' ABDUL HAKEEM KHAN, C. J.-This Constitutional petition has been moved by Doctor Islam Mehmood, Associate Professor, to question the orders of the Syndicate of the Peshawar University dated 12th of February, 1977, whereby, in supersession, of the previous orders dated 9-10-76, the petitioner was declared to have been appointed against a temporary post.
2. It is submitted on behalf of the petitioner that the orders of the Syndicate are without lawful authority for by their orders dated 9-10.76 the Syndicate had appointed the petitioner as Associate Professor against the permanent vacancy with effect from 23-9-1976 (F. N.) on usual probation for a period of one year while the appointment of Dr. Lhsan Illahi, respondent No, 2 by that very order against another, post of Associate Professor was indicated to be temporary it being against the post vacated by Dr. M. A. F. Faridi. This order, the learned counsel for the petitioner adds, could not be reversed by the subsequent order of 12-2-1977 for the reason given therein, namely, that respondent No, 2 had joined earlier, moreso without giving any show-cause notice.
3. The learned counsel for the respondent No, 2 raised a preliminary objection, and the same has the full support of the learned counsel for the Registrar and Vice-Chancellor of the Peshawar University, respondents 1 ,and 3 respectively that the impugned order of 12-2-1977 was appealable under section 39 of the University of Peshawar Act, 1974 (hereinafter called the Act) and since no appeal has been preferred the petition may be thrown out.
4. In this context we should like to reproduce section 39 of the Act which reads:- "Where an order is passed punishing any Officer (other than the Vice-Chancellor), Teacher or other employee of the University or altering or interpreting to his disadvantage the prescribed terms or conditions of his service, he shall, where the order is passed by the Vice-Chancellor or any other Officer or Teacher of the University, have the right to appeal to the Syndicate against the order, and where the order is made by the Syndicate, have the right to appeal to the Chancellor.
' The appeal shall be submitted to the Vice-Chancellor and he shall lay it before the Syndicate or, as the case may be, before the Chancellor, with his views."
5. It will be seen that some orders of the Syndicate have been made appealable to the Chancellor by the above-quoted section but the all-important question is, as to whether or not the impugned order will be an order in respect whereof an appeal can be taken under section 39 of the Act to the Chancellor. It is conceded that the impugned order is not an order punishing the petitioner but it remains to be seen that by the impugned order any condition of service of the petitioner has been altered or interpreted to his disadvantage. The University of Peshawar Service Statutes, 1977, copy of which was presented to us at the time of arguments by the learned counsel for the respondents were proposed by the Syndicate on 30-12-1976 and the endorsement thereon shows that those were approved by the Senate on 9-7-1977. It is not clear when the Chancellor had approved these but even if it is assumed that the approval of the. Senate brought the Statutes in force then even the impugned order as in Annexure 'B' having been made on the 12th of February, 1977, was much before the enforcement of the Statutes. We cannot be unmindful of the fact that even prior to the promulgation of the Statutes cited by the learned counsel for the respondents there were some Statutes governing the conditions of service of the University employees but the perusal of the impugned order will show that it does not refer to any such Statutes which were in force at the time when the impugned order was made. It is true that the appointment order dated 9-10-76 is itself a condition of service to the extent it shows that the petitioner had been appointed against a permanent post and was to be on a probation of one year but it will be indeed idle to argue that this was a prescribed term or condition of service within the contemplation of section 39 ibid. The expression 'prescribed' has been defined in section 2(1) of the Act as prescribed "by Statutes, Regulations or Rules". It comes to this that a term and condition of service alteration whereof is in the contemplation of section 39 ibid is not a term or condition of service given in an office order like the one in Annexure `A' but a term or condition of service which has been prescribed by any Rule, Regulation or Statute. On this view of the matter we are clear in or mind that, appeal to review the order in Annexure 'B' could not be taken to the Chancellor under section 39 of the Act and for this reason we overrule the preliminary objection.
6. The admitted factual position in this case is that the petitioner joined as Senior Lecturer on the 18th of January, 1965, while respondent No, 2 joined as an ordinary lecturer on 10-9-1964.
Respondent No, 2 was promoted as Senior Lecturer on 1-7-1969. A decision was taken by the University that all the persons who were Senior Lecturers should be designated as Assistant Professors with effect from 1-6-70 and it was therefore that the petitioner and respondent No, 2 were designated as Assistant Professors from that date. The petitioner proceeded to Busra on two years deputation on 1-9-74 and arrived back in the country on 19th of August, 1976. Thereafter the posts of Associate Professors were advertised and the petitioner applied for one of those posts with reference to his earlier application and so did respondent No, 2 and both of them were selected.
The University Office Order dated 9-10-76 (copy Annex-A) shows the petitioner at No, 7 and respondent No, 2 at No,
8. This order shows that unless otherwise specified the persons named therein were being appointed Professors/Associate Professors with usual allowances under the University Rules with effect from 23-9-1976 (F. N.) on usual probation for a period of one year. In the case of the petitioner there was no rider but in the case of respondent No, 2 the following words appear within brackets: "appointed on temporary basis against the post of Associated Professor, vacated by Dr. M. A. F.
Faridi."
' It will follow that the appointment of the petitioner was against a permanent post and that of respondent No, 2 against a temporary post.
7. It is not disputed that though the leave of petitioner had not yet expired he reported on 9-10-76 but capital is however being-made out of the fact that respondent No, 2 is reported to have given his arrival on 23-9-76 . And this was easy for him for he was not on leave but on duty even on 23-9-
76. A reference to Annexure 'A' will show, which is the impugned order that the Syndicate in its meeting held on 29-1-1977 reviewed its decision of 23-94976 and fixed the respondent No, 2 against the permanent post with effect from 23-9-76 and the petitioner against the temporary post with effect from 9-10-76 for this happened to be the date of his resumption of duty on the expiry of leave adding "whosoever has joined earlier should be placed against permanent post''.
8. We are at a loss to understand how could the petitioner as also the respondent No, 2 physically take over on 23-9-76 when the order appointing them as Annexure-A was issued on 9-10-76. It is true that his order was to be retroactive with effect from 23.9-76 but this does not mean that it would have been physically possible for either of them to take over on the last mentioned date.
This date was notionally given and it will be indeed expecting something impossible from an employee to report for actual duty with effect from a notional date. If the respondent No, 2 could give a formal report so could the petitioner and he should now be allowed to do so for the order of his appointment gives him as well the appointment with effect from 23-9-76.
9. It is conceded that show cause opportunity was not given to the petitioner when the impugned order was made and we are clear in or mind that an order reversing his seniority could not be given without a show cause notice particularly when we are inclined more to the conclusion that it tantamounted to a reduction in rank and on this point section 38 of the Act can be referred to with advantage.
10. The learned counsel for the respondents strenuously argued that the Selection Board had selected the petitioner with the remarks that his appointment will take effect from the date of publication of his two research papers vide, Appendix '3' on page 24 of the record. The learned counsel further submitted, that in this state of record the order of the Syndicate as in Annexure 'A' was by itself illegal. But these arguments conveniently overlook that power of appointment vests in the Syndicate and that Selection Board is only a recommendatory body. Section 22(2)(0 of the Act is clear on this point. Be that as it may on a reference to the list of publications supplied to us which we are making as Exh. H. C. I. The petitioner had five publications even before his promotion. It may also be added that the petitioner's placement against the temporary post was not due to the fact that he had not the requisite number of publications. It cannot be imagined that though there were rules on the subject and the Selection Board had qualified its recommendation the Syndicate passed the orders of appointment on 23-9-76 while the petitioner had not the requisite number of the publications. For these reasons the authorities cited by the learned counsel for the respondents Tufail Muhammad and others v. Muhammad Zia Ullah Khan and another (1), Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (2), and The Chief Settlement Commissioner v.
Raja Muhammad Fazil Khan and others (3), are of no avail to their clients. There is no question of ill- gotten gain, the petitioner was a senior man and the reasons which prevailed with the Syndicate in passing the impugned order are flimsy.
11. On the view of the matter that we take, we accept this petition and hold that the impugned order dated 12-2-1977 is without lawful authority and that the order dated 9-10-76 appointing the petitioner against a permanent post holds good. The University shall pay the costs. {{FOOT NOTE}}
(1) PLD 1965 SC 269 (2) PLD 1973 SC 236 (3) PLD 1975 SC 331 {{FOOT NOTE}}