NASIR MAHMOOD Versus GOVERNMENT OF THE PUNJAB

The petitioner through this Constitutional petition has assailed order dated 22‑7‑1990 passed by respondent No. 3, Commissioner, Faisalabad Division, Faisalabad, whereby in pursuance to Chief Minister's directive his selection as A‑Class Naib‑Tehsildar earlier issued through order dated 18‑11‑1989 was withdrawn.

Brief facts are that during the financial year of 1989‑90 (Annex. `A') 224 posts of Naib‑Tehsildars were sanctioned by the Provincial Government. The petitioner alongwith 140 other persons was selected as Naib‑Tehsildar Canidate (A‑Class) on 18‑11‑1989 on temporary basis against a vacancy to be allocated to Faisalabad Division (Annexure `B'). Thereafter, the petitioner was detailed for training (Annexure `C') and he reported to the Consolidation Officer for the same on 23-11-1989 (Annexure `D'). During the currency of the training the petitioner appeared in the departmental examination and qualified the same in the first attempt (Annexure `E'). While the petitioner was undergoing the prescribed training, his selection orders were withdrawn under the directive of the Chief Minister which were conveyed to him vide impugned order Memo. No. 267272/Rev. Estt., dated 22‑7‑1990 (Annexure `F').

During the course of proceedings I directed through my order dated 25‑1‑1993 to the Secretary, Board of Revenue, Punjab to furnish information in black and white to certain; questions. The said questions and the reply therefore is as under:‑‑

Question

Reply

1. How many persons were appointed to fill the aforesaid newly created posts and what procedure was adopted?

224 persons were appointed. as Naib‑Tehsildars in pursuance of Chief Minister's directive issued from time to time, by the Commissioners of different Divisions being competent appointing Authorities.

2. How many of the appointees sent on training, passed departmental examination in first attempt?

(1) All the appointees were detailed for prescribed Revenue Training by the respective Commissioners being competent authority. Out of 224 such appointees as many as 148 persons passed their-Departmental-examination in the first attempt including writ petitioner as reported by D.L.R. who is officially responsible for holding the departmental examination of Naib Tehsildars and declaration of their result.

(2) The examination of Naib

Tehsildars is held under the relevant rules where at least four attempts can. be availed.

(3) 55 appointees cleared the departmental examination in subsequent attempts.

3. What was the number of allures and how many out of them have been retained in service?

11 appointees did not appear at all while 9 have not so far cleared and all 20 Naib‑Tehsildars are still in

4. What was the reason for the withdrawal of the selection order of the petitioner?

The appointment orders of writ petitioner were withdrawn under the orders of Chief Minister's directive dated 26‑8‑1990.

5. How many other even the petitioner were dropped after their initial appointment and at what stage?

The appointment orders of 5 persons were withdrawn under the order of Chief Minister directive. None of them have challenged their withdrawal.

The perusal of the reply submitted by the Secretary demonstrates that 224 persons were appointed as Naib‑Tehsildars in accordance with the Chief Minister's directive. Their appointments were made by the concerned Commissioners from time to time who are the competent authority in this case. It is admitted that the petitioner passed the departmental examination in the first attempt. It is also reflected from the report that there are 20 Naib‑Tehsildars out of whom 11 did not appear at all in the examination while 9 failed in it and in spite of the same they are working as Naib‑Tehsildars. This shows that the petitioner has been meted out a discriminatory treatment. Even the Commissioner, who has passed this order, has not applied his independent mind. While withdrawing the selection he has simply acted mechanically under the direction of the Chief Minister.

The order of selection having been passed by competent authority could not have been withdrawn in an arbitrary manner. A valuable right accrued to the petitioner could not have been withdrawn in this manner. Reliance is placed upon Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407) wherein it has been held as under:‑‑

"There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to relate the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual as an order cannot be withdrawn or rescinded to the detriment of those rights:

In another case Raja Muhammad Nawaz v. Government of the Punjab (1981 SCMR 523) wherein an EAC who was appointed after relaxation of rules by the competent authority, was reverted by his successor, the Court held as under:‑‑

"The original record of the case was produced before us by the Departmental Representative and its perusal showed that the basic appointment of the appellant as an EA.C did not suffer from any lack of competence on the part of the concerned appointing authority. It further appeared that the aforesaid appointing authority had the power to make the appointment in relaxation of rules, and he competently relaxed the same on condition of certain undertakings and surrender of certain rights which were, contained in the appointment orders arid which were duly fulfilled by the appellant as above‑stated. These facts stood proved from the record and were also admitted by the learned counsel for the respondent. In these circumstances we asked the learned counsel for the respondent as to how the reversion of the appellant was brought about. After referring to the file he submitted that it was just a recall of the earlier appointment order of a competent authority by the successor of that authority on the assumption that the earlier appointment should not or could not have been made. If this is so then the so‑called `recall' order suffers from an inherent defect vice and mistake both of law and fact which will vitiate the same. In this context, the plea raised by the learned counsel for the appellant would also have force that after the fulfilment of the relevant conditions and undertaking by him there was left no animus revertendi on the part of the authority concerned to recall the earlier appointment order."

In another case Muhammad Bilal v The Principal, National College of Textile Engineering, Faisalabad (1991 MLD 1605) it was held "that after taking such decisive steps the University granted admission to the candidate in the college and the candidate on the direction of the University deposited all the dues in the college and was allocated roll number after taking all such decisive steps there was nothing left for Government to withdraw or issue direction contrary to its earlier direction and the University in the circumstances could not recall earlier order granting admission to the candidate".

The argument of the learned Additional Advocate‑General respecting the jurisdiction of this Court is devoid of any force in the circumstances. There is no defect in the appointment of the petitioner which even according to the learned Law officer is by competent authority. The withdrawal of the selection by the Commissioner is simply made at the direction by the chief Minister which fully demonstrates that the order impugned has been passed in a mechanical manner. In the circumstances it cannot be said that the withdrawal order has been passed by the competent authority. Furthermore, no reason whatsoever has been brought to my notice treating the case of the petitioner different from others. He has been singled out in withdrawal of the selection in spite of the fact that his case was better than those of many others who did not even qualify the departmental examination.

Resultantly for what has been stated above, the writ petition is accepted and the impugned order dated 22‑7‑1992 of the Commissioner, Faisalabad Division is declared to have been passed without lawful authority and of no legal effect. There shall be no order as to costs.

AA./N‑175/L Petition accepted.