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Civil Appeal No. ( ) in Civil Petition No. 8-P of 1979, decided on 7th May, 1980.

(On appeal from the judgment and order date3 20th November 1978 of the Peshawar High Court at Peshawar in Writ Petition No. 90 of 1977).

-- Art. 185(3)--Leave to appeal-Compromise-Counsel of both parties agreeing as to impugned order being set aside and matter being referred to authority passing original order with direction to give fresh decision after affording opportunity of hearing to contesting parties--Agreement not being against any law nor im proper in view of circumstances of case, Supreme Court passed order accordingly in terms of agreement.

Qazi Muhammad Jamil, Advocate Supreme Court and M. Qasim Imam. Advocate-on-Record for Petitioner.

M. Bilal, Advocate Supreme Court and Yaqu6 Hussain Zaidi, Advo cate-on-Record for Respondents.

Date of hearing : 7th May, 1980.

-An order passed by the Peshawar High Court on the 20th November, 1978 accepting respondent's writ petition arising out of a service matter has been brought under challenge in this Court.

The operative part of the order of the High Court reads as follows :-

"On this view of the matter that we take, we accept this petition and hold that the impugned order dated 12th Februray 1977 is without lawful authority and that the order dated 9th October 1976 appointing the petitioner against a permanent post holds good."

The Syndicate of the University of Peshawar by its order dated 9th October, 1976 (based on the order dated 23rd September, 1976) had appointed the petitioner on temporary basis against the post of As sociate Professor vacated by Dr. M.A.F. Faridi. By the same order, the respondent was appointed as Associate Professor without any rider as was attached to the appointment of the petitioner. By the subsequent order passed on 12th February, 1977 (based on order dated 29th January 1977) the Syndicate revised its earlier order and "fixed Dr. Ihsan Elahi against the permanent post of Associate Professor of Botany in NPS 19 on usual probation of one year with effect from 23rd September, 1976 and fixed Dr. Islam Mahmood against the temporary post of Associate Professor vacated by Dr. M.A.F. Faridi with effect from 9th October 1976, the date of his (Dr. Islam Mahmood) resumption of duties on the expiry of leave without pay in view of the fact that whatsoever has joined earlier should be placed against permanent post".

Amongst other points raised in the High Court, it was also urged from the respondent's side that the order dated 12th Feburary, 1977 which operated to his advantage was passed without affording an opportunity of hearing to him. The High Court, however, examined the validity of both the orders and after considering the merits and qualifications of the parties and after entertaining evidence from the respondent's side in the High Court, not only set aside the order of the Syndicate dated 12th February, 1977 but also passed a mandatory order of its own that the order dated 9th October, 1976 "appointing the petitioner against a perma nent post holds good".

On first hearing of this matter on 5th April, 1980 learned counsel for the petitioner, inter alia, raised the contention that even if the order dated 12th February 1977 suffered from any infirmity including that it was pass ed without hearing the respondent No. 1, the High Court should not have given finding on merits and the matter should have been left for the Syndicte for a fresh decision.

Learned counsel appearing for the contesting respondent was not able to satisfy us on this point. We converted the petition into an appeal and issued notices to all the parties for the hearing. Today none has appeared on behalf of respondents Nos, 2 and 3 despite service. They are proceeded ex parte.

Both the learned counsel today agreed that the impugned order a also the order dated 12th Feburary 1977 of the Syndicate brought under challenge before the High Court be set aside and further that the matte be remitted to the Syndicate with a direction for a fresh decision after affording opportunity of hearing to the contesting parties. The agreement of the learned counsel is not against any law nor in view of the circumstances of the case is it improper. We pass the order accordingly in terms thereof. There shall be no order as to costs.

Appeal allowed. Case remanded,

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