1985 PLP (C (PLC(CS))

MUSHTAK ALI KAZI, (CHAIRMAN).‑The appellant, a District Food Controller, N.P.S‑16has preferred this service appeal to claim due seniority in his cadre according to the seniority list. The appellant's case is as under: ‑‑ The appellant was originally holding a post as an officer, N.P.S‑17 in Local Government service. The appellant was then taken up by initial recruitment as Assistant Director, Food, N.P.S‑

17. His appointment was regular in every respect, the requirement of clearance through the Public Service Commission having been relaxed by the Chief Minister. This appointment order was dated 19th February, 1975. Thereafter, the case of the appellant was referred to the Select Committee in pursuance of M.L.O.‑55 as the appellant was not a selectee of the Public Service Commission. The, appellant was not considered suitable for the post of Assistant Director, Food, by the Selection Committee and they recom mended that the appellant be given a post in the lower grade in N.P.S‑

16. His services as Assistant Director, Food, were accordingly terminated under Notification, dated 27th May, 1978. On the representation of the appellant he was appointed as District Food Controller in N.P.S‑16 by an order, dated 17th March, 1980. The appellant then made a representation to the Secretary, Food Department, for fixation of seniority since he was a regular Assistant Director, Food, till he was reverted under M. L. O.

55. The appellant claimed that he should be placed senior to all the officers who were working in Grade‑16 under him. The Secretary, Food Department, consulted Services and General Administration Department in this respect. With the approval of the S. & G.A. D. the claim of the appellant was upheld and he was placed senior to all the officers working in Grade-16 in Food Department by an order, dated 24th March, 1981. The appellant then continued in Grade‑16 as the senior most officer and his case on the basis of seniority; was sent to Selection Committee for promotion. The three officers placed next‑below him in seniority, viz., (1) Mr. Imdad Nabi Agha, (2) Mr. Afzal Mehdi, and (3) Mr. M. H. Awan, preferred departmental appeal to the Chief Secretary that the appellant could not claim seniority over the officers already serving in Grade‑16 in the Food Department, on the basis of his earlier service as Assistant Director, Food. The appeal of these three officers was accepted and the order, dated 24th March, 1981 assigning seniority to appellant, Irshad Ali Uner were revoked and he was assigned seniority in Grade‑16 from the date of his appointment in that grade. The appellant, therefore, preferred a departmental appeal to the Martial Law Administrator, Zone 'C' against the above order on 31st August, 1981. The decision on this representation remained pending when on 16th August, 1983 the Food Department issued notification publishing the seniority list of Grade‑16 officers as it stood on 1st January, 1983. According to this list Mr. Afzal Mehdi was placed No. 1 while appellant, Irshad Ali Uner was shown at Serial No.

39. Since the appellant lost 38 positions by one stroke he felt perturbed and shocked and he moved a departmental appeal against the seniority assigned to him in the list on 2nd January, 1984. After waiting for 90 days he preferred this service appeal on 11th April, 1984. It has been argued by Mr. Naimatullah Qureshi on behalf of the appellant that the appellant was assigned seniority over all other officers in Grade‑16 in Food Department after obtaining approval in this respect from the Chief Secretary as Head of the Services and General Administra tion Department. He has pointed out this averment, contained in para‑6 of his memo. of appeal. to which the reply has been given in the written statement, para‑5 that "The contents of paras. 5 and 6 are admitted". It has been pointed out by Mr. Qureshi that the learned Chief Secretary having approved the order himself, had cancelled the same after the order regarding seniority had been acted upon and the case of the appellant had actually been referred for promotion on the basis of that seniority to the Promotion Selection Committee. That the order once made could not be cancelled to the detriment of the appellant after it was acted upon and rights were created in his favour. The above position of law is enunciated in section 21 of the General Clauses Act and it can hardly be disputed that the locus poenitentide or the power of receding till a decisive step is taken, is available to the Government only till the order has remained on the file and has not been acted upon, but if the order is published and the rights are acquired by the concerned officer and they get vested in him, then there is no power with the Governmental authority to take away validly acquired rights. Thus the order, dated 24th March, 1981 could not be withdrawn or cancelled subsequently on 3rd September, 1981, after more than 5 months. It is true that the' subsequent order has been passed on re consideration of the case in the course of a regular departmental appeal by the three officers placed junior to Irshad Ali Uner ; but an appeal cannot be heard and decided ex parte without hearing the officer who is to be affected by the decision. In this case not only was the appellant not made a party as respondent but even a show‑cause notice was not issued to him. The decision was taken without hearing the person effected and he was informed subsequently of the order that bad been passed in appeal. Such an order would not be legal and binding on the appellant as it would be against the principles of natural justice. It has also been pointed out that since the original order of seniority of the appellant had been passed with the approval of the Chief Secretary and this position has not been disputed, then the appeal against that order would not lie to the same authority, but to next higher authority, viz. the M. L. A. exercising the powers of the Chief Minister. He alone could have set aside the earlier order after giving the present appellant sufficient opportunity of being heard. An objection has been taken that the service appeal would be barred by limitation because the appellant ought to have preferred the service appeal at the earlier stage when the order allowing him seniority overall other officers had been withdrawn. Mr. Naimatullah Qureshi has, on the other band, argued that the appellant at that time had no knowledge that he would be placed 38 positions lower, and the relative seniority in the cadre became known to him only on publication of the seniority list. That the appellant then became vigilant and preferred this service appeal against the position assigned to him in the list. That his right of objection or grievance cannot be taken away just because he bad not preferred an appeal against the earlier order. We find that every officer has right of appeal against position assigned to him in the seniority list published by the Government. This right cannot be lost by raising the plea of limitation in respect of an earlier order on appeal. In any case such an ex-parte order without hearing the appellant being void, there could be no limitation against a void order. In the result the order regarding the seniority of the appellant, i. e. the position assigned to him according to the seniority list, is set aside. His earlier position in the seniority list in N.P.S‑16 is restored. The Government' has, however, the option to re‑hear the appeal of the three officers in the Food Department after joining the present appellant as party, issuing notice to him and hearing him before deciding his case. The appeal is disposed of accordingly. No order is made as to costs. A. E. Orders accordingly.