1. MIR KHUDA BAKHSH MARRI, C. J.-This Constitution petition under Article 199 seeks to challenge an order of Member, Board of Revenue, Baluchistan, Quetta Annexure V whereby he accepted the petitioner's application and re-instated him to the post of Naib-Tehsildar from which he had resigned earlier and which 'Wag accepted by the Revenue authorities. However, acceptance of the' .Petitioner's application for re-instatement was made subject to the condition laid down in para. 5 of Services and General Administration Department Memo. No. SOXII-2-96/59 dated 24-12-1959.
2. The facts briefly are that the petitioner was appointed as Naib-Tehsildar in the Revenue Department on or about 20-10-1967. In his own words he resigned in February, 1974 due to his prolonged illness, his resignation was accepted on 22-4-1974 by the Member, Board of Revenue, Baluchistan with immediate effect which is Annexure `B'.
3. Thereafter the petitioner moved an application on 9-7-1974 for re-instate--ment to the Member, Board of Revenue, Baluchistan, three months after the acceptance of his resignation whereby he stated that he resigned due to ill-health and requested for issuing posting orders. This letter was followed by the orders of Member, Board of Revenue, Baluchistan re-instating the petitioner subject to certain conditions stated above.
4. Thereafter the petitioner made a representation to the Member-I, Board of Revenue, Baluchistan, Quetta for determination of hit seniority on 5-6-1978 on re-employment after the resignation. But this application was rejected by the Member, Board of Revenue vide his elaborate order dated 31- 7-1978 coming to the conclusion that the representation of the petitioner's seniority as Naib- Tehsildar with retrospective effect has no merits. This order was followed by a review petition to the Member,- Board of Revenue, Baluchistan, Quetta. The same was rejected by the Member, Board of Revenue, Baluchistan vide his order dated 14-1-1979.
5. The important point for consideration is whether the petitioner has a right to the seniority from the date of his first appointment in 1967 in spite of his resignation from the post which was not only accepted but also acted upon, particularly so in view of the clear condition laid down in tae re- instatement order which was accepted by the petitioner mentioned earlier or from the date of his re-instatement some time in July, 1974.
6. Learned counsel for the petitioner submitted that the petitioner is entitled to the seniority from the date of his first appointment in 1967 and not in 1974. As to the condition in para 5 of Services and General Administration Department Memo. Dated 24-12-1959, Annexure `F' counsel submitted that this has no legal force. This para. Which forms a part of subsequent reinstate--ment order, is as under :----- "5. If a Government servant, whose resignation has been accepted and communicated to him, is appointed to Government service thereafter, such appointment shall be regarded as a fresh appointment. The seniority, pension, leave etc. Of such a Government servant shall be fixed in accordance with the rules applicable to him as if this appoint--ment was his first appointment to Government service."
7. The petitioner tendered his resignation voluntarily which was accepts and acted upon. His re- instatement it appears from the impugned order of M. B. R. Is on compassionate grounds and that is why he tagged the condition laid down in para. 5. Of the Services and General Administration Memo dated 24-12-1959. Therefore, in our opinion the petitioner cannot be allowed at the same time as the saying goes "to have his cake and eat his cake" i.e. To get himself re-instated after resignation and thereafter claim the benefit of the previous service to the prejudice of other officers of the same rank.
8. Except where gross injustice is done, we in our writ jurisdiction do no interfere with matters of interdepartmental promotions, seniority and B reinstatement because under various rules and regulations remedies are available with the relevant authorities. In this case the petitioner has exhausted all these remedies in form of representations and review and they have been duly considered by the officers concerned.
9. However, only one point raised by the counsel for the petitioner which needs some consideration is that the Department while considering the case of the petitioner, dealt with discrimination as against a similar case of one Mr. Ehsanullah, Assistant, Account Branch, Commissioner's Office, he it is stated was given the benefit of his previous service at the time of his re-instatement in spite of the fact that he resigned earlier. This was done by the Government on placing reliance on a letter of the Services and General Administration Department Memo. Dated 19-7-1965 (copy of the same is Annexure 'L'). In our writ jurisdiction which is essentially equitable, at least C question of glaring discrimination in similar conditions of two officers cannot be allowed to go unobserved. Counsel for the petitioner has not produced any such order or any other document in support of his contention.
10. Had he done so, perhaps, the matter could be considered in a different light.
11. As Annexure 'L' has been filed and is a part of Court record and a reference is made to it, we are constrained to give our opinion with regard to its legality. Before we proceed further Annexure 'L' is reproduced below .
12. Annexure "L"
13. No. S. O. IV S&GAD 4-30/64, Government of West Pakistan, Services and General Administration Department (Section IV) Dated Lahore, the 19th July, 1965.
14. From :Mr. Ghiasuddin Ahmad, S. Q. A., C. S. P., Additional Chief Secretary to Government of West Pakistan.
15. To : All concerned.
16. Subject :Reviewing their own decision by the various authorities under the Went Pakistan Government Servants (Further Usefulness .. In Public Service) Rules, 1963)
17. Sir, I am directed to state that a question has arisen whether the appropriate Committee, the Delegatee, the Public Service Commission and the Government are competent to revise their own opinions formed on the consideration of the record of a Government servant. The question has been carefully considered and the position in this respect is as under :-
3. The legal position as laid down in Shahbaz's case PLD 1956 FC 46 is that Government and executive authorities must be presumed to have the inherent right of reviewing their orders, unless such orders have been executed and are beyond recall. In fact, Government is presumed to have unfetted right of setting aside an adverse order and replacing it by an order in favour of a Government servant to meet the ends of justice.
18. Your obedient servant, Bashir Ahmad Khan, Deputy Secretary (Regulation).
19. For Additional Chief Secretary to Government of West Pakistan. A bare reading of the so-called instructions by the then Government of West Pakistan being acted upon by the Provincial Government of Baluchistan as alleged, makes it very clear that interpretation put to it by the Provincial Government is entirely misplaced because this was a case under section 401, p Cr. P. C.
20. Where a person was convicted for murder and sentenced to death on 5-2-1953 by the Sessions Judge, Sialkot. On appeal the High Court of Lahore upheld the conviction but reduced the sentence to transportation for life on 6th May, 1953. However, in the year 1954 the appellant moved the Government of Punjab for remission of his sentence and the then Government of Punjab passed an orderremitting the sentence of appellant unconditionally with the directions that he should be released on the Independence Day, i.e. 14th August, 1954. But this order was cancelled one day earlier, i.e. 13th August, 1954 and as a result, the appellant was not released. Thereupon a habeas corpus application was filed in the High Court of Lahore which was dismissed. Application for special leave to the then Federal Curt of Pakistan was also dismissed.
21. The main point raised before the Federal Court was that an order of unconditional remission of sentence could not be cancelled, while on behalf of the Crown reliance was placed on interpretation of section 21 of the General Clauses Act and it was argued that it empowered the Provincial Government .To rescind its earlier order. While considering the scope of section 401, Cr. P.
22. C. And section 21 of General Clauses Act in this murder appeal, their Lordships of the Federal Court held that "It does seem to us necessary in this case to decide whether section 21 of, the General Clauses Act appeals to orders passed under section 401, Cr. P. C, for apart from that provision, Government must, in the nature of -things, possess power to recall its own orders. In fact existence of such power is necessary in the case of all authorities empowered to pass orders under a statute or regulation and that is apparently the reason why in order to give finality to judicial order provisions restricting the use of this power had to be introduced In the Civil and Criminal Procedure Codes.
23. Wherever there is no such restriction imposed on Governments there is no reason to deny them the power of correcting even the errors of judgments."
24. We are at a loss to understand as to how the observations of the Federal Court in a Criminal matter have beenmade applicable and utilizes through Annexure 'L' by the Provincial Government in matters of promotions demotions, re-instatement, etc. We are also surprised to note that even the words used in para. 3 of Annexure `L' supposedly to have been used in the judgment reported in PLD 1956 FC 46 that-- "Government and the Executive authorities must be presumed to have the inherent right of reviewing their order, unless such orders have been ex--ecuted and are beyond recall. In fact, Government is presumed to have unfettered right of setting aside an adverse order and replacing it by an order in favour of a Government servant to meet the end of justice." do not find place in the same terms and sense. Besides the Federal Court was considering a criminal appeal and power of Government to recall its earlier order of remission or not, and it was not considering the general powers vested in the executive authorities regarding service matters. It may also be pointed out it is Constitutional duties of the Superior Courts to interpret the Constitution, Laws and its own judgments and not by the executive. In case of difficulty they can resort to the Court for its inter--pretation instead of putting interpretation which the Courts did not intend. It is also common knowledge that in a Democratic Country like Pakistan, every authority and institution including judiciary, the executive and the Legislature are bound under Constitution and its laws. No single Institution or person can legally claim to have unfettered powers, as has been un--fortunately mentioned in Annexure 'L', the Services and General Administration Department Memo.
25. This observation has become necessary because it has been submitted by the counsel for the petitioner that Provincial Government has acted upon these obsolete instructions contained in Annexure `L' while considering matters of promotions, resignations, re-instatement, etc. This Annexure 'L' ha P neither legal force, nor it is a true interpretation of the judgment of the Federal Court.
26. For the reasons given above, we see no substance in this petition as presented and dismiss the same in limine.
27. Copy of this judgment be sent to the Chief Secretary, Government of Baluchistan for information.