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Appeal No. 20 (L) of 1981, decided on 28th May, 1984.

--- S. 4 read with Provisional Constitution Order (1 of 1981), Art. 15 (2) and M.L.O. 23-Bar of jurisdiction of Service Tribunal Appellant retired compulsorily under Government Servants (Efficiency and Discipline) Rules, 1973 on 3rd October, 1976-His representation for reinstatement accepted by Prime Minister on 27th June, 1977 Reinstatement order passed by Prime Minister not implemented before imposition of Martial Law and change of regime-Appellant subsequently making application for implementation of order of his reinstatement-Such application though made long before promulga tion of M.L.O. 23 placed before Review Board set up under M.L.O. 23 and Review Board recommending its rejection and such recommen dation never placed before C.M.L.A. but on basis of some noting of Advisor for Establishment its rejection by C.M.L.A. presumed-So -called rejection, in circumstances, held, did not amount to an order made in exercise of powers derived from any of the Regulations, enactments, notifications, rules or orders contemplated by Art. 15 (2) of Provisional Constitution Order, 1981 and matter, held, within jurisdiction of Service Tribunal-Art. 15 (2) ibid, held, cannot stand in way of Tribunal going into validity of impugned order refusing to implement Prime Minister's order regarding reinstatement of appellant.

1982 S C M R 562 distinguished.

P L D 1980 S C rel.

Order-Coming into force of an order-Meaning of. Appellant before Service Tribunal was retired compulsorily under Government Servants (Efficiency and Discipline) Rules, 1973. On consider ation of his representation the Prime Minister decided to rescind the retire ment order and directed that the appellant be informed about his order by a particular Minister. The said Minister accordingly informed the appellant and marked down the file to concerned authorities after recording his note that he had informed the appellant. Question before the Service Tribunal was as to whether the order passed by the Prime Minister reinsta ting the appellant bad come into effect at any time.

Held: If an order is passed by a competent authority, but not implemented by the subordinates of that authority, would the order be said to have come into effect Or will it depend, for being so treated, on the subordinates, implementing the order Legally, an order may be said to come into effect on a particular date, but, in practice, it may not be carried out on or by that date in which case, while, theoretically, the order may have come into effect, in actual practice, the situation may be different. It would, thus, appear that, although the benefits of an order may not actually have accru ed to a person on a date on which the order may have come into effect, this will not imply that the order had not come into effect on the date on which it was required to come into force. For example, an Act, an Ordinance, an M. L. O. or an M. L. R. may be ordered to take effect from a particular date, but the persons entrusted with the work of carrying out the orders contained therein may fail in their duty of carrying out those orders. This would not imply that those orders had- not come into effect on the stipula ted date.

The Minister informed the appellant about the order of his reinstate ment by the Prime Minister. At this stage, the order of reinstatement was completed and had come into effect. If it was not notified, or conveyed in writing to the appellant, it could not alter the fact that the order was there in the field. The absence of a formal notification could not negate the exis tence of the order, because it had been verbally covered to the appellant, as desired by the Prime Minister and, the moment it was so conveyed, it legally came into effect, since it formally and positively committed the Government to the reinstatement of the appellant.

This Prime Minister having ordered his reinstatement, and the order having been conveyed, even. though orally, to the appellant, it had taken effect and had to be treated as a legally enforceable order.

In spite of the non-implementation of the order, the order still holds the held and it cannot be said to have lapsed, because an order' passed by a competent authority cannot be left to the tender mercies of the State func tionaries who fail to carry out their duties, in accordance with the law. Government decisions would become a mockery and nobody would have any faith left in the authenticity and finality of any Government decision, if such decisions were allowed to lapse in this fashion.

Mukhtar Ahmad v. Government of West Pakistan P L D 1971 S C 846 and Khondkar Ali Afzal v. Pakistan and others P L D 1950 Kar. 105 rel.

-- Locus poenitentia-Powers to recede-Would be left only if an order has not been carried into effect-Order regarding reinstatement conveyed verbally under official direction to officer concerned-Power of receding, in circumstances, held, not available to Government.

Shahbaz v. Crown P L D 1956 F C 46 and Pakistan v. Muhammad Himayatullah Farukhi P L D 1960 S C 407 ref.

M. Asif Jan for Appellant.

Hafiz Tarig Naseem for the State.

Date of hearing : 4th December, 1983.

-This appeal has been heard by us on remand from the Supreme Court, vide its judgment dated 8th May, 1983, in Civil Appeal No. 58 of 1982.

2. Earlier, the Tribunal had, by its judgment, dated 9th February 1981, allowed the appeal against the order, dated 9th February 1981, whereby the President had been pleased to reject the prayer made by the appellant, for reinstatement in service, on the basis of the orders passed earlier by the former Prime Minister, on 27th June, 1977, and communicated verbally to the appellant on 3rd July, 1977.

3. The Honourable Supreme Court in their judgment, while setting aside the Tribunal's order of 21st October, 1981, directed that the appeal be reheard and a fresh decision taken, after considering this competency of the appeal before the Tribunal under Article 15 (2) of the Provisional Cons titution Order, 1981 and also deciding the following other issues

(i) Whether the order passed by the then Prime Minister, dated 21st June, 1977, reinstating the respondent in service had come into effect at any time.

(ii) Were any orders passed by the President revoking or recalling the aforesaid orders, before the same could take legal effect

(iii) If the order of reinstatement of the respondent was in the field, could the Review Board consider his representation and reject it

4. The relevant facts of the case, necessary for a proper understanding of the issues involved in the appeal, are that the appellant, while serving as Deputy Inspector- General of Police, was charge-sheeted for certain alleged offences and retired from service, under rule 3 of the Government Servants (Efficiency and) Rules, 1973, by Notification No. ( ) Police/ Est., dated 30th October, 1976, Against this, the appellant made a repre sentation to the competent authority, the Prime Minister of Pakistan, who, on the recommendation of the Minister for Water. and Power, ordered the reinstatement of the appellant on 27th June, 1977 and asked the Minister to inform the officer personally. His exact words were: "He can be reinstated as a special case, because I believe my Minister from Mardan. You may call him personally and tell him that I am doing it as an exceptional case." On 3rd July, 1977, the Minister, after informing the officer, wrote "I have spoken to the officer concerned", and marked the paper to the Establishment Secretary. Before any further action could be taken, there was a change of regime and the Prime Minister, who had ordered the rein statement of the appellant, was no longer in office. The Establishment Divi sion it seems not being sure that the Prime Minister's Order of 27th June, 1977 could be implemented without confirmation by the new regime, placed the matter before the C. M. L. A. for decision whether the appellant was to be reinstated in the light of the former Prime Minister's decision. The case was put up through the Secretary-General-in-Chief, who remarked that :-

"In view of what is stated by the F. 1. A. and F. I. A. has looked into the case of this officer twice, reinstatement would not appear justified."

Thereafter, the file went to the Chief of Staff to the C. M. L. A. who return ed the case with the following observation, dated 3rd November, 1977:-

"The C. M. L. A. has not approved the reinstatement."

5. It appears that the Establishment Division did not consider it necessary to convey this decision of the C. M. L. A. to the appellant. Meanwhile, having already been informed by the former Minister for Water and Power that his reinstatement had been ordered, the appellant continu ed to wait for the formal notification in this behalf, till, on 7th September, 1977, he addressed an application to the Secretary, Cabinet Secretariat, drawing attention to the fact that the former Prime Minister had passed orders of his reinstatement and requesting for being put back on his job, No orders, on this application, were passed by the Cabinet Secretary, but the case of the appellant was considered by the Federal ;Review Board, on the basis of the application addressed to the Cabinet Secretary. The Review Board, although observing that, since the petitioner was alleged to have been suffering from serious weaknesses, unbecoming of an officer, the proper course would have been to hold a formal enquiry to ascertain the true facts, advised that the review petition may be rejected, because, "when his case was submitted by the Establishment Division in the summary, dated 23rd July, 1977 to the C. M. L. A, recommenting his reinstatement, the C. M. L. A, did not approve this recommendation." Although the Review Board's note was marked to the Adviser, Establishment, who, in his turn, marked it to C. M. L. A. on 26th May, 1978, with the remark "petition be rejected", there is no indication on the file that the said note was seen by the C. M. L. A. and the petition rejected, in accordance with the advice of the Review Board and the Adviser Establishment. However, by a memo, dated 6th June, 1978 the appellant was informed by the Establish ment Division that his petition for review was considered by the compe tent authority but it was not found possible to accept the same. He made a further representation to the President, who, after giving interview to the appellant, on 13th March, 1979, rejected the same. The order of rejection was, however, not communicated to him immediately, but as late as 9th February, 1981, after he had moved the Establishment Division on 1st January, 1981 for a reply to his representation to the President. Treating this as a final decision in appeal, the appellant came before the Tribunal under section 4 of the Service Tribunal Act, 1973 on 17th February. 1981. The appeal, being within time, was admitted for hearing and. after proper arguments, on both sides, was disposed of by the Tribunal judgment, dated 21st October, 1981, by which the Tribunal held that the order of rein statement passed by the former Prime Minister was good enough to vacate the order of compulsory retirement of the appellant and that the said order of reinstatement could not be subjected to a second review by his successor, since there was no such provision in any law of rule.

6. Against the above judgment and order of the Tribunal, the Res pondent went in appeal to the Supreme Court, who, in their judgment re ferred to, observed that the question of jurisdiction of the Service Tribunal in this matter was a preliminary question which should have been. attended to by the Tribunal, since the appellant had made a representation against his premature retirement, which was considered by the Review Board con stituted under M. L. O. 23 and rejected by the competent authority, as a consequence of which the matter stood concluded and could not be called in question before any authority, in view of the bar contained in Article 15 (2) of the Provisional Constitution Order, 1981. They also felt that, in addition to the question of jurisdiction, the specific questions mentioned in paragraph 3 above, required to be answered. In view of this, they remanded the case for rehearing and fresh decision by this Tribunal, in the light of the directions contained in their judgment.

7. We have heard both the parties at length and perused the relevant record, including these partaining to the reinstatement order passed by the Prime Minister and the order disapproving the reinstatement. We have also gone through the relevant minutes of the Review Board, set up under M. L. O. 23, and the various documents connected with the disciplinary action taken against the appellant, as a sequel to which he was retired, from service, under rule 3 of the Government Servants (E & D) Rules 1973, by an order dated 30th October, 1976. While disposing of this appeal, in accordance with the direction given by the Hon'ble Supreme Court we shall deal first with the question of the Tribunal's jurisdiction in the matter and take up the other questions subsequently.

8. According to the Respondent, as averred by him in his petition for leave to appeal made before the Hon'ble Supreme Court, "after the rejec tion of the Review Petition of the respondent (present appellant), filed under M. L. O. 23, by the Chief Martial Law Administrator, the appeal was totally incompetent and that "the action under M. L. O. 23 having been validated by the Provisional Constitution Order, 1981, the order passed by the learned Service Tribunal is coram non judice". On this point, during the course of arguments, the learned counsel for the respondent took the stand that, under Article 15 (2) of the P. C. O., 1981, any challenge to an order passed by the Martial Law Administrator would not be entertainable and, since the prayer by the appellant for reinstatement had been rejected under paragraph 5 of M. L. O. 23, the Tribunal was barred from entertain ing the present appeal. In support of his stand, he drew our attention to the judgment of the Hon'ble Supreme Court in the case of Dr. Muhammad Elias Dubash v. Punjab Service Tribunal and others (1982 S C M R 562) wherein the said Court had held that any submission in regard to the validity of the order of com pulsory retirement passed by the Martial Law Administrator was beyond the pale of challenge, because of the bar placed on it under Article 15 (2) of the P. C.. O., 1981.

9. We have given this matter our earnest consideration and are fully convinced, on the basis of the facts and circumstances of the case that there is no merit in the plea taken by the respondent. While it is true that Article 15 (2) of the P. C. O. 1981 lays down that all orders made, proceed. dings taken and acts done after 5th July, 1977, in exercise of the powers derived from the order of the Chief Martial Law Administrator, shall be deemed to have been validly made and shall not be called in question in any Court on any ground whatsoever, from the record of this case, it is seen that the order of the C. M. L. A, claimed to have been passed under M. L. O. 23 was neither passed by the C. M. L. A. nor was it an order under the said M. L. O. The Appellant had not made an application under that M. L. O. but had prayed for implementation of an order; passed on 27th June, 1977, by the then Prime Minister of Pakistan, reinstating him in Service. Since M. L. O. 23 was intended to cover the cases of those persons who had been retired during a certain period, the Review Board set up to examine such cases could have considered an application made for setting aside an order of removal from service. But, in this case, no application had been made by the appellant for setting aside the order of his removal from service. What he prayed for was that, since the order of his removal from service had already been revoked on 27th July, 1977, by the Prime Minister of Pakistan, he may be recalled to duty. Therefore, the question of the C. M. L. A. passing an order under M. L. O. 23 did not arise at all. Nevertheless, what actually happened was that the appellant had addressed the Cabinet Secretary much before M. L. O. 23 was promulgated and had prayed for implementation of the order already passed by the Prime Minister in his favour. This petition was placed before the Review Board, set up under M. L. O. 23, and this Board, after examining the case of the appellant, recommended rejection of his prayer. This recommendation does not appear to have been placed before the C. M. L. A. and no orders were passed by him in this behalf. But, on the basis of a noting by the Adviser on Establishment, it was assumed that the C. M. L. A. had rejected the petition, which was alleged to have been made under M. L. O. 23. Since neither a petition was under M. L. O. 23, nor was it rejected by the C. M. L. A. the question of any bar the to Tribunal's jurisdiction, because of the operation of Article 15 (2) of the P. C. O., 1981 would not arise at all. Article 15 (2) would have been attracted only if an application had been made under M. L. O. 23 and a decision had been given on it by the C. M. L. A. However, since an order had been passed much earlier, reinstating the appellant in service, the matter agitated by the appellant was only that of the implementation of the order already passed. The so-called rejection of this prayer did not amount to an order made in exercise of the powers derived from any of the regulations, enact ments, notifications, rules, orders or bye-laws contemplated under Article 15 (2). Consequently, the reliance on Article 15 (2) of the P. C. O., 198 1 is highly misplaced and ill-advised and we are definitely of the view that the appeal, not being hit by this Article, is fully competent and within the juris diction of this Tribunal.

10. In this connection, we would like to refer to the judgment of the Hon'ble Supreme Court in the case of Yamin Qureshi v. Islamic Republic of Pakistan (P L D 1980 S C 22) wherein it was held that, whereas Article 15 (2) of the P. C. O. 1981, validates orders made, proceedings taken and acts done in exercise of the powers derived from the orders of the Martial Law Authorities, it does not constitute a bar in the way of the entertainment of appeals or revision on merits, if such a course in permitted by law. In the instant case, the appellant has not agitated against the decision given under M. L. O. 23, against which there is no appeal provided. On the other hand, his case falls entirely under the E & D. Rules, which were resorted to for ordering his retirement, after the issuance of charge-sheet and show-cause notice. The retirement order was subsequently rescinded and reinstatement ordered. Article 15 (2) does not give protection to such an order, because the normal law itself provides for appeal against such an order. Therefore, Article 15 (2) cannot stand in the way of this Tribunal going into the validity of the impugned order, refusing to implement the Prime Minister's decision of 27th July, 1977.

11. Now to take up the specific questions put by the Hon'ble Sup reme Court. The first one is whether the order passed by the then Prime Minister on 27th June, 1977, reinstating the appellant in service, had come into effect at any time. An answer to this question would depend on what is meant by "coming into effect". If an order is passed by a competent authority, but not implemented by the subordinates of that authority, would the order be said to have come into effect Or will it depend, for being so treated, on the subordinates, implementing the order Legally, an order may be said to come into effect on a particular date, but, in practice, it may not be carried out on or by that date, in which case, while, theoretically, the order may have come into effect, in actual practice, the situation may be different. It would, thus, appear that, although the benefits of an order may not actually have accrued to a person on a date on which the order may have come into effect, this will not imply that the order had not come into effect on the date on which it was required to come into force. For example, an Act, an Ordinance, an M. L. O. or an M. L. R. may be order ed to take effect from a particular date, but the persons entrusted with the work of carrying out the orders contained therein may fail in their duty of carrying out those orders. This would not imply that those orders had note come into effect on the stipulated date. It is seen from the minutes of the Secretary to the Prime Minister, dated 26th June, 1977, and the order there on passed on 27th June, 1977, that, according to the Secretary, the officer had been retired on inadequate grounds and the charges against him had not been substantiated, whereupon the Prime Minister wrote : "He can be rein stated as a special case, because I believe my Minister from Mardant. You may call him personally and tell him that I am doing it as an exceptional case." When this order of the Prime Minister was shown to the Minister from Mardan, he noted on 3rd July, 1977: "I have spoken to the officer concern ed", and marked the file to the Establishment Secretary. At this stage, the order of reinstatement was completed and had come into effect: If iii was not notified, or conveyed in writing to the appellant, it could note alter the fact that the order was there in the field. The absence of a forma notification could not negate the existence of the order, because it had been verbally conveyed to the appellant, as desired by the Prime Minister and, the moment it was so conveyed, it legally came into effect, since it formally and positively committed the Government to the re-instatement of the appellant.

12. In the case of Mukhtar Ahmed v. Government of West Pakistan (P L D 1971 S C 846) orders were passed offering the post o f Assistant Agricultural Engineer to 46 candidates selected by the Public Service Commission, on the understanding that, after successful completion of a two years, diploma course at an Agricultural University, they were to be appointed as Assistant Agricultural Engineers, provided they gave an undertaking that they would serve the Government for a period of at least 5 years. The offer was accepted by the candidates. But, before the completion of their training the candidates were informed that they would have to appear again before the Public Service Commission to be selected for appointment for the posts of Assistant Agricultural Engineers. This was held to be a violation of the agreement .made by the Government with the candidates. Although the promised appointment as Assistant Agricultural Engineers had not taken place, it was held that the order in this behalf could not be withdrawn or modified at any stage, after it had been accepted by the concerned candidates. On the analogy of this case, it could be argued that, in the case of the present appellant, the Prime Minister having ordered his reinstatement, and the order having been conveyed, even though orally, to the appellant, it had taken effect and had to be treated as a legally enforce-able order.

13. Likewise, in the case of Khondkar Ali Afzal v. Pakistan and others (P L D 1950 Kar. 105), it was held that the order of the then Prime Minister, Mr. H. S. Suhrawardy, made on the file, granting the appellant extension of service for 3 years, as Joint Secretary in the National Assembly, after reaching, the age of superannuation, was an order passed by the final authority, even though it was not formally notified. It was further held, in that case, that the order, which had been verbally communicated, both by the Prime Minister and the Speaker, to the petitioner, created certain rights of the petitioner which could not be denied, merely because a formal notification announcing the decision had not issued in the prescribed form. In the present case also, the order was passed on the file and communicated to the officer verbally by a Minister of Cabinet rank. On the analogy of the case of Khondkar Ali Afzal the order passed on the file by the Prime Minister and conveyed to the appel lant by the Minister should be held to be binding on the parties.

14. Next comes the question whether any orders were passed by the President revoking or recalling the order formerly passed by the Prime Minister, reinstating the appellant in service and whether these orders had been passed before the order of reinstatement could take legal effect. This point has been gone into by us thoroughly and we are satisfied that at no stage was any order passed, either by the C. M. L. A. (as the successor in authority to the Prime Minister) or by the President recalling the Prime Minister's orders. From the relevant file of the Establishment Division (No. 4/Police/War-Rev), it is seen that, although the then Prime Minister had ordered the reinstatement of the appellant, as far back as 27^th June, 1977, and the Minister for Water and Power had informed the appellant of the decision, the formal orders in this behalf were not issued and on 23rd July, 1977, the Establishment Secretary put up a summary to the C. M. L. A. for obtaining his orders for the reinstatement of the officer in the light of the former Prime Minister's decision. This file was routed through the Secretary-General-in-Chief, who advised that, in view of what had been reported by the F. I. A. the reinstatement would not appear to be justified. The file was marked by the Secretary-General-in-Chief to the C. M. L. A. on 25th July, 1977. The C. M. L. A., however, did not pass any order in his own hand on the file. Instead, the file appears to have been seen by the C. O. S. to the President, who recorded the following note on 3rd November, 1977 :-

"The C. M. L. A. has not approved the reinstatement."

It is obvious from this observation that, not only was no order passed by the C. M. L. A. recalling the former Prime Minister's order, legally speaking, no order was also passed by the C. M, L. A. disapproving the reinstatement of the appellant. Since the order recorded on the file purported to be an order of the C. M. L. A. it was imperative that the same should have been signed by the C. M. L. A. and a minute by the C. O. S. to the C. M. L. A. to the effect that the C. M. L. A. had not approved the reinstatement could not be an acceptable substitute for an order signed by the C. M. L. A. himself, to the same effect. Be that as it may, even an order by the C. M. L. A. refusing to reinstate the appellant, could not nullify the order already passed by the former Prime Minister on 27th June, 1977 and we hold that the Prime Minister's order has to this date not been revoked or recalled.

15. In fact, we are of the view that, after the communication, to the appellant, of the Prime Minister's order reinstating him in service, the competent authority was not left with any locus poenitentia. As observed by the Federal Court, in the case of Shahbaz v. Crown (P L D 1956 F C 46) a locus poenitentia will be left only if the order has not been carried into effect. Since, in our view, the order of reinstatement was carried into effect the moment it was conveyed to the appellant, the power of receding was not available to the Government and they could not rescind or revoke the order already passed.

16. We are further supported in our view by the judgment of the Hon'ble Supreme Court in the case of Pakistan v. Muhammad Himayat ullah Farukhi (P L D 1960 S C 407) wherein it was held that, although the authority competent to make an order has the power to undo it, the order cannot be withdrawn or rescinded once it has taken legal effect and certain rights have been created in favour of any individual. In that case, the President had fixed the salary of the respondent at a certain sum, which was duly communicated to the relevant Ministry and the respondent and had, thus, become a part of the terms and conditions of the service of the respondent. A subsequent order, revoking the earlier one was held to be without lawful authority, because of the provision of Article 168 of the 1962 Constitution, to the effect that the terms and conditions of a person in the service of Pakistan, as regards his remuneration and age, shall not be varied to his disadvantage. In the instant case, no orders were passed reversing the previous order of reinstatement. But, even if the C. M. L. A's orders rejecting the prayer for being put back on the job is taken to be a reversal of the previous order of the Prime Minister, reinstating the appellant in service, this subsequent order has to be treated as void and of no legal effect, because the power of receding was no longer available.

17: On the analogy of the several cases referred to above, we hold that, even if any order had been passed by the competent authority rescinding the previous order of reinstatement made by the Prime Minister, such an order would have been an incompetent order, as being without jurisdiction.

18. As for the question of the competence of the Review Board to consider, under M. L. O. 23, the representation, made by the appellant, to the Cabinet Secretary, on 7th September, 1977, as already observed by us, this was an application not for review under M. L. O. 23 but for implementation of the Prime Minister's order, dated 27th June, 1977. As already observed by us, the Review Board treated this application as a Review petition under M. L. O. 23. But, in spite of the fact that they were aware that the Prime Minister had passed an order reinstating the appellant, they recommended rejection of the review petition. While doing so, they not only took note of but were, obviously, influenced by the earlier decision stated to have been given by the C. M. L. A. on 3rd November, 1977, rejecting the prayer of the appellant for reinstatement. In fact, the Review Board, short of saying in so many words, made it clear that they would have recommended the reinstatement of the appellant but for the fact that the C. M. L. A. had already taken a contrary decision. To explain this point, we cannot help quoting the following paragraph from the minutes of the Review Board :-

"Recommendation of the Board."

The petitioner was alleged to have been suffering from serious weak nesses, unbecoming of an officer. The proper course would have been to hold a formal inquiry to ascertain the true facts. This was not done. He has throughout been carrying good' or very good' reports. However, when his case was submitted by the Establishment Division in their summary, dated 23rd July, 1977 to the Chief Martial Law Administrator, recommending his reinstate ment, the Chief Martial Law Administrator did not approve this recommendation. In view of the above, the review petition may be rejected."

(Sd.)

Major-General (Sd.) (Sd.)

(Mian Abdul Qayoom) (M. A. Haq) (M. H. Sufi)

Member Member/Secretary Chairman

This should leave no one in doubt that the rejection of the so-called application was not a rejection on the merits of the case. Consequently, we are of the view that neither the Review Board could consider the representation as one made under M. L. O. 23, and reject it as such, nor did it recommend rejection on merits. We would like to go one step further and observe that even the C. M. L. A. did not reject this petition, stated to have been made under M. L. O. 23, because, while the minutes of the Review Board, which are dated 18th April, 1978, must have been put upto the Adviser, Establishment immediately thereafter there is no order on the file by the C. M. L. A. There is only an endorsement by the Adviser, Establishment, dated 26th May, 1978, reading "petition be rejected," marked to the C. M. L. A. There is no order whatsoever by the C. M. h. A. nor even an indication that the paper had reached the desk of the C. M. L, A. In the face of all. this, we have no option but to hold that the recommendation of the Review Board was never seen by the C. M. L. A. and, consequently, the question of rejection of the Review application just does not aries.

19. After having considered all the pros and cons of this case, we Would like to summarise our findings as briefly as possible :--

(i) The Appellant's removal from service was highly irregular and violative of the rules on the subject and could not be substained on legal grounds. As observed by the Review Board, in their minutes dated, 18th April, 1978, although charges of very serious nature had been levelled against the appellant, no regular enquiry was held in the matter and, although show-cause notice was served on him, he was not given a reasonable opportunity of defending himself. As further observed by the Review Board, the proper course would have been to hold a formal enquiry to ascer tain the true facts.

(ii) The Prime Minister, the competent authority, who had passed the order, had, on a representation made to him, re-called the order and approved the reinstatement of the appellant.

(iii) Although the order of reinstatement was a perfectly competent order it was not implemented by those responsible for the imple mentation of such orders.

(iv) In spite of the non-implementation of the order, the order still holds the field and it cannot be said to have lapsed, because an order passed by a competent authority cannot be left to the tender mercies of the State functionaries who fail to carry out their duties, in accordance with the law. Government decisions would become a mockery and nobody would have any faith left in the authenticity and finality of any Government decision, if such decisions were allowed to lapse in this fashion.

(v) No orders having been passed by the President/C. M. L. A. revoking the order of reinstatement at any stage, the so-called order, purported to have been passed by the C. M. L. A. refusing to approve the appellant's reinstatement in service, has no vali dity in the eye of law and is not enforceable, not only because the order is not relevant to the prayer made by the appellant, but also because there is nothing to establish that there was any such order passed by the C. M. L. A.

(vi) The Review Board was not really concerned with the implementation of the order of reinstatement passed by the former Prime Minister. Consequently, any decisions taken on a recommendation made by the Board would not appear to be applicable to the ques tion of the implementation of the said order.

(vii) Even the adverse recommendation of the Review Board, made, not on grounds of merit but, on the basis of a decision already supposed to have been taken by the C. M. L. A, does not appear to have been seen and accepted by the C. M. L. A.

(viii) The net result of the above, without doubt, is that the order of reinstatement, passed by the then Prime Minister on 27th July, 1977, holds the field and calls for implementation.

20. In the result, we order that the appellant be reinstated in service, with effect from the date of his retirement, namely, 30th October, 1976 and that he be allowed all the consequential benefits of this reinstatement.

21. No orders as to cost.

A. S. Appeal allowed,

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