' ABDUL HAMEED DOGAR, J.---Petitioner, Shabbir Ahmad seeks leave to appeal against the order dated 30-3-2000 of a learned Division Bench, High Court of Sindh, Karachi, whereby his petition was dismissed.
2. The relevant facts, in brief, leading to the filing of the petition are that the petitioner was appointed as a Member, Sindh Public Service Commission (hereinafter to be referred as the "Commission") vide Notification No,SOII (S&GAD) 11-32/97, dated 29-10-1997 with immediate effect for a period of three years. He joined his services on 31-10-1997. On 15-12-1997 another Notification No,SOII (S&GAD) 11-32/97 was issued by the respondent No,1 whereby the earlier notification was withdrawn. He sent representation to respondent No,1 claiming therein that he could not be removed by way of notification, but could only be removed under section 6 of Sindh Service Commission Act, 1989 (hereinafter to be referred as the "Act"). He also sent a legal notice to the respondent No,1 through his Advocate.
3. The petitioner filed Constitutional Petition No,D-2311 of 1997 before learned High Court of Sindh, wherein the respondent filed their parawise comments for first time on 7-1-1998 from which it transpired that the respondent had issued another Notification No, SOII (S&GAD) 11/30-97, dated 27-2-1998 in supersession of impugned notification and in exercise of alleged powers conferred by section 5-A of Act, 1989 as amended by amendment Ordinance, 1998 (Sindh Ordinance I of 1998) whereby his remaining term of office was curtailed. In view of said notification, the petitioner was allowed to amend the petition.
4. We have heard Mr. Mazhar Ali B. Chohan, learned Advocate Supreme Court on behalf of the petitioner, Mr. Suleman Habibullah, Additional Advocate-General, Sindh on behalf of the respondents and have also gone through the record and proceedings of the matter.
5. Mr. Chohan in support of his contentions stressed upon the following points:
(i) That the impugned notification dated 15-12-1997 is void ab initio, mala fide, illegal and having been based without any lawful authority as such the same is liable to be set aside and be declared null and void.
(ii) According to section 6 of the Act the Chairman or Member can only be removed when he by reason of physical or mental incapacity is unable to perform his duty or is guilty of misconduct that too when Judge of the High Court who is appointed by the Government to inquire into the matter, submits his report after holding the enquiry that he is incapable of performing his duty or is guilty of misconduct.
(iii) That the provision of subsection (5-A) of the Act is not applicable and subsequent Notification dated 27-2-1998 has no value in the eye of law and is of no legal effect as Sindh Ordinance I of 1998 whereby amendment was brought and introduced on 28-1-1998, has not been made applicable with retrospective effect.
(iv) According to section 24-A of General Clauses Act the notification dated 15-12-1997 withdrawing the earlier notification is illegal, mala fide and not sustainable in law.
(v) According to him the employment of the petitioner is not contractual but is statutory as such he can maintain the petition before the High Court and the observations of the High Court that rules of Master and Servant would be applicable is without any substance.
6. In support he relied upon Hitachi Limited v. Rupali Polyester and others (1998 SCM R 60, 68 and 1618), Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others (PLD 1991 SC 973) and Ch. Mazhar Ali Gill v. The District Magistrate, Faisalabad and others (1997 CLC 1811).
7. On the other side Mr. Suleman Habibullah, for the respondents controverted the above contentions and argued that the case of the petitioner was governed by the rule of Master and Servant, as there were no statutory rules or regulations framed to regulate the functions of the "Commission". According to him, though the Government has powers to make rules, yet, no such rules have been framed for the Act, as such, the findings of the High Court are based on proper reasonings and the only remedy, if any, available to the petitioner is to go for damages.
8. Admittedly the petitioner was appointed as Member, Sindh Public Service Commission vide Notification No, SO (S&GAD) 11-32/97, dated 29-7-1997 with immediate effect for a period of three years and joined on 31-10-1997, whereas said notification was withdrawn by another Notification No, SOH (S&GAD) 11-32/97, dated 15-12-1997. The Government of Sindh, in order to curtail the terms of office of Chairman and Members of the Commission brought an amendment in the Act, vide Sindh Ordinance No,I of 1998 and inserted section 5-A in the Act. It would be pertinent to note that respondent No,1 by taking advantage of the above Ordinance and the powers conferred by section 5-A of the Act brought another Notification No,SOII(S&GAD) 11/30-97, dated 27-2-1998 in supersession of earlier Notification No,SOII (S&GAD) 11-32/97, dated .15-12-1997 and curtailed the remaining period of the petitioner. In parawise comments also, it was candidly stated that, vide Notificatidn dated 27-2-1998, the terms of office of petitioner was curtailed and he ceased to hold the office on 27-2-1998. On this aspect of the matter, Additional Advocate-General, Sindh frankly conceded that the case of petitioner was not covered by this notification.
9. Section 4 of the Act stipulates the method of appointment of Member/Chairman whereas section 6 mentions their removal, which are reproduced as under: "4. Appointment of Chairman and Members.--(1) The Chairman and Members shall be appointed by the Government.
(2) The term of office a Member shall not exceed five years, provided that a Member may be re- appointed for another term not exceeding three years.
(3) A Member may resign his office by writing under his hand addressed to the Government."
"6. Removal of Chairman and Member.--(1) If the Government is of the opinion that the Chairman or Member, by reason of physical or mental incapacity, is unable to perform his duties or is guilty of misconduct, the Government shall appoint a Judge of the High Court to inquire into the matter.
(2) If after holding the enquiry, the Judge submits a report that the Chairman or Member is incapable of performing his duties or is guilty of misconduct, the Government may, notwithstanding the provisions of section 4, remove such Chairman or Member."
10. From bare perusal of , above provisions, it is manifest that the appointment of the petitioner was for a fixed tenure and it could be undone only in accordance with the provisions of section 6, which ex facie was not invoked. A Member or Chairman once appointed cannot be removed except in accordance with section 6. Obviously, to cover up the provisions of section 6 (supra) the above- referred amendment was brought in the Act, which too is not applicable in the petitioner's case.
11. Contention that the subsequent Notification dated 15-12-1997 withdrawing the earlier Notification dated 29-10-1997 was illegal and in violation of section 24-A of the General Clauses Act, is sound and must prevail. For proper appraisal it would be advantageous here to reproduce section 24-A of the General Clauses (Amendment) Act, 1997:-- "24-A. Exercise of power under enactments.---(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, officer or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."
12. Admittedly, the authority in the impugned notification has neither advanced any reason for making the order of withdrawal of earlier notification nor have exercised such powers reasonably, fairly and justly, as such the impugned notification is liable to be set aside. This Court in the case of Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others (PLD 1991 SC 973) while referring to section 20 of General Clauses Act and the guidelines laid down in the case of Pakistan v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407), has held that the "principle of locus poenitentiae" is available to the Government or relevant authorities and further authority which is competent to make order has power to undo it, but such order cannot be withdrawn or rescinded once it has taken legal effect and created certain rights in favour of any individual.
13. In the instant case, the order of appointment issued by the respondent has already taken legal effect and in pursuance thereof certain rights were created in favour of the petitioner, as such, the impugned notification of withdrawal of the earlier notification was illegal.
14. Accordingly, the impugned Notification No,SOII (S&GAD) 11-32/97, dated 15-12-1997 is declared to be without lawful authority and of no legal effect. However, the petitioner cannot be allowed the relief of reinstatement as the period of his tenure has already expired. He may if so advised seek any other legal remedy available to him according to law, which, of course, would be dealt with on its own merits.
15. In above terms, the petition stands disposed of.