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Writ Petition No. 458 of 1982, heard on 8th June, 1982.

Art. 199‑Recall of order‑Petitioner declared successful in examination and directed to report for training to specified officer Held: Once right accrued in favour of petitioner, appointing authority left with no power to recall order for his training.

Pakistan v. Muhammad .Elimayat‑Ullah Farukhi P L D 1969 S C 407 fol,

‑‑Art. 199‑Natural justice‑Requirement of observance of rules of natural justice, held, to be observed by all functionaries when dealing with rights of persons whether proceedings be judicial, quasi judicial or administrative

Abdul Hafeez for Petitioner.

Nemo for Respondents.

Date of hearing : 8th June, 1982.

This constitutional petition has been filed by Ghulam Mustafa to challenge the validity of an order issued by respondent No. 2 whereby order for his training as Telecom : Technician was recalled.

2. The case set up by the petitioner is ‑that he is already serving in the Telecom : Department as Chowkidar. He was allowed to sit in the recruitment examination held in April, 1981 in which he was successful. He was, thereafter. selected for training as a Telecom :technician subject to‑availability of the vacancies and conditions which are spelt out in Annexure A' to the Writ Petition. On successful completion of the training, the petitioner was to be appointed as a Telecom : technician on pro bation for one year subject to the availability of the posts according to the merit obtained in the final examination. In case no vacancy was available at that time, he was to be kept on waiting list till a vacancy occurred. He was to receive stipend during the period of two years. He was accordingly directed to report to the Divisional Engineer Regional Telecommunication Training School, Lahore Cantonment by 1st October, 1981 alongwith docu ments required to be produced. Such documents were a medical certificate of fitness from a Commissioner Medical Officer and a security of Rs. 50 deposited in a Post Office, pledged in. favour of the General Manager, Central Telecommunication Region. Lahore. There was also a declara tion required to be filed by him that his parents had no objection to his such training. Thereafter the petitioner made a request for change from General to Microwave which was accepted and communicated to him by Annexure 'B' to the writ petition dated 23rd March, 1981. He was accordingly directed to report for training to the Divisional Engineer, R. T. T. S. Karachi on 1st October, 1981. The petitioner also relies on Annexure C' dated 29th September, 1981 whereby sanction was granted relieving the petitioner from his duties from Lahore Division w. e. f. 30th September, 1981 with. orders to report to Divisional Engine‑r Training (R. T. T. S,), Karachi with immediate effect. The basis for refusing to allow the petitioner to continue with his training is disclosed by Annexure D' which is a communication from the General Manager, Central Telecommunication Region, Lahore to Divisional Engineer, Regional Telecommunication Training, School Lahore Cantonment dated 1st November, 1981. It states that the petitioner was erroneously declared success flit in the competitive examination of Telecommunication Technicians and directed to report to the Divisional Engineer, R. T. T. S. Karachi for Microwave training. In the meanwhile mistake was detected and Divisi onal Engineer Karachi was informed not to take the official on duty vide letter dated 27th October, 1981.

3. When this writ petition came up for hearing, I called for a report and parawise comments which were duly received. The stand taken in these parawise comments by the respondent is that it stood disclosed that the‑ petitioner was not the son of an employee and thus on 27th September, 1981 his result was cancelled and the petitioner was informed of the recall of the order. It is further the departmental stand that as per newspaper advertisement on disclosure of facts/information which had not come into the notice of the administration, the result would be liable to be cancelled or modified totally or partially. It is further stated that the peti tioner had been erroneously considered as a son of an employee and hence his result was cancelled. It is the department's case that on account of the error, the petitioner was declared successful because he was erroneously considered to be a son of an departmental employee for which category a quota of 25% of the vacancies was reserved. It is admitted in the report that the petitioner had been picked up on erroneous presumption that he was son of an employee of the department whereas he was not. This mistake was sought to be rectified.

4. On behalf of the petitioner it has been strenuously argued that it is not a case on his part of misrepresentation or any violation of law which governs the subject. It is submitted with emphasis that once the order had been passed and conveyed, it took legal effect and thereafter the power of receding was no more available to the departmental authrities on a plea of mistake simpliciter on their own part when the petitioner was not in any manner contributory to such a mistake and was not guilty of any misrepre sentation. It is being pointed out that even in the departmental report it has not been alleged that the petitioner had misrepresented hism self to be the son of an employee. In such like situations, it is submitted, that departmental authorities did not possess locus penitential to recall the order because once the orders had been conveyed, it took legal effect and right accrued in favour of the petitioner. In support of this submission, reliance is placed on a decision of. the Supreme Court reported as Pakistan v. Mahammad Himayat Ullah Farukhi (P L D 1969 S C 407).

In the precedent case, Supreme Court has held There can hardly be any dispute with the rule that apart from the provisions of section 21 of the General Clauses Act, locus penitential, 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 retrace 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, such an order cannot be withdrawn or rescinded to the detriment of those rights."

In view of the clear enunciation of law made by the august Supreme Court, it is crystal clear that once right accrued in favour of the petitioner, there was no power left in the respondents to recall the order. It is also evident that the petitioner had not in any manner mis‑represented this position that he was a son of an employee of the department. The petitioner is, therefore, not in any manner to blame. The mistake which is being alleged in this case is not ‑covered by the representation made in the advertisement. If the petitioner was guilty of mis‑representation of facts or suppression of material facts, it may have been open for the departmen tal authorities to cancel the petitioner's training. On the contrary the department has frankly owned its own mistake. There was a further violation of rules of natural justice in as much as be was not heard before the impugned order to his detriment was passed. As to the requirement u of observance of rules of natural justice, suffice to state they are to be observed by the functionaries when dealing with rights of persons whether, the proceedings are judicial, quasi‑judicial or administrative in forum. 1 have, therefore, no hesitation in holding that the impugned order purport ing to cancel the petitioner's course for training suffers from serious legal infirmities and want of jurisdiction and thus liable to be declared as being without lawful authority and of no legal effect. It is further directed that the petitioner shall be allowed to continue his training and if because of the illegal action of the department it is not possible for him to join the present course, he should be given an opportunity to join the subseq uent course or the department should make adequate provisions for impart ing him necessary training. Since respondents have not appeared to contest: this petition, there will be no order as to costs.

M.Y. M. Petition. accepted.

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