' GULZAR AHMED, J.---By this appeal, appellant Sarosh Haidar has challenged the order dated 28- 4-2010 passed by a learned Division Bench of High Court of Sindh, Circuit Court, Hyderabad, by which the Constitutional Petition No,D-302 of 2009, filed by the respondent No,1, was allowed and the official respondents were directed to implement the order dated 29-5-2004 of Chief Secretary allowing the seniority to the respondent No,1 over and above the appellant.
2. Vide order dated 8-9-2010 leave to appeal was granted, inter alia, to consider the question as to whether the order of Chief Secretary dated 29-5-2004 was justifiable and legal and whether promotion could merely be granted on the opinion of Law Department.
3. We have heard the learned counsel for the parties and have gone through the record.
4. Learned Senior Advocate Supreme Court for the appellant has vehemently argued that though the appellant and respondent No, 1 were appointed on the same date i,e, 16-6-1986 as Draftsman BPS-13 in the Town Planning Department, Hyderabad but the appellant was senior in age and has also submitted his joining report on 30-6-1986, whereas the respondent No, 1 submitted his joining report on 1-7-1986 and pursuant to these differences, the name of appellant, always appeared above that of respondent No, 1 in seniority list. In this respect he referred to the seniority list of December, 1991, of December 1994, the notification dated 14-12-1995, whereby the appellant and respondent No,1 were promoted to the post of Sr. Draftsmen BPS-16 and the seniority list dated 1-1- 2000. He contended that none of these seniority lists or the notification, wherein the name of appellant appeared at Sr. No, 1, was ever challenged by respondent No, 1 and it was only at the stage when the recommendation for promotion to the post of Chief Draftsman BPS-17 was initiated the respondent No,1 filed a belated appeal dated 30-3-2002 claiming seniority over and above the appellant. This appeal of the respondent No, 1 was rejected by the competent authority being time barred vide letter dated 20-10-2002. He contended that vide notification dated 8-11-2002 the appellant was promoted to the post of Chief Draftsman BPS-17 in the Directorate of Town Planning Sindh with immediate effect. He further contended that it was after such promotion of the appellant was made that the respondent No,1 submitted an appeal dated 18-11-2002 to the Chief Secretary, whereby he sought his seniority to be corrected with that of appellant. He contended that the appeal did not lie to the Chief Secretary and even otherwise it was time-barred. He further contended that promotion of the appellant as Chief Draftsman BPS-17 was never challenged by respondent No,1 through proper remedy. He has further contended that no notice of hearing of appeal of respondent No,1, was issued to the appellant and further the order of Chief Secretary is a non-speaking one and does not assign any reasons. In support of his submissions, the learned counsel relied upon the case of ABDUL MAJEED ZAFAR and others v. GOVERNOR OF PUNJAB THROUGH CHIEF SECRETARY and others (2007 SCM R 330).
5. On the other hand, learned Advocate Supreme Court appearing for respondent No, 1 has supported the impugned order and has contended that in terms of Law Department's opinion, opportunity of hearing was provided to the appellant and appellant could not have any grievance against the order of Chief Secretary. In support of his submissions, he has relied upon the case of ABDUL GHANI v. MST. SHAHEEN and others (2007 SCM R 834).
6. On Court directions, learned Additional Advocate General Sindh has placed on record copy of appeal dated 18-11-2002 of respondent No,1 along with office noting. He has referred to para 15 of notes appended to appeal and has contended that while the appellant and respondent No,1 were appointed on one and same date, respondent No,1 having higher marks than that of appellant, his seniority was rightly corrected.
7. The facts that appellant and respondent No,1 were appointed on one and same date i,e, 16-6- 1986 as Draftsmen BPS-13 in the-Town Planning Department, Hyderabad and that the appellant being senior in age to that of respondent No, 1 and has submitted his joining report dated 30-6- 1986 and respondent No, 1 has submitted his joining report on 1-7-1986 are not disputed. Further more, it is also not disputed that the seniority lists of December 1991, December 1994, the notification dated 14-12-1995 by which the appellant and respondent No, 1 were promoted as Sr.
Draftsman in BPS-16, the seniority list dated 1-1-2000 and the seniority list dated 13-8-2001 were not objected to or challenged by respondent No,
1. In all these seniority lists and the notification the appellant was shown senior to respondent No,
1. It is also an admitted fact that it was at the stage when recommendation for promotion to the post of Chief Draftsman BPS-17 was initiated; the respondent No, 1 filed an appeal dated 30-3-2002 claiming seniority over and above the appellant and this appeal of respondent No, 1 was rejected as time barred on 20-10-2002. In the meanwhile, on 8-11-2002 the appellant was promoted to the post of Chief Draftsman BPS-17 and it was, after this promotion of appellant, that the respondent No,1 filed an appeal on 8-11-202 to the Chief Secretary, in which his claim was that of correction of seniority with that of appellant on the basis of recommendation for initial appointment dated 4-3-1986, where in the category of draftsman the name of respondent No,1 was shown at Sreial No,1 while that of appellant at Serial No,2 and this appears to be for the reasons that respondent No,1 has obtained 39 marks while the appellant has obtained 36 marks out of 50 marks.
8. Learned Advocate Supreme Court for respondent No, 1 has heavily relied upon Rule 11 Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 and has contended that the seniority of the respondent No,1 could not have been changed from the one assigned to him on initial appointment. He contended that the order of the Chief Secretary has already been implemented and the respondent No,1 has been placed as Senior to the appellant.
9. There cannot be two views with regard to the provision of Rule 11 that the inter se seniority of civil servant, appointed in a batch or on the same date is to be based in order of merit, assigned by the selection authority. In the present case though the name of respondent No, 1 was above that of appellant at the time of selection in 1986 but in seniority lists of December 1991, December 1994, the notification dated 14-12-1995, the seniority list dated 1-1-2000, the name of the appellant appeared as senior to that of the respondent No,
1. From December 1991 uptil 1-1-2000, which is the period of almost about nine years, the respondent No, 1 was satisfied with his seniority position that being junior to the appellant and did not either make any representation or file any appeal. From the office note dated 22-8-2002 it appears that another seniority list dated 13-8-2001 of senior draftsmen was issued and circulated amongst the senior draftsmen. Against this seniority list, also the respondent No,1 did not file any appeal, but when the case of the appellant was taken up for promotion as Chief Draftsman BPS-17, the respondent No,1 rose from his deep slumber and for the first time filed an appeal dated 30-3-2002, which was rejected by competent authority on 20-10- 2002 as being time barred. In the meanwhile, the appellant was promoted as Chief Draftsman by the Departmental Promotion Committee and notification dated 8-11-2002 of promotion of appellant was also issued. The respondent No,1 then preferred further appeal dated 20-11-2002 to the Chief Secretary which as it appears has been allowed vide order dated 29-5-2004 and the seniority which the appellant was enjoying, on the basis of which he was promoted as senior draftsman and then as Chief Draftsman, was all of sudden reversed in favour of respondent No,
1. The total intervening period being that of almost 14 years.
10. Having enjoyed the position of seniority by the appellant above that of respondent No, 1 for such a long period, created a vested right in the appellant of that being senior to the respondent No, 1 and such right of appellant could not have been upset as principle of locus poenitentiae will come into application in that authority will have no power to recede, more-so, when no hearing whatsoever was provided to the appellant while considering the case of seniority. Thus the mandatory provision of law of audi alterm partem has been seriously violated by the Chief Secretary while passing the order dated 29-5-2004. The learned counsel for the respondent No,1 has relied upon the case of Abdul Ghani (supra) which decides the case on the basis of order passed in violation of mandatory provision of law and it was held that no limitation would run for challenging such order. We may note that this judgment relied upon by the learned counsel for respondent No, 1 would be of no help for the reasons that the respondent No, 1 had more than one occasions to agitate about his seniority but he himself chose not to challenge the same and allowed them to attain finality and thus he himself acquiesced and abandoned his right to claim seniority over that of appellant and principle of estoppel will surely come into operation and debar the respondent No,1 from asserting the right of seniority over and above that of appellant, which he himself through his own act and conduct has rested.
11. In the case of CHAIRMAN, DISTRICT SCREENING COMMITTEE, LAHORE and another v. SHARIF AHMED HASHMI (PLD 1976 SC 258), this court has elaborately dealt with and has laid down the distinction between the word "Void" and "Voidable" and in doing so has observed as follows:-- "There is great looseness in the use of the words "void" and "voidable" and very often they are used interchangeably. Nevertheless there is a clear distinction between things -"void" and "voidable" though the two terms are not infrequently used without special regard for the difference or distinction particularly where such distinction is of no consequence or where the attention of the Court is not particularly directed to this distinction. The expression "Void" in the strict or accurate sense means "absolutely null" that is to say incapable of ratification or confirmation and of no effect whatever. The word "voidable" on the other hand is something which could be avoided or confirmed and which is not absolutely void. In other words what is voidable has some force or effect, but which may be set aside or annulled for some error or inherent vice or defect. "Thus that which is voidable operates to accomplish the thing sought to be accomplished until the fatal vice in the transaction has been judicially ascertained and declared." (See Corpus Juris Secundum Volume 92 pp.1021-1024). A common place instance of a void act or transaction in the sense of an absolute nullity is an agreement by a person under a legal disability e.g. a minor or a person of unsound mind. Such act is void ab initio and is incapable of ratification or confirmation. See section 11 of the Contract Act, 1872. Law forbids the enforcement of such a transaction even if the minor were to ratify it after attaining majority. This is clearly distinguishable from a case in which a thing or an act is "relatively void" which the law condemns as wrong to the individual concerned who can avoid it by appropriate proceedings. A common place instance of such transaction is that which is brought about by undue influence, fraud etc. Which remains of full effect unless avoided by appropriate proceedings. In the relevant field, an order of dismissal etc. Of a Government servant by an authority who had ab initio no authority will fall under the first category. For instance, if the respondent had been retired by a Superintendent Police instead of appellant No, 2 the order would have been void ab initio. On the other hand an order by competent authority but suffering from a procedural defect will be voidable and fall under second category. The first case is of total incapacity, assimilable to a defect falling under section 11 of the Contract Act and the resulting act is a dead letter. In the latter case, the order is by the competent authority though in violation of certain rules.
' Bearing this distinction in mind, the cardinal fact in the instant case is that respondent was retired compulsorily by appellant No,2 who was his Appointing Authority and not by an interloper, Under the Constitution of 1956 read with the Law (Continuance in Force) Order, 1958 appellant 2 being the'
Appointing Authority was fully competent to do so, subject however to satisfying certain procedural requirements. Appellant 2 purported to act under the Public Conduct (Scrutiny) Ordinance, 1959 (Ordinance III of 1959) and the Public Conduct (Scrutiny) Rules, 1959 framed thereunder, Rule 2 of these Rules as Originally framed provided as follows:-- "Where a Committee is of the opinion that there is reason to believe that person to whom the Ordinance applies-
(a) is corrupt...............................
(b) ............................................
(c) is inefficient or has ceased to be efficient and is not likely to recover his efficiency.
' It may so inform that person and call upon him to explain any fact or circumstance appearing against him."
' This covered the respondent's case. But by a subsequent amendment clause (c) of the rule was omitted with effect from 28-2-1957. Appellant 2 however, apparently ignorant of the amendment proceeded against the respondent as if the rule as originally framed had continued and ordered respondent's compulsory retirement, on the report of the Screening Committee constituted under section 3 of the Ordinance. Any penal action properly taken under the rules was protected under section 10 ibid. But the impugned order not being under the rules is not protected and is therefore, open to challenge.
' The result therefore is that the impugned order was made by the authority otherwise competent to make it: it is under attack because of the defective procedure. But all the same it had taken effect as from 1-7-1959 according to its tenor and has not been recalled notwithstanding many representations made by the respondent. In this situation, it is in my opinion wholly wrong to treat he order void ab initio in the sense of an absolute nullity. It was made by the authority inherently competent to make it, though a wrong procedure was followed. Appellant 2 could have proceeded under the Civil Servants (Efficiency and Discipline) Rules. It was therefore, merely voidable which could have been avoided by the respondent by appropriate proceedings. This he did, but not until after the lapse of twelve years. Since then further three years have gone by.
' Therefore, it can scarcely by controverted that the respondent's writ petition in the High Court suffered from inordinate delay and ordinarily relief should have been refused to him as it was done by the learned single Judge for reasons of gross Laches."
12. In the present case, it is not disputed that the seniority lists and the notification by which the appellant and respondent No,1 were promoted as Senior Draftsmen were issued by the competent authority. Thus, where the competent authority does any act or passes any order, which is adverse to any person and he being in full knowledge of the same, such act and order remains in the field and operates fully until it is challenged through a proceeding within prescribed limitation period.
Such an order will not be void ab initio but merely be a voidable which can be corrected if proceedings against it is brought within prescribed limit of limitation. Thus, in the present case, seniority lists and the notification which admittedly were issued by the competent authority if at all were adverse to respondent No, 1, he could have challenged the same within limitation period prescribed by the law to have it corrected or set aside which he did not do so.
13. In the case of WAZIR KHAN v. GOVERNMENT OF N.-W.F.P. THROUGH SECRETARY IRRIGATION, PESHAWAR and 4 othes (2002 SCM R 889), this Court has observed as follows:-- " The next question relates to the limitation. It is not denied that upon rejection of the representation by the competent Authority against the revised seniority list published in 1981, the appellant did not prefer appeal before the Service Tribunal and allowed the same to attain finality. The appellant also did not raise any objection to the seniority list issued periodically in the intervening period and consequently it would be deemed that he has accepted the seniority assigned to him in the revised seniority list published in the year 1981. The matter relating to the seniority of private respondents inter se having. Attained finality would be deemed as past and closed transaction and could not be re-agitated after lapse of a period of about 15 years through a fresh representation.
14. In another case of FARIS RAHMAN KHAN v. FEDERATION OF PAKISTAN THROUGH SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and others (1995 SCM R 579), this Court has observed as follows:-- "The facts as stated above, clearly show that after the recommendation of September 1981 was returned, appellant's case was reconsidered many times during the years 1983 to 1988 and on all occasions it was rejected and persons junior to him were promoted superseding him. The appellant remained quiet till 1990 and agitated after he was promoted on the basis of recommendation made by the Board on 12-4-1989. The delay in making claim is fatal to the appellant's case: The learned counsel for the appellant contended that the appellant was not aware of what had been happening as no list of the persons considered for promotion was circulated nor any information was supplied. This seems to be a naive argument. Every civil servant is aware of the promotion and supersession."
15. In view of the above pronouncements of this Court, there was hardly any justification for the learned Division Bench of High Court to pass order that of implementation of the order dated 29-5- 2004 of the Chief Secretary which in terms as noted above was not in accordance with law. The impugned order, therefore, suffers from defects, which is not sustainable in law.
16. For the foregoing reasons, this appeal is allowed, the impugned order dated 28-4-2010 of High Court of Sindh is set aside. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.