1. G. SAFDAR SHAH, J.-These three leave petitions arise out of the same judgment, dated 3-4-1979 of the Service Tribunal, Islamabad, therefore, they are being taken up together for disposal.
2. The essence of the controversy between the parties is their seniority in the grade of B. Ed. (Bachelor of Education) to which all of them belong. The admitted position is that all of them were initially appointed as teachers at Karachi by the Central Government, as Karachi was then the Federal Capital, but subsequently Miss Aziz Begum was transferred to Rawalpindi, on 16-2-1963, whereas the petitioners were similarly transferred subsequently, but at their own request in which each of them gave an undertaking that they would not claim any seniority against those incumbents who were already employed as teachers in the Rawalpindi Region. The record would show that when the Central Government took over about 25 schools at Dacca, Rawalpindi and Islamabad on 1-6- 1962, it successively published five seniority lists of the teachers working under its jurisdiction. But the cause of grievance mainly arose because of the seniority list, dated 31-5-1966, which the then Government of West Pakistan head published and later passed on the same to the Central Government. The grievance of Miss Aziz Begum, who was placed in the said seniority list junior to the petitioners, was that since she had successfully completed the course of' R. Ed. As the nominee of the Provincial Government, on 29-10-1961, she ought to have been placed in the seniority list w.e.f the said date and not w.e.f. 29-8-1963, as indicated in the said seniority list. After having agitated her grievance vigorously, Miss Aziz Begum succeeded to receive partial relief. But being still dissatisfied she first filed a civil suit for declaration but on the coming into force of the Civil Servants Act, 1973, when the suit got abated, she filed an appeal before the Service Tribunal.
3. Before the Service Tribunal, Miss Aziz Begum produced a notification of the Central Government, dated 5-1-1977, in which Miss Aziz Begum was shown as senior to all the petitioners. On the basis of the said notifica--tion, as well as the previous decision taken by the Central Government, owing to which Miss Aziz Begum had been given partial relief, the Tribunal recorded the conclusion that "It is an accepted fact that Miss Aziz Begum, the appellant qualified her B. Ed. Examination on 29-10-1961 as Govern--ment nominee due to which she was entitled to her appointment/entry into the grade of Trained Graduate Teachers with effect from the date of passing her B. Ed. i.e. 29-10-1961. The Government got ultimately convinced of her pleas and was at last pleased to grant her genuine request. The Ministry of Education vide their above Notification dated 5th January 1977 granted her presumptive seniority in the grade from Ist December 1951 and observed that she be given her appropriate place in the seniority list. It now becomes abundantly clear that the date of appointment/entry into the grade of the Trained Graduate Teachers, the appellant Miss Aziz Begum is reckoned from the 1st December 1961 instead of 29-8-1963. She decidedly stands senior now to respondents Nos. 2, 3, 4, 5 and 9 whose dates of appointment/entry into the grade lag for behind the date of Miss Aziz Begum the appellant in view of the notification of the 5th January 1977. We have already held firmly that the appellant Miss Aziz Begum is senior to respondents Nos. 6, 7, 8 and vide paragraph No. 22 (page 10 ante), she stand senior also to respondents Nos. 2,3,4,5 and 9 now by virtue of letter No. F. 5-1-76-Admn. Dated 5th January 1977 issued by the Ministry of Education.
4. Miss Aziz Begum, therefore, under all circumstances, stands senior most to respondents Nos. 2 to.
10. It is, therefore, ordered that all the seniority lists so far published by the Ministry of Education, should be amended and Miss Aziz Begum, the appellant be allotted he; appropriate place of seniority in the grade of Trained Graduate Teachers recognizing her date of appointment in the grade as 1-12-1961 and her seniority over all her respondents Nos. 2 to 10".
5. Mr. Bashir Ahmad Ansari, the learned counsel for the petitioners (in C. P. S. L. A. No. 138-R/1979) urged the following contentions against the impugned judgment of the Tribunal :-
(1) that under section 8 of the Civil Servants Act, 1973, the seniority of the petitioners had to be fixed, as against Miss Aziz Begum, in accordance with their respective dates of entry in the B. Ed, grade, notwithstanding the fact that the petitioners had been transferred to Rawalpindi Region at their own request in which they had given an undertaking not to claim any seniority against those incumbents, who were already in service in the said region ; and
(2) that the appeal filed by Miss Aziz Begum before the Service Tribunal was incompetent in view of section 4(1) (c) of the Service Tribunal Act, 1973, as she had challenged therein the final seniority list, dated 10-7-1968, which was evidently passed earlier than the target date of 1-7-1969."
6. We are afraid, there is no force in either of these contentions. The Civil Servants Act, 1973 came into force long after the petitioners had been transferred to the Rawalpindi Region at their own request in which they had given an undertaking not to claim any seniority against the incumbents already serving there, therefore, reliance on section 8 of the said Act is evidently misconceived. In point, of fact, when the said Act came into force, the question of inter se seniority of the parties herein had already stood concluded in view of the said undertaking given by the petitioners, it would, therefore, follow that since there was nothing in existence which could be said to be pending, so as to attract to the situation the provisions of the said Act, the petitioners could not possibly take advantage of section 8 thereof.
7. We are also not impressed with the contention of the learned counsel that the appeal filed by Miss Aziz Begum was incompetent in view of section 4 (1)(c) of the Service Tribunal Act, 1973. A look at the list published on 10-7-1968 would show that it was essentially provisional in character inasmuch as in the last part of it, it had invited objections from the aggrieved incumbents. It is not disputed that Miss Aziz Begum had all along been agitating the question of her seniority and had also essentially challenged the said seniority list. In this view of the matter her appeal before the Service Tribunal was wholly competent to which no exception can be taken.
8. We are, therefore, satisfied that the view taken by the Tribunal seems to be unexceptionable and consequently C. P. S. L. A. No. 138-R/1979 fails and the same is dismissed.
9. In so far as C. P. S. L. A. No. 140-R/1979 is concerned, it has been argued by Syed Muhammad Shahudul Haq, the learned counsel for the Federal Government. His only grievance is that Miss Aziz Begum had given an undertaking on 15-12-1976 to the effect that "if the Ministry of Education decide my seniority case in my favour, I am prepared to withdraw my case from Service Tribunal".
10. He argued that in view of this under--taking given by her Miss Aziz Begum was assigned her seniority by the Federal Government, vide its order, dated 5-1-1977, and so the appeal filed by her before the Tribunal had become infructuous and ought not have been decided on merits. Tile difficulty in his way, however, is that the said order of the Central Government was not allowed to be implemented by Miss Aziz Begum who being dissatisfied did not avail of the various. Facilities allowed to her therein and instead insisted on the disposal of her appeal o-- merits. To this view the contention urged by the learned counsel seem:, to have no force in it, therefore, this petition, is dismissed.
11. This leaves us with C. P. S. L. A. No. 141-R/1979 filed by Mrs. Asiya Mahmood, which has been argued on her behalf by Maulvi Sirajul --Haq. The grievance of Maulvi Sirajul-Haq is that Mss. Asiya Mahmood has been condemned unheard inasmuch as the notice sent to her by the Tribunal had been addressed on a wrong address and consequently when the same was re-directed to her at proper address, the appeal had already been disposed of. In this view of the matter, she appeared before the Tribunal and filed an application for setting aside the order against her but the Tribunal rejected her application holding that they were in--competent to do so as they had no jurisdiction to review their order.
12. By going through the original record of the case of the Tribunal, which was placed before us, the contention urged by the learned counsel seems to be well-founded. In the Memorandum of Appeal filed by Miss Aziz Begum, the address of Mrs. Asiya Mahmood bad been correctly indicated. But somehow, the notice sent to her went to a wrong school from where the same was re-directed to her, which however, was received by her after the appeal had already been disposed of. In this view of the matter, Mrs. Asiya Mahmood bad indeed been condemned unheard. And the Tribunal had evidently erred not to set aside the order against her, for it is well settled that any order passed on the back of a person, without affording him an opportunity of hearing, would be without jurisdiction and of no legal effect. In these circumstances, therefore, there hardly arose any question of exercising review jurisdiction in the matter by the Service Tribunal for the simple reason that they had not even viewed the case of Mrs. Asiya Mahmood as she had not been heard.
13. In so far as Mrs. Asiya Mahmood is concerned, the petition filed by her is therefore, converted into appeal and the same is allowed. The result would be that the case of Mrs. Asiya Mahmood would go back to the Tribunal for consideration on merits after affording her an opportunity to defend her interest. Under the circumstances, however, there would be no order as to costs.