1. MUNAWAR ALI KHAN (CHAIRMAN). ---In this appeal, Mr. Muhammad Ayaz Khan, a Police Inspector, has called in question the I.-G.P.'s Order dated 16-6-1994 whereby the appellant's name was deleted from the list of confirmed Inspectors (hereinafter referred as the confirmation list). The facts leading to the present appeal are these. The appellant joined police service as Assistant Sub- Inspector on 15-10-1972. He was promoted to the post of Sub-Inspector with effect from 9-10-1975 and confirmed in that post on 1-1-1982. On account of his meritorious service record he was brought on ' F' list on 15-3-1990 and promoted as Inspector with effect from 25-3-1990. On his representation his seniority in ' F' list was ants-dated as 24-3-1988 instead of 15-3-1990.
2. Subsequently he was allowed confirmation in the capacity of Inspector out-of-turn due to his excellent performance. But following the decision of the Service Tribunal which was upheld by the Supreme Court, the out of turn confirmation was held illegal. Consequently, the appellant's confirmation as Inspector, like other confirmations in identical cases, was cancelled.
3. Subsequently on the recommendations of the Departmental Promotion Committee, the appellant alongwith number of other Inspectors was confirmed with effect from 15-8-1992, this the obviously on his turn, vide I.-G.P.'s Notification dated 11-5-1994. A little over a month later he was served with the impugned order whereby his name was omitted from the confirmation list. The appellant challenged the said order in review petition filed before the I.-G.P. On 15-8-1994 which was however rejected vide I.-G.P.'s order dated 27-9-1994. The rejection order was received by the appellant on 26-12-1994. As such he filed the present service appeal on 11-1-1995.
4. We heard at great length Mr. Muhammad Aqil Awan for the appellant and Mr. Azizur Rehman on behalf of the official respondents. With their assistance we also went through all the relevant documents.
5. As pointed out earlier the legality of the I.-G's. Order dated 16-6-1994 has been questioned by the appellant. For the sake of convenience the said order is reproduced as under:-- "In view of his involvement in criminal cases, the name of Inspector Muhammad Ayaz Khan (KI77)
6. (under suspension) is hereby deleted from the list of confirmed Inspectors issued under this office Notification No. 9006-66/E.11, dated 11-5-1994."
7. Severally criticising the impugned order, it was contended by the appellant's learned counsel that the said order apart from being vague was arbitrary and capricious inasmuch as that it was passed unilaterally without giving opportunity to the appellant to clarify his position vis-a-vis his alleged involvement in criminal cases. He further submitted that the impugned order was in the nature of punishment which could not be imposed without initiating formal disciplinary proceedings. The learned counsel also added that the deletion of the appellant's name from the confirmation list was nothing but the appellant's de-confirmation which, in the opinion of the learned counsel, not being a prescribed punishment could not have been resorted to on account of the appellant's alleged involvement in criminal cases. In reply to above arguments, the learned counsel appearing for the official respondents took the stand that the removal of the appellant's name from the confirmation list should not be construed as his de-confirmation. According to him the appellant being under suspension following his involvement in criminal cases, his name was only temporarily omitted from the confirmation list until his clearance in the said cases.
8. We regret our inability to to the line of argument adopted by the learned Government Counsel. We see no sense in subscribing his views that the deletion of the appellant's name from the confirmation list did not amount to his de-confirmation or withdrawal of his confirmation as Inspector. Perhaps he meant to say that the temporary removal of the appellant's name from the confirmation list was merely a suspension of his confirmation and not its outright cancellation. First of all there is no indication in the impugned order that the removal of appellant's name from the confirmation list was for temporary period. Furthermore the relevant rules do not provide for temporary suspension of confirmation. We are of the considered view that once the name of the appellant was removed from confirmation list, it amounted to his de-confirmation.
9. The question arose if once the appellant was confirmed, could he be subsequently de-confirmed for any reason? The confirmation of the appellant created a vested right in his favour which could not be taken away except in accordance with law. Here we may refer to the rule of locus poenitentiae i.e. The power of receding till a decisive step is taken. The abode rule is enshrined in section 21 of the General Clauses Act. While interpreting the said rule contained in section 21 hereinabove in the case reported as Pakistan v. Muhammad Hidayatullah (PLD 1961 SC 404), it was held by the Supreme Court: "There can hardly be any dispute with the rule that apart from 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 authorities. In fact the existence of such a power is necessary in 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 a 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".
10. It would appear that the competent authority has no doubt power to I recede (i.e. Go back) from the order passed by it but that power is subject to the condition that the said order has not taken legal effect. In the instant case the order of the appellant's confirmation was not only made by the competent Authority but it was also duly implemented. Thus the said order could not be rescinded after its implementation. If the above kind of order was made in utter lack of jurisdiction, it was always open to the authorities to revoke it. But no such plea of want of jurisdiction was taken in this case. Moreover, we have no doubt that the relevant authority namely the I.-G. P. Who ordered the appellant's confirmation had the requisite jurisdiction to do so. Therefore the plea of want of jurisdiction did not arise in the appellant's case. May be the impugned order was wrongly made or suffered from any flaw or defect other than lack of jurisdiction. In that case also, as has been ruled by the Supreme Court in the above reported case, the order could be revoked before it had taken legal effect. If wrong order was intended to be undone, it was necessary to provide opportunity to the appellant to show cause why that order should not be brought to end. But no such opportunity was given to the appellant before passing of the impugned order, which was admittedly passed unilaterally in the appellant's absence and behind his back. Such order would appropriately be termed as arbitrary and capricious.
11. Apart from above, it was also noteworthy that the impugned order was totally vague. Although it referred to the appellant's involvement in criminal cases as the ground of his de-confirmation, yet it did not elaborate the nature or other details of the cases. As such the appellant was absolutely in the dark and was not in a position to furnish any explanation clarifying his side. Moreover, we would be setting a dangerous precedent if mere involvement in any criminal case is accepted as ground to deny confirmation of any official. We are well aware that it is not a rare phenomenon in this country that people are invariably dragged in false cases. If so, it would become easier to deprive any official of his right to confirmation just by registering a false case against him without worrying further if the case would be proved or not. It is a well-known maxim of the criminal law that a person accused of a criminal charge is presumed to be innocent until he is proved to be guilty. We also cannot lose sight of the superior Courts' repeated rulings that it was better to acquit hundred criminals giving them benefit of doubt than to convict a single innocent person on the basis of false evidence. Therefore, we repel the idea of accepting mere involvement of an official in a criminal case as the ground to deny him any service benefit including that of confirmation. Even otherwise sine qua non for confirmation is the successful completion of promotion, which inter alia of course includes displaying of good behaviour. Here again we would repeat that mere involvement in a criminal case should not be interpreted as something of the nature of wanton behaviour. Despite this if the confirmation was to be denied to the appellant on the above ground his services should have been dispensed with or he should have been reverted to the lower position. It should also not be overlooked that the appellant has made categorical denial of the above allegation. Therefore unless it is proved it cannot be used as basis for de-confirmation. As pointed out above once the appellant was confirmed on the recommendations of the D.P.C. Who had presumably minutely examined the appellant's case including his antecedents before giving its approval, his confirmation could not be arbitrarily undone. Even if the intention was to suspend the confirmation temporarily until conclusion of criminal cases in question, the authorities had no power to resort to that course. Instead the appellant's promotion if any arising from such confirmation could be postponed.
12. In view of above discussion, we are convinced that the impugned order was not legally sustainable. Accordingly appeal is allowed with no order as to costs and the impugned order is set aside.