1. ' M. SALIM CHAUDHARY (CHAIRMAN).-In this case the appellant who at the relevant time was an Assistant in the office' of Director of Education Rawalpindi assails the order dated 23rd April, 1965 of Director Education Rawalpindi whereby the appellant was reverted as a Senior Clerk w. e. f. 10th September, 1964 as also the order of the Director Education Rawalpindi dated 4th January, 1975 vide which the representations of the appellant were rejected.
2. ' The appellant who joined the Education Department as a Junior Clerk in 1945 was later on promoted as Senior Clerk w. e. f. 13th April 1956 and was confirmed in that capacity w. e. f. 28th February, 1958. He was promoted to officiate as an Assistant in the Office of the Director of Education Lahore Region w. e. f. 11th January, 1962 by an order of the same date passed by the Director of Education Lahore Region. As a sequel to the reorganization of the Education Department a new Region namely Directorate of Education Rawalpindi Region, Rawalpindi was created and by an order, dated 31st' Play, 1962 of the Director of Public Instructions Punjab. The appellant was posted as an Assistant in Regional Directorate of Education Rawalpindi Region w. e. f. 1st June, 1962 against a post newly-sanctioned for that Region. By a subsequent order of 30th November, 1963 of Directorate of Education Rawalpindi Region, appellant was adjusted w. e. f. 30th November, 1963 as a temporary Assistant against one of the 6 posts of Assistants created for that Region with the stipulation that "the above adjustments have been made against temporary posts upto 31st May, 1964 on which date the above-named officials will stand reverted to lower posts...". This order was however substituted by another order, dated 27th January, 1964 of the same authority the difference being that it did not incorporate the condition of automatic reversion. However, on the abolition of temporary posts created for the Directorate certain further reversions/adjustments were made by an order dated 30th April, 1964 of the Directorate of Education Rawalpindi Region Whereby the appellant was once again adjusted as an officiating Assistant of the Director of Education Rawalpindi Region w. e. f. 1st May, 1964 against a vacancy of one Mr. Zafar All who was stated to be on deputation. It was on 23rd April, 1965 that still another order was passed by the same authority which order is impugned before us, whereby as a result of further adjustments the appellant who was shown as a temporary Assistant, was adjusted as an Assistant for the period 1st June, 1964 to 10th September, 1964, "vice Mr. Muhammad Aslam Sheikh on leave and vice Mr. Muhammad Usman reverted to his original post of Senior Clerk".
3. ' Note No, 1 under the above order reads :- ' Mr. Saeed Ahmad Temporary Assistant holds the post of Senior Clerk from 11th September, 1964 onwards.
4. ' It is to be observed that vide orders of 29th May, 1965 of the Director of Education Rawalpindi Region, the appellant was again adjusted as an Assistant w. e. f. 6th April, 1965.
5. ' Resultantly in the seniority list issued on 4th June, 1975 the date of appointment to his present grade of the appellant, officiating as well as substantive, was shown as 6th April, 1965 and his seniority position fixed accordingly. The appellant contends that by adopting the aforementioned date wrongly, he has suffered many places in the seniority list so that respondents 3.6 became senior to him and have gained promotion as officiating Superintendents earlier than the appellant.
6. The appellant being aggrieved of the order of 23rd April, 1965 submitted a number of representations to the Directorate which remained unreplied till 4th June, 1975 when his requests were turned down by the Director of Education, Rawalpindi Division which is the second impugned order in this case.
7. ' We have heard the parties at length. It is argued on behalf of the appellant that in the first instance an adverse order dated 23rd April, 1965 has been passed giving it a retrospective effect w. e.
1. 10th September, 1964 which is not tenable in law and is a nullity. The impugned order is further attacked on the ground that an adverse order was passed unilaterally without associating the appellant in the proceedings. For this proposition PLJ 1974 Lab. 281 is relied upon. It is further argued that at no point of time the appellant has suffered actual reversion but has been de facto holding the post and performing the duties of an Assistant continuously w. e. f. 11th January, 1962 without any break upto and even beyond 10th September, 1964. The impugned order is also attacked on the ground that when the appellant had performed the duties of Assistant and drawn pay for the same, he cannot now be legally reverted for the period by a later order.
8. ' It is also argued on behalf of the appellant that the impugned order of 23rd April, 1965 did not in fact cause his reversion as the word "reversion" is conspicuous by its absence from the said order.
9. It is merely stated as a note below the said order "that the appellant Mr. Saeed Ahmad temporary Assistant holds the post of Senior Clerk from 11th September, 1964 onwards". It is asserted that the order merely described the factual position at the relevant time in that the appellant was substantively holding the post of the Senior Clerk and that no actual reversion took place so that the continuity of officiating of the appellant in the position of an Assistant w. e. f. 11th January, 1962 remained unbroken. It is further pointed out by the learned counsel that as late as 12th July, 1967 by an order of the Directorate of Education Rawalpindi, the appellant was placed on one year's probation as an Assistant w. e. f. 6th October,. , 1964 and was confirmed w. e. f. The same date by the same order. Since the foresaid order was never set aside, there were no grounds to show 6th April, 1965 as the date of appointment as Assistant in the seniority list of 4th June, 1975. Thus, it is argued that the period of reversion even on paper is only from 1lth September, 1964 to 5th October, 1964-a matter of 28 days only and as stated before during this period also the appellant was never actually reverted. The learned counsel relies upon 1971 PLC 86 and 88 for the proposition that technical breaks as against actual breaks are not to be considered for the purposes of seniority. It is further contended that appellant's junior Muhammad Shafi was allowed to continue as an Assistant while the appellant was made to revert which has caused him hardship.
10. ' On the other hand on behalf of respondents it is argued by the learned Government Pleader that in the period subsequent to the impugned order of 23rd April, 1964, 3 seniority lists were published out of which the lists issued on 30th August, 1971 and 14th November, 1973 were never assailed by the appellant before the Civil Services Appellate Tribunal and till these lists are challenged appellant's seniority vis-a-vis respondents 3-6 cannot be changed. It is submitted that if the appellant had failed to challenge the seniority list of which he may be aggrieved then the issuance of subsequent seniority lists reflecting the same seniority position of the appellant does not provide him a fresh cause of action each time such a seniority list is. Issued. By failing to challenge the original seniority list, appellant forfeited his right to challenge subsequent seniority lists. For. This proposition, this Tribunal's case PLD 1976 (Muhammad Idrees) is relied upon.
11. ' It is however, argued on behalf of the appellant that in the first instance the seniority lists cited by the learned counsel of respondents 1 and 2 were provisional ones and not subject to challenge before the Civil Services Appellate Tribunal. Secondly, it is argued that the seniority list as such could not be challenged before the Civil Services Appellate Tribunal because the lists were based upon an incorrect date of officiating of the appellant and until this date was first rectified the seniority list could not be challenged. The controversy about the date of promotion was not amenable to the jurisdiction of the Civil Services Tribunal which had no jurisdiction apart from purely seniority matters, hence no appeal to the Civil Services Appellate Tribunal was called for.
12. Nevertheless it is contended that as a point of fact the appellant did also challenge the seniority list in his representation dated 20th March, 1973 addressed to the Director of Education Rawalpindi and in support of this he refers to para. (ii) of the said representation in which he says "that I submitted my objection to the seniority list within the specified date stating therein that I was appointed/promoted as an Assistant on 11th January, 1962 and thus my position in the seniority would have been at serial No, 18 instead of serial No, 27."
13. ' Otherwise it is contended that the appellant had been quite vigilant and persistent in ventilating his grievances against the impugned order of 23rd April, 1965 and has placed on record a number of representations and reminders thereon as Annexures L, M, M/2, 0. P.
14. 0., falling between the dates 25th June, 1970 and 11 th December, 1974.
15. In this controversy we are inclined to agree with the learned counsel for the appellant. This real - issue under challenge was the impugned order of 23rd April. 1965 which shifted the date of officiating appointment of the appellant from 11th. January, 1962 (as claimed by the appellant) to 6th April, 1965 as adopted by the Department for the purpose of seniority. The seniority list being based upon the impugned order was a consequence of the original wrong allegedly done to the appellant through the impugned order and the said list could not be rectified till the effect of the impugned order was removed. We, therefore, reject this objection of the learned Government Pleader.
16. ' It is next argued by the learned Government Pleader that in his various representations to the Department such as dated 25th June, 1970 and 13th May, [971 (Annexures L and M on record), the plea of the appellant is limited to the grievance that Mr. Muhammad Shafi who was promoted and appointed as Assistant for the period from 27th August, 1964 to 31st May, 1965 was junior to him and while he was allowed to officiate the appellant's reversion from 11th September, 1964 to 5th April, 1965 is irregular and against the Government instructions. The learned Government Pleader contends that the scope of the present appeal should be limited to the plea taken by the appellant before the Departmental authority and any plea in the present appeal beyond the original appeal before the Departmental authority is not amenable to the jurisdiction of this Tribunal. The learned counsel for the appellant has, however, met the objection of the learned counsel of the respondents by referring to his representation dated 20th March, 1970 (Annexure '0' on record) which, he argues, is quite comprehensive, and includes all the issues agitated in the appeal.
17. We are not impressed by this argument of the learned Government Pleader. The legal issues are open to be taken up at any stage and furthermore in the face of the representation, dated 20th March, 1973 at Annexure '0', we do not find much force in the contention on behalf of the respondents 1 and 2 this plea is also rejected.
18. We have heard the arguments of the parties. Appellant has relied upon the case cited as PLJ 1974 Lah. 287 for the proposition that an adverse order in respect of service conditions of the appellant could not be passed without associating him with the proceedings. In the cited case the appellant was aggrieved by order of Health Secretary cancelling an earlier order promoting him to P. H. S. Class I Senior Scale and putting him back to his former position of a temporary ad hoc appointee in the same scale. Their Lordships were pleased to observe that :- "6. As regards the ground of mistake and representation by those senior to him if the petitioner were not a party to the mistaken order then it was for the Department to have called upon him and to associate him in the inquiry for establishing the mistake and after that had been done the order could be withdrawn only prospectively and not retrospectively as has been done in this case by cancelling it altogether. If the vested rights of others have been interfered with there is all the more reason that the rights of the petitioner` should be interfered with at their instance and for their benefit only after hearing him because the impugned order does affect the Status of the petitioner and reduces him in rank from. P. H. S.-I Senior as thereafter he is made to officiate or to work in purely temporary and ad hoc arrangement liable to disturbance at any time in the exigencies of service."
19. ' It is not the case of the respondents before us that the appellant was ever associated in the proceedings by which he was considered to have been reverted from the post of. An Assistant retrospectively w. e. f. 10th September, 1964 by an order passed on 23rd September, 1965.
20. Respectfully following the rule laid down by their Lordships in the above-cited case we hold that the order of reversion of the appellant, dated 23rd April, 1965 was illegal and of no effect on his rights. The order is also bad on the ground that an adverse order could not be passed retrospectively and we follow the rule laid down by their Lordships in the aforesaid case.
21. ' The "case having been decided on the aforementioned issues we do not feel ourselves called upon to adjudicate upon various other contentions raised by the parties.
22. The upshot of the above discussion is that the appeal succeeds and the impugned orders, dated 23rd April, 1965 and 4th January, 1975 of ID Director of Education, Rawalpindi Region, are set aside with no order as to costs.