' S.A. RABBANI, J.---2. The petitioner is a regular Sindh Police employee and rose from the rank of Assistant Sub-Inspector to the Deputy Superintendent on promotion at different stages, the last promotion being through Notification No,POL-HD/2-8/97 issued on 14th March, 1998 by Secretary to the Government of Sindh, Home Department. Thirty-nine other persons were also promoted through the same notification. In pursuance of this notification, the petitioner was posted as Deputy Superintendent of Police.
3. On 1st June, 1990, another notification was issued by the Secretary to Government of Sindh, Home Department. This was as reproduced below:-- "No,POL-HD/1-16/98.--With the approval of the competent Authority, the promotion to the rank of DSP (BPS.17) of Sindh Police in respect of Mr. Moinul Islam, issued earlier vide this Department's Notification No,POL-HD/2-8/97, dated 14-3-1998, (listed at Sr. No,1) is hereby withdrawn with immediate effect pending completion of disciplinary proceedings under the provisions of Sindh Police (E&D) Rules, 1988."
4. The said disciplinary proceedings were initiated through a show-cause notice issued by the Inspector-General of Police on 10-8-1998. The charges according to it, are that:--
(i) the petitioner is holding dual nationality i,e, Pakistan and USA but did not divulge this position to C.P.O. Or Home Department; and
(ii) on most of the occasions the petitioner remained out of the country and residing in USA being an American national and got the absence regularized by misrepresentation of facts.
5. In the comments filed by the Home Department, Government of Sindh, the stand taken is that the withdrawal of promotion was lawfully ordered by the Governor of Sindh who was the competent Authority by virtue of the proclamation of emergency under Article 232 of the Constitution, and that the orders can only be reviewed by the Government itself which remedy has, not been availed by the petitioner and thus, invoking the writ jurisdiction is premature.
6. Through the comments filed on behalf of the Inspector-General of police, the respondent No,3 termed the action lawful stating that the petitioner was on probation. He also raised the plea of bar of jurisdiction under Article 212 of the Constitution. Another plea raised is that issuance of show- cause notice to the petitioner before the impugned action, was not permitted by Police Rules 13 and 18.
7. Chaudhary Muhammad Rafiq, learned A.A.-G, representing the respondents, contended that the impugned notification is lawful as it was issued with the approval of the Governor who was competent Authority by virtue of proclamation of emergency under Article 232 of the Constitution.
He submitted that the petitioner was on probation and no show-cause notice to him was necessary before the impugned action, and that under section 20 of the General Clauses Act the appointing authority has jurisdiction to rescind order of irregular and illegal appointment. In support of the contention he cited the case of Ehsanullah v. Zila Council Gujranwala and others reported in (1999 PLC (C.S.) 190).
8. There can be no cavil with the proposition that the authority making an order has a jurisdiction to rescind the illegal or irregular order and that an illegal or irregular action can be corrected at any time but this jurisdiction cannot be exercised arbitrarily and without recourse to legal procedure.
The rescission must be in accordance with the procedure provided by law and after a show-cause notice to the person to be affected, more particularly in a case when the action of rescission is based on the conduct of the person to be affected. Such a notice is necessary under the principle of natural justice even if it is not provided for by the relevant law.
9. Learned A.A.-G also referred the case of Province of the Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari, reported in PLD 1997 SC 351, in support of his contention that the superior Courts in exercise of their discretionary jurisdiction, refuse to intervene where grant of relief would amount to retention of ill-gotten gains or would lead to injustice or aiding the injustice. Obviously, the authority is distinguishable on facts. In the present case, the promotion order of the petitioner has been withdrawn, without issuing a show-cause notice to the petitioner for this purpose, on the ground that he was holding American nationality simultaneously, which fact he did not disclose to the Department. It is difficult to understand as to how this charge is relevant to the promotion. If such a national can be employed by the Government, he is also entitled to the promotion despite such nationality. A query was made, in the Court, from the A.A.-G.' but he was not in a position to clarify it with a legal support.
10. Another important contention of the learned A.A.-G. Was about bar of jurisdiction under Article 212 of the Constitution. He submitted that it is a matter of disciplinary action relating to terms and conditions of service and, therefore, the Service Tribunal has exclusive jurisdiction in the matter. On this point, Mr. Shabbir Ahmed Awan, learned counsel for the petitioner, submitted that in view of the nature of the impugned action and notification, a remedy, against it, is not available before the Service Tribunal and since no other remedy is available, a petition under Article 199 of the Constitution is the proper legal remedy. He contended that the impugned notification is not a final order and, therefore, an appeal against it, before the Tribunal, is barred under section 4 of the Sindh Service Tribunal Act, 1973. The impugned notification itself mentions that the promotion was withdrawn "pending completion of disciplinary proceedings," and it is not disputed that it was not a final order. In view of this fact, the petitioner cannot seek remedy before the Service Tribunal under section 4 of the Sindh Service Tribunal Act, 1973.
11. Mr. Awan further contended that the impugned order is corum non judice as the Home Secretary is not the authority under the Rules which provide that Inspector-General, Police is the authority in the case of the petitioner. According to him. Home Secretary is the appellate authority. He has produced copy of Notification No,POL-HD/6-6/98, dated 11th January, 1999, issued by the Government of Sindh, Home Department. According to it, the authority to award punishment of reduction in rank or pay to a D.S.P. Is Inspector-General of Police.
12. The contention of learned A.A.-G., that the Governor, being the highest authority, can exercise these powers, is not tenable because an authority given by law is to be exercised according to law and by the person so authorized. The Governor despite being head of the Province cannot himself arrest a person exercising powers of the S.H.O. The powers and jurisdiction can be exercised by the persons or the authorities vested with them by the law.
13. The impugned notification, dated 1st June, 1999 is illegal and of no I D effect because it was issued without lawful authority in view of the facts mentioned above, and because it was made without, issuing a show-cause notice to the petitioner. The petition is not barred under Article 212 of the Constitution as an appeal before the Service Tribunal in a case where the impugned action is not a final order is expressly barred under section 4 of Sindh Service Tribunals Act, 1973. Since no other remedy is provided by law, the petition is maintainable under Article 199 of the Constitution.
The petition is allowed accordingly.