SYED AAL-E-AHMAD (MEMBER).---Mr. Talib Hussain, Assistant, Office of the Commissioner, Faisalabad Division, Faisalabad has filed an appeal under section 4 of the Punjab Service Tribunals Act, 1974.
2. The brief facts of the case are that the appellant Mr. Talib Hussain, joined service on 2-8-1961, in the Office of Deputy Commissioner, Faisalabad (Lyallpur). Later on, he was appointed as Senior Clerk in the Office of the District Housing Officer/Secretary, District Allotment Committee, Satellite Town, Lyallpur. The appellant was promoted as Senior Auditor with effect from 15-3-1974; without mentioning any pay scale. The question of the classification of the post was accordingly referred to the Anon rally Committee, constituted under the Pay Revision Rules, 1973. Subsequently, under the Pay Revision Rules, 1977, the posts of Senior Auditor, Assistant Housing Officer and Accountant- cum-Cashier were placed in NPS-8.
3. In the meanwhile, during the years 1974, 1975, 1976 and 1977, the following Senior Clerks were promoted as Assistants in NPS-10;
(1) Mr. Fateh Bahadur
(2) Mr. Danial Nathaniel and
(3) Mr. Hakim Ali.
According to the appellant, he had superseded all these officials on his promotion as Senior Auditor. The appellant further submitted that at that time the post of Senior Auditor was equated with the post of Assistant, and he was all the time under the impression that his pay will be fixed in NPS-10.
4. Subsequently, the appellant was also promoted as Assistant with effect from 23-8-1978, but his case for pro forma promotion and the placement of the post of Senior Auditor in NPS-10 remained under consideration of the Department. The appellant was transferred to the Office of the Commissioner, Faisalabad Division on 30-6-1982, as Assistant.
5. The outstanding demand/grievance of the appellant was fulfilled on 26-3-1987, when he was promoted as Assistant with effect from 31-5-1974, and his pay fixed in NPS-10.- The Department, however, withdrew this order on 26-5-1987, from the date of they issue of the earlier order; on the plea that the pro forma promotion granted to the appellant, was without prior approval from the Services & General Administration Department which was a requirement. His appeal against the said order was rejected by the Government. Hence this appeal.
6. We have heard Mr. M.A. Riaz, learned counsel for the appellant and Mr. Javaid Ahmad. Cheema, District Attorney for the respondents.
7. It was contended by the learned counsel that the order dated 26-3-1987, under which he was allowed pro forma promotion to the post of Assistant with effect from 31-5-1974, was passed after due consideration. This order had assumed finality as it had been acted upon and the pay of the appellant fixed in NPS-10. In the circumstances, the principle of locus poenitentiae will apply.
Reliance was placed on the following authorities of the Supreme Court of Pakistan:
(i) PLD 1969 SC 407;
(ii) 1981 SCMR 523
(iii) 1991 SCMR 1414
8. The learned counsel also referred to a number of decisions of this Tribunal, on the basis of the above authorities, especially the case reported as 1981 PLC (C.S.) 835.
9. In reply thereto, the learned District Attorney submitted that Government was fully competent to recall any order, which has erroneously been passed. He also referred to 1985 SCMR 50-51 in this behalf.
10. We have considered the arguments advanced from both the sides in this case and examined the case in detail.
11. According to the Department, the order dated 26-3-1987, granting pro forma promotion to the appellant had been issued without prior consultation with the Services & General Admn.
Department. According to the policy, no pro forma promotion could be granted without prior recommendation of the Departmental Promotion Committee and approval of Services & General Admn. Department as required in their circular letter No. SOR.11 (S&GAD)2--59/78, dated 11-10-1980; as such the order was rightly withdrawn. The Department further contended that at the time of the promotion of the appellant to the post of Senior Auditor on 15-3-1974, no commitment was given to him that his pay will be fixed in NPS-10. The appellant accepted his promotion as Senior Auditor.
Since there was a patent lacuna in the order dated, 26-3-1987, there was no legal bar in its withdrawal. We, therefore, find that the principle of locus poenitentiae does not apply as far as the withdrawal of erroneous order is concerned. However, we feel that the emoluments received by the appellant are fully covered under this principle as he had received the emoluments in good faith and as a result of the Departmental action. Even otherwise, it will be quite harsh for the appellant, who is a low paid employee, to refund the amount, as a result of the withdrawal of the orders.
12: We therefore, accept the appeal to the extent that there shall be no recovery of the emoluments received by the appellant in good faith, as a result of the fixation of his pay in NPS-10, on the basis of order dated 26-3-1987, allowing him pro forma promotion. He shall however, not be entitled to claim seniority on the basis of these orders.
13, There are no orders as to costs
14. ABDUL HAMID KHAN (MEMBER).---I am afraid that undue importance and sanctity has been attached to S&GAD's circular letter of 11--10-1980 which clearly tends to override the statutory provisions of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Under these rules the Departmental Selection/Promotion Committees and Provincial Selection Boards have been constituted to make recommendations for initial recruitment and appointment by promotion or by transfer for posts as may be specified from time to time. The appointing authorities for these posts have been specified in rule 6 ibid. These rules nowhere provide that even after the approval of the appointing authority based on the recommendations of the selection authority (DPC or the PSB, as the case may be) should still be subject to the approval of any other authority. As observed by their Lordships of the Supreme Court of Pakistan in the case reported as PLD 1965 SC 106------------no letters---------issued by the executive authorities could take the place of properly framed rules and they could not override any general rules of the service that had relevance". The implication is clear that executive instructions could take the place of the prescribed rules only if these are issued to fill a vacuum in the rules and further that these are issued by the rule-making authority. "The principle of law that appears to emerge clearly from a long line of authorities is that in order to qualify as statutory rules capable of creating rights and obligations enforceable at law, the departmental instructions must have been issued by the same authority as has, in law, the power to make rules". (PLD 1988 Lah. 553). In another case cited as PLD 1973 SC 144 it has further been held that "if a rule is capable of amendment it could be so amended by the competent authority by means of an instruction embodied in a circular or memorandum". In the instant case the procedure for appointment through promotion has been laid down in great detail in the Punjab Civil Servants (Appointment and. Conditions of Service) Rules, 1974. As already stated, the appointing authorities have been specified and the selection authorities constituted in these rules. Thus, the S&GAD's circular letter dated 11-10-1980 which does not purport to have been issued by or in the name of the rule making authority i.e. The Governor and which requires that the cases of pro forma promotion should be referred to that Department for final approval even if the same had been recommended and approved by the appropriate Selection Committee/Appointing Authority, is, therefore, declared to be ultra vires of the aforesaid rules and is accordingly struck down. Since the orders of pro forma promotion of the appellant were issued by the competent authority on the recommendations of the appropriate selection authority, no locus poenitentiae was left with the concerned authority to recall the impugned orders of pro forma promotion/fixation of pay on the erroneous view that the same had not been approved by the S&GAD. Thus, respectfully disagreeing with my brother Member-II, I allow the appeal and set aside the impugned orders. There are no orders as to costs.
15. AKHTAR HASSAN (CHAIRMAN).--I had the advantage of going through the erudite judgments Written separately by the learned Members. The pro forma promotion granted to the appellant by orders dated 26-3-1987 was recalled later on 26-5-7987 primarily on the ground that it was not approved by the S&GAD as required by their letter No. S.O. (R.I1) (S&GAD) 2-59/78, dated 11-10-1980.
While the learned Member-1I en his leading judgment took the view that approval of the S&GAD was essential for granting pro forma promotion to the appellant, the learned Member-I held a contrary view maintaining that the aforesaid letter was ultra vires the Rule 6 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974.
16. A careful perusal of Rule 6 reveals that it has pre-eminence over all other service rules on the point of competency of making appointment to various posts by relevant authorities mentioned therein. It reads:-- "Notwithstanding anything to the contrary contained in any Service Rules the Authorities competent to make appointment to various posts shall be as follows: It is pertinent to note from the language of the rule that it uses a non-obstante clause meaning thereby that it overrides all other service rules relating to the competence of the relevant authorities in making appointment whether initial or by promotion, which in turn may be either actual or pro forma. The S&GAD letter dated 11-10-1980 Annexure `D' on the other hand prescribes approval of that Department for pro forma promotion. Obviously requirement of such approval by that department falls outside the purview of Rule 6 and stands completely overridden. It will have no efficacy.
17. With respect, therefore, I share the view of learned Member-I, holding that the S&GAD's letter was ultra vires the Rule 6 and hence the pro forma promotion granted to the appellant could not have been recalled on the ground that it lacked approval of the S&GAD.
18. The appeal is allowed by majority view.