MAHTAB AHMED Versus SECRETARY, MINISTRY OF DEFENCE

M. ILYAS LODHI (MEMBER).‑‑ ‑We proposed to dispose of all these four appeals by this consolidated order as the questions of facts and law involved therein are identical.

2. The appellants initially joined as Supervisor 'A" (BPS‑'1'1)' and subsequently they were first promoted as Chargeman (BPS‑12) and then as Assistant Foremen (BPS‑14) respectively in the Inspectorate of Vehicle and Engineering Equipments, Chaklala. Thereafter, they were granted Selection Grade (BPS‑16) by letter dated 10‑2‑1990 as 25% of the total posts of Diploma Engineers were placed in the said grade, in each Directorate, vide the Ministry of Defence Letter No. 1550/E‑ID/2602/D‑3(a)/75, dated 14‑7‑1975. However, on 10‑6‑1991, the Administrative Officer asked the CMT & SD, Golra, to inform the appellants that their names had been deleted from the list of Selection Grade Assistant Foremen (BPS‑16) by the MGO Branch, GHO. Rawalpindi, as they were erroneously approved for the grant of said grade. The appellants filed departmental appeal against the said order before the MGO on 24‑7‑1991 but in spite of statutory waiting period of 90 days no response had been made. The appellants then filed the present appeals before this Tribunal on 13‑11‑1991 and 27‑11‑1991 respectively. .

3. The learned counsel for the appellant argued that the appellants were granted Selection Grade (BPS‑16) after the recommendation of the DPC and the approval of the competent authority. Their seniority and service records were also examined. According to him, the appellants had enjoyed the fruits of Selection Grade (BPS‑16) for a period of sixteen months and, therefore, there was no justification for deleting their names from the list of Selection Grade Assistant Foremen. The learned counsel also maintained that the action of Respondent‑Department amounts to reduction in rank which is a major penalty under the Government Servants (Efficiency and Discipline) Rules, 1973, and such penalty cannot be awarded without following the prescribed procedure of show‑cause notice. He contended that the principle of natural justice as enshrined in maxim audi alteram partem i.e. that nobody should be condemned unheard has also been violated and. therefore the impugned orders should be struck down by this Tribunal. The learned counsel then relied on the judgment of the Honourable Supreme Court m the case of Chief Secretary, Government of Sindh v. Sher Muhammad Makhdoom and 2 others (PLD 1991 SC 973) wherein their Lordships have held that "principle of locus poenitentiae is available to the Government or relevant authorities and further authority which is competent to make order has power to undo it, but such order cannot be withdrawn or rescinded once it has taken legal effect and created certain rights in favour of any individual. The appellants counsel further submitted. that after the grant of Selection Grade the appellants had served more than sixteen months and thus vested rights had created m their favour, therefore, the impugned orders whereby they have been demoted are illegal. On the basis of the above submissions the learned counsel submitted that the impugned orders which are unlawful, arbitrary and ab initio void be set aside and the respondents be directed neither to deprive of the appellants from the benefit of Selection Grade nor any recovery should be made from them.

4. The learned counsel for the respondents argued that passing of the Departmental Examination for the grant of Selection Grade is prerequisite condition which cannot be overlooked or ignored. He maintained that the appellants did not pass the examination, therefore, they were not eligible for the said grade. In fact, the orders of granting the Selection Grade (BPS‑16) to the appellants were erroneously issued and when it came to light while scrutinising the record and considering the applications of other incumbents for the Selection Grade, they were justifiably cancelled. He further contended that since the mistake in granting the Selection Grade to the appellants had occurred due to wrong interpretation of rules regarding qualifications, Departmental Examinations etc. by the concerned authorities, therefore, the respondents were within their competence to rescind their earlier orders. He, at the same time, maintained that the appellants were not guilty of any fault and thus there was no necessity of issuing any show‑cause notice to them.

5. After hearing the arguments from both the sides we have come to the conclusion that the appellants were granted Selection Grade on the recommendations of properly constituted DPC. The guidelines issued by the GHQ to the Department for submitting promotion cases and on the basis of which the appellant's cases were put up for promotion are very clear. The DPC had fully examined the records and the requirements of the Rules particularly the communication dated 5‑4‑1981 wherein it was desired that although the Departmental Promotion Examination for the post of Selection Grade (BPS‑16) was compulsory yet it was explained therein that the examination was for the direct recruitees as Foremen or Assistant Foremen. The appellant, in the present case, are not direct recruitees but they are promotees and besides that they were never asked to take examination for the grant of Selection Grade (BPS‑16). It appears that the Chief Inspector IV and EE, Chaklala, has also vide his letter dated 25‑9‑1991 clearly informed the ITD Dte (R/C), MGO Branch, GHQ, Rawalpindi, that former interpretation of the rules, according to which the appellants were granted Selection Grade (BPS‑16), was correct while the later on the basis of which the said benefits were withdrawn, is rigid. He, therefore, recommended the cancellation of the orders dated 1‑6‑1991 advising that the special waiver from passing the departmental promotion examination may be granted to the appellants. Besides that the DPC had remarked in the column of the promotional examination that the same was not applicable in respect of the above‑named four appellants. The competent authority on the recommendations of the DPC had granted the Selection Grade. The appellants enjoyed the fruit of promotion of Grade‑16 for a period of' sixteen months and had also drawn all the financial benefits. The contention of the learned counsel for the respondent‑Department, on the basis of the decision of the Honourable Supreme Court in the case reported as PLD 1992 SC 207 is that the authority who issues the order can withdraw its order. Their Lordships in the said judgment had observed that the order issued by the Department in that case was incorrect and illegal as the incumbent was never promoted and no decision of the competent authority was placed on record to substantiate his contention. The order under which the judgment was made to the respondent had no sanction of law. Therefore, according to the Hon'ble Judge of the Supreme Court, the principle of locus poenitentiae was not attracted in the case and perpetual right cannot be granted on the basis of an illegal order. At the same time, the learned Judge did not allow the Department to recover the amount already paid to the incumbent under the principle of locus poenitentiae. In this case the order passed by the Department cannot be taken as incorrect or wrong, order, as they were issued after the recommendations of the DPC for placing the 'appellants in BPS‑16 and the approval of the competent authority. Moreover, the learned counsel for the respondents could not explain to our satisfaction that these orders were validly made but has only pleaded that they were issued by mistake. In our view the officers who prepared the briefing for the DPC should not have overlooked the instructions and, therefore, due to their inadvertence/negligence, the appellants should not have been demoted merely on the plea that they were placed in Selection Grade (BPS‑16) on account of the wrong interpretation of the rules. Since the appellants were promoted after obtaining the approval of the competent authority and they had also enjoyed the fruit of their promotion for sixteen months, therefore, they should not be deprived of their vested rights.

6. We, therefore, find no justification in the contention of the learned counsel for the respondent‑Department that since the orders were issued due to inadvertence of the lower staff, therefore, the respondent‑Department way justified in issuing the order of demotion in respect of the appellants. If such a pleading is allowed then it will become an order of the day and whatever order is made by the competent authority that will be withdrawn on the next day at the whim and caprice of the competent authority on the ground that it was an illegal order and was issued by mistake. This practice has to be curbed, once 'for all, by upholding the principle of locus poenitentiae in favour of the persons in whom the vested rights had accrued not for any fault of them. Let those officials should suffer who were responsible for creating the embarrassing situation for the Government and who, without properly examining the cases, passed such orders. There are also a number of cases wherein the rights were established wrongly but under the maxim of locus poenitentiae the Hon'ble Supreme Court in one of the cases, refer red to above, took the view that when the orders had taken legal effect they cannot be withdrawn or, rescinded. Following this dictum, such orders, cannot be withdrawn or rescinded once they had taken legal effect and created certain rights in favour of the appellants.

7. In view of the foregoing discussion, we accept the appeals and direct the respondent‑Department not to disturb the promotion of the appellants.

8. No order as to costs.

9. Parties be informed.

SEED ALLY MADAD SHAH (CHAIRMAN).‑ ‑‑I agree that the order dated 10‑2‑1990, where under the appellants were placed in selection grade B‑16 had been implemented and it could not be recalled vide orders dated 1‑6‑1991 and 10‑6‑1991 as no locus poenitentiae was left with the authority to order deletion of the names of the appellants from the said order dated 10‑2‑1990. The appeals are allowed on that ground and the impugned orders are set aside and the appellants stand restored to the selection grade B‑16 as per order dated 10‑2‑1990.

A.A./778/Sr.F ????????????????????????????????????????????????????????????????????????? ??????????? Appeals allowed.