' FAKHRUDDIN H. SHAIKH (CHAIRMAN).-The appellant was appointed J. V. Teacher in the year 1954 and was subsequently promoted as Senior English Teacher (S. E. T.) on 13-4-1955. He continued in this capacity up to 2.4-1964, when he was reverted from the post of S. E. T. To that of Senior Vernacular reacher (S. V. T.), and thereafter to that of Junior Vernacular Teacher (J. V). He preferred appeal against these reversions whereupon the competent authority set aside the reversions and restored him to the status of S. E. T. Vide an order dated 6th December, 1972 which has been produced by the appellant as Annexure 'A'. This order, although effective from 6th December, 1972, was not implemented by the Director of Education, which compelled the appellant to fife a civil suit in the Court of District Judge, Quetta. His prayer in the suit was that the order of the Education Department dated 6th December 1972 should be implemented. The relevant portion of this order may be reproduced here with advantage :- "In view of the above the appeal of Mr. Nazir Ahmed is accepted and intervening period from 30- 6.1960 to 30th September, 1972 is treated as pro form promotion as S. E. T. And the minimum qualification of B. A. B. E. D. As prescribed for appointment by initial recruitment to the post of S. E. T.
Is relaxed enabling the regularisation of appointment of Mr. Nazir Ahmed to the post of S. E. T. And admissibility to him of the consequent service benefits. Since he has not actually performed the duties of S. E. T. During his said period he will not be entitled to draw the arrears of pay as S. E. T. For the entire period."
2. The appellant therefore made a prayer in this suit that a direction be given to the defendant (Education Department) to implement the above order. Pam. No. 7 of the plaint is very relevant which is also reproduced hereunder for a proper appreciation of the appellant's claim. It runs as under :- "That the plaintiff submitted applications respectively on 14-12-1972 and 19-3.1973 to the defendant praying for the implementation of the orders dated 6-12.1972 issued by the defendant but of no avail. Having no other alternative left the plaintiff got a notice issued to the defendant through his counsel on 3.4-1973 and which was served upon him on 6-4-1973 calling upon the defendant to implement the abovesaid orders dated 6-12-1972 within a period of 15 days from the date of receipt of the notice, but the defendant failed to implement the aforesaid orders."
3. In their written statement, the Education Department admitted the claim of the appellant before the District Judge. Their reply to para. 7 of the plaint quoted above, is also very important which is reproduced hereunder :- "Admitted. The order dated the 6th December, 1972 has been implemented on 8-8-1973 and the plaintiff has been promoted with retrospective effect as Head Master according to his revised seniority."
4. In view of this admission of the Education Department before the District Court, the appellant, withdrew his suit and it was dismissed as such on 3-11-1973 by the District Judge. The appellant was re-instated as S. E. T. On 8-8-1973.
5. After 3 years thereof that is on 13th July, 1976, all of a sudden the Education Department withdrew the order dated 6-12-1972 with retrospective effect with the result that he was reverted to his former position. He is aggrieved by the order, and has come in appeal to this Tribunal. Before coming here he had exhausted his remedy by way of filing representation, but to no avail.
6. The reply of the respondent is that the appellant was appointed as Agriculture Teacher in 1955 on temporary basis and that he was never appointed/promoted as S. E. T. The plea of the respondent regarding their admission of the appellant's claim in the District Court is not very clear, although they admitted that a written statement on their behalf was filed in the District Court in which the claim of the appellant was admitted and that the order dated 6th December, 1972 was duly executed. They have not stated as to why they had gone back from that admission after a period of almost 3 years.
7. The main point for determination is whether the department could have retracted from the commitment which they had made before the District Court and whereby they had persuaded the appellant to withdraw his suit In our view the action of the Department in going back from the commitment made by them in para. 7 of their written statement quoted above, would amount to a fraud upon the Court. Had they stated before the Court at that stage that the relaxation in the qualification of S. E. T. Was not admissible to the appellant, then the later would have prosecuted his suit, and would have tried to prove that the relaxation was validly accorded to him. By admitting the appellant's claim before the Court, the respondent deprived him of this opportunity. They have therefore committed fraud not only on the appellant but also upon the Court. It has not been explained be the respondent in their objections filed in this appeal, as to how the relaxation grantee to the appellant in the year 1972 was irregular or against the rules. The impugned order dated 13th July, 1976 which has been produced by the appellant as Annexure 't' is also silent on this aspect of the matter. This order simply says that the relaxation in qualification granted to the appellant and his pro forma promotion as S. E. T. Is withdrawn with retrospective effect from 6.12-1972. The appellant has not been intimated even the grounds which necessitated this order. It appears that while passing the order dated 13th July, 1976 the Education Department completely overlooked the commitment which they had made in the Court of District Judge in reply to the appellant's claim.
8. The impugned order cannot be upheld for the further reason that it militates against the principle laid down by the Supreme Court in PLD 1969 SC 407 with reference to section 21 of the General Clauses Act (which corresponds to section 20 of the Baluchistan General Clauses Act) according to which the power of receding till a decisive is taken, is available to the Government or the relevant authorities. It has been held by the Supreme Court in the above case that locus poenftentle I. e. The power of receding must be exercised before all decisive steps are taken. In the present case the order dated 6th December, 1972 was implemented by the Government by taking a decisive step, i.e. By granting the appellant pro forma promotion after relaxation of the qualification as S. E. T. And posting him as such and further they stuck to this decision for 3 years, until the order was recalled in the year 1976 in flagrant violation of the categorical statement made in the District Court.
9. For the above reasons the impugned order cannot be upheld. Consequently the appeal is allowed, the order dated 13th July, 1976 is set aside with the direction that the order dated 6th December, 1972, which still holds good, shall be implemented by the respondent.