Major (Retd.) IFTIKHAR AZIZ AHMAD vs GOVERNMENT OF PAKISTAN Through Secretary, Establishment Division, Rawalpindi And 71 Other
The petitioner, a retired army officer selected for induction into the civil service in 1979, sought leave to appeal against the Federal Service Tribunal's judgment dismissing his appeal. His initial induction notification was subsequently revoked by the Government and his date of induction was deferred from 19-12-1979 to 9-8-1981, altering his seniority. The core legal question was whether the President had the locus poenitentiae to revoke the earlier induction notification and whether the initial induction bypassing the Federal Public Service Commission was lawful. The Supreme Court held that in 1979 the President lacked the power to bypass the Federal Public Service Commission, rendering the initial induction ab initio void and a nullity in law. The Court ruled that the subsequent revocation was not an exercise of locus poenitentiae but a lawful correction of a void order and an error. Consequently, the Supreme Court refused to grant leave to appeal, affirming the Service Tribunal's decision and establishing that void administrative actions lacking statutory backing can be corrected without invoking the doctrine of locus poenitentiae.
- Whether the President possessed the power in 1979 to induct officers into the civil service by bypassing the Federal Public Service Commission?
- Can the revocation of an illegal and void induction order be challenged on the basis of the doctrine of locus poenitentiae?
- Whether an initial induction order that is ab initio in conflict with the law can be treated as a nullity and corrected subsequently?
- Federal Public Service Commission Ordinance
ORDER
SHAFIUR RAHMAN, J.---The Petitioner seeks leave to appeal against the judgment of the Federal Service Tribunal dated 4-5-1989 whereby his appeal was dismissed on the basis of reasoning recorded in another similar appeal preferred by Major (Reid.) Ahmad Hussain Sheikh.
2. At the relevant time the Petitioner was a Commissioned Officer of the Army. He was selected for induction into the civil service. A High Powered Selection Board cleared him in 1979 and he assumed the charge of Section Officer on 19-12-1979. The Petitioner was also assigned seniority accordingly. Thereafter, on 12-1-1987, the earlier notification inducting him into civil service from 19- 12-1979 was revoked and instead the date of induction was brought down to 9-8-1981. The contention of the petitioner was that the President, having competently inducted him into civil service on 19-12-1979, had lost the locus poenitentiae and could not bring down the date of induction about two years later. He claimed seniority on the civil side on the basis of the notification which had issued earlier.
3. The decision of the Service Tribunal and the revocation of the notification by the Government, both proceed on the assumption which appears to be well founded, that in 1979, the President was not possessed of the power to bypass the Federal Public Service Commission, while inducting officers on the post on which the Petitioner was inducted in 1979. The induction of the Petitioner at that time was ab initio in conflict with the law on the subject then existing. There was no power in the President either at that stage to make exception of the law. Hence the earlier selection and induction could not be defended. It was subsequently, that when the Federal Public Service Commission Ordinance was amended and so were its Function Rules, that the induction of Army Officers through a High Powered Selection Board became possible by bypassing the Federal Public Service Commission's examination. It was the revocation of the notification of 1979 which was not so much an act of locus poenitentiae as an act of correcting error, substituting a nullity for a valid order and removing a void order from the scene. It was in this context that the period between 1979 and 1981 was treated as contract service of the Petitioner or secondment which was permissible under the law then existing.
4. We have gone through the law on the subject with a view to examine the correctness of these assumptions or conclusions on which the petitioner has failed. We find that these are fully borne out by contemporaneous law on the subject. Hence no case is made out for leave to appeal which is hereby refused.