' The petitioner was serving as Director Manpower and Training Punjab, Lahore, in the employment of the Government of Punjab and was also the Ex-officio Member/Secretary of the Provincial Training Board constituted under section 5(2) of the National Training Ordinance, 1980 by virtue of a notification of the Government of Punjab dated 30th of July, 1980. By a subsequent notification the Board was reconstituted on 10th of January, 1983.
2. On attaining the age of superannuation Sardar Hadayat Ullah Khan Mokal the petitioner retired from Government service on 31st of December, 1989. However, earlier on 24th October, 1989 the Provincial Training Board considered the proposal for appointment of the petitioner as Secretary to the Provincial Training Board w,e,f, 1st of January, 1990 on the same terms and conditions as were applicable to the post of Director Manpower and Training Punjab from which the petitioner was due to retire on 31st of December, 1989. According to the petitioner, the Board in that meeting approved his appointment as Secretary to the Provincial Training Board but in view of an objection raised by the representative of the Finance Department that the Provincial Training Board was not competent to create the post, it was decided to approach the Director General/Secretary, National Training Board for the creation of the post of Secretary/Adviser in B.S. 19-20 with other benefits as admissible under the rules.
3. In pursuance thereto a letter was addressed by the Chairman, Provincial Training Board/Secretary, Labour Government of Punjab on 5th November, 1989, to the Director- General/Secretary, National Training Board requesting approval for creation of the post of wholetime Secretary/Adviser of the Provincial Training Board Punjab in B.S. 19-20. In his reply dated 10th of November, 1989, the Secretary, National Training Board appreciated the proposal but instead of approving it stated that the powers in that behalf stood vested in the Provincial Training Board under section 7 of the National Training Ordinance (IX of 1980). According to the case of the petitioner, he was offered employment as Secretary, Provincial Training Board vide letter dated 20th November, 1989 of the Provincial Training Board which was issued under the signatures of its Chairman/Secretary to the Government of Punjab, Labour Department, which he accepted and took over the charge as the Secretary, Provincial Training Board on 1st of January, 1990 but the respondents instead of amending the notification of the constitution of the Board suitably so as to provide that the whole time Secretary shall be a Member of the Board, started denying the status of the petitioner as the Secretary.
4. The petitioner has now filed the present petition with the following prayer:- "Under the circumstances, it is respectfully prayed that a direction, in the light of the above submissions, for the amendment of the Notification No, Lab-III/13-23/78-Part III, dated 10-1-1983, to the effect that clause 8 of the notification be amended/substituted with the name of the petitioner as Secretary as per his appointment by the competent authority vide letter Annexure 'G' or respondent No, 1 be ordered to be issued to respondent No, 1.
' Any other relief, under the circumstances; of the case may kindly be ordered."
5. In the written statement filed by the respondents, it was not disputed that a proposal for appointment of the petitioner as Secretary/Adviser after his retirement from the Government Service was prepared but the respondents allege that this proposal was never approved by the Board and as such the petitioner was never appointed by any competent authority as its Secretary.
In this respect it has been pointed out that the petitioner who at the relevant time was working as Director Manpower and Training Punjab, Lahore and also as Ex-officio Secretary of the Provincial Training Board, himself drew up a proposal that in accordance with the decision received from the Secretary National Training Board in his D.O. Letter dated 10th November, 1989, the letter of offer of appointment may be approved. The Chairman of the Board approved this proposal on 20th November, 1989. The position taken up by the respondents is that the proposal to appoint the petitioner as Secretary Provincial Training Board was never approved by the Secretary, National Training Board, and therefore reference to his letter dated 10th of November, 1989 was misleading and it was on account of this fact that the Chairman of the Provincial Training Board was led to approve the proposal submitted by respondents on 19th November, 1989.
6. Raja Muhammad Anwar, the learned counsel for the petitioner contended that the proposal to appoint the petitioner as Secretary of the Provincial Training Board was approved in the 6th meeting of the Board held on 24th October, 1989 in pursuance whereof the petitioner was issued a letter offering him appointment which he not only accepted but also took over as Secretary of the Board and as the decision of the Board and the appointment of the petitioner has been acted upon there is no power of locus poenitentiae left in the respondents and the appointment could not be subsequently withdrawn or cancelled. Reliance has been placed by the learned counsel on the authority of the Supreme Court in the famous case of Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407.
7. Ch. Mushtaq Ahmad, learned counsel for the respondents on the other hand has pointed out that no decision to appoint the petitioner was ever taken by the Provincial Training Board but only a recommendation was made and it was decided to forward the proposal to the National Training Board for its approval. According to the learned counsel this proposal was never approved by either the National Training Board or the Provincial Training Board and for this reason no letter of appointment could be issued to the petitioner by the Chairman of the Punjab Training Board.
8. The National Training Ordinance, 1980 was promulgated on 20th March, 1980. It provides by section 3 for constitution of a National Training Board while section 5(2) authorises each Provincial Government to establish a Provincial Training Board. Section 7 of the Ordinance empowered the National Training Board or a Provincial Training Board to appoint such officers and servants including advisers as it may consider necessary for the efficient performance of its functions.
Subsection (2) provides that the terms and conditions of the officers and servants of each Board shall be such as may be prescribed.
9. A reading of this provision leaves no doubt that the authority to appoint such officers and servants, as may be deemed necessary, vests in and the terms and conditions of such officers or servants are to be prescribed by the Board itself. There is no dispute that it was the Provincial Training Board itself which was competent to appoint a Secretary or the Adviser of the Board. The question which, therefore, falls for consideration is as to whether the Board had appointed the petitioner as the Secretary/Adviser of the Board. After hearing the learned counsel for the parties and perusing the record, the inevitable conclusion is that the answer to this question has to be in negative.
10. From the narration of the facts and the perusal of the various documents placed by the parties on the record, it is clear that the petitioner while in the employment of Government of Punjab as Director Manpower was also the Ex-Officio Secretary of the Provincial Training Board in terms of the notifications dated 30th July, 1980 and 10th January, 1983. There is no dispute that keeping in view the service rendered by the petitioner, it was proposed that on his retirement from the Government service on attaining the age of superannuation on 1-1-1990, the petitioner be appointed as wholetime Secretary on the same terms and conditions on which he was performing his function as Director, Manpower and Training Punjab. This proposal was put on the agenda of the 6th meeting of the Provincial Training Board, Punjab at item No,
5. The matter was deliberated upon in the meeting of the Board which was held on 24th October, 1989. On account of an objection raised by the representative of the Finance Department that the Provincial Training Board was not competent to create any post, it was decided that the Director-General/Secretary of the National Training Board be approached for creation of a post of Adviser in B.P.S. No,
19. The decision which was taken by the Board may be reproduced hereunder:- "It was decided to approach the Director-General/Secretary, National Training Board for the creation of a post of Adviser in BS-19/20 with other fringe benefits as admissible under the Rules."
11. It was in pursuance to this decision that on 5th of November, 1989 a letter was addressed by the Chairman of the Provincial Training Board to the Director-General/Secretary of the National Training Board requesting for the creation of the post of Secretary, Provincial Training Board, Punjab or if that be not possible for the post of Adviser in BPS-19 so that the petitioner could be appointed to that post. Although in its reply dated 10th of November, 1989 the Secretary commended the proposal but he instead approving the same wrote that the power in this half was vested in the Provincial Training Board under section 7 of the National Training Ordinance, 1980. Unfortunately thereafter the matter was never placed before the Provincial Training Board, Punjab in any of its meeting so that the appointment of the petitioner could be approved.
12. Reliance of the learned counsel for the petitioner however, was on the minutes of the meeting held on 24th October, 1989 and the decision taken therein. But these minutes do not advance the case of the petitioner as no final decision to appoint the petitioner was taken by the Board in that meeting but instead it was decided to approach the Secretary of National Training Board for sanction of creation of the post to which the petitioner could be appointed. The Irovincial Training Board was obviously under the impression that the appointment could only be made if the post of whole time Secretary was created for which purpose the power was with the National Training Board. I am, therefore, unable to agree with the interpretation being placed by the learned counsel for the petitioner on these minutes.
13. The letter of appointment dated 20th November, 1989 does not in any manner improve the case of the petitioner. It is not disputed that the power to appoint the servants and officers vests in the Board itself and not in its Chairman alone. No right, therefore, can be founded on the basis of this letter signed by the Chairman. There is also force in the contention of the learned counsel for the respondent that it was the petitioner himself who was instrumental in having this letter issued.
From the document Annexure R. 5, it is to be seen that on 19th November, 1989 a proposal was prepared by the petitioner to the following effect:- "In accordance with the decision received from Secretary, National Training Board in his D.O. Letter No, PA-NTB/85-Misc., dated 10-11-1989, a letter of offer of appointment has been prepared. Learned Secretary Labour/Chairman, Provincial Training Board, Punjab, is therefore, requested to kindly approve and sign the letter, placed below."
' This note was approved by the Chairman who subsequently issued the letter dated 20th November, 1989 (Annexure-G) relied upon by the learned counsel. The authority on the basis of which the appointment letter was issued according to note prepared by the petitioner himself was the decision of the Secretary, National Training Board in his letter dated 20th November, 1989. It is however, obvious from a perusal of that letter (copy of which has been filed by the petitioner as Annexure F to this petition) that no decision whatsoever to appoint the petitioner was taken by the Secretary of the National Training Board who was of the view that the power in that behalf vested in the Provincial Training Board. Although he appreciated the proposal to appoint the petitioner but such an appreciation can hardly be considered to be a decision. As a matter of fact as the Secretary was of the view that the power vested in the Provincial Training Board, he obviously could not take any decision in that behalf.
14. It is not the case of the petitioner that on any subsequent occasion either the Provincial Training Board or National Training Board had considered the matter or approved the appointment of the petitioner. That being the position the C letter of appointment on which much reliance has been placed by the petitioner does not confer any right on him, having not emanated by the competent authority.
15. Much stress has been laid by the learned counsel for the petitioner on the principle of locus poenitentiae as enunciated in Muhammad Himayatullah Farukhi's case. There cannot be any cavil that if an order passed by an authority has been implemented or given effect to or has been acted upon, it cannot b subsequently withdrawn to the detriment of affected persons but this principl has no application when the order is not shown to have been passed by a perso authorised or competent to do so. As no right can be founded on the basis of a order passed or decision made by a person having no authority to do so, the principle of locus poenitentiae has no application. No right can be claimed on th basis of an order which has no existence in law having been passed by a person not authorised to do so. Such an order is not capable of being enforced nor can any benefit be claimed on its basis. In Government of East Pakistan v. Federatio of Pakistan and another PLD 1962 (W.P.) Kar. 353 it was held that a legal right obviously means right recognised by law and capable of being enforced. I Amanul Haq and 2 others v. Punjab Public Service Commission and anothe PLD 1989 Lah. 196, the question before this Court was as to whether the Punjab Public Service Commission was competent to withdraw the recommendation made by it for appointment of the petitioners as Medical Officer in the Province of Punjab. It was contended in the precedent case that as the name of the petitioner had been included in the list of recommendees which had been acted upon the Public Service Commission could not subsequently exclude him from the list.
It was however found that marks actually awarded to the petitioner were much less than those which were understood by the Commission to have been secured by him due to some miscalculation. It was accordingly held that the principle of locus poenitentiae was not applicable.
While dismissing the Constitutional petition it was observed that:- "In my humble view, the plea of locus poenitentiae is not available to a person in case where the order of the action relied upon may be found to be without jurisdiction or in excess thereof. No rights can be claimed or superstructure of rights built upon orders which are void or complete nullity in law. In all the three cases the petitioners are relying on ill-gotten wind-falls as a result of the wrongful acts, errors or accidental or intentional slips on the part of the functionaries of the Punjab Public Service Commission."
The rule laid down appears to be applicable with full force in the present case. As the appointment of the petitioner was not approved by the authority competent to do so under the law, no right can be claimed by the petitioner nor can he maintain this Constitutional petition for the protection of such a right.
' As a result of what has been stated above there is no force in this petition. It is dismissed leaving the parties to bear their own costs.