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Appeal No. 23 of 1982, decided on 6th June, 1985.

‑‑‑Powers to recede‑‑Railway employee promoted on basis of selection and confirmed‑‑Subsequently after three years promotion and confirmation cancelled on plea that post was not a selection post and promotion was required to be made on seniority‑cum‑fitness basis and promotion made on selection through selection committee resulted in ignoring seniors‑ Selection and confirmation having been acted upon and employee all along paid accordingly had acquired a right to maintain his confirmation‑‑Railway Administration, in circumstances, held, had no locus poenitentiae to revise such Order, hence subsequent Order, held, not sustainable.

Pakistan v. Muhammad Himayatullah Faruki P L D 1969 S C 407; Raja Muhammad Nawaz v. Government of Punjab 1981 S C M R 523 and Nazir Ahmed P‑ L D 1970 S C 453 rel.

P L D 1956 F C 46 and P L D 1964 S C 503ref.

‑‑‑S. 38(3)‑‑Appeal‑‑Cost Railway employee aggrieved of Order of his de‑confirmation‑‑Labour Court accepting grievance petition‑‑Appeal of Railway Administration dismissed as of no merits‑‑Employee (respondent) suffering mentally and financially for long time in seeking redress from Courts‑‑Appellate Tribunal, in circumstances, allowing cost at Rs.1,000.

Shakeel Ahmad for Appellant.

K. N. Kohli for Respondent.

Date of hearing: 22nd May, 1985.

This appeal is directed against the decision made by the Presiding Officer 1st Labour Court Quetta on 16‑11‑1982 whereby the order of the Divisional Superintendent Pakistan Railway, Quetta dated 15‑11‑1980 and 20‑12‑1981 have been set aside and the seniority of the respondent (Muhammad Yaqoob Khan) has been restored w.e.f. 9‑5‑1967 with all consequential benefits.

The case has assumed a chequered history. Muhammad Yaqoob Khan was a loco cleaner and at his request was shifted to diesel side and was selected as S.S.Wireman. Since training was required for the job he was posted at Quetta. He was promoted as Wireman diesel on 1‑3‑1962 and later confirmed on 1‑7‑1962. During the year 1965 he was put in the category of electrician. On the basis of a notification issued by the Railway Administration a Selection Committee was constituted before whom the respondent was required to appear for selection which he did and was successful and was accordingly promoted as electrician Grade‑II on 15‑6‑1966. His confirmation by Assistant Personnel Officer was also made on 9‑5‑1967. In November 1969 the Headquarter Office of the Railways considered that the selection of the respondent in the year 1965 was not justified 'as the post of electrician Grade‑I was a non‑selection post and this non‑selection post should have been filled in on the basis of seniority‑cum‑fitness, and on account of the wrong selection the respondent had become Senior to some persons and had superseded them. Accordingly it was decided that a show‑cause notice be issued to him. Such notice was issued on 3‑2‑1972. This show‑cause notice was challenged by the Respondent in a regular suit and at first was even successful in obtaining a stay order from the Court but ultimately the suit was dismissed for want of jurisdiction. An appeal filed by respondent was also dismissed by the District Judge Quetta on 29‑3‑1978. On account of this litigation the Railway Administration did not pursue the action as was proposed in the show‑cause notice. The respondent after the dismissal of his appeal took the matter to the Labour Court but the application filed under section 25jA I.R.O. 1969 was dismissed on 30‑1‑1979 and the appeal too did not succeed because it was found that no penal action was taken by that time. ‑The respondent on 18‑4‑1979 issued a grievance notice and since no reply was received upto 7‑5‑1979 and the grievance was not redressed, an application under section 25‑A I.R.O. was filed before the Presiding Officer II Labour Court Quetta on 8‑5‑1979. This time the decision of the Labour Court was in his favour and the Labour Court vide orders dated 26‑1‑1980. Ordered that the confirmation and seniority of the respondent as on 9‑5‑1967 restored with back benefits. This time the appeal filed by the Railway Administration was dismissed on 28‑4‑1980. But the Labour Appellate Tribunal observed that "As the respondent has also shown undue haste from the very beginning in initiating litigation in Court rather than trying to discover the actual facts in order to settle the issue within the department for which its Rules make sufficient scope. As the dispute has not been decided on merits the appellants (D . S .Railway Quetta) would be at liberty to proceed in the matter in accordance with law."

The Railway on 23‑4‑1981 again issued a show‑cause notice. This was replied but the respondent was asked to appear before the Assistant Personnel Officer for adjudication who declared the confirmation of the respondent made on 9‑5‑1967 as illegal and the decision made in this behalf was communicated to the respondent on 15‑11‑1981.

The respondent again issued the grievance notice on 1‑12‑1981 but it was rejected by the Railway Administration on 20‑12‑1981. The respondent, therefore, once again filed the application before the Labour Court on 26‑12‑1981. In the reply statement filed on behalf of the Railway the objections were raised that (A) there was no right guaranteed the violation whereof was claimed, and on merits the claim was disputed and it was asserted that since the selection on which the respondent was basing his claim was illegal and, therefore he could not claim any benefit. '

The Labour Court vide its order dated 16‑11‑1982 accepted the application under section 25‑A I.R.O. This appeal is against this order.

Mr. Shakeel Ahmad, the learned counsel for the appellant has urged the following grounds before me:‑

(a)That there were certain persons, who were senior to respondent, were not joined as party before any of the forum i.e. Selection Committee and the Labour Court.

(b) That since the initial selection made in 1965 was illegal and void, therefore, the confirmation made in consequence 'of that selection was also void.

(c) That promotion of the respondent at the relevant time was to be regularised on seniority cum fitness basis.

The objection mentioned as (A) above does not deserve any serious consideration for the reason that in the rejoinder filed on 25‑2‑1982 on behalf of the appellant before the Labour Court no such objection was raised nor the names of the persons who are claimed to be seniors to respondent are furnished in the memo. of appeal before me. Mr. Shakeel Ahmad, counsel for the appellant, however, mentions them as Muhammad Siddique and Abid Hussain. Mr. K.N.Kohli appearing for the respondent points out that these two persons had not appeared before the Selection Committee nor they had filed any appeal against the selection of the respondent or showed their grievance against the selection of the respondent herein. No other person claiming any seniority or against the selection has ever complained or challenged the selection. This aspect of the matter could not be controverted by Mr. Shakeel Ahmed. This objection, therefore, has no substance and is repelled.

The respondent was selected in the year 1965 by a committee constituted by the Railway itself and the confirmation made, thereafter, has been acted upon and the respondent has been paid all along. The later order of de‑confirmation by the Department was in‑effective as the respondent has certainly acquired a right to maintain his confirmation. The reliance of the Presiding Officer Labour Court therefore, cannot be dislodged on any legal plane. Since the order of Selection Committee and confirmation have been acted upon and given effect to, there is no locus poenitentiate left in the Railway Administration to revise such orders.

In Pakistan v. Muhammad Himayatullah Faruki P L D 1969 S C 407, Sajjad Ahmed Jan, J (as he then was) with whom majority concurred has observed at page 412:‑

"There can hardly be any dispute with the Rule as laid down in these cases P L D 1956 F C 46 and P L D 1964 S C 503 referred that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiate 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 taken legal effect, and in pursuance thereof certain rights have been created in the favour of an individual, such an order cannot be withdrawn or rescinded to the detriment of these rights."

This view of the Supreme Court has been reiterated subsequently in Raja Muhammad Nawaz v. Government of Punjab 1981 S C M R 523. The case of Nazir Ahmed P L D 1970 S C 453 referred to by, the Labour Court in the impugned decision is on all fours to the instant case. Respectfully following the law laid down by the Supreme Court in the above cases I am of the considered view that the subsequent orders of the Appellant/ Railway Department as mentioned by the Labour Court in the impugned order cannot be sustained in law. The order of the Labour Court, therefore, is unassailable in law and must be maintained.

For the above reasons, I find no merit in the appeal which is accordingly dismissed. The respondent is entitled to the cost which is fixed at Rs.1,000. The respondent has suffered mentally and financially for a long time in seeking redress from the Courts.

A. E.

Appeal dismissed.

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