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Intra‑Court Appeal No.152 of 1985, decided on 3rd June, 1987.

‑‑‑Upgrading of post‑‑Upgrading of post of Sanitary Inspectors‑‑ Operation of Notification so upgrading the post, held, in abeyance before its implementation‑‑Upgrading order ultimately withdrawn‑ Authority whether left with no locus poenitentiae to withdraw upgrading order‑‑Upgrading order, held, was to take effect on specified date as set ‑forth in Notification‑‑‑ Such order, however, was, held, in abeyance before such specified date‑‑Locus poenitentiae in law would refer to the power of receding till a decisive step was taken‑‑Neither the issue of Notification nor communication thereof, would constitute a decisive step, having taken its effect but only when such Notification was implemented‑‑Authority acting on principle of locus poenitentiae completely held in abeyance the Notification whereby the posts were to be upgraded before specified date of its implementation and finally withdrew the same.

Sheikh Muhammad Nawaz v. The Secretary, Irrigation and Power Government of Baluchistan Quetta and another P L D 1973 Quetta 14; Lt.‑Col. G.L.Battacharya v. The State P L D 1964 S C 503; Syed Muneeb Nazir Shah v. Azad Kashmir Government through its Chief Secretary and another P L D 1985 Azad J & K 17; Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi P L D 1969 S C 407; Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd., Chittagong P L D 1970 S C 439; Mst.Zainab Khatoon v. Mian Ghulam Shabbir and another P L D 1965 S C 55; Federation of Pakistan and another v. Lt.‑Col. Fateh Khan 1986 S C M R 808; S.A.Rizvi v. Pakistan Atomic Energy Commission and another 1986 S C M R 965; Muzaffar Ali v. Muhammad Shafi P L D 1981 S C 94; Shahbaz v. The Crown P L D 1956 F C 46 and Shameer v. Board of Revenue 1981 S C M R 604 ref.

‑‑‑ Upgrading of posts‑‑Withdrawal of Notification upgrading posts of Sanitary Inspectors‑‑Validity of withdrawal of Notification‑‑Withdrawal of Notification by Authority whereby posts of Sanitary Inspectors were to be upgraded with or without consultation with relevant department, held, would not invalidate such order of withdrawal.

‑‑‑S.21‑‑Recalling of order before its implementation‑‑Validity of‑‑Authority, held, was competent under S.21 to recall its order before it had taken its effect and created any right in favour of a person.

‑‑‑S.3‑‑Intra‑Court appeal‑‑Notification of withdrawal of upgrading order of Sanitary Inspector, upheld by Single Judge of High Court in constitutional jurisdiction‑‑Validity of‑‑No illegality having been found in the order passed by Single Judge of High Court in constitutional jurisdiction, Intra‑Court Appeal was dismissed.

Ch.Hamid‑ud‑Din for Appellants.

Muhammad Akhtar Shabbir, A.A.‑G. for Respondents.

Date of hearing: 18th May, 1987.

‑‑The appellants are Sanitary Inspectors appointed in different local councils in NPS‑6. The respondent No.1 (The Secretary to the Government of the Punjab, Local Government Department) on 2‑5‑1983 by Notification Annexure 'A' directed that the Sanitary Inspectors be granted NPS‑10 w.e.f. 1‑7‑1983. He, however; on 21‑6‑1983, vide Notification Annexure 'B' held in abeyance the operation of the afore‑mentioned Notification till further orders. Thereafter, on 29‑19‑1983 vide Notification Annexure 'C' he withdrew his earlier order issued vide Notification Annexure 'A'.

2. Aggrieved by last Notification issued by the respondent No.1 the petitioners filed Writ Petition No.198/84 in this Court which was dismissed on 9‑6‑1985 by learned Single Judge in chambers. Hence this appeal.

3. Learned counsel for the appellants contended that Notification dated 2‑5‑1983 issued by the competent authority granting NPS‑10 to the appellants, was communicated to the concerned local councils and a decisive step having been taken in that behalf, the respondent No.1 was left with no locus poenitentiae to withdraw the same. The next contention raised was that the Secretary Local Government Department did not apply his independent mind in either suspending the operation of Notification dated 2‑5‑1983 or recalling the same as he acted mechanically at the instance, and under the influence of respondent No.2 (Secretary to the Government of Punjab, Finance Department). It was also contended that the respondent No. l had no statutory jurisdiction to review his orders, nor the same could be recalled without providing opportunity of hearing to the appellants.

4. In support of his first contention, learned counsel for appellants relied on Sheikh Muhammad Nawaz v. The Secretary, Irrigation and Power Government of Baluchistan Quetta and another P L D 1973 Quetta 14, LT.‑COL. G.L.Battacharya v. The State P L D 1964 S C 503, (508),(513), Syed Muneeb Nazir Shah v. Azad Kashmir Government through its Chief Secretary and another P L D 1985 Azad J & K 17, (33), Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi P L D 1969 S C 407. He also referred Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. Chittagong P L D 1970 S C 439.

In support of his next contention that respondent No.1 had no express power of review he relied on Mst.Zainab Khatoon v. Mian Ghulam Shabbir and another P L D 1965 S C 55, Federation of Pakistan and another v. Lt.‑Col. Fateh Khan 1986 S C M R 808 and S.A. Rizvi v. Pakistan Atomic Energy Commission and another 1986 S C M R 965. He also referred Muzaffar Ali v. Muhammad Shafi P L D 1981 S C 94. It was further contended that Rule 16 of the Punjab Government Rules of Business, 1974 for referring the matter to the Finance Department has no relevancy in the case of the appellants. The employees of the Local Councils are paid their salaries through local fund constituted under section 126 of the Punjab Local Government Ordinance, 1979.

5. Mr. Akhtar Shabbir, learned A.A.‑G. on the other hand contended that before the Notification Annexure 'A' was implemented, the competent authority suspended its operation and later on withdrew it. The executive authority who had issued the order had locus poenitentiae to recall the same if no effective step has been taken for its implementation and relied on Shahbaz v. The Crown P L D 1956 Federal Court 46 and Shameer v. Board of Revenue 1981 S C M R 604 in support of his submission. It was submitted that before the appellants could be paid salaries in NPS‑10, operation of the Notification was suspended and thereafter the Notification was withdrawn. It was contended that mere issuance of the Notification and communication thereof to the local councils created no right in favour of the appellants to seek or claim enforcement thereof through Constitutional jurisdiction of this Court.

6. We have considered the contentions raised by the learned counsel for the parties and have perused the Notifications in question issued by respondent No.1. It is not denied that the respondent No.1 is competent authority to issue the Notification. The precise contention raised is that the competent authority could not recall the Notification Annexure 'A' once it has taken its effect. The question which requires determination is, as to whether by issue of Notification Annexure 'A' ; decisive step had been taken by respondent No.1 and he had no power to recede. Admittedly Notification Annexure 'A' was issued on 2‑5‑1983 It was to take effect on 1‑7‑1983. Before 1‑7‑1983 the respondent No.1 on 21‑6‑1983 held the same in abeyance. Obviously the respondent No.1 retraced his step before the, Notification in question, has taken its effect. Locus poenitentiae in law refers to the power of receding till a decisive step is taken. It is neither the issue of the Notification Annexure 'A' nor the communication thereof to the concerned local councils which may constitute a decisive step, having taken its effect but only when the Notification in question was implemented. They Notification itself was operative with effect from a future date viz 1‑7‑1983 and before that date had reached another Notification Annexure 'B' was issued by the same authority and operation of the earlier Notification Annexure 'A' was held in abeyance.

The cases cited by the learned counsel for the appellants in this behalf are not helpful because in all the cases the orders passed were not specified to be operative on a future date.

In Shahbaz's case cited by learned A.A.‑G. the Federal Court held

"This brings us to the question whether the first order in the present case had been given effect to by the time the order of cancellation was passed. We are unable to accept the contention that the order came into effect on the date of its issue. The original order in this case remitted no doubt the unexpired portion of the sentence, but there was a definite direction that it should come into effect on the 14th August. Detention till the 14th was lawful and it would have become unlawful only after that day, but before that day arrived the order of cancellation was received. "

It is, therefore, clear that respondent No. l acting on the principle (d of locus poenitentiae competently held in abeyance Notification Annexure "A" before 1‑7‑1983 and thereafter withdrew the same.

7. As regards the next contention of the learned counsel for the appellants that respondent No.1 did not act independently in suspend in the Notification in question, and he did so at the instance of respondent No.2 the perusal of Notifications in question contained no indication that the same were issued at the instance or under influence of respondent No.2. Even if it is assumed from the correspondence exchanged between the respondents that respondent No.1 believed that the consultation of respondent No. 2 was necessary, would not invalidate the Notification nor respondent No.1 dubbed to have acted mechanically or under the influence of the former.

8. So far as the last contention of the learned counsel for the appellants is concerned, that the respondent No.1 had no power to review his order suffice it to observe that under section 21 of the General Clauses Act, the respondent No.1 was competent to recall his order before it has taken its effect and created any right in favour of the appellants. The case cited by the learned counsel are distinguishable and do not advance the case of the appellants.

9. For the foregoing reasons, we find no illegality in the impugned order passed by the learned Single Judge in chambers and dismiss this appeal with costs.

A.A. K‑24 /L

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