1. ' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been preferred by the Government of N.-W.F.P. Through Secretary C&W Department and three others, petitioners herein, for grant of leave to appeal against the judgment dated 23-10-2001 passed by a Division Bench of Peshawar High Court, Peshawar, in a Constitution petition.
2. ' The summary of relevant facts is that Communication and Works (C&W) Department, Government of N.-W.F.P., Peshawar, requiring to fill five posts of Research Assistants (BPS-16) in the said department. Sent a requisition to the Public Service Commission N.-W.F.P. And the Commission invited applications through publication in the newspapers in December, 1995. The respondent being qualified for the post, also applied and having gone through the process of written test and interview was selected by the Public Service Commission and vide letter dated 17-11-1997 of Public Service Commission was recommended for appointment. The petitioner No.1 in pursuance of the recommendations of Public Service Commission, with the approval of Chief Secretary N.-W.F.P., appointed the respondent as Research Assistant in the C&W Department, Peshawar, vide order dated 4-2-1998. The respondent having submitted the joining report also assumed the charge but his posting was withheld for want of approval of Finance Department due to the ban imposed by the Government on fresh appointments vide letter dated 11-3-1998 and the matter was placed before the Chief Minister for his approval and the Chief Minister without according the required approval, issued a directive dated 14-7-1998 requiring the concerned department for implementation of his earlier orders dated 9-2-1998 and consequently the department initiated action to nullify the appointment of respondent in the light of directive of the Chief Minister. The respondent being aggrieved of the action of department, tiled a Constitution petition before the Peshawar High Court and a learned Division Bench of the High Court allowed the writ petition with the following observations and directions:-- "6. We are of the view that the said post was properly advertised, applications were invited, written test was held and the candidates were interviewed. The petitioner after qualifying the written test and interview was recommended by the Public Service Commission, notification to this effect was issued for the appointment of the petitioner by respondent No.1 after prior approval of respondent No.5, therefore, any such act or asking for further approval after the petitioner had submitted arrival report, beyond the framework of law and appears to be arbitrary because the process of appointment of the petitioner commenced from the date of the advertisement whereby the applications for appointment were invited. Any subsequent development taken place after the whole process cannot be given retrospective effect and the process of the appointment of the petitioner be effected which was already complete and over. In view of the situation notification dated 4-2-1998 as to the appointment of the petitioner as Research Officer in BPS-16 in the C&W Department w,e,f, the date of taking over charge cannot be rescinded and held in abeyance in the light of the letter dated 17-2-1998 whereby again the approval of the Finance Department was sought which was not at all warranted when the formal order of appointment of the petitioner has already been issued to the officer after approval of the Chief Secretary, the candidates had submitted their arrival reports and assumed the charge which is also explicitly mentioned in the above letter dated 17-2-1998.
3. ' Consequently this writ petition is accepted, the direction dated 14-7-1998 that the earlier direction dated 19-2-1998 on the summary forwarded by the Secretary Finance dated 27-1-1998, are declared to be void ab initio and inoperative upon the rights of the pejitioner. The respondents are directed to implement the first notification of appointment of the petitioner as Research Assistant (BPS-16) in C & W Department w,e,f, 6-2-1998 without pay for the intervening period as he had not worked during that time. He will be entitled to pay, salary and benefits etc. w,e,f, the assumption of charge after the judgment and order by this Court."
4. ' Learned Additional Advocate-General, N.-W.F.P., appearing on behalf of the petitioner has contended that the post of Research Assistant was advertised by the Public Service Commission in 1995 whereas the selection process was completed in the year 1997 and shortly thereafter, a ban was imposed by the Government on the fresh appointments and vacant posts in all the departments were abolished and therefore, there was no post available to be offered to the respondent and that the letter of his appointment was issued by the C&W Department without approval of the Chief Minister. The Additional Advocate-General argued that the appointment of the respondent in pursuance of recommendations of Public Service Commission and assumption of charge by him would be of no legal effect as the post against which appointment was made, was not available. He has further contended that under the existing policy, the vacant posts were required to be tilled from the surplus pool and in case a qualified person was not available in the said pool, fresh appointment could only be made with the approval of Chief Minister.
5. ' Jamal Abdul Nasir, respondent herein, and 4 others, in pursuance of the recommendations of Public Service Commission, were appointed as Research Assistants in B-16 in the C&W Department, N.-W.F.P. Peshawar vide Notification dated 4-2-1998 issued by the Secretary Government of N.- W.F.P. C&W Department and subsequent to the appointment, the concerned Secretary with a view to seek approval of the Chief Minister, referred the matter to the Finance Department for the approval of the said department and in consequence thereto, Secretary S&GAD was asked to offer the comments as to whether the posts of five Research Assistants' can be tilled from the surplus pool and in case the qualified persons in the surplus pool were not available, the appointments made by the C&W Department may be approved. It was however directed that in future all departments before approaching the Public Service Commission for filling the vacant posts should seek approval of the Chief Minister and also obtain the clearance from the surplus pool through S&GAD. The Secretary S&GAD vide letter dated 20-5-1998 informed that no person having the requisite qualification for appointment as Research Assistant was available in the surplus pool with the result that the technical objection stood removed. The perusal of the official correspondence placed on the record would show that at the time of selection and recommendations made by Public Service Commission, there was no ban on recruitments and the posts of Research Assistants were also available against which the appointments of the selectees of Public Service Commission were made after fulfilling the departmental requirements. The subsequent change in policy regarding imposition of ban on fresh appointments and requirement of approval of Chief Minister before sending the requisition to the Public Service Commission would not undo the appointments already made against the vacant posts. The policy of the Government regarding ban on the appointments under the economy derive due to financial constraints or for any other reason, would not operate retrospectively and effect the appointments made in consequence to the recommendations of Public Service Commission before the introduction of policy in question which was not enforceable from a back date and to be given retroactive operation to effect existing rights of the individuals. This is an established principle that such policies always operate prospectively and if an order has been given effect or acted upon, the concerned authority would have no power to rescind such an order.
6. ' In Shahbaz v. Crown (PLD 1956 F.C. 46) it was held that locus poenitentiae refers to the powers of receding till a decisive step is taken. If a decisive step is taken other considerations would arise but if that step is yet to be taken, there is no reason to restrict the power to modify or cancel. The same view was taken in Mahboob Rabani v. Government of Pakistan (PLD 1963 Lah. 53), Adnan Afzal v.
7. Capt Sher Afzal (PLD 1969 SC 187) and Pakistan v. Muhammad Himayatullah (PLD 1969 SC 407).
8. In view of the legal position explained above, we hold that the appointment of respondent as Research Assistant in C&W Department. Peshawar, having already taken effect, would be out of reach of the petitioner to rescind the same in the light of principle of locus poenitentiae. The petitioners having taken decisive steps were no more empowered to retrace their steps and rescind the appoint of respondent.
9. ' For the foregoing reasons, we do not find any substance in this petition which is dismissed accordingly and leave to appeal is refused.