' SHAH JEHAN KHAN, J.---The petitioners were appointed as Sepoys in .Dir Leavies (BPS-1) on 28-1- 2003 by respondent No,1 they were sent for training where on 25-2-2003, they were served with the impugned order whereby their appointments orders were withdrawn with retrospective effect. The petitioners have questioned the vires of the aforesaid orders of withdrawal dated 25-2-2003 being without lawful authority and against the principle of locus poenitentiae.
2. We heard the learned counsel for the petitioners who contended that the petitioner was duly appointed by competent authority and their appointments were cancelled without any legal authority or justification. The impugned order was passed without issuing any show-cause notice to the petitioners and the legal right acquired by the petitioners was taken away without being heard. The impugned order is based on mala fide and political pressure of the District Nazim who wants to appoint his own favorites on these posts. The then District Coordination Officer who had appointed the petitioners was reluctant to accept the pressure of the Nazim, therefore, he was transferred from the said office and the new incumbent issued the impugned order on the dictates of the District Nazim. The termination of the petitioners' services with retrospective effect is un- Constitutional and against the principle of locus poenitentiae. In support of his submissions, the learned counsel relied on Syed Sikandar Ali Shah v. Auditor-General bf Pakistan and others (2002 SCMR 1124), Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan (1996 SCMR 413), Mahmooda Begum v. District Magistrate, Sialkot and 2 others (PLD 1991 Lahore 230) and Syed Muneeb Nazir Shah v. Azad Kashmir Government and others.
(PLD 1985 AJ&K 17).
3. The learned Additional Advocate-General while supporting the impugned order submitted that by issuing the appointments orders of the petitioners, the then District Coordination Officer did not observe the recruitment policy and the codal formalities.
4. It is not disputed that the appointments orders of the petitioners were given effect and the petitioners had joined the training course where they were served with the impugned order. It is also an admitted fact that petitioners were not served with any show-cause-notice before taking away their vested right. The learned Additional Advocate-General could not show us any Government Policy for recruitment of BPS-1 employees which was allegedly violated by the District Coordination Officer in issuing the appointments orders.
5. The question of rescinding, the order by the same Authority was considered thoroughly in the cited judgment PLD 1991 Lahore 230 and it was held as follows:-- "There can be hardly any dispute that under section 21 of the General Clauses Act, 1897 and section 20 of the West Pakistan General Clauses Act, 1956, the Authority that has the power to make an order has the power to undo it subject to the exception that where the order has taken legal effect and in pursuance thereof certain . Rights have . Been created in favor of any individual such an order cannot be withdrawn or rescinded to the detriment of those rights."
6. The issue of rescission or cancellation of an order by the same Authority was also considered in PLD 1985 AJ&K 17 and it was ruled as follows:-- "So the law is very clear that an Authority which passes an orders is competent to vary, rescind or cancel the order passed by it and that power vests in it by virtue of section 21 of the General Clauses Act. But this power is not absolute as it is subject to certain limitations. The most important limitation is that when the order sought to be varied, rescinded, or cancelled is communicated to the party and/or subsequent to the communication, that party acts upon it, a very valuable right accrues to that party and therefore the Authority under such circumstances becomes incompetent to vary, rescind or cancel its previous order because the law does not allow volte face to the authority. Thus the petitioner succeeds and deserves a writ of prohibition as prayed for."
7. In the cited judgment 1996 SCMR 413, their lordships of the Supreme Court while hearing an appeal in identical circumstances laid down the following dictum:-- "It is disturbing to note that in this case petitioner No,2 had himself been guilty of making irregular appointment on what has been described "purely temporary basis". The petitioners have now turned around and terminated his services due to irregularity and violation of rule 10(2) ibid. The premise, to say the least, is utterly untenable. The case of the petitioners was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointment. In the peculiar circumstances of the case, the learned Tribunal is not shown to have committed any illegality or irregularity in reinstating the respondent."
8. In the present case, it was mainly contended by the learned Additional Advocate-General that the appointments of the petitioners were in violation of N.-W.F.P. Civil Servants (Appointments, Promotions and Transfers) Rules, 1989 for want of advertisement in the newspaper.
9. It is not the case of the respondent that the petitioners were lacking the requisite qualifications for appointment as Sepoys (BPS-1) in Dir Levies. The irregularity committed by the Appointing Authority cannot be made basis for rescission of the appointment order and that too, with retrospective effect when it was already given effect and acted upon by the parties. In the aforesaid judgment of the august Snpreme Court of Pakistan, in such circumstances, cancellation of the rescission order was kept intact and the irregular appointment of the duly qualified person by a competent Authority was held to be rightly restored.
10. The question of termination of service of a civil servant with retrospective effect was examined in 2002 SCMR 1124 and it was ruled as follows:- "It is worth-mentioning that retrospective effect was given in the termination order which is not sustainable under law as termination could not be with retrospective effect unless the competent Authority is expressly empowered in this regard by some statute or rules made thereunder. No such statute or rules could be pointed out and accordingly the removal of the appellant with retrospective effect is unlawful."
11. The learned Additional-Advocate-General failed to show us any law or rules whereby the respondent No,1 was competent to withdraw his own orders of appointments of the petitioners with retrospective effect, and in view of the aforesaid dictums laid down by the Supreme Court, the impugned order cannot be upheld.
12. In addition to the above, the contention that the impugned orders whereby services of the petitioners were terminated by withdrawing their appointments orders retrospectively was based on mala fide and under political pressure, though no documentary proof in this respect was placed before the Court but the surrounding circumstances, agitated at the bar that the District Cooperative Officer who had issued the appointments order was reluctant to recall the same under political pressure, with the result that he was transferred and the new incumbent was forced to issue the impugned order, will support the contention of the learned counsel for the petitioners. It is a well-established principle of law that the Appointing Authority shall apply his own independent mind in passing orders falling within his authority. The appointment or termination of a civil servant could only be held justifiable if found to have been passed by applying his own independent mind and not being influenced or pressurized by any external forces.
13. In view of the discussion made above and seeking guidance from the cited judgments, we arrived at the conclusion that, the impugned orders of respondent No,1 dated 25-2-2003 is illegal, un-Constitutional and misuse of powers which is hereby struck down and by accepting this writ petition, we direct the respondents to reinstate the petitioners as Sepoys in Dir Levies Force from the date of aforesaid impugned order and they should also be granted full back-benefits.