P L D 1967 Karachi 22 (PLP)

H. T. RAYMOND, J.-The nine petitioners, who are Gazetted Officers from the Telegraph Engineering and Wireless Service Class II, have filed this Petition under Article 170 of the late Constitution read with clause 2(4) of the Laws (Continuance in Force) Order II of 1958 against the Director-General, Pakistan Telegraphs and Telephone Department, the Government of Pakistan through the Secretary, Ministry of Communications and 29 other engineers who are direct .recruits to Class I of the same Service. The petitioners have asked for a Writ of mandamus or any other order directing the respondents Nos. 1 and 2 to accord due seniority to the petitioners in accordance with the fundamental principles of determination of seniority between the members of the same Class or Grade of Service namely the date of continuous officiating in the Service and/or in accordance with the Provision of rule 32-E of the Posts and Telegraphs Manual Volume IV on the basis of respective dates of permanent appointment to the Junior Scale of Class I Service without regard to the illegal order of cancellation of petitioners' confirmation. They have also prayed for a Writ of mandamus ordering the Respondents Nos. 1 and 2 to withdraw orders of promotion to Junior Administrative Grade of respondent No. 3 and cancel the orders confirming respondents Nos. 3 to 15 in the Senior Scale of Telegraph Engineering Service which have hitherto been passed on the basis of seniority assigned to the said respondents arbitrarily and illegally.

2. The relevant rules from the Posts and Telegraphs Manual which arise for consideration in this matter may, with advantage, be reproduced here in the opening paragraphs of this judgment:- "

182. Sources of recruitment.-Recruitment to the Telegraph Engineering Service, Class I, will be made in Pakistan in the following proportion:- 75 per cent of the vacancies will be filed by direct recruitment in Pakistan by a competitive examination held by the Pakistan Public Service Commission. "25 per cent of the vacancies will be-filled by the Government of Pakistan by the promotion of subordinates by selection from the grades of Assistant Engineer, Telegraphs Assistant Engineer, Telephones, Assistant Electrical Engineer and Assistant Engineer, Wireless (provided he has one ' year's general Telegraph Engineering experience and is considered fit in all other respects) on the recommendations of the Public Service Commission. Seniority will give no claim to any subordinate to such promotion.

188. When a long vacancy occurs in a Divisional Charge and there is no Assistant Divisional Engineer, Telegraphs, qualified to hold that charge, the most suitable officer in the grade of Assistant Engineer, Telegraphs, Assistant Engineer, Telephones and Assistant Electrical Engineer will be selected to fill the vacancy. When a short vacancy, that is, one not exceeding four months, occurs in a Divisional Charge, the most suitable officer available locally will be appointed to hold it. If an Assistant Engineer, Telegraphs or Assistant Engineer, Telephones or Assistant Electrical Engineer is not available, an officer in the grade of Deputy Assistant Engineer, Telegraphs or Deputy Assistant Engineer, Telephones or Deputy Assistant Electrical Engineer will be appointed to fill the vacancy. 188-A. An Assistant Divisional Engineer recruited direct should not ordinarily be appointed to hold charge of a Division unless- (a) he has five years' service, and (b) he has passed all the tests prescribed in rule

186. This provision may be relaxed only by the Director-General in exceptional circumstances: 32-E. Subject to any special rules prescribed for any particular service, the seniority of an official in the cadre to which he belongs should be fixed according to the date of his permanent appointment to that cadre. When this date happens to be the same in the case or two or more officials, seniority should be determined according to the following principles: (a) In cadres to which recruitment is made through an examination, (i) if the examination is competitive, seniority should be fixed according to the order of merit in the examination. Where recruitment is made partly from departmental candidates and partly from outsiders, the former should always rank senior to the latter. "(ii) if the examination is qualifying, seniority should be fixed according to the position of the official on the waiting list. (b) In cadres to which recruitment is made by promotion, (i) if it is on the basis of pure selection, seniority should be fixed according to the order of preference; and (ii) if it is on the basis of seniority subject to the rejection of the unfit, seniority should be fixed according to the position of the official in the cadre from which promoted.

24. It is to be understood that no officer is to be promoted to fill a vacancy in a higher grade unless he is considered deserving of advancement.

25. The Government of Pakistan have decided that the following principles will govern promotions to the higher posts in the Department-- Promotion to the grade of Divisional Engineers should be by seniority subject to the rejection of the unfit. Ordinarily an officer should not be superseded for promotion to this grade until he has been tried during a period of probation (which will confer no claim to eventual confirmation) in an officiating capacity. An officiating appointment will be refused to an officer who is obviously unsuitable."

3. The facts giving rise to this matter may, briefly, be stated:-The nine petitioners are Pre-partition entrants into Class. II of the Telegraph Engineering and Wireless Service and are eligible for promotion to Class I of the same Service. This service consists of five Grades:-(1) the Chief Engineer, (2). the Deputy Director-General, (3) The Director-cum-Deputy Chief Engineer, (4) Divisional Engineers including Assistant Chief Engineers-these four form the senior scale of Class 1, (5) Assistant Divisional Engineers-these form the Junior Scale of Class I of the Service. Of these five Grades Nos. 1 to 3 are designated as administrative Posts and Nos. 4 and 5 as Time Scale Posts. Now according to the rules two avenues are provided for entering into Class I of this Service:- (1) by direct recruitment through Public Examinations, (2) by promotion from Class II Engineers known as Assistant Engineers on recommendation received from the Pakistan Public Service Commission. Till June 1959, the relevant percentage applying to these two avenues was 75 per cent. from Avenue No. 1, i.e, direct recruitment and 25 per cent from Avenue No. 2, i.e. by promotion from Class II. After June 1959, this percentage was altered to 66 and 2/3rd per cent. by direct recruitment and 33 and 1/3rd per cent by promotion,

4. Now, it is the case of the petitioners that at the time of Partition they were given a guarantee that the conditions of their Service would not be altered to their detriment and that it was on this express assurance that they had opted, for Service with the Government of Pakistan. On account of death of Divisional Engineers, the Departmental Promotion C6-mmittee in consulta tion with the Pakistan Public Service Commission selected the petitioners for promotion as officiating Divisional Engineers in Class I of the Telegraph Engineering Service (Senior Scale) and the petitioners after all the formalities had been gone through were promoted and thereafter confirmed in Class I as from the dates shown against each of them in the columns of the document Annexure A to this Petition. Appointment orders appointing each of the petitioners to officiate as Divisional Engineers were also issued and are to be found as Annexures S. 1-7 to this Petition. Thereafter, on '12-8-1957, the Director-General, Posts and Telegraphs Department addressed a letter to tie Public Service Commission referring to Rule 182 of the Posts and Telegraphs Manual, pointing out that there were then 109 posts in the Telegraph Engineering Service Class I Junior and Senior Scale to be filled out of which the Public Service Commission had approved 31 Class II Officers for officiating promotion to the Telegraph Engineering Service Class I and requesting the Public Service Commission to kindly examine the case and advise the Director-General in regard to the suitability of the officers for permanent absorption and confirmation in the Telegraph Engineering Service Class I (Junior and Senior Scales).

5. In February 1958, the Public Service Commission by their reply dated 26-2-1958, addressed to the Director-General, P & T, Karachi, conveyed their approval. "to the regular appointment to the Telegraph Engineering Service Class I of the under-mentioned Telegraph Engineers and Wireless Service Class II Officers who have officiated in Telegraph Engineering Service Class I with the approval of the Commission." . Then comes a list of 28 names among which appear the names of the present nine petitioners. Pursuant to this letter the Government on 5-4-1958, published its Notification No. S. 1-17/57 dated 5-4-1958, containing a list of confirmed Class I Officers with the dates of confirmation mentioned against each and the names being arranged IN ORDER OF SENIORITY. The petitioners were amazed to find in this list the names of the respondents Nos. 3 to 31 appearing higher and above the names of the petitioners, specially as these respondents through direct recruit ment were appointed to the Service. much after the petitioners, According to Rule 188-A reproduced above an Assistant Divisional Engineer recruited direct should not ordinarily be put in Divisional Charge unless he has put in five years of service and has passed all the tests prescribed -in Rule

186. The petitioners also claimed that under Rule 32-E reproduced above the seniority of an official in the cadre to which he belongs should be fixed according to the date of permanent appointment to that cadre and, therefore, the petitioners having been appointed to this particular cadre of Class I in this Service before respondents Nos. 3-31, they should have been placed in the list Annexure 'C' above the respondents. Being aggrieved by this Notification Annexure C to the Petition the petitioners through their advocate served a notice upon the Respondents Nos. 1 and 2 but as they obtained no relief on 26-5-1962, they filed the present Writ Petition in this Court.

6. Mr. A. K. Brohi the learned Advocate appearing on behalf of the petitioners bad further informed us that this Petition was admitted to a regular hearing on 7-9-1962 and that the respondents were served with notice thereof on 12-9-1962. He added that the respondents then proceeded post haste in their attempts to upset the sub judice character of this Petition by Retrospective Legislation. On 21-9-1962 they issued a De- Confirmation Order through the medium of a Notification bearing No. S21-19/58 dated 2i-9-1962 in these words:- On a full consideration. of representations of both promoted as well as directly recruited officers certain facts have come to the notice of the Government arid it is necessary to review the confirmations done in Notification No. S. I-I7/57, dated 5th April 1958 and No. S. 1-19/60, dated 11th October 1960 de novo, as such these notifications are hereby cancelled." This Notification appeared in the Gazette of Pakistan of 5-10-1962 which Gazette also contained the amended and new Rule 182-A as under -- "Seniority in Telegraph Engineering Service, Class I, will be fixed in a three point cycle, the first point in the cycle shall be reserved for a Departmentally promoted officer and the next two for the directly recruited officers irrespective of their date of confirmation in the Telegraph Engineering Service, Class I," Mr. Brohi further submitted that on 27-9-1962 even before the issue of this Government Gazette dated 5-10-1962 he approached this Court with Civil Miscellaneous Application bearing No. 730/62 praying for an order of status quo and that any orders of De-Confirmation of the petitioners which may have been passed subsequent to the filing of this Petition should be kept in abeyance or treated as suspended pending the disposal of this petition. On 28-9-IS62 this Court issued notice adding "in the meantime status quo to be maintained". NEVERTHELESS, the Government Gazette of 5-10-1962 contained the De-Confirmation Order as well as the amended Rule 182-A both reproduced above. On 11-3-1964 upon an assurance and an undertaking given to this Court by the learned Attorney-General that any promotion made by the Department will be subject to the order finally passed in this writ petition the interim injunction was discharged. There after, on 24-9-1964 an amended petition was filed by Mr. Brohi containing the prayers as set taut in para. I of this judgment.

7. The respondents through their counter-affidavits, have given detailed replies to the allegations contained in this petition. They have pointed out that, as, soon after Partition, there was a dearth of qualified officers, provisional and temporary promotions were made to Class I of the Telegraph Engineering Service but purely as a sort of Stop Cap Measure disentitling the promotees to regular rights in T. E. S. Class I Service. The formal and regular procedure to be adopted in order to obtain an entry into T. E. S. Class I Senior Scale Service has been set out and explained and it has been emphasised that merely because the petitioners were holding the charge of Divisions without a break for sometime, this was a mere accident and not a deliberate act add cannot be interpreted to mean that the petitioners had acquired a regular right to the Superior Class of Service. It was further pointed out in these counter-affidavits filed on behalf of the respondents that although the petitioners were approved by the Central Public Service Commission on 26-2-1958, their orders of confirmation with retrospective effect were found incorrect and suffering from an administrative error as-- "an official cannot be confirmed in a service (T. E. S. Class I) from a date earlier than that of his approval by the Central Public Service Commission. The Central Public Service Commission has held that their appointment in the service (T. E. Sc. Class I) earlier than the date of their approval under Rule 1'82 (Annexure H) (governing recruitment to TES Class I), is irregular (Annexure I)." Hence, the orders of confirmation (Annexures, C, D and E) to the petition being incorrect were cancelled and were to be rectified and replaced by a further order but before this could be done the Department on 29-9-1962 was served with a stay order by this High Court. It has also been mentioned that- " Unless a T. E. & W. S. Class II Officer has been promoted through Selection Procedure against the quota for such officers in accordance with Rule 182 of the P & T Manual Volume IV he cannot claim to be a member of T. E. S. Class I (Senior Scale or Junior Scale): As explained above, the appointment of these officers to Divisional Vacancies was done under Rule 188 of the P & T Manual Volume IV which is the rule governing purely temporary arrangements for carrying on the work of an Engineering Division in the absence of officers in the T. E. S. Class I Junior Scale."

8. We have heard Mr. A. K. Brohi on behalf of the petitioners and Mr. Shah Jamil Alam on behalf of the Respon dents Nos. 1 and

2. Mr. Wahid Faruqui and M. A. A. Zari have also addressed us on behalf of some of the remaining respondents. For the sake of brevity, we consider it unnecessary to reproduce their arguments in the course of this judgment, particularly, as we shall be referring to these arguments as we proceed to deal with the points that arise for determination in this matter.

9. Now the very first of these points and one that has been urged before us with vehemence by Mr. Brohi is that the De -Confirmation Order of 21-9-1962 is a mala fide Order and one passed by the respondents with the malicious object of defeating this Writ Petition. We have carefully considered this contention and the material available on this record relating to it as placed before us by the learned Advocates. We observe that the proceed ings culminating in this De-Confirmation Order of 21-9-1962 may be said to have commenced as long ago as 28-7-1961 with the Note of the Hon'ble Minister-in-charge appearing at page 43 of File A-Il, Staff Branch, Telegraph and Telephone Directorate- General, Karachi. This file deals with the recruitment of Assistant Divisional Engineers in T. E. S. Class I (Junior Scale). This note dated 28-7-1961 is in these words :- "I regret I am unable to appreciate the difficulty apprehended by the Department. Promotion to appointments higher than the Senior Scale are by Selection and it may be one in a hundred of those promoted from the lower Categories to Class I Service who might succeed in competing against highly qualified direct recruits to go beyond the Senior Scale and if there is that amount of merit in any individual case it should not be grudged by any one. So far as Seniority in the Senior Scale 'is concerned it is immaterial in effect as both have to perform identical functions. This being the case the fear expressed would reflect on the Selection Board being susceptible of emotion and sympathy for individuals overriding the interest of Service and the State. I hope that this is not so. If my analysis is faulty and I have missed any points I am open to discussion." Thereafter, on 28-3-1962, the Hon'ble Minister concerned Mr. F. M. Khan wrote another note on the file as under:- "I am not at all satisfied with the handling of this case in the P & T Department. No Department has a right to depart from the well established rules for fixation of seniority. I am averse to any discrimination in regard to fixation of seniority as between 1954, 1958, and. 199, up to date. It will only cause heart burn dissatisfaction in service. I have been inundated with scores of individual and class representations on this point and I must express my annoyance at the enormous delay caused in the P & T Department in settling this issue since I last noted on this case in July 1961. I shall be glad if Secretary, Establishment will kindly have the question examined in detail and afford a rule to be acted on by the P & T Department without any further delay. (Sd.) F. M. KHAN 28-3-1962" On 21-5-1962, the President's Secretariat (Establishment Division) addressed a letter to the Public Service Commission referring to their letter No. F. 2/32/57-S dated 26-2-1958, addressed to the Director-General, Posts & Telegraphs soliciting the opinion on the question whether:- "the approval conveyed by the Commission to the regular appointment of Class II Officers to Telegraph Engineering Service Class I should take effect from the date of their letter of approval or with retrospective effect, i.e. from the date (s) from which those officers were allowed to officiate in the Telegraph Engineering Service, Class I". This letter is Annexure I to the Supplementary affidavit filed on behalf of the respondent by Mr. Muhammad Hussain Khatib, Deputy Director-General in the Office of the Director-General, Telegraph and Telephone, and dated 9-5-1964. On 7-8-1962, the Public Service Commission replied to this letter stating:- "The Commission are, therefore, of opinion that the seniority of Class II Engineers on promotion to Class I should be determined according to the rules but without being influenced by the abnormal conditions which have been obtaining for some time due to the non-availability of Class I direct recruits regularly and in required number. By the abnormal situa tion, the Class II Officers have benefited to the extent of temporary and accelerated promotions from Class II to Class I (Senior Scale) posts direct but this advantage should not be allowed to stand permanent in the way of those recruited directly to Class I. The Commission accordingly advise that in this case Class II Officers should count their seniority in Class I from the date they have been approved by the Commission for appointment to Class I post on a regular basis? It was on the basis of this advice that on 4-9-1962 the Establish ment Division of the President's Secretariat, Government of Pakistan gave its Ruling that Recruitment made in T. E. S. Class on the basis of four point cycle prior to June 1959, was in order i.e. first three vacancies by Direct, Recruits and the fourth by Promotion. However, from June 1959, onwards the ratio of distribution should be 2 to 1 as between Direct Recruits and Promotees thus introducing a three point cycle the first point in the cycle being filled by promotion and the last two by Direct Recruitment. It was also decided that seniority of Direct Recruits vis-a-vis Promotees in the Cadre should be determined in accordance with the date of substantive appointment against a clear vacancy in a four point cycle up to June 1959, and in a three point cycle thereafter. As from June 1959, the three point cycle will be applied to fill in both permanent and temporary vacancies separately. It was finally decided that the Seniority and Confirmation-of persons prior to June 1959, should accordingly, be reviewed: A Draft Notification pursuant to this decision of the Establishment Division of 4-9-1962, was put up before the Hon'ble Minister for his approval on 18-9-1962, was approved and signed by him on 19-9-1962, and on 21-9-1962, the De -Confirmation Order promulgated in the form of a Notification which was sent to the Government Press for publication and was actually published in the Gazette of Pakistan dated 5-10-1962. On 25-9-1962, both Associations of the petitioners Nos. 1 to 9 and of the Respondents Nos. 3 to 31 were informed of this Ruling given by the Establishment Division of the President's Secretariat. This Ruling in the form of Notification S. 21-19/58 of 21-9-1962, was then forwarded to the Government Press for publication but owing to the exigencies of space it could only be published in the Gazette of Pakistan dated 5-10-1962. From these facts it is plain that the Government decision of 21-9-1962, was reached before the Stay Order passed by this Court in this very Writ Petition on 28-9-1962. This Stay order was only served on the respondent Government the next day, i.e. 29-9-1962. It is also apparent from the list of dates mentioned above that the proceedings which culminated in the De-Confirmation Order of 21-9-1962, commenced more than a year earlier with the note of the Hon'ble Minister dated 28-7-1961. In this view, then, it appears to us that the De-Confirmation Order of 21-9-1962, cannot be said to be a mala fade Order passed with the malicious intent of defeating this Writ Petition, or of providing a defence to the Respondents 1 and 2 to this Petition. It is no doubt true that the De-Confirmation Order though owing its origin to proceedings which commenced a year earlier, yet, came to be passed after the filing of this Writ Petition but nevertheless, we are convinced in our own minds that the well-known latin Maxim "POST HOC ERGO PROTER HOC" (later but not because of) can have no application to the facts of this matter. In our opinion, it is a mere coincidence that the De-Confirmation Order of 21-9-1962, came to be passed after the filing of this Writ Petition. It is not a mala fide Order and was not intended to defeat this Writ Petition.

10. The next question of importance that arises for consideration in this case is whether Government has the power to cancel a previous order, communicated and acted upon, without notice to the petitioners who are the parties immediately concerned. Mr. Brohi also urged in this connection that the order of De-Confirmation of 21-9-1962, having been passed during the pendency of this Writ Petition is a nullity in the eye of the law and can safely be ignored. We have applied our minds to this point and particularly to the arguments urged by Mr. Brohi before us on this question. The learned Advocate cited four cases before us in support of his contention that Government has no power to cancel an order once made, published, communicated and acted upon. Mr. Brohi, as mentioned above, has also contended that the later order of De-Confirmation having been passed at time when this Writ Petition was pending is a nullity in law and this is a point which we shall consider later after having dispose. of his earlier contention that Government has no power to cancel an order once published, communicated and acted upon. The first of the four cases relied upon by Mr. Brohi is the case of R. T. Rangachari v. Secretary of State (AIR 1937 P C 27). In this case a Sub-inspector of Police who was granted an invalid pension by a competent authority and thus ceased to be in service was ordered by the Officer succeeding the authority that had granted the pension to be removed from service. It was held by their Lordships of the Privy Council that the Sub-Inspector had suffered a wrong and, therefore, had every right to complain of the stoppage of his pension as a breach of the rules relating to pension. The second case referred to by Mr. Brohi was that of Shabbaz v. The Crown (PLD 1956FC46) where the Government having passed an order of remission of sentence under section 401, cancelled the same before it could take effect. It was held that Government could do so as the order remission had not been put into effect. But, it was further pointed out in this cafe that had the order been put into effect, then, it could not have been cancelled. Mr. Brohi next referred us to the case of Dr. Mahboob Rabbani v. Government of West Pakistan (P L D 1963 Lah. 53) wherein it was held that a Leave Order of a Government Servant having been sanctioned by a notification in the official Gazette and having thereafter come into operation and carried into effect, such order cannot be cancelled by a subsequent notification withdrawing the leave granted. The last case relied upon by Mr. Brohi was of Abdul Rashid v. The Secretary, Home Department, Government of East Pakistan (PLD 1965 Dacca 433) where it was held that a Govern ment Servant upgraded and confirmed in a post, such an, order cannot subsequently be reviewed to his prejudice without giving him an opportunity of being heard.

11. We have closely examined these four cases relied upon by Mr. Brohi and we observe that the subsequent order passed by Government in each of these cases was set aside not because it was a later or subsequent order but because of some inherent legal defect in the said order. Thus, in the case of R. T. Rangachari v. Secretary of State that subsequent order stopping the pension of the Sub-Inspector concerned was found to be in breach of the rules relating to pensions in that particular case, thus causing a legal wrong to the appellant Sub-Inspector. In the second case of Shahbaz v. The Crown order of remission having been cancelled by Government before the date on which it was to take effect such cancellation order was upheld: This is, therefore, not a case in which the later order of Government was cancelled and the further point that had this order of remission been put into effect and the prisoner released. It could not in such circumstances be cancelled thereafter is a hypothetical consideration and not one based upon the actual facts of the case. Such hypothetical considerations cannot take the place of law declared and applied and hence we are not inclined to place any reliance upon such suppositions cases. In the third case relied upon by Mr. Brohi Dr. Mahboob Rabbani v. Government of West Pakistan the subsequent order cancelling the prior Leave Order of the petitioner Dr. Mahboob Rabbani gave no indication of the reasons upon which this subsequent order of cancellation of leave was based. The petitioner in that case had not informed that his leave had been refused on one or the other of the grounds justifying such action. Had any of these grounds such as "Administrative Inconvenience" been mentioned in the subsequent order the result of this writ petition might well have been different. In the fourth and the last case referred to by Mr. Brohi Abdul Rashid v. The Secretary, Home Department, Government of East Pakistan tile petitioner Abdul Rashid here also had been furnished with no reasons for the cancellation of a previous order and had also not been hard before the said order was passed. Thus, it is apparent that these four reported cases relied upon by Mr. Brohi cannot serve to support his contention that Government had no power to cancel a previous order communicated and acted upon because, as shown above, in each of these four cases the subsequent order suffered from a legal defect. In the instant case, the learned Standing Counsel has contended that Government had good reasons for passing the subsequent De-Confirmation Order Annexure `Q'. The order itself states that:-- "On a full consideration of representations of both promoted as well as directly recruited officers certain facts have come to the notice of the Government and it is necessary to review the confirmations done in Notification No. S. 1-17/57, dated 5th April 1958, and No. S-1-1960 dated 11th October 1960, de nova, as such these notifications are hereby cancelled." These aforesaid representations made to Government by both the petitioners as well respondents 3 to 31 led Government to reconsider their previous orders of 5-4-48, and I 1-10-60, and to cancel these orders by their subsequent order dated 21-9-1962. It is plain to us that Government had good reasons for reconsidering the whole question of seniority as between promotees and direct recruits to Class I Service and that their order of 21-9-62, was not in excess of power.

12. With regard to Mr. Brohi's contention that the De -Confirmation Order of 21-9-1962, is a nullity because it was passed after the filing of this writ petition we have only this to say that whereas this argument of the learned Advocate may have found favour with the Courts in England, so far as we in this country are concerned the law here is not that with the filing of a writ petition or a case, further departmental proceedings connected therewith are automatically stayed. In this country, a special application for stay is required to be made before stay can be granted and there is no such thing as an automatic stay by merely putting the matter into Court. We have already shown in para. 6 above how Mr. Brohi applied for stay as late as 27-9-62, by when the order of the De-Confirmation had already been made. In our opinion, this order takes effect from the date on which it was passed and not from the date of publication. We have shown above how this order of De-Confirmation of 21-9-62, was immediately forwarded to the Government. Printing Press for publication: but on account of want of printing space in the Government Gazette it could not be printed and published earlier than the issue of 5-10-1962.

13. Having, therefore, held above that the order passed by Government on 21-9-62; was not mala fide, was not passed in excess of power and that it was not a nullity in law though made during the pendency of this writ petition; we are led to the logical conclusion that this order of 21-9-62, displaces the previous orders of 5-4-58 and 11-10-60. Now, Mr. Brohi has not challenged the validity of this later order of 21-9-62 but has merely submitted that this order is non-existent. because of being mala fide, in excess of power and being passed dring the pendency of this petition. Thus, we are precluded from entering upon a consideration of the validity of this order of 21-9-62, because the validity of this order has not been challenged by Mr. Brohi for reasons best known to him. Quite possibly, he may have felt that the moment he challenges this order of 21-9-62, then, his cause of action will be deemed to have risen as from that date and, therefore, after the coming, into effect of the New Constitution so that Articles 98 (3) (b) and 177 of the New Constitution will reader this petition not maintainable. Since, therefore we cannot now consider the validity of this order of 21-9-62, this order holds the field so that in consequence the two prior orders of 54-58, and 11-10-fi0, are today non-existent. If, then, these two earlier under are non-existent the prayer of the petitioners claiming seniority over the respondents becomes infructuous and in this view of the matter it becomes unnecessary for us in this judgment to go into the details and discuss the various rules and provisions of law relating to the question of the seniority of the petitioners as against the respondents.

14. Nor, are we impressed by Mr. Brohi's further contention that the order of 21-9-62, is illegal inasmuch as it violates the principles of natural justice having been passed without notice to the petitioners. In our view, no notice in this case was necessary to the petitioners for the simple reason that the petitioners had done no wrong and had committed no fault that could require explanation. Besides, it seems to us that the order of 21-9-62, de-confirming the petitioners was not an order to their detriment: on the contrary, the petitioners' own prayer in this petition is that their seniority had not been properly determined by the earlier orders Annexures C, D and E and should, therefore, be re-determined in accordance with the correct law applicable to them. 'Wherefore, the petitioners can have no grievance with the order of 21-9-62, because this order has cancelled the previous Notifications Annexures C, D and E against which the petitioners are seeking relief through this writ petition. They have also not asked for cancellation of the order of 21-9-62, so that notice to them was not necessary. It seems to us that the case would have entirely been different if Government while setting aside the previous orders Annexures C, D and E had left the question open as to whether the petitioners should or should not be confirmed. On behalf of Government, their Standing Counsel Mr. Shah Jamil Alam had given us an undertaking-at the Bar that this question of the confirmation of the petitioners will not be re-opened and that the petitioners will at all times be taken to have been confirmed in Class I Service. The only point that remains is that the question of seniority as between the petitioners and the respondents should be re determined by Government and this is a relief that the petitioners themselves are after. Since, therefore, this question is still outstanding and the seniority of 'the petitioners has to be determined by Government, we are reluctant to express ourselves on the merits of the case relating to this question of seniority lest the case of either the petitioners or the respondents may be prejudiced. The petitioners are at liberty to re-present their cast to Government add claim their due seniority after this question bas beer' re-decided by Government taking in consideration all the aspects of the case. In this view of the matter, then, there is no further point left to be determined by us at this stage. Accordingly, we find no force in this petition 'which is hereby dismissed with no order as to costs. K. B. A. petition dismissed.