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Service Appeal No.38 of 2007, decided on 14th December, 2009.

----S. 9---Balochistan Service Tribunals Act (V of 1974), S.4---Promotion---Appeal to Service Tribunal---Appellants being degree-holders of Bachelor of Engineering in Civil Engineering, were appointed as Sub-Engineers in Irrigation and Power Department---Case of appellants was sent for promotion as Assistant Engineer (BPS-17) in respect of vacancies fallen vacant to the 10% quota for Sub-Engineers holding degree in Civil Engineering prior to induction in government service---Selection Board, however, declined to consider the case of the appellants on the ground of "length of service"---According to amended appendix, 10% of posts were to be filled by promotion among holder of the post of Sub-Engineers holding the degree-holders in Civil Engineering prior to induction in government service, which did not contemplate any length, of service---Refusal of the Selection Board to consider the appellants for promotion was based on erroneous view as well as misinterpretation of law and seemed to be discriminatory being conflict with the Balochistan Irrigation and Power Department Engineering (Civil, Electrical and Mechanical Grade-16 and above) Service Rules, 1981---Accepting the appeal, Authority concerned was directed to refer the case of appellants to the Provincial Selection Board for promotion as Assistant Engineers.

----S. 21---Power of Authority to vary, rescind or cancel order---Principle of locus poenitentiae---Applicability---Power of locus poenitentiae was available to the Government in order to retrace and undo the wrong order till a decisive step was taken---Authority that had power to make an order, had also the power to undo it, but that was subject to the exception that where the order had taken legal effect; and in presence thereof certain rights had been created in favour of any individual, such an order could not be withdrawn and rescinded to the detriment of those rights---Section 21 of General Clauses Act, 1897, postulated that the Authority which passed an order, was competent to vary, rescind or cancel the order passed by the Authority, but such power was not absolute as the same was subject to certain limitations---Where the order sought to be varied or cancel was communicated to other party, a very valuable right would accrue to the party and the issuing Authority would become functus officio to vary, rescind or cancel its earlier order. H. Shakil Ahmed for Appellants. M. Salahuddiin Mengal, A.-G. for Respondents. Date of hearing: 19th November, 2009.

This appeal under section 4 of the Balochistan Service Tribunals Act, 1974 has been preferred by the appellants being aggrieved of the decision of Provincial Selection Board taken in its meeting held on 19-4-2007 whereby the Board declined to consider the promotion case of appellants. 2. The relevant facts in small compass are that the appellants being degree-holders of Bachelor of Engineering (B.E) in Civil Engineering were appointed as Sub-Engineers in Irrigation and Power Department on 8th June 2006. In the year 1907(sic) the department sent the case of appellants for promotion as Assistant Engineer (BPS-17) in respect of the vacancies fallen vacant to the 10% quota for Sub-Engineers holding decree in Civil Engineering prior to induction in Government Service. The Provincial Selection Board in its meeting held on 19-4-2007 declined to consider the case of appellants on the ground of "Length of service." 3. The appellants being aggrieved of the said decision made departmental representation but no decision was made. Lastly while finding no other way out approached this Tribunal. 4. On the other hand, the respondents contested the appeal on legal and factual aspects by filing their formal reply. 5. We have considered the contentions raised by the learned counsel for appellants and Mr. Salahuddin Mengal, Advocate-General of Balochistan and also perused the record with their valuable assistance. 6. Before going to dilate upon the controversy between the parties, it would be appropriate to reproduce here in below the Balochistan Irrigation and Power Department Engineers (Civil and Mechanical Grade 16 and above) Service Rules 1981 wherein the quota of initial recruitment and promotion is prescribed as under:--

"Assistant Engineer.

Sub Divisional Officer.

(a) 60% by initial recruitment.

(b) 10% by promotion from amongst holder of the post of sub Engineer holding the decree in Civil Engineering prior to induction in the government service.

(c) 10% by promotion from amongst holder of post of Sub Engineer acquiring degree in Civil Engineering during service.

(d) 17% for diploma Associate Engineers.

(e) 3% Sub Engineers having degree of B-Tech (Hons)." 7. The record/working paper prepared by the Irrigation and Power Department show and suggest that the cases of appellants were placed before the Provincial Selection Board on 19-4-2007 for promotion against the 3 vacancies reserved for sub-Engineers having pre-service degree of Civil Engineering (BE) but it was declined with the following observation:

"The Board advised the Administrative Department not to submit such cases if a Sub-Engineer having higher degree at the lime of his recruitment is given this benefit then the purpose of selection of competent/intelligent degree-holders through competition would absolutely fail. Such degree holders after the induction on lower post shall ask for such promotion and if granted, it would tantamount to violation of policy of the Government with regard to merit based recruitment through Balochistan Public Service Commission in BPS-16 and above. The Board advised that a minimum length of 10 years service for such graduates may be adopted as in case of B-TECH (Hons)" 8. It is worth mentioning that according to amended appendix dated 17-10-2005 10% of the posts are to be filled by promotion amongst holder of the post of Sub-Engineer holding the degree in Civil Engineering prior to induction in Government service which do not contemplate any length of service. The refusal of the Provincial Selection Board to consider the appellants for promotion is based on erroneous view as well as misinterpretation of law and seems to be discriminatory being in conflict with the Balochistan Irrigation and power Department Engineering (Civil, Electrical and Mechanical grade. 16 and above) Service Rules 1981. 9. We are conscious of the fact that the power of locus poenitentiae is available to the government in order to retrace and undo the wrong order till a decision step is taken, the authority that has 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 presence thereof certain rights have been created in favour of any individual such an order cannot be withdrawn or rescinded to the detriment of these rights. 10. It is also pertinent to mention here that section 21 of General Clauses Act 1897 postulates that an authority which passes an order is competent to vary rescind or cancel the order passed by the authority but such power is not absolute as the same is subject to certain limitations. Where the order sought to be varied or cancel is communicated to other party, a very valuable right accrues to the party and the issuing authority becomes functus officio to vary rescind or cancel its earlier. 11. Admittedly in the year 2007 the services of appellants were governed by the rules namely Balochistan Irrigation and Power Department Engineers (Civil, Electrical and Mechanical Grade 16 and above) Service Rules, 1981 and under the said rules the appellants were expecting their promotion against the 3 available seats of Assistant Engineer of their category and it was their legal vested right and the Provincial Selection Board has wrongly declined their cases. 12. In view of the above discussion, appeal is accepted. The respondent No.3 is hereby directed to refer the case of appellants to the provincial Selection Board for promotion as Assistant Engineers with effect from 19-4-2007. No order as to costs. H.B.T./15/BST Appeal accepted.

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