Mrs. Zumurad Nasira, a P.T.C. Teacher of Government Girls primary School, Goth Gadra, Bahawalpur, has filed this Constitutional petition seeking a declaration that the order of respondent No. l withholding the issuance of revised pay slip to the petitioner is without jurisdiction, illegal and inoperative.
2. The facts which led the petitioner to petition before this Court, briefly, are that she is serving the Education Department since 21-12-1961. She filed an application on 13-1-1993 seeking leave of the competent Authority to proceed on L.P.R. With effect from 1-2-1993 to 31-1-1994. Respondent No.3 sanctioned L.P.R. Of 180 days inadvertently with effect from 1-2-1993 to 31-7-1993 instead of 347 days for which she was legally' entitled. However, soon after the request for proceeding on L.P.R., the petitioner withdrew her option vide communication dated 4-2-1993. The District Education Officer (W), Bahawalpur allowed the petitioner to continue in service vide order dated 7-4-1993. The petitioner did not avail of even a single day of L.P.R. And has been continuously working as before.
She was allowed move-over in BPS-11 with effect from 1-12-1994 on account of her efficient service.
The Dy. D.E.O. (W) addressed a letter to respondent No. 1 for refixation of her pay in BPS-11 with effect from 1-12-1994. Respondent No. 1, however, declined to accept the request on the plea that L.P. R.
Once allowed cannot be withdrawn.
3. It is submitted by the learned counsel that the stand of respondent No.1 is patently illegal and in contravention of the authorities/judicial decisions on the point; that since the petitioner bad withdrawn her request to proceed on L.P.R. Before she was finally communicated the sanction on 15-3-1993, as such, she shall be deemed to be in service and the objection raised by respondent No. l was without any legal sanction behind and she is entitled to continue in service till superannuation and is also entitled to all benefits attached to the service including refixation of pay etc. In support of his contention the learned counsel has relied upon PLD 1973 Quetta 4 in which almost an identical matter was in issue and the respondent had denied the right of the petitioner to continue in service on the plea that once an option to proceed on L.P.R. Is exercised that is irrevocable in view of para. No.8 of the Memo dated 27-4-1967 of the Finance Department. It was held that notwithstanding the existence of this Memo the petitioner was entitled to withdraw his option despite his having proceeded on L.P.R. And having drawn some pensionary benefits.
4. Comments were called for from respondents Nos.1 and 2. It is submitted by respondent No.1 that service book of the petitioner was indeed received in his office on 12-11-1995 for re-fixation of her pay but it was returned with the observation that the option for retirement/L.P.R. Once exercised is final and cannot be withdrawn as provided in para. No.8 of Compendium of Pension Rules, 1987, as such there was no question of pay fixation after retirement.
5. In her comments respondent No.2 has pointed out that the petitioner had prayed for L.P.R. From 1-2-1993 to 31-1-1994. She was entitled to get 347 days' leave but the competent Authority inadvertently granted her 180 days' leave. Subsequently realizing the mistake, another sanction was granted for full leave of 347 days vide - order dated 15-3-1993. The petitioner, however, filed an appeal on 4-2-1993 before the District Education Officer (W), Bahawalpur seeking withdrawal of her request to proceed on L.P.R. The D.E.O.(W) accepted the appeal vide order dated 74-1993 and allowed the petitioner to continue in service. The petitioner is continuing in service and is performing her duties efficaciously. The department, however, referred her case to respondent No. I for re-fixation of her pay but he declined to do so on certain technical objections. As for move-over the petitioner's claim was conceded by the department.
6. The representative of respondent No. 1, however, argued that aforesaid paragraph 8 of the Compendium of Pension Rules, 1987 was a complete answer to the arguments advanced by the learned counsel for the petitioner and the option once exercised was surely irrevocable and the question of resumption of Government duties after acceptance of her request was a past and closed transaction and no right to receive any benefit in the nature of pay and pension accrued to the petitioner.
7.Arguments have been heard and record perused.
In this case it is clear that the petitioner had applied for proceeding of L.P.R. On 13-1-1993 with effect from 1-2-1993 to 31-1-1994. According to the departmental instructions it is essential that the application for leave to proceed on L.P.R. Should be submitted at least 3 months before actual l proceeding on L.P.R. In this case a margin of 18 days was left between the) commencement of prayed L.P.R., as such, the application was basically; incompetent and ought to have been rejected by the authority. However, even if it is taken, for the sake of arguments that the authority was still competent to consider her request, the final and proper order sanctioning the LPR was communicated to the petitioner on 15-3-1993 whereas the petitioner had already moved an application withdrawing her earlier petition to Proceed' on L.P.R. By means of letter dated 23-1-1993.
It is thus obvious that before proceeding on L.P.R. Or before it could have been sanctioned, the petition ~e had withdrawn her request and she had every competence to do so in view o rule of locus poenitentiae. According to PLD 1969 SC 407 the principle o locus poenitentiae (power of receding till a decisive step taken) is available to Government or relevant authorities--Authority competent to make order has power to undo it. Order, however, cannot be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual. It would be instructive to quote the relevant part of the judgment: "There can hardly be any dispute with the rule as laid down in these cases that apart fret 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 authority. 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."
As for the objection raised by respondent No. l on the basis of para. No.8 above, it may. Be observed that effect and otherwise of this paragraph was under judicial review in PLD 1973 Quetta page 4 Wherein it was held by their Lordships:-- "In all the circumstances discussed, I am satisfied that this memorandum is not a rule, and therefore, the respondents are not entitled to rely on it. On the other hand, as the Additional Finance Secretary's Letter of 13th April, 1967 shows, Government servants were permitted to withdraw their applications for retirement, and as the petitioner sought to withdraw his application because he had submitted it under a genuine misapprehension caused by wrong medical advice, I am of opinion that he was entitled to do so. The learned Advocate-General then feebly submitted that the petitioner could not be allowed to withdraw his retirement application because he had been receiving pension from the respondent. But as the petitioner was always challenging the second respondent's order of 21-5-1969 as illegal, the receipt of pension by him cannot deprive him of his rights. Accordingly it is clear that the petitioner was entitled to withdraw his retirement application and as his claim has been illegally rejected, he remains in service I, therefore, set aside the second respondent's order of 21-51969 and 27-3-1970 as illegal and without lawful authority."
8. In this case the appellate order of the District Education Officer kW), Bahawalpur dated 7-4-1993 whereby the petitioner was allowed to continue in her service after acceptance of her appeal, is a very significant document. After considering the circumstances in the application submitted by the petitioner for proceeding on L.P.R. And improper and wrong sanction of 180 days leave whereas she was entitled to 347 days leave and issuance of subsequent memo for sanctioning the complete leave, the D.E.O. (W), Bahawalpur observed:- "It is, therefore, quite clear that while issuing corrigendum dated 15-2-1993 to the previous sanction, which had become null and void, the request of withdrawal of the teacher dated 23-1-1993 had long before been received in your office. It was, therefore, not proper to issue the corrigendum in the presence of the request of withdrawal of the teacher."
9. It would, therefore, be seen that the petitioner was competent in law to withdraw her option of proceeding on L.P.R. Before it could have acted upon and the order of respondent No. l denying her the benefits of service has no legal sanction behind. The petitioner was in service and still remains in service and there is absolutely no justification for respondent No. l not to issue revised salary slip to her and withholding her pay and other benefits accruing from her service. Respondent No. l is therefore, directed to comply with this order without any loss of the.