2023 PLC(CS) 743 PESHAWAR-HIGH-COURT

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ASMATULLAH KHAN VS GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education Khyber Pakhtunkhwa at Peshawar Principle of locus poenitentiae will not come into play where the order has either been passed by an incompetent authority or the order has been obtained through fraud or misrepresentation or concealment of facts. S.21---Civil service---Leave---Leave withdrawal after action taken---Locus poenitentiae---Scope---Petitioner, a teacher, applied for and was granted extraordinary leave to pursue higher education abroad for 730 days---However, upon returning and approaching the respondents, they informed him that the leave had been withdrawn through vide impugned order---Respondents argued that the petitioner was not entitled to the leave as he was appointed on a contract basis for one year---Validity---Before the petitioner had acted upon the leave sanctioning order, the competent authority could have rescinded it---However, once the petitioner had taken a decisive step by leaving his duty and proceeding abroad for higher studies, the principle of locus poenitentiae prevented the competent authority from withdrawing the leave sanctioning order---Impugned order was set aside---Since the contract period of the petitioner's colleagues had already been extended by the competent authority during the intervening period, the petitioner was also entitled to the same relief of an extension of his service---Constitutional petition was allowed accordingly. S.21---Power to make to include power to add to, amend, vary or rescind, orders, rules or bye-laws---Scope---Competent authority who has passed a lawful order can rescind, alter or withdraw the same unless it has not been acted upon.

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