' RANA BHAGWAN DAS, J.---Through this Constitution Petition, petitioner seeks a declaration to the effect that orders passed by respondents Federation of Pakistan and Province of Sindh, refusing to pay political pension amounting Rs,500 per month to him are passed without lawful authority and without jurisdiction. He also seeks a Writ of Mandamus directing such respondents to restore aforesaid pension to him as already sanctioned by the President of Pakistan.
2. Facts in brief leading to this petition filed as far back as March, 1986 are that petitioner's father Mir Ghulam Murtaza Khan Talpur was recipient of political pension issued in his favour by the Accountant-General, Bombay prior to 1-4-1936. This pension was initially sanctioned by the Commissioner in Sindh (Political department) vide Letter No,635 of 1896, dated 24-7-1896 in favour of Mir Shah Muhammad Khan Talpur grandfather of the petitioner. Through this letter Government of India sanctioned a pension of Rs,760 per month to him with the stipulation that on his death his eldest son of male representative shall receive in perpetuity monthly stipend of Rs,500. It was also stipulated in the letter that the pension of Rs,500 alongwith the title "Mir" will be given to one only subject to continuity of loyalty and good behaviour for the support of himself and his own family and the last representative's 'Deras' and unmarried daughters. Another salient feature of the letter appears to be that his pension and the pension of his successors although promised in perpetuity will be dependent on his causing sons and grandsons of his own or his brothers' families to be educated. If any default was made in this respect the pension will stop, the letter added. Aforesaid political pension was hereditary in nature and after the death of Mir Shah Muhammad Khan Talpur in the year 1903, it was sanctioned in the name of his elder son, namely, Mir Ghulam Murtaza Khan Talpur who enjoyed his right to pension till his death on 29-6-1978. Petitioner applied to both the respondents for transfer of the aforesaid pension in his favour, he being the eldest son of his father.
Consequently respondent No,2 vide letter, dated 7th February, 1983 addressed to the Additional Accountant-General, Pakistan Revenue, Karachi with a copy to the petitioner informed him that the President of Pakistan had been pleased to sanction grant of political pension of Rs,500 per month in favour of the petitioner in perpetuity with effect from 30th June, 1978. The letter mentioned that the expenditure involved was debitable to the head "55 Superannuation Allowance for Distinguished and Meritorious Services or for Political Consideration-Central". Earlier, respondent No,1 also intimated the petitioner while endorsing a copy of the letter, dated 27th November, 1982 addressed to respondent No,2 that the case of the political pension in respect of petitioner was examined in the Ministry of Interior and it had been decided to restore the political pension to him.
Later, the petitioner received a copy of the letter, dated 15th March, 1983 from respondent No,1 addressed to respondent No,2 intimating him that the political pension in question was erroneously discontinued by the Provincial Government through a misunderstanding. Moreover, the sanction order issued by the Federal Government under which the petitioner's father was being paid till 29- 6-1978 when he expired, had never been withdrawn by the Federal Government. It was emphasized that obviously previous sanction would be treated valid and the expenditure to be involved after the restoration of the said pension and the payment of arrears thereto for the period for which the payment remained discontinued, should be covered under the said sanction. No fresh sanction was needed in this case, the letter urged.
3. It appears that before aforesaid directives could be implemented by the office of the Accountant-General, they received a teleprinter message, dated 16-5-1983 from the Finance Division on the aforesaid subject, a copy whereof had been endorsed to the Ministry of Interior.
Accordingly office of the Accountant-General on 11-6-1983 addressed a letter to the Ministry of Interior Islamabad to intimate the requisite information as asked for by the Finance Division vide, letter, dated 13-4-1983. Before this through letter, dated 13-3-1983 office of the Accountant-General called upon respondent No,2 to furnish descriptive roll of the petitioner, his specimen signature, thumb and finger impressions and photograph in duplicate with copies endorsed to the petitioner, District Accounts Officer Sukkur as well as Ministry of Interior with a request to expedite the action as the petitioner was pressing hard to settle the matter early. Finding no positive response' on the part of both the respondents despite his visits and verbal assurances, petitioner was obliged to send a legal notice dated 23-10-1985, through his Advocate to respondent No,1 that he was informed by respondent No,2 conveying decision taking by respondent No,1, dated 21-11-1985 stating that in view of the decision taken by Inter-Provincial Conference, dated 30-11-1976 discontinuing hereditary pension after the death of the recipient, it was not possible to accede to the request of the petitioner. Hence this petition.
4. In the parawise comments submitted by respondent No,1 through the relevant Section Officer factual position was not controverted but it was stated that letters, dated 27-11-1982 and 7-2-1983 by respondents Nos.1 and 2 respectively were issued without the concurrence of the Ministry of Finance and were, therefore, incomplete. It was pointed out that on receipt of necessary instructions regarding sanction of political pension in favour of petitioner; the office of the A.G.P.R.
Referred the case to the Finance Division for concurrence who on its part took up the matter with the Interior Division. It was finally held that in view of the Inter-Provincial Conference decision that hereditary pensions should continue only for the lifetime of the present recipients and in no case should continue after their death, the pension was not admissible to the petitioner. Accordingly, the earlier decision of the Ministry of Interior was recalled and the sanction letter issued in this behalf was withdrawn. This respondent took a legal objection to the effect that petitioner had no vested right to receive the political pension that was granted by the british Government to his fore-fathers and, thus, he had no cause of grievance
5. During the pendency of the petition on 3-4-1998 counsel for the petitioner submitted photostat copy of the decision of the then Government of India through Letter No,635 of 1896, dated 24th July, 1896 by the Commissioner in Sindh addressed to Mir Shah Muhammad Khan Talpur intimating that the pension granted to him shall continue to be received by him and after his death eldest son of male representative in perpetuity. When this statement came up for orders before the Division Bench alongwith regular hearing of the petition, learned counsel for respondent No,1 sought time to file a counter-affidavit and also a copy of the decision of the Inter-Provincial Conference, dated 30-11-1976 whereafter Muhammad Daud, Section Officer Ministery of Interior filed a counter- affidavit to the petition, narrating almost the same points as were raised in the parawise comments.
6. At the hearing, learned counsel for the petitioner raised the following contentions in support of the petition:--
(1) That the political pension sanctioned in favour of fore-fathers of the petitioner in perpetuity could not be revoked in the absence of any breach of the terms on which such pension was sanctioned.
(2) That the respondents could not legally recall the sanction of the political pension granted to the petitioner on which decisive steps had been taken and that refusal to pay pension is hit by the principle of locus pointentiae.
(3) That there was no justification for Inter-Provincial Conference to abolish pension after the death of the recipient and in any event pension in favour of the petitioner was sanctioned long after the death of recipient by the respondents.
(4) That the political pension being sanctioned by the President of Pakistan could not in law be withheld/withdrawn by any other authority except the President himself.
7. Elaborating his contentions learned counsel for the petitioner referred to Article 274(3) of the Constitution of Pakistan 1973, dealing with the vesting of property, assets, rights, liabilities and obligations of the Federal Government or the Government of a Province, whether arising out of contract or otherwise. Identical provision was available in Article 251 of the Constitution of Islamic Republic of Pakistan (1956) and Article 232 of the Constitution of the Republic of Pakistan (1962). For the sake of convenience and ready reference, aforesaid provision is reproduced hereunder: "274. Vesting of property, assets., rights, liabilities and obligations --
(1) ..........................................................................................................................
(2) ..........................................................................................................................
(3) All rights, liabilities and obligations of the Federal Government or of the Government of a Province, whether arising out of contract or otherwise, shall as from the commencing day, continue to be respectively the rights, liabilities and obligations of the Federal Government or of the Government of the Province except that---
(a) all rights, liabilities and obligations relating to any matter which, immediately before that day, was the responsibility of the Federal Government, but which under the Constitution, has become the responsibility of the Government of a Province, shall devolve upon the Government of that Province, and
(b) all rights, liabilities and obligations relating to any matter which, immediately before that day, was the responsibility of the Government of a Province, but which under the Constitution, has become the responsibility of the Federal Government, shall devolve upon the Federal Government."
8. Referring to the Letter No,635 of 1896, dated 24th July, 1896 written by Commissioner in Sindh Political Department to Mir Shah Muhammad Khan Talpur, grandfather of the petitioner, learned counsel urged with utmost vehemence at his command that the obligations incurred by the Federal Government before the commencing day devolved on the Government of Pakistan which were duly acknowledged, admitted and recognized in the Constitution of Pakistan and continues to be a binding obligation and commitment having the force of law on the Federation of Pakistan till this day which may not be unilaterally rescinded or revoked without any lawful justification. The submission is not without any force. Grant of hereditary political pension in favour of the grandfather of the petitioner continued by the successive Governments from time to time, in our view, apparently remains to be the sacred duty and Constitutional obligation of the Federal Government. In law such obligation and commitment must be honoured to consolidate public confidence in the commitments made by the Government which cannot be ignored and overlooked on account of bureaucratic attitudes which may ultimately bring bad name to the Government of the day and violate the fundamental principles of policy guaranteed under the Constitution. Indeed the award of pension appears to have been sanctioned as a token of due acknowledgement of the services rendered by the family of the petitioner to the Government and for the services rendered in the larger public interest. It may be pertinent to observe that the amount of pension sanctioned more than a century before may have considerable monetary value in terms of finance but with the increasing inflation from day to day stipend of Rs,500 has only a purely sentimental attachment for the petitioner which he may be interested to claim as a mark of respect and acknowledgement of the meritorious services rendered by his fore-fathers.
Now once it is assumed that the Federal Government had incurred the obligation and a right to property vested in the petitioner's father which on his death devolved upon him, it may not be open to the Federal Government to retrace the steps by rescinding the solemn commitment guaranteed by salutary Constitutional provisions.
9. The case of the petitioner is further supported by the doctrine of locus poenitentiae. This principle is enshrined in section 21 of the General Clauses Act which unambiguously postulates that an authority which passes an order is competent to vary, rescind or cancel the order passed by it but this power is not absolute as it is subject to certain limitations. The minimum limitation is that when the order sought to be varied, rescinded or cancelled is communicated to other party and subsequent to that communication that party acts upon it, a very valuable right accrues to that party and, therefore, the authority in such circumstances becomes functus officio to vary, rescind or cancel its earlier order because the law does not allow 'volte face' to the authority. This principle of law has been time and again recognized, accepted enforced by the superior Courts of law. For the sake of reference, eliance is placed on the Full Bench judgment of the Supreme Court reported Pakistan v. Muhammad Himayatullah (PLD 1969 SC 407). In this elebrated case apex Court ruled that the power of receding till a decisive tap is taken, is available to the Government or the relevant authorities. In act 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. This power is, however, 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. This view was followed in Muhammad Nawaz v.
Secretary, Irrigation and Power PLD 1973 Quetta 14, Muhammad Aslam Khaki v. Vice-Chancellor, Gomal University, D.I. Khan PLD 1980 Pesh. 128 and Muneeb Nazir Shah v. Azad Kashmir Government PLD 1985 Azad J&K 17. In the case in hand decision taken by the Federal Government was not only conveyed to the petitioner by the Government of Sindh as well as by the Federal Government but was also accepted and acted upon by the petitioner who was obliged to furnish his specimen signatures, thumb-impressions and photographs to the office of Accountant-General, Pakistan Revenue as desired. Indeed the Federal Government not only fairly conveyed the sanction of the pension by the President of Pakistan in favour of the petitioner but also reiterated and rectified the wrong by realizing that the political pension in question was erroneously discontinued by the Provincial Government through a misunderstanding. In the letter, dated 15th March, 1983 Ministry of Interior clarified the position in no uncertain terms that the sanction letter issued previously by the Federal Government under which petitioner's father Mir Ghulam Murtaza Khan was being paid till 29-6-1978 when he expired, had never been withdrawn by the Federal Government.
10. Now having reassured the restoration of pension with the sanction of the Head of the State, namely, the President of Pakistan, respondents cannot be permitted to seek shelter behind a decision taken by Inter-Provincial Conference in the meeting held on 30-11-1976. It may not be out of context to point out that this Inter-Provincial Conference is neither a statutory body nor appears to have any backing of law so as to by-pass and defeat the decision taken at the level of the President of the State. In any event minutes of the meeting have been brought on record which only tends to suggest that there was a recommendation by the said Conference desiring the Provincial and the Federal Governments to review the decision with regard to continuation of the political pension after the death of the present recipients. In fact there is no decision by the Federal Government or the Provincial Government accepting such advice/ recommendation of this Conference which could not override a decision taken at the level of the President of Pakistan who was at the helm of the affairs in the years 1982 and 1983 when the affairs of the country were being administered under the Laws (Continuance in Force) Order and Provincial (Constitution) Order, 1981. Needless to say Ministry of Interior and the President Secretariat are presumed to be fully aware of the earlier recommendation of the Inter Provincial Conference and this apparently was a case of conscious and glaring application of mind while dealing with the request of the petitioner which was neither unfair nor unreasonable on the face of it.
11. There is another aspect of the case of the petitioner. Pension in favour of the petitioner having been sanctioned at the level of the President, in our view could only, subject to just exceptions, compelling circumstances and limitations laid down by law be withheld, rescinded, alone by the President of Pakistan and none else much less the office of the Accountant-General, Pakistan Revenue, which is certainly inferior and subordinate to the Chief Executive of the State. In case the respondents felt that the sanction accorded by the president was not required to be implemented, it was incumbent upon both the respondents to refer back the case to the Sanctioning Authority for review of the sanction if so permitted by law and the circumstances. Admittedly this course of action was not adopted by the respondents who have failed to satisfy the conscience of this Court to decline implementation of a lawful Presidential Order.
12. In view of the aforesaid facts and circumstances in the face of were whelming material evidence in support of the case of the petitioner, we are inclined to the view that the act of the respondents by refusing to pay the political pension to the petitioner, cannot be sustained in law by any canon of reasoning or logic. We, therefore, declare such act of withholding political pension to the petitioner as without lawful authority and of no legal effect. Consequently this petition is allowed and the respondents are directed to pay the political pension to the petitioner from 30-6- 1978 within ninety days from the date of this judgment positively.