' The appellant was promoted from Junior Clerk to Senior Clerk by the Deputy Commissioner, Rahimyarkhan, on the 22nd of December, 1960, Faizur-Rahman respondent No, 2 (who in the seniority list is at Serial No, 11 whereas the appellant is at Serial No, 1) filed an appeal against the aforementioned order of the Deputy Commissioner, Rahimyarkhan,' before the Commissioner, Bahawalpur, who remanded the case to Deputy Commissioner on the 19th of October, 1961, for reconsideration. On reconsideration the Deputy Commissioner reverted the appellant to the post of junior clerk vide his order dated the 2nd of July, 1962. The appellant challenged the said order in appeal before the Commissioner who dismissed his appeal vide his order dated 8th of March, 1963, on the ground (sic) that since in the predecessor, would not interfere. Thereafter the appellant moved a revision petition before the Board of Revenue which was rejected on the 2nd of December, 1967. He then instituted a suit for declaration against the Government of West Pakistan and Faiz-ur- Rehman respondent No, 2 to the effect that the orders passed by the Deputy Commissioner, the Commissioner and the Board of Revenue reverting the appellant to the post of Junior Clerk while promoting respondent No, 2 to the post of Senior Clerk were ultra vires, illegal, void and therefore, ineffective as against the rights of the appellant. The civil suit was instituted on the 29th of October, 1968, in the Court of the Administrative Civil Judge, Rahimyarkhan. In the said suit, written statement was filed. Issues were framed and the case was fixed up for evidence. In the meantime, West Pakistan Civil Services (Appellate Tribunals) Ordinance, 1969 was promulgated w. e. f. The 1st of November, 1969, and a miscellaneous application was then moved on behalf of the respondent that the said suit had abated and should be dismissed as such. The Administrative Civil Judge without going into the merits of the case dismissed the suit as having abated because of the promulgation of the aforesaid Ordinance and directed the appellant to approach the Tribunal concerned if he was so advised. He passed the judgment on the 22nd of October, 1970. Thereafter, the appellant filed an appeal challenging the aforesaid judgment of the Administrative Civil Judge before the District Judge. But in the meantime, the aforesaid Ordinance was superseded by the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970. Consequently the District Judge by his judgment dated the 14th of April, 1971, dismissed the appeal of the appellant on the ground that section 14 of the 1970 Ordinance while repealing the former Ordinance had laid down a saving clause to the effect that notwithstanding the repeal of the formal Ordinance, anything done, or action taken, right acquired, obligation or liability incurred etc., if not inconsistent with the provisions of the new Ordinance, shall be continued and so far as may be, shall be deemed to have been respectively done, taken, acquired and incurred under the new Ordinance. Hence the present appeal.
2. This appeal was admitted for hearing on the 30th of June 1972 and while it was pending the 1970 Ordinance was superseded by another Ordinance which was subsequently made an Act, namely the Punjab Administrative Tribunals Act, 1974 (Act IX of 1974).
3. A preliminary objection was taken by the respondents that this appeal had abated under section 8 of the said Act which ran as follows :- ' It was submitted that if the appellant had any grievance he could appeal to the Tribunal under section 4 which reads as follows :
4. Learned counsel for the appellant concedes that under Act IX of 1974 an appeal of a Civil servant in this Court would abate under section 8 and it would lie before a Tribunal under section 4 of the aforementioned enactment. But it was submitted that in the present case the first order of the Commissioner the legality of which was challenged by way of the Civil suit and subsequently in appeal, was an ultra vires order, as the Commissioner had no jurisdiction to pass the same and that as against such orders not only a declaratory suit would be competent but an appeal shall also lie before the civil Court or the High Court. Learned counsel places reliance on Province of West Pakistan v. Syed Shabbir Jan and another (1). In that case the Deputy Commissioner had promoted the appellant from Junior Clerk grade to Senior Clerk grade and it was held that under the District Office Manual Punjab, 1960, the Deputy Commissioner was responsible for the efficient working of all offices and Courts under his charge and that the Commissioner of a Division did not possess any right of interference with the working of the offices, of the Deputy Commissioner as it was the sole responsibility of the Deputy Commissioner to see that his offices were properly and efficiently maintained. In other words, it was held that in that case the appeal filed against the order of the Deputy Commissioner before the Commissioner which was accepted and the case was remanded to the Deputy Commissioner for reconsideration, was incompetent as there was no power of appeal inherent in the Commissioner against every order of the Deputy Commissioner in the absence of any express provision in law, and that the order passed by him in appeal was illegal, ultra vires, had been passed without jurisdiction, inoperative and did not affect the rights of the appellant. Learned counsel also cited Ghulam Dastgir and 6 others v. The Commissioner, Lahore Division, Lahore and 5 others (2) in support of his contention. It was argued that whenever an order is passed which was without jurisdiction, mala fide or coram non judice, it was not saved from ouster clause of the Constitution (Constitution 1972 or any Act). Reliance was placed on the State v.
Ziaur Rehman and others (3) and Federation of Pakistan v. Saeed Ahmad Khan and others (4). It was submitted that in the present case the appellant was promoted from Junior Clerk to Senior Clerk by the Deputy Commissioner, Rahimyarkhan. Respondent No, 2 filed an appeal against the aforesaid order and the Commissioner, Bahawalpur remanded the case to the Deputy Commissioner for reconsideration. The argument is that this order of the Commissioner had been passed without jurisdiction and all the subsequent orders which were passed on the basis of the same, were illegal as they were founded primarily on an order which was ultra vires. It was argued that despite the fact that the Administrative Civil Judge had framed an issue to the effect as to whether the order passed by the Commissioner in appeal or respondent No, 2 was illegal and inoperative as against the rights of the appellant, the trial Court did not consider this issue on merits but proceeded to throw out the suit of the appellant on the erroneous ground (1) PLD 1968 Lah. 1194 (2) PLD 1973 Lah. 220 (3) PLD 1973 SC 49 (4) PLD 1974 SC 77 that the suit had abated owing to the promulgation of the West Pakistan Civil Services (Appellate Tribunals) Ordinance, 1969. Even in appeal the District Judge did not appreciate that the order of the Commissioner had been challenged as ultra-vices and without jurisdiction as he had no power to interfere with the original order of the Deputy Commissioner. On the contrary the District Judge arrived at the erroneous conclusion that this proposition could not be considered unless the question of seniority of the appellant and respondent No, 2 could be determined. It was argued that this was not the matter of controversy between the parties at all. Any way the appellate Court dismissed the appeal of the appellant on the ground that it was incompetent under the Punjab Civil Services (Appellate Tribunal) Ordinance, 1970. It was argued that both the lower Courts misread the provisions of 1969 and 1970 Ordinances and rules made thereunder. The said Ordinance could he invoked where the question of seniority was contested between two parties or there was a dispute pertaining to the same. But in the present case where did not exist any dispute between the appellant and respondent No, 2 on this account as the appellant and respondent No, 2 were both junior clerks and in the seniority list of the same their names appeared at Serial Nos. 1 and 11 respectively. However the appellant was promoted as Senior Clerk by the Deputy Commissioner.
The main point involved in the suit was that the appeal framed by the respondent No, 2 against the promotion of the appellant before the Commissioner was incompetent as it did not lie and further that the order passed thereon by the Commissioner was ultra vires and without jurisdiction. It was submitted that both the lower Courts had not adverted to the point of controversy involved in the suit at all but proceeded to reject the claim of the appellant on entirely erroneous grounds.
5. There is substance in the arguments of learned counsel. The appellant was promoted under the order of the Deputy Commissioner. No appeal lay before the Commissioner against such an order.
Nevertheless the Commissioner entertained the appeal filed by respondent No, 2 and remanded the case to the Deputy Commissioner for reconsideration. Therefore, the orders passed against the appellant by the Deputy Commissioner, the Commissioner or the Board of Revenue had been passed ultra vires and without jurisdiction. The appellant challenged the vices of the order of the Commissioner by way of a declaratory suit but the Administrative Civil Judge, Rahimyarkhan erroneously dismissed the same. In appeal he again agitated that he had challenged the order of the Commissioner as ultra vires and without jurisdiction but the District Judge failed to appreciate the point involved in the case and dismissed his appeal. It has been held by the Supreme Court time and again that if an order passed is ultra-rides or without jurisdiction the Civil Courts have jurisdiction to scrutinize the same and it could not be protected. In the present case the trial. Courts should have appreciated this aspect of the matter and should have proceeded to hear the case on merits particularly when an issue had been framed in this respect.
6. In the light of the above discussion the appeal of the appellant is accepted and the judgments of both the lower Courts are hereby set aside and the case is remanded to the trial Court for disposal on merits and in accordance with law. The parties are directed to appear before the trial Court on the 18th of December, 1974.
' There shall be no order as to costs.