1993 PLP (C (PLC(CS))

SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).‑‑ This appeal is directed against the order dated 25‑10‑1989 of Secretary, Revenue Department by which the name of the appellant Raja Muhammad Farooq Ahmad was removed from serial No. 1 of the seniority list and he was assigned the position in that list at serial No. 19 next to the respondents Nos. 3 to

20. The appellant has impleaded Azad Government through its Chief Secretary, Secretary, Revenue Department and the respondents Nos. 3 to 20 for seeking his relief against them.

2. In the memo of his appeal, it is stated by the appellant that he had joined the service of the Revenue Department as Naib‑Tehsildar on 13‑5‑1975 and continued as such for a period of more than ten years before he was promoted and posted as Tehsildar, Mangla Dam. A seniority list in the cadre of Naib‑Tehsildars was prepared by the Commissioner, Revenue Department in the year 1985 and his name was placed at serial No. 1 declaring him to be senior most Naib‑Tehsildar among the respondents Nos. 3 to

20. However, Saleem Akhtar, one of the respondents impugned the entries of the seniority list through an appeal before the Secretary, Revenue Department which remained pending with the latter for adjudication till 25‑10‑1989. The Secretary, Revenue Department (respondent No. 2) after accepting this appeal of Saleem Akhtar set aside the impugned seniority list under the impugned order and directed the appellant to be placed at serial No. 19 instead of serial No. 1 in the seniority list. Feeling himself aggrieved the appellant challenged the impugned order by way of review petition before the Secretary, Revenue Department but this review petition of the appellant was rejected by the Secretary vide his order dated 12‑12‑1989 and after his review petition was rejected; the appellant came to know of it that instead of filing review petition before Secretary, Revenue, he was entitled to file an appeal before this Tribunal and that having taken his review petition before the wrong forum he had lost the period of limitation provided for an appeal against the order of Secretary, Revenue Department before this Tribunal. Alongwith his appeal, the appellant, therefore, moved an application to this Tribunal to the effect that the period spent by him in pursuing his review petition before wrong forum may be permitted to be condoned in his favour and his appeal be treated to be within time. The application was supported by an affidavit of the appellant to the effect that he lost the period of appeal inadvertently under a mistake of law and facts. Finally it is submitted by the appellant that the following grounds are available for setting aside the impugned order and after setting aside the impugned order, the original seniority list for the year 1985 may be restored and the appellant may be given such other relief also to which he may be held entitled‑‑ (a) the seniority list prepared by the Revenue Secretary in the year 1985 was final and the Secretary, Revenue (respondent No. 2) was not competent to disturb the entries of that list; (b) the rule of procedure provides that the date of entry in the service or cadre is the basic date for determining the seniority of the members of a service in one and the same cadre, but the Secretary, Revenue has changed the entries of the seniority list without following the relevant rules and has thus committed departure from the rules of procedure; (c) the persons who had not challenged the 'entries of the seniority list 1985 were also placed senior to the appellant and he was deprived of an opportunity to defend himself against those respondents declared senior to the appellant; (d) that the order of respondent No. 2 is contradictory and against the pleadings of the parties. For example, the persons who served outside the cadre were held not entitled to the benefit of that service which they had rendered against ex cadre posts but at the same time, the Secretary, Revenue Department allowed the benefit of seniority to some of the respondents who had never entered in the regular cadre of service and the period during which they were put in waiting list for being approved candidates was also counted towards their seniority in the regular cadre; (e) that under the provisions of K.S.R: and relevant rules, the seniority of a civil servant is to be reckoned and determined from, the date he is appointed and treated as civil servant But in the instant case the respondents were given the date of seniority when they were not appointed as civil servants. The findings of respondent No. 2 are neither supported by law nor by the facts of the case and as such the impugned order is not maintainable.

3. The above‑noted appeal was admitted for regular hearing before this Tribunal vide order dated 27‑3‑1990 on the file and the respondents were asked to submit their objections, if any. The appeal was contested by respondents Nos. 1, 3, 4, 8, 9, 11 and 14 and it was submitted on their behalf that the appeal was not maintainable for being time‑barred and that the appellant was not entitled to seek any relief at this forum because he was not an aggrieved civil servant. The appellant joined the service of the Department on 23‑5‑1978 and the period of his service that he rendered out of the Department was rightly disallowed to be counted towards his seniority in the regular cadre of Naib‑Tehsildari service.

4. We have considered the arguments as were addressed by the learned counsel for each party. We have gone through the contents of the appeal, copies of the impugned orders and the impugned seniority list 1988‑89 placed on the file. The appellant is incorrect that ,the seniority list of 1985 was prepared by the Revenue Secretary and that he was not competent to disturb the entries of that seniority list because it had attained its finality. It shall be noted here that the seniority list was prepared by the Revenue Commissioner and not by the Secretary, Revenue Department and the Secretary, Revenue being the departmental appellate Authority was quite competent to dispose of the appeal taken before him. If anybody among the respondents was aggrieved by the entries of that seniority list, he was entitled to bring an appeal before Secretary, Revenue. Saleem Akhtar respondent No. 4 had rightly chosen to impugn the entries of that seniority list before the Secretary, Revenue Department well in time and hence the Secretary, Revenue being the appellate Authority was competent to change the positions assigned to the appellant and the respondents in the impugned seniority list.

5. Under the provisions of Azad Jammu and Kashmir Revenue Officers Rules, 1970 and Azad Jammu and Kashmir Tehsildari and Naib‑Tehsildari Service Rules, 1980, the inter se seniority of the appellant and that of respondents was to be determined after examining the merit list to be prepared by the Revenue Commissioner. But in the instant case, no merit list was prepared by the Revenue Commissioner and the seniority of the members of Naib‑Tehsildari service was fixed without following the relevant rule of procedure prescribed by the Civil Servants Act and the rules made thereunder. It is true that in certain cases the Secretary, Revenue Department has wrongly allowed the seniority to some of the respondents from the date on which they had not actually joined the service of the Department. We also agree with this contention of the appellant's counsel that in absence of a merit list, the inter se seniority in the cadre of Naib‑Tehsildars was advisable to be determined w.e.f. the date of their joining the service in the regular cadre of Naib‑Tehsildari service.

6. It is also correct that some of the respondents were not arrayed as party by Saleem Akhtar but they were declared senior to the appellant without filing an appeal against the appellant and because of that the appellant was deprived of an opportunity to defend himself against the respondents declared senior to him. It shall be noted here that the law has provided remedy to the appellant to impugn the order through an appeal at this forum and the appellant has surely accepted that course of action by filing the present appeal at this forum. There is, no doubt, that the impugned order is suffering from certain contradictions but the provisions of K.S.R. being inconsistent to the provisions of Azad Jammu and Kashmir Revenue Officers Rules, 1970 and Azad Jammu and Kashmir Tehsildari and Naib‑Tehsildari Service Rules, 1980 are not applicable to the present caged although we are left with no alternate remedy to settle down the disputed matter of the seniority between the appellant being one party, and the respondents being the second party. In the given circumstances, we have arrived at this conclusion that the general principle of seniority should be applied for determining and regulating the inter se seniority in respect of the members of Naib‑Tehsildari service.

7. Adverting to the case of the appellant on merit, we find that he was approved as Naib‑Tehsildar candidate on 17‑12‑1973 and that without joining the service of the Revenue Department he was appointed as Relief Inspector on 13‑5‑1975, Naib‑Tehsildar Resettlement, Jhangh w.e.f. 5‑11‑1975, and Naib Tehsildar Rehabilitation Iftakharabad on 19‑4‑1978. Since all such appointments of the appellant were made outside the Revenue Department, the period spent by him in the service of the above appointments was rightly excluded to be counted towards seniority of the appellant in the impugned order by the Secretary, Revenue Department. The appellant claims his lien against the post of Naib‑Tehsildar in the Revenue Department w.e.f. 13‑5‑1975 but this contention of the appellant is not supported by any record on the file. We agree to this view of the Secretary, Revenue Department that the lien is always retained against a clear vacancy and that there existed no vacancy when an order to that effect was made by the Revenue Commissioner under the orders of Prune Minister of Azad Government. Therefore, the Secretary, Revenue Department has rightly rejected the prayer of the appellant that he held his lien against a vacancy of Naib‑Tehsildar in the regular cadre under the Revenue Department. Hence the seniority of the appellant shall be reckoned w.e.f. 23‑5‑1978 the date on which for the first time he had joined the service of Naib‑Tehsildar in the regular cadre of Naib‑Tehsildari service. We do not agree with this view of Secretary, Revenue that the seniority of the appellant should be reckoned w.e.f 26‑3‑1979 because of the fact that he was, approved as Naib‑Tehsildar candidate next after Muhammad Ghazi Khurshid who had not joined his service till 23‑5‑1978.

8. There is no substance in this argument that the appellant is not an aggrieved civil servant. It is well‑established from the seniority list of 1985 that he was placed in the seniority list of 1985 at serial No. 6 and his seniority was disturbed under the impugned order. Therefore, the appellant is undoubtedly an aggrieved civil servant. But the unfortunate aspect of the case is that whether he has submitted a time‑barred appeal. The impugned order is dated 25‑10‑1989 and the appellant after having the knowledge of that order was required to submit his appeal within thirty days from the date of his knowledge. The appellant has brought his appeal to this forum on 16‑1‑1990 which is definitely time‑barred. It is submitted by the appellant that he had no knowledge of the law and rule of procedure under which an appeal against the impugned order directly lay to this Tribunal within period of thirty days. It is requested by the appellant that the period of delay be permitted to be condoned in his favour. We are afraid, ignorance of law cannot be held to be a sufficient cause for prosecuting a cause before a wrong forum. It appears that the proceedings in this Tribunal have not been conducted with proper care and attention. In the instant case an appeal was quite competent against the impugned order before this Tribunal and the appellant lost his time of appeal in pursuing a review petition before the Secretary, Revenue Department. The appellant had no sufficient ground for not preferring his appeal at this forum within the time prescribed by the law. The proceedings in the review petition were not reasonably prosecuted and were not in good faith and, therefore, the application of the appellant for extension of limitation period is meriting dismissal which is hereby dismissed,

9. For the reasons given above, the appeal is dismissed for being time barred. No order as to the costs. A.A. 194/Sr.A Appeal dismissed.