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H.R. Sodhi, J.—This writ petition was originally filed by these five Petitioners on 1st August, 1968, and one of the main reliefs sought was tnat the judgment "f a learned Single Judge of this Court passed on 7th November, 1966, in Civil Writ 1009 of 1966, directing implementation of the decision dated 27th September, 1963. of the State Government being ex parte and based on suppression of material tacts be reviewed and the civil writ reheard after impleading the Petitioners. It was pleaded that an order had been secured from this Court for implementation of a decision which could not be implemented as the same stood withdrawn by the State Government during the pendency of that writ petition but this fact was not disclosed to the Court by Respondent 3 and the validity of the subsequent order had not been challenged. The order dated 27th September, 1963, which was to be complied with under a writ of mandamus issued by the learned Single Judge gave benefit of the alleged war service of 5 years 7 months and 26 days, from 6th August, 1940, to 31st March, 1946, to Respondent 3 who is also in the same class of service as the Petitioners that is, P. 3. E. Class I, and seniority of the Respondent was thus to be calculated afresh. This order was passed by the Governor on a memorial submitted to him by Respondent 3 on 7th March, 1982, when his earlier memorial dated 20th October, 1961, was still pending. These memorials became necessary because representation of Respondent 3 claiming benefit of war service in the matter of seniority under the Punjab Government Services (War) Amendment Rules, 1943 (hereinafter called the Rules) had been rejected by an earlier order of the State Government dated 19th July, 1961. Since the order of 27th September, 1963, was not given effect to for almost more than two and a half years after the same had been passed by the Governor, the Respondent moved this Court for the issuance of a writ of mandamus or any other appropriate writ or direction, which would compel the State Government to implement that order. It was stated by the Respondent in the writ petition, a copy of which is Annexure''D''. that moment the decision given on his memorials was implemented he would become senior to many other officers. The officers likely to be affected were not impleaded as parties and the State through its gross negligence did not file any return in spite of the fact that it had been served and under the High Court Rules and Orders, it was required to do so at least two days before the returnable date of the rule. It appears from the judgment of P. D. Sharma J. who disposed of the writ petition that the State did not put in appearance even at the time of hearing of the writ petition. The learned Judge was, therefore, left with no choice but to accept the statement of facts as given in the petition with the result that it was directed that the State Government should carry out its own decision of 27th September, 1963, as contained in letter Annexure ''E'' with that writ petition. By the time the writ petition was decided by the learned Judge on 7th November, 1966, the President of India had withdrawn the war service con cession from the Respondent with the result that the Punjab Government memorandum dated 10th October, 1961, communicating to the Respondent the acceptance of his representations stood cancelled A copy of the letter from the Secretary to Government, Punjab, Irrigation and Power Departments, to the Chief Engineer (D), Irrigation Works, Punjab informing him about the withdrawal of war service concession from Respondent 3 is appended as Annexure C/l with the present writ petition. It was stated in the communication that the officers were to be informed about the decision of the. President. Since the State was not represented in the earlier writ petition preferred by Respondent 3, there was no information available before Sharma J. that the benefit had been withdrawn from the Respondent by the President of India.
The Respondent also did not supply the necessary information to the Court. If the true facts were known, no order would have been passed by this Court directing the implementation of the order which did not exist, and Respondent 3, if so advised, would have either filed a fresh writ petition challenging the validity of the said order of the President or amended the writ petition. Be that as it may, the fact remains that Sharma J. passed the order of 6th November, 1966, in ignorance of true state of facts for which both the State and Respondent 3 were responsible. The plea of the Respondent before me is that he was not aware of the withdrawal of the concession from him.
The State preferred an appeal under Clause 10 of the Letters Patent to a Division Bench of this Court which was dismissed in limine. The main prayer in the appeal was that the State should be permitted to file a return and the writ petition decided on merits after hearing the State. This request was not allowed by the Letters Patent Bench. An application far special leave to appeal was then made by the State in the Supreme Court and the same met with no success Having failed everywhere to get any relief against the judgment of Sharma J. which was based on suppression of true facts, the State Government was left with no choice but to comply with the order dated 27th September, 1961, though the same was no more operative in view of its having been withdrawn. The State Government, therefore, passed an order on 13th August, 1968, whereby it gave benefit of war service to the extent of 5 years 7 months and 26 days towards fixation of seniority in P.S.E. Class I to Respondent 3 who, as conceded before me, is an officiating Superintending Engineer. This order was passed during the pendency of the present writ petition. The Petitioners asked for an amendment of the writ petition to enable them to challenge the validity of the said order, a copy whereof is Annexure ''F'' An amendment was allowed on payment of costs by an order of this Court made on 5th November, 1969. In the amended writ petition, an attack is levelled against Annexure ''F'' as well.
The contention of Mr. J. N. Kaushal, learned Counsel for the Petitioners, is that the war service benefit given to Respondent 3 by the order dated 27th September, 1963, adversely affecting the seniority of the Petitioners and thereby their chances of promotion was based on an erroneous interpretation of the Rules and that is why it had to be withdrawn by the President of India but the fact of withdrawal was not brought to the notice of Sharma J. The submission is that had Sharma J. been made aware of the true situation, the learned Judge would not have issued a writ of mandamus directing implementation of an order which did not in fact exist. It is urged that the State Govrrnment having not met with any success in getting the order of Sharma J. vacated by the Letters Patent Bench or on appeal to the Supreme Court by special leave, had to obey the mandate of this Court and execute the nonexistent order of 27th September, 1963, by passing the impugned order Annexure ''F'' According to Mr. Kaushal, it would have been a different affair if Sharma J. had passed the order on merits determining the right of the Petitioners to war service benefit but it was not so. It is submitted that the order of 13th August, 1968 (Annexure ''F''), the validity of which is now being challenged in the amended writ petition adversely affects the rights of the Petitioners with respect to their seniority and further promotion and the same is not based on any decision after consideration of the alleged right of Respondent 3 to war service benefit but is a mere mechanical implementation of the order of 27th September, 1963, in order to avoid any disrespect to this Court Mr. Kaushal further contends that the right of Respondent 3 is to be examined in the light of the interpretation of the Rules as given by a Full Bench of this Court in Sunder Lal and Ors. v. The State of Punjab 1970 S.L.R. 59. the same was the view of the Government when the President of India recalled the earlier order of 27th September, 1963. In other words, Respondent 3 wants to retain a wrongful benefit by taking advantage of the judgment of Sharma J. in Civil Writ No. 1009 of 1966.
in reply, it is contended by Mr. Rajinder Sachar, learned Counsel for Respondent 3, that the Petitioners were not necessary parties in the writ petition filed by the said Respondent for the issue of a writ of mandamus and that it is not open to me now to review the order of Sharma J., more so, when the Letters Patent Appeal No. 46 of 1967 was taken against that judgment and dismissed in limine on 23rd February, 1967 and the matter also went to the Supreme Court in an application for special leave to appeal (No. 941 1967) though the same was dismissed on 28th September, 1967. Mr. Sachar submits that it is the Supreme Court alone which can review the order or at least the Letters Patent Bench, but sitting singly I cannot allow the writ petition granting relief which will virtually amount to a review of an order of Sharma J. affirmed by the Letters Patent Bench and the Supreme Court. On merits, the contention is that there were several war reserved vacancies when Respondent 3 joined as a temporary Engineer in 1947 and was later confirmed in Class II Service of Engineers as an Assistant Engineer with effect from 1st February, 1949. Respondent 3, it is submitted by the learned Counsel, must therefore be treated as having been appointed against a war-reserve vacancy. Rule 4 enjoined upon the State Government to throw open to the persons with war service to their credit all vacancies in Government services left unfilled during the war or filled on temporary basis, and the argument raised is that there being war-reserve vacancies it is inconceivable that raspondent 3 was not appointed at least in 1949 against a war-reserve vacancy, when actually there were such vacancies in existence. Mr. Sachar in this connection, relies on the information obtained by the State Government itself from the Government of West Pakistan, Lahore, as per demi-official letter No. 3391-Ptn-63, dated the 6th November, 1963, from the Under Secretary (Partition) Government of West Pakistan, Lahore. It is stated in this letter that 23 posts in P.S.E.II were reserved for war service candidates by the United Punjab Government, before partition of the country in the year 1947, and these posts were to be filled by war service candidates according to block system as under:
Muslims
10 posts
Sikhs
6 posts
Hindus
6 posts
Others
1 post.
It seems that the Punjab Government before partition advertised these posts through the Federal and Joint Punjab Public Service Commission but no suitable candidate was recommended by the Commission for recruitment against these posts. It, therefore, leaves no manner of doubt that 13 posts excluding the 10 posts reserved for Muslims were carried to Punjab in the year 1947 against which war service candidates could be appointed. According to the demi-official letter received from
1970 S.L.R. 59.
Pakistan, Messrs Iqbal Singh and R.P. Sharma Respondent were recruited as temporary Engineers against non-reserved vacancies. The case of the Respondent is that he might have been appointed against a non-reserved vacancy as a temporary Engineer but in 1949 when he was confirmed in Class II as an Assistant Engineer and there were war-reserve vacancies, the intention of the Government was to appoint him against one of such vacancies with the necessary consequence that he is entitled to war service benefit and his case is fully covered by the ratio in Sunder Lal''s case 1970 S.L.R. 59. The alternative plea of Mr. Sachar is that assuming that Respondents was not appointed against war-reserve vacancy he was still entitled to claim the benefit of war service as there were vacancies in existence when Respondent 3 was appointed in Class II and in this respect the facts of the Full Bench case are distinguishable where no war-reserve vacancy was available It is a common ground before me that when war service benefit was initially given to Respondent 3 and later withdrawn or when the impugned order Annexure ''F'' was passed, none of the parties was heard by the State Government
There is no substance in the preliminary objection raised by the learned Counsel for Respondent 3 that by disposing of the present writ petition, I shall be reviewing the order of Sharma J. The ordinary connotation of the expression ''review'' is reconsideration of the subject matter in dispute. When a Court or authority reviews its own order, it is really re-examining the merits of that order unless a mere clerical error is sought to be rectified. A perusal of the judgment shows beyond doubt that the learned judge only directed the implementation of the order of the State Government which at one time decided to give war service benefit to Respondent 3 but , according to the latter, had not given effect to its own order for more than 2 years. There was no dispute before the learned Judge as regards the merits of the alleged decision taken by the State Government allowing certain benefit to the said Respondent, and it was in such circumstances that a writ of mandamus was issued by this Court. The State was not represented at that time nor were the Petitioners impleaded as Respondents. It was not necessary to implead the present Petitioners since the relief sought was by way of issue of writ of mandamus which could be directed only against the State Government which had passed the order sought to be given effect to. If a controversy had arisen about the respective claims in the matter of seniority of Respondent 3 and the Petitioners, the learned Judge might not have passed an order adverse to the Petitioners without giving them an opportunity to be heard, but no such situation arose. A mandamus is generally issued to an administrative authority, the State or any of its officers, a public body or a tribunal, either to compel it to do its duty in accordance with law or to refrain it from doing something which is contrary to law or without jurisdiction. It is sometime issued to bring about status quo when an administrative authority, by its illegal act, has created a change in a certain situation affecting the rights of a citizen, and mandamus when so issued may involve the quashing of an order of any such authority. The lis before a High Court in a prayer for the issue of a writ of mandamus is between the person seeking such a relief and the administrative authority who is to be compelled to do something in conformity with law. Since the command is to be directed against the administrative authority, it is that authority alone that is ordinarily a necessary party. The learned Judge in Civil Writ No. 1009 of 1966 has not. as already stated, adjudicated upon rival claims of the Petitioners and Respondent 3 in respect of their seniority in service. After the issue of the writ of mandamus the State Government, in compliance with the orders of the High Court, passed the impugned order on 13th August, 1968 Annexure ''F''. By virtue of this order war service benefit was given to Respondent 3 not on a consideration of the merits of his case, but as the State Govern ment thought itself to be under a duty to implement its own non-existent order as the High Court had so directed no matter that the High Court was not aware that the order which was being directed to be implemented already stood withdrawn by the State Government, and that Respondent 3 could not claim the enforcement of that order. The State was thus compelled to pass the impugned order Annexure ''F'' and it was this order which, for the first time, could be said to be prejudicially affecting the interests of the Petitioners in regard to their alleged claim for seniority. The mere fact that this Court directed implementation of the order will make no difference and the fact remains that it was only on 13th August, 1968, that the State Government gave war service benefit to Respondent 3. I do not agree with Mr. Sachar that Respondent 3 got any rights of seniority adjudicated by the judgment of Sharma J. or that any question of review of that judgment arises in the present proceedings. Whatever benefit the Respondent had. it was under the order made on 27th September 1963, which was afterwards withdrawn by the State itself thereby leaving no benefit of that order for the Respondent In my opinion, it will make no difference that Letters Patent Appeal was taken and dismissed or that matter was taken to the Supreme Court by an application tor special leave to appeal. The contention of the learned Counsel that an application for review must be made to the Supreme Court or the Letters Patent Bench is, in my view, devoid of any force. I am not giving any fresh or different decision on any of the points that were raised in the petition before Sharma J., or before Letters Patent Bench and the Supreme Court. No question of the Petitioners moving the Supreme Court for review of any order arises since there was no appeal which was decided by their Lordships. It was only an application for special leave to appeal that was dismissed and it cannot be seriously argued that there is no distinction between an application for special leave to appeal and the appeal itself. A judgment operative after dismissal of the application for special leave to appeal is that of the High Court and not of the Supreme Court.
The order Annexure ''F'' gives a fresh cause altogether. The Petitioners are aggrieved by this order as a result whereof their seniority is being affected for the first time as against Respondent 3 and they cannot be prevented from coming to this Court to seek appropriate relief under Articles 226 and 227 of the Constitution of India if necessary conditions for the grant of any such relief are found to exist and a case is made out for quashing the impugned order Annexure ''F''. They have a right to claim that the decision in Sunder Lal''s case 1970 S.L.R. 59. should be given effect to by the State Government and their seniority determined accordingly.
The main controversy between the parties centres round ascertainment of the factual position as to whether there existed war reserve vacancies and was Respondent 3 appointed against any one of them. It is not understood why the State Government collected information from the Pakistan Government about the existence of war reserve vacancies, it should have been aware if Respondent 3 had actually been appointed against war reserve vacancy or not. As it appears from the letter dated 6th November, 1963, received from the Pakistan Government, to which a reference has already been made, 13 war reserve vacancies of P. S. E. Class II fell to the share of the Punjab Government on partition of the country in 1947. Respondent 3 claims that he was appointed against one of these vacancies or that at least he must be deemed to have been so appointed and such was also the intention of the State Government. The submission is that it was for this very purpose that information was sought from the Pakistan Government. It is conceded that as a temporary Assistant Engineer, on 23rd January, 1947, he was not appointed against a war reserve vacancy, but the contention is that in 1949, when war reserve vacancies were available to the Punjab Government in P. S E , Class II, all such vacancies had to be filled, under the rules, by candidates who had been released from the army and had war service to their credit. Respondent 3 in his written statement made averments to this effect but no one on behalf of the State chose to make a clear statement on this issue by filing an affidavit by way of rejoinder. The executive file also does not show as to who had been appointed against the war reserve vacancies and, as a matter of fact, none of the counsel for the parties is able to throw any light on this aspect of the case. There can be no doubt that if Respondent 3 was appointed against one of such vacancies or the intention of the State Government was to so appoint him in the year 1949, he is entitled to be assigned a place in the cadre of his service by adding the period of his war service to the length of his service in the department and to have the same counted in fixation of his seniority. Since sufficient material has not been made available to me and the learned Counsel for the parties are not in a position to render any assistance on this disputed question of fact. I do not feel inclined to take a decision in regard to the respective claims of the Petitioners and Respondent 3 in regard to their seniority.
The Petitioners were not heared when the order of 27th September, 1963, was passed by the Governor in favour of Respondent 3. nor was the latter given an opportunity to represent his view point when that order was withdrawn to his prejudice on 12th August, 1966. Again, an order was passed on 13th August, 1968, fixing the seniority of all these officers without hearing them. The entire procedure adopted by the State Government was contrary to the well-established rules of natural justice. In such a situation, the impugned order Annexure ''F'' cannot be sustained and is, therefore, quashed. The rule have been interpreted by this Court in Sunder Lal''s case and the State must give effect to that interpretation and determine inter se seniority of the Petitioners and Respondent 3 in their cadre of service in acor with law.
For the foregoing reasons, the writ is allowed, order Annexure ''F'' passed on 13th August, 1968, quashed, and it is directed that the State Government must determine afresh inter se seniority of the Petitioners and Respondent 3 in their cadre of service in accordance with law after affording them an opportunity to be heared. The matter of seniority of these officers must be decided within a period of three months from the date of receipt of a copy of the judgment of this Court. In the peculiar circumstances of the case, parties are left to bear their own costs.