1. ' MR. MAJIDA RAZVI, J.---This petition has been filed by the petitioner against Notification dated 16- 8-1993, whereby the petitioner was directed to report to the respondent No,3, praying that the same be declared inter alia as "uncalled, unwarranted, undesirable, unlawful, mala fide issued with ulterior motive, perverse, arbitrary, abuse of power and unconstitutional and in violation of Fundamental Rights guaranteed in the Constitution". The petitioner has further prayed for reliefs as mentioned in the Prayer Clauses (1) to (5) of the petition.
2. ' The relevant facts, as per memo. Of petition, to dispose of this petition are, that the petitioner was appointed on 15-8-1975 as an officer in the Executive cadre in the Sui Gas Transmission Company, which was subsequently merged with Karachi Gas Company Limited and is presently known as "Sui Southern Gas Company Limited" (respondent No,3). The petitioner continued to serve the respondent No,3 and was later on promoted as Senior Executive in Grade IV. Respondent No,3 has its own Service Rules which do not provide for deputation of an employee serving in the Executive Cadre. On 3-6-1989 a Notification was issued by the Cabinet Secretariat, Government of Pakistan, in consideration of which the petitioner was relieved from his services with respondent No,3 and was appointed as Private Secretary to the Minister for Culture and Sports Government of Pakistan.
3. On 4-1-1990 another Notification was issued by the Deputy Secretary, Cabinet Secretariat, Establishment Division, whereby the petitioner was transferred and posted as Director, Prime Minister's Inspection Commission on deputation but the petitioner continued to work as Private Secretary to the Minister of Culture and Sports till 22-5-1990 when the said Notification was cancelled. On 8-9-1990 when the petitioner was on leave, another Notification was issued by the Cabinet Secretariat, whereby the petitioner was transferred and his services were placed at the disposal of respondent No,3. But, when the petitioner came back from leave, he was retained as Deputy Secretary and a reference dated 19-9-1990 was made to the Establishment Division for withdrawal of the Notification dated 8-9-1990. In consequence of the said reference a Notification was issued on 24-9-1990 whereby the petitioner was posted as Deputy Secretary in Culture and Sports Division. However, by another Notification dated 16-10-1990 the petitioner was posted as Deputy Secretary, Food and Agriculture and the earlier Notification, dated 24-9-1990 was cancelled. On 1-1-991, while the petitioner was serving as Deputy Secretary, Ministry of Food and Agriculture, Government of Pakistan, Islamabad, the Chief Minister of Sindh vide his D.O. Letter to the Establishment Secretary, Government of Pakistan, requisitioned the services of the petitioner in the Sindh Government as Additional Secretary in BPS-19. Accordingly, a Notification, dated 9-1-1991 was issued and the petitioner who was posted as Deputy Secretary, Food and Agriculture Division, was transferred and his services were placed at the disposal of the Government of Sindh for further posting. Vide Notification, dated 16-1-1991 the services of the petitioner were accepted and he was posted as Director, Marketing, Karachi Development Authority. On 16-6-1991, Dr. Ishratul Ebad Khan, the then Minister, Housing, Town Planning, Public Health Engineering, Government of Sindh submitted a summary to the Chief Minister of Sindh for posting of the petitioner as Local Government, Government of Sindh. The Chief Minister approved the said summary and on 17-6- 1991 a Notification was issued whereby the petitioner was transferred and posted with immediate effect as Additional Secretary, Local Government, Public Health Engineering, Rural Department. On 7-8-1991, the petitioner's case was recommended to the Chief Minister for absorption, induction and posting against the permanent establishment of Government of Sindh as an officer in BPS-19.
4. It was also recommended that the petitioner's seniority may also be determined. On 25-2-1992 the petitioner's case was once again recommended for absorption as Additional Secretary on merit and a request was made for issuance of modified Notification for his absorption. Mr. Jam Haider Ali, Advisor to the Chief Minister again requested the Chief Minister on 31-5-1992 for issuance of such notification and the Chief Minister was pleased to order that "he may be absorbed and notification issued". It is alleged that the respondent No,1 (Chief Secretary, Government of Sindh) deliberately and with mala fide intention delayed/withheld the issuance of the notification for absorption of the petitioner in BPS-19 as a permanent officer of the Government of Sindh. As such, a reminder was issued on 18-1-1993 by the then Minister, Public Health Engineering Department, Government of Sindh, for issuance of the said Notification as per orders of the Chief Minister but the Chief Secretary still avoided the issuance of such Notification. Again, on 6-4-1993, the Additional Chief Secretary, Local Government submitted a summary to the Chief Secretary for implementation of the orders of the Chief Minister, dated 5-8-1992. The Minister, Public Health Engineering, Government of Sindh, also reminded the Chief Secretary, vide his letter, dated 16-5-1993, for issuance of a Notification to this effect. On the recommendation of the Minister, Public Health Engineering and Rural Development, the Department of Public Health Engineering and Rural Development were separated from the Local Government Department and the petitioner was recommended to look after the working of the newly-created Department. Since this assignment was approved by the Chief Minister, it was sent to the Chief Secretary for issuance of notification but the same was not complied with. On 27-6-1993 the Chief Minister had sent the summary to the Chief Secretary directing him to implement the order, dated 5-8-1992 for the absorption of the petitioner as Additional Secretary in BPS-19 without any further reference to his Secretariat. But this order was also ignored by the Chief Secretary with mala fide intentions. On 16-8-1993 a notification was issued by the Chief Secretary whereby Ghulani Sarwar Khero, an Exh. P.S.S. Officer (BPS-19) was posted as Additional Secretary, Local Government and Public Health Engineering Department while the petitioner was transferred and directed to report to his parent department (respondent No,3).
5. But the copy of the said notification was never forwarded to the said respondent with mala fide intention. The petitioner has filed this petition challenging his transfer on the ground inter alia that the said notification was abuse of power, and usurpation of authority of the respondent No,1 and void ab initio.
6. ' Mr. Sabihuddin Ahmed, learned counsel for the petitioner has raised the following contentions:--
(1) That no terms and conditions of deputation/requisition of service of the petitioner were provided to him;
(2) that once orders were passed and acted upon the same could not be withdrawn; and
(3) that the Chief Secretary could not pass orders for transfer of an officer of Grade-19 or above.
7. ' Mr. K.M. Nadeem, AA.-G, appearing for respondent No,1, has opposed the petition and contended that since no Notification was issued as to the absorption of the petitioner in the service of the Government of Sindh, the petitioner could be relieved and sent back to the parent department. He further contended that since the original order was illegal, section 21 of the General Clauses Act is not applicable and has relied on the case of The Engineering-in-Chief Branch through Ministry of Defence v. Jalaluddin PLD 1992 SC 207.
8. ' We have heard Mr. Sabihuddin Ahmed, the learned counsel for the petitioner as well as Mr. K.M.
9. Nadeem, AA.-G. For defendant No,1, and have perused the record.
10. ' It is an admitted position that no terms and conditions of the deputation/requisition of the petitioner's services were ever provided to him as was confirmed during the arguments by the AA.- G. Now, coming to the merits of the case, the services rules of the parent company applicable to the petitioner's service did not provide any deputation and as such when the petitioner's service was requisitioned by the Federal Government, he was issued a last pay certificate which is dated 7-8-1989. The letter dated 7-6-1989 issued by the respondent No,3, relieving the petitioner's service and forwarding the last pay certificate is worded as under:-- "In compliance with Government of Pakistan, Cabinet Secretariat, Establishment Division, Rawalpindi's Notification No,12/10/88- OMG-I, dated 3-6-1989, this is to advise that you are relieved of your duties in Sui Southern Gas Company Limited, Unit 'C', with effect from 7th June, 1989, to enable you to take up your new assignment as Private Secretary to the Minister for Culture and Sports.
11. ' A Last Pay Certificate is enclosed.
12. ' Yours faithfully ' Sui Southern Gas Company Limited (Sd.)
13. ' For Managing Director."
14. ' This letter clearly states that in compliance with the Government of Pakistan, Cabinet Secretariat, Establishment Division, Rawalpindi's Notification dated 3-6-1989, the petitioner is being relieved of his duties in Sui Southern Gas Company Limited. There is no mention of deputation or any indication that his lien is kept with the respondent No,3 and if the petitioner is relieved by the requisitioning authority, he will be taken back on his original post. But the Notification, dated 4-1- 1990 clearly indicates that the petitioner is transferred and posted as Director, Prime Minister's Inspection Commission on deputation". On 8-9-1990 a Notification was issued transferring the services of the petitioner at the disposal of the respondent No3 but this was never acted upon and a letter, dated 19-9-1990 issued by the Government of Pakistan, Office of the Minister of Culture, Sports, Tourism and Youth Affairs, was issued requesting that the petitioner's service may be made available in the Ministry of Culture, Sports and Tourism and that the earlier Notification may be withdrawn. There was further note on this letter, which is as under:-- "As already advised that Mr. Khatian should continue to work as Deputy Secretary in this Ministry and no transfer/posting be made without my prior approval."
15. ' This letter was signed by the Minister, Mr. Makhdoom Shafiq-uz-Zaman. Another Notification dated 24-9-1990 shows that the petitioner was posted as Deputy Secretary in Culture and Sports Division, Government of Pakistan on deputation in his own pay scale. On 1st January, 1991, the Chief Minister Sindh, Jam Sadiq Ali, wrote a D.O. To Mr. A.R. Siddiqui, Establishment Secretary, Government of Pakistan, Islamabad, requisitioning the services of the petitioner for Government of Sindh in response to which a Notification dated 9th January, 1991, was issued, transferring services of the petitioner at the disposal of the Government of Sindh. The petitioner vide Notification dated 16-1- 1991 was transferred and posted as Director Marketing, K.DA. On 16-6-1991 a summary was prepared and submitted to the Chief Minister, recommending that the petitioner be posted as Additional Secretary and it was approved by the Chief Minister and a Notification dated 17-6-1991 was issued to this effect. Another summary dated 7-8-1991 was submitted to the Chief Minister by the Additional Chief Secretary. In para. IV of the said summary, it was written as under:-- "The Chief Minister Sindh while requisitioning his services, approved his induction and posting against the permanent establishment of Sindh Government as an officer of BPS-19 and as a part of routine Sindh Government can determine the seniority of the officer from the day he joined the Sindh Government (i,e, 12-1-1991). Therefore, the case of Mr. Khatian is recommended for the fixation of seniority in Sindh Government from 12-1-1991 as Chief Minister Sindh has already approved the case of his induction/absorption in Sindh Government."
16. ' The above para. Spells out that while the petitioner's services were requisitioned and kept at the disposal of the Government of Sindh, his induction and posting was already approved by the Chief Minister against the permanent establishment of Sindh Government as an officer in BPS-19. The last line of the same para. Again emphasizes that the Chief Minister of Sindh has already approved the case of his induction/absorption in the Sindh Government. In para. 3 of the summary in regard to the petitioner's case it was mentioned that "the Chief Minister has already decided to absorb the officer in Sindh Government" and further that "there are many precedents of similar cases where the officers have been absorbed in the Sindh Government". Para. 1 of another summary dated 31-5- 1992 shows that the Chief Minister had already issued directives to the Chief Secretary regarding the absorption of the petitioner in the Sindh Government and further in para. 4 of the same letter there is an indication that the "then Chief Minister of Sindh had very kindly already approved the absorption" of the petitioner as an officer of Sindh Government in BPS-19 while posting him as Additional Secretary. In para. 5, the attention of the Chief Minister was drawn that despite his orders neither the summary was put up nor the Notification issued. A handwritten note of the Chief Minister on the summary is:-- "He may be absorbed and Notification issued."
17. ' The petitioner was intimated this decision of the Chief Minister vide their letter, dated 17-5-1993 issued and signed by the Advisor to the Chief Minister Sindh for Rural Development. Yet another letter dated 18-1-1993 issued by the Government of Sindh shows that the Chief Minister of Sindh had already approved the absorption of the petitioner and orders were passed for issuance of Notification and this letter was like a reminder for the issuance of the Notification as per order of the Chief Minister. Yet there are two more reminders dated 6-4-1993 and 16-5-1993 requesting for the issuing of Notification in respect of the absorption of the petitioner. Again a letter, dated 17-6- 1993 was issued by the Minister, Public Health Engineering and Chief Minister Inspection and Evaluation Team, Government of Sindh, stating therein that the Chief Minister has approved the summary.
18. ' But the Chief Secretary instead of following the orders of the Chief Minister for issuance of Notification for the absorption of the petitioner in the Government of Sindh, issued a Notification, dated 16-8-1993, appointing Ghulam Sarwar Khero in place of the petitioner and transferring and directing the petitioner to report to his parent department i,e, respondent No,3.
19. ' The above correspondence clearly shows defiance by the Chief Secretary in complying with the orders of the Chief Minister, and indicates displeasure/anger which amounts to mala fide towards the petitioner. The record shows that several Notifications were issued subsequently in compliance with the Chief Minister's Orders appointing/absorbing, in relaxation of rules, several officers on different posts under the Government of Sindh.
20. ' There is no cavil to the rules laid down consistently that apart from the provisions of section 21 of the General Clauses Act, 'locus poenitentiae' power is available to the Government to rescind decisions till decisive step is taken. But this is subject to exception to cases, where the order has taken legal effect and in pursuance to the same certain rights have accrued to any individual.
21. Such rights once created in favour of an individual cannot be withdrawn or rescinded to his detriment.
22. ' In the present case also, the Chief Minister who is the Chief Executive, had passed orders of absorption of the petitioner in BPS-19 of Government of Sindh and had directed for issuance of Notification to this effect which order was communicated to the petitioner and this created rights in his favour. This principle is laid down in the case of Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407.
23. ' It was further argued that the services of the petitioner were requisitioned firstly by the Federal Government and then by the Government of Sindh, this offer was accepted by the petitioner and thus it constituted valid contract capable of being enforced. In the case of Mukhtar Ahmed and others v. Government of West Pakistan PLD 1971 SC 846 it was observed that:-- "The offer of the Government and its acceptance by the appellants constituted a valid agreement and the Governor's Order, dated 1st July, 1965 provided the authority for such an agreement. This agreement is capable of being enforced in law. The Government was both competent and obliged to implement that agreement."
24. ' The other cases which lend support to the petitioner's case are:--
(1) Muhammad Nawaz v. Government of Punjab 1981 SCM R 523.
(2) Salimullah Khan v. Raqib Khan 1989 SCM R 1879.
25. ' Rule 21(b) of the Sindh Government Rules of Business, 1986, which are applicable to the petitioner, is as follows:-- "21. In addition to the duties and functions assigned to him under any other provisions of these rules, the Chief Secretary shall ---
(a) Not relevant....
(b) exercise, on behalf of the Chief Minister, powers of appointing authority except the power of appointment (other than addition or current charge), transfer, promotion, disciplinary action and matters mentioned at serial numbers. 4, 6, 7 and 20 of Sixth Schedule in respect of officers in B-19 and above;
(c) to (g) .... Not relevant..."
26. ' This rule spells out in unambiguous terms that the Chief Secretary could exercise powers, on behalf of the Chief Minister in respect of appointment, transfer, etc. Of officers except in B-19 and above. As such, the Chief Secretary had no authority to transfer/direct the petitioner to report to his parent department.
27. ' In view of the above discussion, we hold that the impugned Notification dated 16-8-1993, transferring/directing the petitioner to report to the parent department was without lawful authority and of no legal effect.
28. ' The above are the reasons in support of the short order passed on 10-9-1995.