' The petitioner was recruited as Forester in the Forest Department, Government of the Punjab. The petitioner was removed from service on 31-10-1973. The appeal was filed before the Services Tribunal by the petitioner which was dismissed on 17-11-1976 and appeal before the Hon'ble Supreme Court was filed which was also dismissed on 7-1-1977 and review application was withdrawn by the petitioner on 1-2-1978 to avail of the opportunity of making representation against his mala fide dismissal before the Martial Law Authorities.
2. The Government re-instated the petitioner on 11-11-1986 with immediate effect and the order of re-instatement was passed in the name of the Governor in exercise of powers conferred upon him under section 22 of the Punjab Civil Servants Act, 1974. In the order of re-instatement it was observed that orders with regard to the period from the date of removal from service to the date of his re-instatement shall be issued separately and the Chief Minister was pleased to pass an order that the petitioner's period of absence from duty i,e, 31-10-1973 to 12-11-1986 be treated as leave of the kind due.
3. The petitioner continued in service till the issuance of impugned order dated 30-6-1994 wherein the order of re-instatement dated 11-11-1986 was revoked with immediate effect. Paras. Nos. 5, 6 and 7 of the impugned order read as under:-- "5. AND WHEREAS the case was re-examined in consultation with the Regulation Wing of the S&GAD and Law Department afresh.
6. AND WHEREAS according to the advice of Law Department "having failed up to the Supreme Court, the orders of removal of Mr. Asmat Ullah Khan, Ex-Forester became final and having ceased to be a civil servant, he could not invoke the provisions of section 22 of the Punjab Civil Servants Act, 1974". As such his orders of re-instatement are without jurisdiction.
7. THEREFORE, in view of the advice of the Regulation Wing of the S&GAD, Law Department and Advocate-General, Governor of the Punjab is pleased to revoke his order dated 11-11-1986 being legally untenable with immediate effect."
4. The respondents filed their report and written parawise comments wherein it was stated that the petitioner had failed up to the Supreme Court and his civil petition for special leave was disallowed by the Hon'ble Supreme Court on 7-1-1973 and Review Petition No, 26-R-77 was also dismissed on 1- 3-1978 as withdrawn. It was further contended that the petitioner had not stopped agitating against his removal from service through political pressure and approached the then Minister for Forest who desired that the case may be reexamined. Accordingly his case was examined by the Department and a note was submitted to the Minister who recommended his re-instatement to the Chief Minister and the Governor at the advice of the Chief Minister, was pleased to approve his re-instatement exercising his powers under section 22 of the Civil Servants Act, 1974 and the petitioner was re-instated with effect from 11-11-1986. The petitioner's request for treating the period of interregnum as leave of kind due was also considered. According to the report a summary was submitted to the Chief Minister and the Regulation Wing pointed out that the petitioner could not invoke the provisions of section 22 of the Civil Servants Act, 1974 as he had ceased to be a civil servant and thus the orders of reinstatement were without jurisdiction and in view of the above summary the matter was discussed with the Law Department and the Advocate-General, Punjab and the Regulation Wing of the Secretariat and it was admitted that thereafter the orders passed by the Governor under which the petitioner was re-instated were withdrawn on 30-6-1994. The main ground for withdrawal of the orders was that the petitioner had failed even in the apex Court of the country and therefore the jurisdiction was not properly exercised by the Governor.
5. I have heard the contentions raised at the Bar. The respondents were properly served and after filing report and written parawise comments they could not plead ignorance about the date of hearing which has been properly listed for today.
6. I have given my considered thoughts to the proposition and the facts as contained in the petition as also in the written parawise comments. Although the respondents have not challenged the maintainability of the present petition before this Court on the ground of Article 212 of the Constitution of the Islamic Republic of Pakistan but I feel that the impugned order has been passed by the Governor of the Punjab who was the Fountain Head of all powers in the Province, the petitioner has no efficacious remedy to avail from the Punjab Services Tribunal. The petitioner was re-instated in 1986 and was continuously in service. A vested right to serve had thus vested in the petitioner and the same could not be taken away after almost eight years and therefore, this Court had the jurisdiction to entertain the petition under Article 199 of the Constitution of the Islamic Republic, 1973 as due process of his removal from service was not adopted in the present case.
Reliance may be placed on Dr. Gulab Sher v. Government of N.-W.F.P. Through Chief Secretary and 4 others (1995 CLC 574) (Peshawar); Pakistan through the Secretary, Ministry of Finance v.
Muhammad Himayat Ullah Farukhi (PLD 1969 SC 407), Sakhi Muhammad v. Wali Muhammad (1974 SCMR 106), Muhammad Iqbal Khokhar and 3 others v. Government of the Punjab (PLD 1991 SC 35) and M/s. Army Welfare Sugar Mills Ltd. And others v. The Federation of Pakistan and others (1992 SCM R 1652).
7. The Governor of the Punjab had exercised his power under section 22 of the Civil Servants Act, 1974 and section 21 of the General Clauses Act (Act X of 1897) was relevant for the decision of the case on merits. There is no cavil with the proposition that the authority competent to make an order has power to undo the same but such order cannot be withdrawn, revoked or rescinded once it had taken legal effect. In the present case the petitioner had reported duty admittedly on 12-11-1986 and a certain right accrued in his favour and the principle of Locus Poenitentiae would be available to him. Reference may be made to "Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayat Ullah Farukhi PLD 1969 SC 407). The principle of promissory estoppel was discussed in M/s. Army Welfare Sugar Mills Ltd. And others v. The Federation of Pakistan and others (1992 SCM R 1652) and their lordships in the Supreme Court had held that the said doctrine was available in Pakistan against the Government and its functionaries with the following limitations:-
(i) The doctrine of promissory estoppel cannot be invoked against the Legislature or the laws framed by it because the legislature cannot make representation;
(ii) Promissory estoppel cannot be invoked for directing the doing of the thing which was against the law when the representation was made or promise held out;
(iii) No agency or authority can be held bound by a promise or representation not lawfully extended or given;
(iv) The doctrine of promissory estoppel will not apply where no steps have been taken consequent upon the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and
(v) The party which had indulged in fraud or collusion for obtaining some benefits under the representation, cannot be rewarded by the enforcement of the promise".
8. The Hon'ble Supreme Court in "Raja Muhammad Nawaz v. Government of the Punjab" (1981 SCM R 523) had dilated upon the principle of animus revertendi or locus poenitentiae and in the said case it was held that the petitioner was appointed by the Competent Authority who had relaxed the rules to such an appointment on condition of certain undertaking and surrender of certain rights and the appointee duly fulfilling such conditions even the reversion to the lower rank was held to be not justified.
9. This question was also examined in "Government of the Punjab through Secretary (Services)
SGA&ID, Lahore v. Rao Shamsher Ali Khan and 45 others 1992 SCM R 1388), by the Hon'ble Supreme Court.
10. The sole ground taken by the Governor of the Punjab in revoking the previous order passed on 11-11-1986 was that the Governor was advised to do so by the Relation Wing of the S&GAD, Law Department and Advocate-General, Punjab. I shall have to refer to Article 105 of the Constitution of the Islamic Republic of Pakistan, 1973 under which the Governor of Province was to act either on the advice of the Chief Minister or on the advice of the Cabinet and the Constitution nowhere provides that the Governor was supposed to act on the advice of the Regulation Wing of S&GAD, the Department and the learned Advocate-General of the Province. Any order passed or decision taken on such advice cannot be supported in law. The impugned order, therefore, is declared to be without jurisdiction and passed on the advice of the authorities whose advice was not relevant or even required in passing such orders under the Constitution of Islamic Republic of Pakistan, 1973 and the Governor of Punjab was to exercise its powers under section 22 of the Civil Servants Act, 1974 under the Constitution. The powers of the Governor under section 22 of the Civil Servants Act, 1974 cannot be divorced from the Constitution itself and all orders to be passed under section 22 of the Act supra can only have a legal effect if they are passed in accordance with the Constitution.
The order reinstating the petitioner was passed on the advice of the Chief Minister and the Governor had the absolute authority under the Constitution whereas the impugned order has no legal existence and was not passed under the Constitution by the Governor of the Punjab and is thus stuck down. The impugned order is also declared to be without any lawful effect and the petitioner shall continue in the service of Province, Forest Department.
12. The petition is allowed with no order as to costs.