "it was subject to revision on disclosure of facts which might have escaped notice inadvertently." Likewise, at the end of order of implementation dated 8- 8-1985, there was a note saying that "these orders are subject to modification/cancellation on disclosure of facts which might have escaped notice inadvertently.
6. Subsequently, the Director General ordered the revision of aforementioned seniority list dated 17- 9-1985 (Annexure A/13) on the ground that some officials had been given BPS-9 without taking into consideration the fact that there had been some break in their service on account of three months' training. This letter makes the following reading: "PAKISTAN TELEGRAPH AND TELEPHONE DEPARTMENT OFFICE OF THE DIRECTOR GENERAL ' No, Staff(I).39-7/84 Islamabad, the 17th September,1985 General Manager, Central Telecom: Region, Lahore ' SUBJECT: FIXATION OF SENIORITY OF T.Os. IN CTR ' Ref: Your office No,SA/Y-534/TO/V/3 dated 21-4-1985 ' A meeting was held in the Conference Room of T & T DTO-General on 16-9-1985 in which General Manager C T R, Asstt. General Manager C T R, Chief Engineer (S&E), Director (Establishment), Asstt.
Dy. Director-General (S-I) and Accounts Officer (PA&P) participated. The matter was thoroughly examined and it has been observed that while fixing seniority of Telephone Operators in C T R vide the letter cited above, the region had overlooked the break in service of several Telephone Operators when they were sent for T.O-I training as a result of which the seniority of Telephone Operators has not been correctly fixed. Therefore, it was decided that the region may revise both their lists A & B taking into consideration the break in service of Telephone Operators during their training period. This would mean that the date of appointment of the Telephone Operators shown in column 8 of the Seniority list would be the date of their continuous and regular appointment in the cadre in most of the cases and their seniority can be fixed on this basis. Region may therefore prepare one consolidated list from both lists A & B as Part-I of the Seniority list covering all Telephone Operators regularised upto 1964 which are included in the existing lists of A & B.
Sd/-- 17-1-85 ' Received 0/C Asstt. Dy. Director-General (S-I)"
(Sd.)--17-9-85
7. In pursuance of this letter, a revised tentative seniority list of Telephone Operators brought in service uptil 1964 was put in circulation through letter dated 27-11-1985. It mentioned that this list had been prepared in accordance with dates of appointment after Telephone Operators had qualified in the training course in accordance with Director General's letter dated 17-9-1985 (Annexure A/13). Here again, objections were invited within 30 days of the circulation of the list. At the bottom we find a note to the effect that the list is liable to the change/modification on disclosure of facts which inadvertently might have escaped notice of the concerned Authority.
None of the appellants figured in this list.
8. The appellants filed appeals/representations against this list on 19-12-1985 to the General Manager (CTR) Lahore (Annexure A/15 to Annexure A/15-8). It was pleaded in these representations that the training course did not bring about any break in their service and they should have been shown in the seniority list in accordance with the dates of their original appointment before they had qualified in the course. It was prayed that the seniority list issued through letter dated 27-11- 1985 may be cancelled.
9. However, before these representations had been decided, a telegram (Annexure A/16) was issued by the General Manager, Central Communication Region, Lahore (respondent No,3) on 17-2- 1986 whereby the earlier order of 13-7-1985 granting BPS-9 to the appellants was cancelled. The Divisional Engineers concerned were asked to submit compliance reports after implementation of the order. The appellants again addressed departmental appeals (Annexures A/17 to A/17-9) to respondent No,3, which proved abortive and they came to the Tribunal, after expiry of the statutory period of 90 days, with the present appeals where the following two prayers were made: First, the Tribunal may "accept the appeals and strike down the impugned seniority list dated 27-11-1985 and set aside order/telegram dated 17-2-1986." The second was that "the seniority list dated 27-11-1985 prepared by the respondents ignoring the continuous dates of appointment of the appellants in service be set aside and directions may graciously be issued to the respondents to include the names of the appellants in the seniority list of Telephone Operators in BPS-9 on the basis of continuous service without considering any break because of intervening training".
10. In support of the reliefs sought by the appellants, their case is that the period of deputation did not bring about any break in their service and that their names had rightly been mentioned in the earlier seniority lists prior to 27-11-1985 on the basis of their continuous service from the dates of original appointments. Another ground in support is that order dated 13-7-1985 granting BPS-9 to them with effect from 1-1-1984, had been implemented and acted upon and that it could not be cancelled or withdrawn on the principle of locus penitential. It was pleaded that arrears of pay had also been paid to them with effect from 1-1-1984 in accordance with BPS-9 and that they have ever since been drawing pay in that Scale. Since the order had taken legal effect, it could not be rescinded by the Authority and the telegram of 17-2-1986 was unlawful and of no legal effect. It is also in their pleadings that irrespective of the intervening period of training course, they were entitled to be mentioned in the seniority list of 27-11-1985 at the appropriate place in accordance with the dates of their original appointments.
11. In defence, it was pleaded that the appellants original appointments were purely on temporary basis and their services were terminated before they were deputed for three months' training course. They were appointed as Telephone Operators on regular basis after the year 1964, which explains their absence from the list. It was pleaded that since they did not agitate the matter at the time o their appointments on various dates in the year 1965-1966, the appeals are time barred.
Higher BPS-9 was granted to them on the basis of provisional seniorit list of 13-5-1985 which was subsequently cancelled and the order dated 13-7-198' granting BPS-9 was rescinded after it had been deprived of its basis. It was further pleaded in defence that there was no legal justification for counting the appellants' employment of pre-training period.
12. It will be worthwhile to mention that on 14-10-1986, when the appeal came up for admission before the Tribunal, it was submitted by the appellants learned counsel that the prayer against the seniority list of 27-11-1985 may not be taken into account because necessary parties had not been impleaded. H. Submitted that his second prayer regarding cancellation of telegraphic order dated 17-2-1986 rescinding the earlier order of 13-7-1985 may be considered. The result is that before us, there is no appeal for cancellation of the seniority list of 27-11-1985 and all what the appellants now seek is the cancellation of order dated 17-2-1986 which purports to rescind the competent authority's earlier order of 13-7-1985 granting BPS-9 to them.
13. Therefore, before proceeding further in the matter, to make an address to the point of limitation and examine the case on merits, we are required to see whether it would be possible, without offence against any law, to grant the requisite relief without disturbing or in any manner revising the seniority list of 27-11-1985. There is no dispute about the fact that the earlier order of 13-7-1985 granting BPS-9 to the appellants was withdrawn by order dated 17-2-1986, only because the appellants' names did not figure in the seniority list of 27-11-1985, which had been prepared, as already noticed from letters dated 17-9-1985 and 27-11-1985, on the basis of dates of appointment after the training course had been passed. The seniority list of 27-11-1985 was prepared in compliance with the decision 'conveyed by the Director-General through letter dated 17-9-1985 which was the result of thorough examination by all concerned. It was observed that while fixing seniority of Telephone Operators, the Region had overlooked the break in the service of several Telephone Operators when they were sent for the training course. The competent authority came to the conclusion that the seniority of Telephone Operators had not been correctly fixed. It was, therefore, decided that the Region concerned may revise the list after taking it into consideration the break in service of Operators caused on account of the training course. It was laid down that the dates of appointment shown in column No, 8 of the seniority list would be the dates of their continuous and regular appointment in the cadre in most of the cases and their seniority would be fixed on that basis. The letter gave a direction to the effect that a consolidated list covering all the Telephone Operators regularised upto 1964 may be circulated. Since the appellants had not passed the course till the year 1964, their names were not mentioned in that list, irrespective of the fact that they had been mentioned in the previous provisional lists on the basis of the dates of their initial appointments.
14. It is thus clear, and there appears to be no dispute between the parties on this point, that basis for the grant of BPS-9 was provided by the tentative seniority list circulated in the first instance through letter dated 21-9-1982 (Annexure A/9) and then through letter dated 13-5-1985 (Annexure A/10) where the names of the appellants had been mentioned, in accordance with the dates of their initial appointment, in column No, 6 of the list, even though they had cleared the training course in the years 1965 and 1966. For the sake of emphasis, in view of the importance of the point, we can afford to repeat that both the orders, first passed on 13-7-1985 granting BPS-9 to the appellants and the second on 17-2-1986 rescinding the first, were the result of seniority lists circulated on 13-5-1985 and then on 27-11-1985. In other words, order dated 13-7-1985 is linked with the seniority list dated 13-5-1985 whereas subsequent one of 17-2-1986 is the result of seniority list of 27-11-1985. What necessarily follows is that the maintenance of order dated 13-7-1985 would amount to the maintenance and preservation of seniority list of 13-5-1985, whereas upholding of impugned order dated 17-2-1986 would involve the sustenance of subsequent seniority list of 27-11- 1985. Therefore, under the circumstances, the impugned order of 17-2-1986 cannot possibly be struck down without cancellation of the seniority list of 2711-1985, which the appellants do not want us to do and rightly so because the persons to be affected have not been impleaded as parties.
Since the impugned order is wedded with the seniority list of 27-11-1985, the withdrawal of prayer regarding that list, amounts to automatic withdrawal of other relief regarding setting aside the impugned order of 17-2-1986. We have no doubt that under the aforementioned circumstances, relief sought by the appellants cannot possibly be granted without disturbing the seniority list of 27-11-1985, which cannot be done merely because the persons going to be affected are not before us. We find it difficult to comprehend how the appellants' learned counsel wants us to grant the requisite relief while conceding that the seniority list of 27-11-1985 cannot be disturbed in the absence of necessary parties. We cannot legally afford to uphold the order of 13-7-1985 without reviving the tentative seniority list of 13-5-1985, which merits apart, according to the department's case, proceeded on wrong view of the matter and involved an offence against those Operators who had cleared the training course at any time uptil the year 1964.
15. Before coming to any definite conclusion on this point, we might as well take notice of another aspect of the matter. It becomes available from the fact that, like the orevious one, the seniority list of 27-11-1985 was also tentative. On the basis of Supreme Court authority in S.H.M. Rizvi's case PLD 1981 SC 612 where it was held that a provisional seniority list does not amount to a final order as would justify an appeal under section 4(1) of the Act, it may be pointed out that the provisional seniority list did not provide the appellants with a cause of action and that they were not within their rights to challenge its validity in accordance with Supreme Court's ruling and that they had no alternative but to ask the Court, as they have done at the admission stage, that they are not seeking any relief in respect of the seniority list of 2741-1985 and that all they ask for is the cancellation of order dated 17-2-1986.
16. It may be so, but then they should not have assailed the validity of this list in their appeals. Their pleadings show that the entire structure of their case is based on the seniority lists of 13-5-1985 and 27-11-1985, and it could not have been otherwise, because, as already pointed out, the relief regarding cancellation of order dated 17-2-1986 cannot possibly be granted unless the seniority list of 27-11-1985 is struck down. The appellants had no alternative but to rely upon he seniority list of 13-5-1985 in support of their case for the grant of BPS-9 and he prayer that the subsequent order regarding withdrawal of this grant may be et aside; which means that they had no choice but to assail the seniority list of 7-11-1985. If this be so, they could have done it only by impleading those who re going to be affected by the cancellation of order dated 17-2-1986; on whose behalf it can be argued that if the grant of relief sought by the appellants is bound, as it is, to involve the modification and cancellation of seniority list dated 27-11-1985, they have got the right to be heard before it is done.
17. There is yet another aspect of the matter. As already noticed, the appellants' counsel did not press the appeals against the seniority list of 27-11-1985 at the time of admission and he asked the Tribunal to consider only the relief sought in respect of telegraphic order dated 17-2-1986. During the course of arguments, he took pains to convince that he could legally adopt this course and that we can grant the requisite relief without adverting to the seniority list of 27-11-1985. For the reasons already mentioned, we feel that the learned counsel's contention is not tenable. However, it may then be advocated that since the impugned order of 17-2-1986 proceeds only on the basis of a provisional seniority list, it may be struck down for that reason alone and the respondents be directed to finalise the seniority list before depriving the appellants of the benefits of BPS-9 already granted to them. If this be the line of thinking, how can it be possible to escape from the fact that earlier order dated 13-7-1985 granting BPS-9 to the appellants is also based on a provisional seniority list of 13-5-1985. Therefore, if the impugned order of 17-2-1986 be held to be of no legal authority on the ground that it is based only on a provisional seniority list, the earlier order of 13-7- 1985, would also be illegal by the same token, exactly for the reason that that too is based on a provisional seniority list. As a matter of fact, the crux of the respondents' case is that the order of 13- 7-1985 could not hold the ground because it was based on a provisional seniority list which was against the factual position and in violation of the rules. Therefore, we hold that the appellants should not have come to the Tribunal with the present appeals for the reason that the seniority list of 27-11-1985 was only provisional and that no final seniority list had yet been circulated. They should have waited for the finalisation of the list to avoid premature appeals. But now if they have chosen to have recourse to the Tribunal, without waiting for the finalisation of the list, praying for the cancellation of order dated 17-2-1986, necessarily involving disturbance of that list, we will have to hold that the appeals are bad for non-joinder of necessary parties; simply for the reason that either the provisional seniority list should not have been made the subject of challenge, or, if it has been done, the affected parties have the right to be heard.
18. As spelled out of the grounds of appeal, the appellant's case in the main is that "the impugned order and the impugned seniority list offend the well-settle principles of locus poenitentiae and Animis Revertendi and that "the orders sine having been acted upon could not be rescinded". There seems to be some misunderstanding regarding the true import of expressions "Locus poenitentia and "Animis revertendi". Locus poenitentiae means the power to rescind withdraw. Animis revertendi conveys "the intention of returning". If this be s then the impugned order has been passed in exercise of rather than offend against this principle. What, in actual fact, the appellants or their learned counsel must have wanted to say was that it was not attracted by the facts of the case a the power of withdrawal was no longer available for the reason that the impugn order had been acted upon. Be it as it is, it is further pleaded that the prayer regarding seniority list is no longer for consideration and we are left only with the impugned order of 17-2-1986 which rescinded the earlier order of 13-7-1985. About this it has been pleaded that the appellants have received arrears of pay and are continuously drawing pay in BPS-9 in implementation of the order and it could not be withdrawn on the principle of locus poenitentiae.
19. However, before dealing with the question of locus poenitentiae, it will be worthwhile to see if there is any substance in the appellants' case on merits. It has been pleaded that the seniority should be determined on the basis of their initial recruitment regardless of the period of training which, according to them, did not cause any break, in the continuity of their service and that it is incorrect to say, as the respondents do, that they were regularly appointed only after having qualified three months' training course. It is alleged that the Telephone Operators were deputed for the training course irrespective of their seniority, with the result that some time junior recruits were sent for training earlier than their seniors. It is, further, alleged that this did not, however, disturb their seniority which was maintained in accordance with the initial dates of their joining the department.
20. There is nothing, however, on the record to substantiate the appellants' case. In the first place, the orders of their initial recruitments in the department, have not been produced by them, to enable us to determine the nature of their appointment. The respondents have placed certain documents on the record which bear out that the appellants' services were terminated on- deputation for the training course and that they were regularly appointed in the cadre only after having qualified the course. These documents show that their original recruitment was only provisional and that their seniority was to be reckoned with effect from the date of their appointment after passing the training course. In any case, the appellants have not been able to produce either any document or rule which could have supported the assertion that the seniority of Telephone Operators was to be determined on the basis of their dates of initial recruitments in the department. The pleadings on this point have not been substantiated by any reliable evidence.
Therefore, we feel constrained to conclude that the seniority of Telephone Operators was to be determined in view of the dates of their regular appointment after clearance of the training course as decided by the department, in consequence of a meeting on 16-9-1985 (Annexure A/13).
21. Adverting to the contention regarding non-availability of locus poenitentiae reliance has been placed by the appellants' learned counsel on the ollowing authorities:
(i) Rao Abdul Jalil Khan v. Addl. I.-G. Of Police Punjab and another 1983 PLC (C.S.) 1042.
(ii) Pakistan through Ministry of Finance v. Muhammad Hamiyatullah Farukhi 1969 PLD SC 407.
(iii) Muhammad Aslam Khaki v. Vice-Chancellor, Gomal University, D.I. Khan 1980 PLD Pesh.
128.
22. In 1983 PLC (C.S.) 1042, decided by Punjab Service Tribunal Rao Abdul Jalil Khan v. Addl. I.-G. Of Police Punjab and another the appellant was given presumptive seniority as A.S.I. With effect from 1-4-1945 on account of war service benefits and was thereafter promoted to the rank of Sub- Inspector selection grade, Inspector, and Deputy Superintendent of Police from the date from which the official next below the appellant in the cadre of Assistant Sub Inspector was promoted. In pursuance of the Government decision, Notification No, 1443/E-I, dated 21-1-1976 was issued by the Additional Inspector-General of Police granting war service benefits to the appellant. However, he was subsequently served with a notice to show cause as to why Notification dated 21-1-1976 granting war service benefits may not be cancelled. His reply dated 17-5-1979 was not accepted and the Notification of 21-1-1976 was cancelled.
23. In the case of Muhammad Hamiyatullah Farrukhi, an order was made by the then President of Pakistan on 1-10-1959 fixing basic salary of Mr. Hamiyatullah Farukhi at Rs,1,000 per mensem with effect from 8-6-1948, despite the fact that his earlier representation for the same purpose had been rejected by the Prime Minister of Pakistan. The President's order was duly communicated to the Ministry of Communication as also Mr. Hamiyatullah and its implementation thus ensured, became a part of the terms and conditions of service of the respondents. But an order was made by the President subsequently on 26-8-1962 withdrawing his earlier order of 1-10-1959. This was held by the High Court of West Pakistan, Karachi to be without lawful authority and an appeal was preferred by the Government by special leave to the Supreme Court where it was held as follows: "There can hardly be any dispute with the rule that apart from the provisions of section 21 of the General Clauses Act, `locus poenitentiae' i,e, the power Of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception 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 cannot be withdrawn or rescinded to the detriment of those rights."
24. In the case of Muhammad Aslam Khaki PLD 1980 Pesh. 28, the petitioner's applications for admission in LL.M. And Ph.D. Courses in the Faculty of Shariah, Quaid-e-Azam University, Islamabad and in the Institute of Education and Research Punjab for the courses of Ph. D. In Education were recommended by the Vice-Chancellor of Gomal University, Dera Ismail Khan. I consequence of these applications, his admission was approved by the concerned authorities in both the cases. For the Ph.D. Programme 1979-82 he was duly informed by the Institute through letter dated 20-8-1979 that his admission had been approved and he should report for registration, at the Institute on 2nd and 3rd of January, 1980 at 9 a.m. However, before he could be informed of the approval of his admission to the LL.M. Course in the Faculty of Quaid-e-Azam University, Islamabad, recommendations made earlier by the Vice-Chancellor were withdrawn without any information to the petitioner. It was under these circumstances that he invoked the jurisdiction of Peshawar High Court under Article 199 of the Constitution for a declaration that the withdrawal of recommendations by the Vice-Chancellor was without lawful authority and of no legal effect.
25. In this case, Peshawar High Court examined various other rulings in respect of the principle of locus poenitentiae cited at the bar. The first in point of time brought to the Court's notice was Shahbaz v. The Crown where the appellant was convicted for murder and sentenced to death. His sentence was reduced to imprisonment for life by the High Court in appeal. On an application of his brother, the Government of Punjab passed order in early August, 1954 remitting his sentence unconditionally, directing that he should be released on the Independence Day, that is to say 14-8- 1954. But before this order could be carried out, it was cancelled on 13-8-1954 with the result that he was not released on the Independence Day. On this an application was filed in the High Court on his behalf for the issuance of a Writ of "habeas corpus" but the same was dismissed. His appeal to the Federal Court met the same fate, because the order of cancellation by the Government had been passed before the date of release and the power to recede, otherwise known as locus poenitentiae had been exercised before taking of a "decisive step". "Decisive step" in the circumstances of the case, was thus considered to be the stage where the order was carried into effect. Since this stage had not been reached, there existed no reason to restrict the power of the Government to modify or cancel its earlier order.
26. The decision in Shahbaz v. The Crown again came under consideration of the Supreme Court in appeal against the judgment of the Full Bench of East Pakistan High Court in the case of Lt.-Col. G.L.
Battacharya. The Full Bench had come to the conclusion that by communicating the Provincial Government's order of remission to the Superintendent of the Central Jail, the Superintendent receiving the order and recording it in the prisoner's history ticket, a 'decisive step' had been taken with regard to the order of remission of which the petitioner was entitled to claim the benefit. The Full Bench rejected the plea raised before it by the Advocate-General, based upon certain observations in the case of Shahbaz that until the actual date of release, as fixed by the order of remission, it had not become effective. The Full Bench distinguished the decision in the case of Shahbaz on the ground that the right of release in that case was fixed to take effect upon a particular date, and could not be claimed until that date arrived, so that the order could be withdrawn by a fresh order of the Provincial Government before the date. Their Lordships of the Supreme Court endorsed the view of the Full Bench that "it was immaterial if the prisoner had been actually released or not and that the important consideration was that the prisoner had acquired the right to claim benefit of the remission granted by the Provincial Government". -
27. The other case was that of Sh. Muhammad Nawaz 1973 PLD Quetta 14. The petitioner in this case "was appointed Overseer in Quetta Region in 1958, was charge-sheeted on 12-6-1968 for misconduct and corruption and after necessary proceedings under the relevant rules, was dismissed from service by the Chief Engineer on 18-6-1969. He preferred an appeal against this order to the Secretary, Irrigation and Power Department. The Secretary accepted his appeal on 18- 4-1970 ordering his reinstatement subject to certain conditions. Subsequently on 9-6-1970, however, he cancelled his earlier order dated 18-4-1970 withdrawing the order of reinstatement of the petitioner. This order was challenged by him in writ petition before the High Court of Sindh and Balochistan at Quetta and it was contended on the authority of the two cases of the Supreme Court "Pakistan v. Himayatullah Farrukhi" and "Lt.-Col. Battacharya v. The State" that the order dated 18-4-1970 by which petitioner's appeal had been accepted and his reinstatement ordered had come into effect and created a vested right in his favour, which the Government was not competent to revise or cancel subsequently. It was urged on behalf of the Government that the order of Secretary, Irrigation dated 18-4-1970 had not taken effect, as the petitioner had not been re-instated and as appeared from his petition, he was still seeking his reinstatement. It was held that:-- "The dictum laid down by their Lordships of the Supreme Court thus appears to be that as soon as an order of the competent authority is communicated to an agency or officer which or who is required to carry it out, the order is deemed to have become effective. In the instant case, the order of the Secretary, Irrigation having been communicated to the Chief Engineer, who was bound to carry it out, the petitioner and the Accountant-General, is deemed to have become effective when it was so communicated.
(ii) Since the two impugned orders of the Secretary Irrigation, dated 25-4-1970 and 9-6-1970 first staying and then withdrawing his order dated 11-4-1970 were passed in purported exercise of the rule laid down in section 21 of the General Clauses Act that an authority competent to pass an order has also the power to vary or revise that order, or the right of locus poenitentiae, i,e, the power of receding till a decisive step is taken, available to Government, that power could only be exercised, as laid down by the Supreme Court in the aforesaid two reported cases, before the order of 18-4-1970 had taken legal effect and certain rights had been created in pursuance thereof. We have already indicated that the said order of 18-4-1970 had become effective and created a right to the petitioner to be re-instated in service."
28. The case of Dr. Mahboob Rabbani also came up for consideration. It proceeds more or less on the same premises. "He was a Professor 0f Pharmaceology in the King Edward Medical College, Lahore. He was o superannuate on 13-9-1957. On 12th of September, 1957, a day earlier than his retirement, he applied to the Director of Health Services that he should be granted his earned leave to be enjoyed by him after his retirement as provided under the relevant rules. The Government sanctioned his earned leave for 28 days with effect from 13th of September, 1957. This order was duly notified in the official Gazette dated 27-9-1957 and the petitioner became entitled to enjoy his leave as from that date. The Government again by its letter, dated the 7th of August, 1958, cancelled the leave granted to the petitioner. The petitioner challenged this order in writ jurisdiction. The order impugned was defended on behalf of the Government on the ground that "though the Governor granted the leave to the petitioner after the date of retirement he could cancel it by virtue of the provisions contained in section 21 of the General Clauses Act". The plea was rejected. It was held that Government had no power to cancel, under section 21 of the General Clauses Act, its order which had already come into operation".
29. Yet another case in point was that of Pakistan and another v. S. Hussain Ali Shah, A. Fazalani (1960 PLD SC 310)." In that case an import licence for an Indian Cinema film was granted to the respondent in accordance with the declared policy of the Government. The licence was, however, later cancelled. But the authorities furnished no explanation to the respondent for their act of cancellation. At the hearing of the writ petition brought by him in the High Court, the plea was put forward that respondent's application for import licence was not accompanied by a Banker's certificate showing that the money earned by the film he exported had been repatriated and that he had no legal right to the grant of an import licence. The learned Judges in the High Court noted that it was only upon fulfilment of certain conditions by the petitioner that he became entitled to, and was granted, the import licence which was later cancelled, and observed: "Having acted upon the invitation of the respondent and having fulfilled the conditions which involved financial commitments, he did acquire a legal right to an import licence of equivalent value". And their Lordships in the Supreme Court gave their full agreement to the views of the learned Judges".
30. After examination of all these authorities, Peshawar High Court held as follows:-- "Thus, necessity and existence of the power to vary or recall the wrong steps taken in case of all authorities empowered to pass orders is recognised by all. There also seems to be a consensus of judicial opinion that apart from the provisions of section 21 of the General Clauses Act, the power of receding i,e, 'locus poenitentiae' is available to such authorities till the order (being rescinded) has taken legal effect. But where the order has taken legal effect, and in pursuance thereof certain rights have been created in any individual, 'decisive step' will be deemed to have been taken and thereafter the order cannot be withdrawn or rescinded to the detriment of those rights. Then the authority issuing such order would be precluded from doing so. Nor it is necessary in all cases that 'locus poenitentiae' or the power to rescind or recall an order shall exist until a thing intended by the order has actually happened, such as prisoner in pursuance of an order of remission is released from custody. And in the words of Full Bench of East Pakistan High Court which I borrow with reverence, it is immaterial if the prisoner has been actually released or not. The important consideration is 'that the prisoner had acquired the right to claim benefit of the remission granted by the Provincial Government'."
31. A careful application to these authorities would show that in every case, the orders withdrawn or rescinded were legal and had been passed by the competent authorities. In not a single case under examination, either the order had been passed by an incompetent authority or though passed by a competent authority, was otherwise illegal. Therefore, it can be concluded that the limitation on locus poenitentiae or the power to rescind or recall the order namely that it can be exercised only before that order has taken legal effect, is applicable only to those cases where that order is lawful and has been passed by a competent authority. It would not be applicable to those cases where the order is incompetent, or otherwise illegal, simply because no law is meant to perpetuate an illegality. The rule laid down by the superior Courts in all these cases emanates from the consideration that a valuable right once created in favour of a party, "in consequence of a lawful order passed by a competent authority" cannot be withdrawn to the detriment of that party.
32. In the context of these considerations, locus poenitentiae or the power to recall the earlier order of 13-7-1985, was available to the competent authority, because it was unjustified and illegal on account of having proceeded on a provisional and wrongfully prepared seniority list of 13-5-1985; more so, as we have already noticed, when it had been made absolutely clear in order dated 13-7- 1985 granting BPS-9 to the appellants that it was subject to revision on disclosure of facts which might have inadvertently escaped notice of the competent authority. In consequence of deliberations of the Director-General and other superior officers of the department, it was discovered that while fixing seniority of the Telephone Operators in the seniority list of 13-5-1985, the Region had overlooked the break in service in case of several Telephone Operators which came about on account of the training course. The obvious result was that grant of BPS-9 to the appellants was detrimental to certain other persons who had qualified the course and were finally regularly appointed long before the appellants. We do not find it possible to hold that wrong done to those persons can be made to exist for all times to come under any principle of law. Since order dated 13-7-1985, granting BPS-9 to the appellants was basically incorrect, no legal effect can be deemed to have been given to a wrong order, irrespective of whether it had been acted upon.
33. Furthermore, since the impugned order of 13-7-1985 had only a wrongly prepared provisional seniority list for its basis, it obviously did not create any right as would attract the application of the rule laid down in these authorities. As already pointed out, it is not possible to conceive a situation where large number of ex parte Telephone Operators can be made to suffer throughout their service, merely because a wrong order has been acted upon and some Operators junior to them, have started receiving their emoluments in a higher scale of pay. Any other interpretation would reduce the principle of locus poenitentiae and the provisions of section 21 of the General Clauses Act to nothingness; which cannot be the intention of the superior Courts in construing those provisions. If this is not the correct legal position, then, whence would we bring a situation, where the principle of locus poenitentiae and the provisions of section 21 of the General Clauses Act would be pressed into service. We, would, therefore, hold that the rule of law laid down by the superior Courts in the authorities cited at the bar is not attracted to the facts of the present case, where the competent authority has withdrawn an unjustified order. Under the circumstances, locus poenitentiae, that is to say the power to recede, was still available because the order of 13-7-1985 had not taken legal effect and it did not create any right in favour of the appellants, particularly when promotion is not a vested right.
34. Before taking leave of the matter, we might as well take notice of the respondents' objection regarding limitation. It is contended that the appellants should have challenged the validity of the orders of their regular appointments made in the year 1965-66 through departmental appeals. We are of the view, that there is no force in the respondents' contention because the appellants became aware of their position for the first time on circulation of seniority list of 27-11-1985 where their names were not mentioned. They filed representations against this list and then also challenged the impugned orders on 17-2-1986 in departmental appeals (Annexures A/17 to A/17-9) within time before the present appeals. We are inclined to hold that the orders of their appointments after the training course, did not give a clear indication of the fact that their service before the course was not to be reckoned in determining their seniority. This being so, the orders of their regular appointment did not provide them with a cause of action and they were not supposed to challenge their validity in their representations or departmental appeals. It is, therefore, held that the present appeals are within time.
35. For the reasons mentioned above, the appeals are dismissed without any order as to costs.
36. Parties to be informed.