1984 PLP (C (PLC(CS))

2. By virtue of this appeal the appellant has prayed that the impugned orders dated 6th July, 1982 and 22nd August, 1982 and 16th October 1982 be set aside and appellant's substantive and permanent selection grade be restored from 3rd June, 1973.

3. Brief facts of the case are that the appellant, Rashid Ahmad was working as S.V. Teacher under the District Board/District Council Jhelum. In the year 1970 all the high schools of the local bodies were provincialized w.e.f. 1st June, 1970. Consequently the services of the appellant were also provincialized w.e.f. 1st June, 1970. The services respondent No. 3 were also provincialized w.e.f. 1st June, 1970. Coy sequent upon the provincialization of the schools an integrated list (Annexure `A') of S.Vs. O.Ts. D.Ms. and P.T.Is. as it stood on 1st Jun 1970 was published by the Education Department. In this list the position of the appellant and contesting respondent No. 3 was as under Sr. No. in Name Date of appointment The list S. V.

10. T. Teacher 629 Rashid Ahmad (appellant) 2‑12‑1955 688 Muhammad Masood 1‑6‑1957 (Respondent No. 3) Another integrated list (Annexure `C') of SVs/OTs Teachers ‑of Jhelum District was issued by the Department as it stood on 1st June, 1970 vi letter dated 4th May, 1980. In this list, the seniority position of t appellant was shown at Sr. No. 111, however, the name of t respondent No. 3 was missing from this seniority list. T1 seniority list was duly implemented and acted upon. On the basis of the seniority the appellant was awarded selection grade of Rs. 255‑4(in this substantive and permanent capacity with effect from 3rd Jug 1973 vide order, dated 23rd October, 1980 (Annexure' D'). This order v also duly implemented and acted upon and appellant also drew his substantive pay in the selection grade mentioned above from October, 1980 counsel for the appellant that once this selection grade was duly awarded, the order implemented and the selection grade was enjoyed by the appellant for a long period, it can not be arbitrarily withdrawn. He has also made emphasis on the fact that the appellant was awarded selection grade in the substantive and permanent capacity. He relied for his con tention on the principles of animus revertendi and locus poenitentiae and cited in this behalf case of Raja Muhammad Nawaz v. Government of the Punjab (1981 S C M R 523). In that case the learned Judges of the Supreme Court had held that even if an order was passed for granting facility through mis take or against rules, it would stand because the person so granted had been conferred a status in life and vested right had been created which could not be withdrawn subsequently. It was further submitted by the learned counsel for the appellant that withdrawal of award of selection grade was also not justified keeping the fact in view that if the selection grade was required to be withdrawn then it should have been withdrawn from junior persons i.e. Messrs. Khair Din and Khan Baig who have been shown junior to the appellant in both of the integrated seniority lists mentioned in para. 3 above.

5. Controverting the above arguments of the learned counsel for the appellant, the learned District Attorney submitted that no injustice has been done with the appellant as the appellant was junior to the respon dent No. 3, Mr. Muhammad Masood, whose name was omitted from the 2nd seniority list inadvertently and when it came to the notice of the res pondents, they had placed his name at the proper place and thus the right of the respondent No. 3 was restored and the mistake done in giving the selection grade to the appellant instead of respondent No. 3 was rectified. Hence the cancellation of the award of the selection grade to the appellant is justified, perfectly in order and is lawful. It was also pointed out by the Learned District Attorney that an undertaking was also given by the appellant that if this award is withdrawn/ cancelled, he would refund arrears already received by him. Thus, the appellant should have no grievance against the impugned orders of the respondents, keeping this condition in view.

6. We have given our anxious thoughts to the arguments of the parties and have also consulted the record so attached with this appeal. We have perused the order, dated 23rd October, 1980 which makes it clear that the appellant was awarded selection grade of Rs. 225‑400 in the sub stantive and permanent capacity w.e.f. 3rd June, 1973. The appellant enjoyed this grade till the issuance of the impugned order, dated 6th July, 1982 which will mean that he enjoyed this selection grade for a long period. The appellant did sign a written undertaking that in the even of withdrawal or cancellation, he would refund the arrears; but what is the period that common sense or usage would fix for this over payment to become known and thereby re‑imbursable? Certainly not two years from the date of the issue of the orders and nine years from the effective date of grant of this award of selection grade. During ail this, while no hint was given to him that he should be prepared for reduction in this emo luments because of wrong issuance of a seniority list (ignoring the name of Mr. Muhammad Masood, respondent No. 3 from the seniority list); in fact the impugned order came to him like a bolt from the blue in According to the above quoted judgment of Supreme Court in para, which has now become law, the appellant acquired value judicial right which it may not be easy to snatch from him by a stroke of executive pen, especially keeping in view that when Messrs Khair Din and Khan Baig, junior persons to him, are still enjoying selection grade, who were even awarded the same earlier than the appellant. We hold that the principal laid down by the Supreme Court of Pakistan in the case of Raja Muhammad Nawaz v. Punjab Government, is sufficiently applicable to the instant case because the Hon'ble Court had held in this judgment that the valuable right granted to a Civil Servant would stand even if the order granting it was passed through some errors or against some rules. We would also rely upon our earlier judgment in case of Nazar Hussain v. District Education Officer, Lahore and others (1981 P L C (C. S.) 835), in which we have accept ed the said appeal, in identical circul stances, by respectfully following the principles of animus revertendi and locus poenitentiae so laid down by the; Supreme Court of Pakistan, it may also be worth mentioning that as pert principles laid down under section 10 (2) of Punjab Civil Servant Act 1974, in the event of reduction in cadre or grade, the services of most junior person in such cadre or grade shall be terminated. Since appellant is admittedly senior to other two persons namely Messrs Khair Din and Khan Baig, therefore, if at all one selection grade had to be withdrawn from any body then it should have been withdrawn from the junior most person and not the appellant.

7. In view of the above discussions, we hold that the selection grade granted to the appellant could not be withdrawn from him and to that extent the impugned orders which cancel the appellant's selection grade, are null and void, of no legal value and are hereby set aside. The appeal is, therefore, accepted. A. E. Appeal accepted.