' MUHAMAMD MOOSA K. LAGHARI, J---The petitioners through this petition have called in question the proceedings undertaken by the Syndicate of the University of Sindh, Jamshoro in pursuance of the decision taken by the Syndicate in its meeting dated 4-12-1999 for review of the fitness of the petitioners for the posts held by them and prayed for declaring the said proceedings as null and void and further prayed for grant of injunction.
2. The petitioners are officers employed in the University of Sindh, and claim to have been promoted in BPS-18 and above from 16-1-1999. According to the petitioners under the provisions of Sindh University Act, 1972, Syndicate was the authority competent for appointment to the posts in BPS-17 and above which is to be made on the recommendations of Selection Board. It has been claimed by the petitioners that the Selection Board held a meeting on 2nd/3rd January, 1999 and authorized the Vice-Chancellor to decide the promotion cases of officers on the basis of seniority cum-fitness for filling the available vacant posts. It is pleaded that the Vice Chancellor having been duly authorized to grant promotion to the deserving officers, acted in pursuance of the above decision. It was further pleaded that even otherwise Vice-Chancellor had the authority under the law to pass any orders that he considered proper for all the Officers of University as provided under section 14(3) of the said Act of 1972. The petitioners claim that they were rightly, granted promotions but the Syndicate in its meeting held on 4-12-1999 illegally referred the matter of promotions to Sub-Committee consisting of three members namely Mr. Justice Hamid Ali Mirza, the then Judge of this Court, Dr. A.Q. Mughal, and Professor Dr. Saeed Ahmed Soomro, for re- examination of such cases. However, after the elevation of Mr. Justice Hamid Ali Mirza, to the Apex Court the Syndicate through its Resolution No,3 passed on 29-4-2000 reconstituted the said Sub- Committee consisting of Mr. Justice Muhammad Ashraf Leghari Dr. A.Q. Mughal, Prof. Asif Ali. G. Qazi, and Prof.: Dr. Saeed Ahmed Soomro. The petitioners were eventually required vide notices dated 1811-2000 to appear before the Board. Feeling aggrieved by the said notice the petitioners have approached this Court to invoke the Constitutional jurisdiction.
3. In pursuance of the notice issued to the respondents, parawise comments have been filed on behalf of the respondents whereby the actions of the respondents have been justified. It has been averred that functions of the Selection Board as required under section 23 (r) of the University of Sindh Act, 1972 were only to recommend the names to the Syndicate for appointment to the posts in Grade 17 and above. The authorization given to the then Vice-Chancellor by the Selection Board vide its Resolution No,11 dated 2/3-1-1999 was to the extent of delegation of the powers vested in it viz. To recommend the names of suitable cases/persons to the Syndicate. It was stated that even .Delegation of powers of Selection Board to the Vice-Chancellor was questionable, what to say about the Selection Board authorizing the Vice-Chancellor to finally decide the cases of officers instead of recommending their cases to the Syndicate. It has further been stated that on receipt of complaints from some employees of Sindh University who were aggrieved and affected by the illegal promotions granted by the then Vice-Chancellor, Syndicate appointed committee to re- examine the cases of the promotees and submit its report to the Syndicate. In compliance of the said decision, the petitioners were required to appear before the Syndicate on 25-11-2000 but they failed to avail the chance of hearing. The Committee considered the cases of all the promotees and after examining their record and evaluating their fitness, decided to revert the petitioners including few others to their respective previous grades. Consequently reversion orders of all concerned were issued on 2-12-2000 and thus implemented. It was further pleaded that the Syndicate being executive body of the University possessed all the powers to probe into the matters concerning illegal benefits obtained by the employees by way of misrepresentation and/or in violation of rules and regulations.
4. It appears that on being reverted to their substantive posts the petitioner filed contempt applications, which are also listed for hearing.
5. We have heard Mr. Syed Fasahat Hussain Rizvi, learned counsel for the petitioners, Mr. Kamaluddin learned counsel for the respondents Nos.1 and 2 and Mr. Masood A. Noorani, learned Additional Advocate-General Sindh.
6. Learned counsel for the petitioners has contended that cases of the petitioners were considered by the Vice-Chancellor in view of the powers delegated to him by a Resolution of the Selection Board vide Item No,11. He further contends that the resolution of the Selection Board was further affirmed by the Syndicate in its meeting held on 2nd/3rd Junuary, 1999. He submits that in pursuance of the above resolution the petitioners were rightly promoted and the orders of promotion were acted upon. Learned counsel for the petitioners further submits that since the promotion orders had already been acted upon and, therefore, the promotions which were granted by the Syndicate were not subject to any Review. He has next contended that no power of Review was available to the Syndicate under the provisions of the Sindh University Act and since the power of Review was substantive power which cannot be exercised unless provided in the statute itself. He therefore, submitted that all the actions in reverting the petitioners were unlawful, having been motivated by malice and as such were liable to be declared null and void.
7. Learned counsel further argued that this Court was competent to scrutinize the actions of Syndicate by exercising its Constitutional jurisdiction, which were taken in excess of authority. In support of the above contentions learned counsel has relied upon the following case-law:
(i) 1999 SCMR 1004
(ii) 1999 NLR TD (Lab.
1.
8. In the authority referred at Sr. No,(i), their lordships of the Honorable Supreme Court were pleased to hold that once the competent authority conceded the regularization of service of a civil servant by virtue of section 13 of the Act, it created valuable rights in favour of the civil servant which, under the rule of locus penitential, could not be reversed by taking contradictory pleas at different times before different forums.
9. There is no cavil with the above proposition of law, however, the facts and circumstances of the case in hand are quite different. In the cited case the competent authority had earlier regularized the services of the civil servants. But at belated later stage, a plea was taken that the employees were ad hoc/temporary. In these circumstances, the Honourable Supreme Court was pleased to hold that approbate and reprobate on the part of- the authorities was not justified as the valuable rights had been created in favour of the petitioners. In the, instant case the promotions were granted in an illegal manner, in flagrant violation of law/rules and the Vice-Chancellor acted in excess of his authority and beyond the powers delegated to him.
10. In the citation referred at Sr. No,(ii) above, the Honourable Supreme Court was pleased to hold that jurisdictional defects are not immune from scrutiny by the High Court under Article 199 ,of the Constitution. However, it may be observed that this was a case in respect of registration of trade union and had absolutely no relevancy with the facts and legal provision involved in the present position. It will, not be out of place to mention that precisely it was not the question before the Hon'ble apex Court as to whether the jurisdiction under Article 199 can be exercised, notwithstanding the bar contained under Article 212 of the Constitution.
11. With utmost respect to the law cited by the learned counsel, as discussed in the preceding paras. We are of the considered view that the authorities referred hereinabove are distinguishable and not applicable to the present case.
12. Conversely learned counsel for the respondents challenged the maintainability of this petition on the ground that the petitioners being employees of the Sindh University were civil servants, and could seek remedy from the Sindh Service Tribunal, if they are aggrieved by any order relating to the terms and conditions of their service. He submits that as a matter of fact the petitioners are aggrieved of the orders of their reversion which cannot be agitated in Constitutional jurisdiction. He further contended that the Selection Board was vested with powers to recommend the person to be appointed/promoted in Grade-17 and above. The recommendations made by the Selection Board were to be placed before the Syndicate which was competent authority to take final decision. Learned counsel argued that the Selection Board was not competent to authorize the Vice-Chancellor beyond the powers vested in it, whereas in this case the Vice-Chancellor has not only exercised the powers of the Selection Board but the Syndicate too which obviously, was not warranted by the law. If it is pretended to be so, the very functioning and existence of the Syndicate will be rendered redundant. He contended that Ex-Vice-Chancellor on expiry of the terms of his service approved the promotions of the petitioners and got issued such orders on the basis of favouritism. Since the promotions were unjust and contrary to rules, it gave rise to the complaints by the officers who were deprived of their due promotions. The proceedings of review were undertaken bonafidely in order to rectify the wrong.
13. Learned counsel referred the following case-law in support of his arguments:
(ii) PLD 1992 SC 207.
(iii) 1999 SCMR 2883.
(iv) 1999 MLD 3425.
14. Mr. Masood A. Noorani, learned Additional Advocate-General, Sindh has also seriously, objected to the maintainability of this petition and has contended that since the alternate, adequate and efficacious remedy was available to the petitioners before the Service Tribunal, the jurisdiction of this Court was specifically barred under Article 212 of the Constitution.
15. We have perused the documents brought on record, anxiously considered the arguments advanced at the bar, and minutely perused the case-law.
16 . According to the provisions contained under section 23 (r) of the Sindh University Act, 1973 the Selection Board was authorized to consider the promotion cases and recommend the same to the Syndicate. Thus, it emerges that Selection Board was meant for the purpose of scrutinizing the cases for promotion of the officers on the basis of seniority-cum-fitness. The merit was to be ascertained on the basis of the appraisal of their A.C.Rs, However, under no provision of law, the Selection Board was authorised to delegate its powers to the Vice-Chancellor, as such it appears that the Selection Board exceeded its authority by further delegating its powers to the Vice- Chancellor. We find that the Syndicate in its meeting has approved the minutes of the meeting of the Selection Board meaning thereby impliedly, that at the most syndicate has approved the Resolution to the extent that Vice-Chancellor will exercise the powers of Selection Board. Nowhere from the minutes of the Syndicate meeting it reveals that the Syndicate in its meeting held on 2/3- 1-1999 authorized the Vice-Chancellor not only to select the candidates for promotion but to take a final decision on behalf of the Syndicate. The Office orders whereby the petitioners were granted promotion also speak of authorization given to the Vice-Chancellor by the Selection Board vide Resolution No,11 dated 2/3-1-1999 and approved by the Syndicate vide Resolution No,20 dated 16-1- 1999.
17. On perusal of the documents it is abundantly clear that the entire function was performed by the Vice-Chancellor alone. The office orders of promotion were mostly issued on 23rd and 24th July, 1999 and in some cases even on 26th, 27th and 28th July, 1999. Alongwith the comments a copy of the Notification dated 24-7-1999 has been filed by the respondents which reveals that in exercise of powers vested in him under section 23(1) of the University of Sindh Act, 1972 the Government appointed Dr. R.A. Shah as Vice-Chancellor w,e,f, 27th July, 1999 and the said notification purportedly was received by fax at Sindh University on 24-7-1999 at 18-20 hours. Taking into consideration above facts, the argument advanced by the learned counsel appearing for the respondent i,e, University of Sindh contending thereby that on receipt of such Notification on 24-7- 1999, the then Vice Chancellor passed subsequent orders of promotion which were issued in excess of authority, on the basis of favouritism tentamounting to malice in law and colourable exercise of powers, has much force, More particularly, when on having seen at a glance, we noticed that the promotions were indiscriminately and disparately granted to even those officers, who were not yet ripe for promotion for want of required length of service as provided under the rules. This factum was evident from the material placed on the record and was not controverted by the petitioners.
18. From the above discussion it is abundantly clear that the promotions were granted in a perverse and perfunctory manner, and in derogation of the relevant rules, whereby other eligible employees felt deprived of their due right.
19. In this view of the matter the action of the Syndicate to constitute the committee to review the cases of promotion, was quite bona fide. The said committee was given a task to scrutinize the cases of all the promotees and decide their cases strictly in accordance with the rules and regulations after providing those officers an opportunity of hearing. Thus there was nothing illegal in rectifying a wrong.
20. With regard to the contention raised by learned counsel for the petitioners to press into service the rule of locus poenitentiae, we may observe that according to the provisions contained under section 21 of the General Clauses Act an authority which can pass an order is entitled to vary, amend, add to or rescind that order. However, the powers of receding, usually can be exercised, till a decisive step is taken. Nevertheless, this rule will have no application, in case the orders have been acquired in an illegal manner. Since we have arrived at the conclusion that the promotions were obtained by the petitioners in an illegal manner, we are of the considered view that the action taken by the Syndicate was just, fair and proper. It is an undisputed fact that the petitioners were given notice to appear before Syndicate but they chose not to appear. It is not the case of petitioners that they were condemned unheard. It has been repeatedly held that the rights which have been acquired in an illegal manner cannot be termed to be vested rights to attract the rule of locus poenitentiae.
21. The law is now settled that the rule of locus poenitentiae will not be applicable in the cases in which the basic order is illegal. The locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The said principle was laid down by the Honourable Supreme Court in the case of The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207. In the above titled case certain employees were granted Grade-11 on the basis of incorrect information. However, when the real facts came to the notice of the appellants, they withdrew the said letter and the action was approved by their lordships of Hon'ble Supreme Court.
It was observed as under:-- "The principle of locus poenitentiae was invoked by the learned Tribunal in aid of the respondent.
Having gone through the facts of the case, we have come to the conclusion that this principle is not attracted in the present case. Additionally, under section 21 of the General Clauses Act, the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order. The order under which the payment was made to respondent had no sanct4on of law. Locus poenitentiae is power of receding till a decisive step is taken. But it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order."
22. While referring to the above-cited case, same rule was followed by the Apex Court in the case of Ardeshir Cowasjee v. Karachi Building Control Authority (KMC) 1999 SCMR 2883 and it was observed as under:-- "In our view the principle of locus poenitentiae is not attracted to the present case, inter alia, for the reasons, firstly, the appellants were not the authority which had approved respondent No,5's building plan in violation of the above provisions of the Order and the Regulations. Secondly, since the above approval was in contravention of the provision of law, the above illegal action/order cannot be treated as irrevocable or past and closed transaction. It may also be stated that as the order of approval of the plan is illegal, perpetual rights cannot be granted op the basis of the same.
Thirdly, respondent No,5 was put to notice before it started its construction work to the effect that the approval obtained by it for a high-rise building is in violation of the provisions of the public-at- large. The above contention, therefore, also fails."
23. In the case of Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907. The Honourable Supreme Court while affirming the above proposition of law was pleased to observe as under:-- "As it has been observed hereinabove that extension of 30 years lease of the Forestry was allowed by the Chief Minister contrary to the relevant law, therefore, the competent Authority had the jurisdiction to rescind the orders of extension operating in favour of petitioners."
24. It is well-settled that the jurisdiction conferred on this Court under Article 199 of the Constitution is meant to be exercised in the aid of justice, as was held by the Hon'ble Supreme Court in the above cited case of Abdul Haque Indhar. Their lordships of the Hon'ble Supreme Court while reiterating the principles laid down in PLD 1973 SC 230 (Nawab Syed Raunaq Ali and others), 1995 SCMR 305 (Market Committee, Multan through its Administrator and another v. Muhammad Sabir), and PLD 1997 SC 304 (Khiali Khan v. Haji Nazir and 4 others), were pleased to observe in the aforementioned case that the Constitutional jurisdiction cannot be exercised to perpetuate the ill- gotten gains.
25. Apart from the merit as discussed above, we may also observe that undisputedly the petitioners are covered by the definition of 'civil servants' as provided under Sindh Civil Servants Act, 1973 and are amenable to the jurisdiction of the Sindh Civil Service Tribunal. The jurisdiction of the High Court or for that matter any Court is barred under Article 212 of the Constitution in all matters relating to the terms and conditions of a civil servant.
' For the foregoing reasons we have arrived at an irresistible conclusion that the petition is misconceived and is not maintainable. The same is accordingly dismissed in limine alongwith all the listed applications. These are the reasons for the short order dated 30-1-2001, whereby this petition was dismissed.