2004 PLP (C (PLC(CS))

MIAN MUHAMMAD AJMAL, J.

This appeal by leave of the court calls in question the validity of the judgment of the Peshawar High Court, Peshawar dated 22-7-1996, whereby Writ Petition No.969 of 1994 of the appellant was dismissed.

2. The appellant was appointed by respondent No.1 as Social Welfare Officer, (B-16) in Municipal Corporation, Peshawar on 2-5-1979. He proceeded on long leave on 10-7-1983 and on his return was posted as Taxation Officer Municipal Committee, D.I. Khan on 15-7-1985. Respondent No.1 issued a tentative seniority list of Employees of B-16 of L.C.S. (PUGF), Administrative Branch of Local Council, Government of N.-W.F.P., on 30-8-1986, in which the appellant was placed at S.No.4 and final seniority list of employees of BPS-16 of L.C.S. (PUGF) Administrative Branch was issued on 7-1-1988, wherein he was placed at S.No.14 and was shown as absorbed in L.C.S. (PUGF) with effect from 15-7-1985. The appellant being a-grieved of the final seniority list, preferred an appeal to respondent No.2, who accepted the same vide order dated 10-8-1991 and granted him seniority in B-16 with effect from 3-5-1979, the date of his initial appointment instead of 15-7-1985, the date of his absorption. In the meanwhile a combined revised seniority list of employees of B-16 of L.C.S. (PUGF), Administrative Branch was issued on 23-9-1990 which was drawn up in pursuance of the judgment of the High Court dated 3-7-1989 passed in Writ Petitions Nos.226 of 1988 and 57 of 1989 wherein the appellant was placed at S.No.22. The appellant alongwith others filed Writ Petitions Nos.27 and 58 of 1990 before the Peshawar High Court, Peshawar but failed vide judgment dated 2'6-7-1992 and his plea for seniority from 3-5-1979 was repelled with the observation that he had no locus standi to challenge the seniority list prepared by the department in pursuance of the judgment of the High Court maintained by the Supreme Court. In pursuance of the said judgment, respondent No.2 vide his order dated 5-10-1992 withdrew notification dated 18-8-1991 and seniority as assigned to the appellant in seniority list dated 1-1-1992 was restored. Thereafter, the appellant filed a review petition before the High Court which was withdrawn and dismissed as such vide order dated 28-2-1994 whereafter he made several representations to the respondents for grant of seniority from 3-5-1979 but without any success. His second Writ Petition No.969 of 1994 was dismissed by the Peshawar High Court on 22-7-1996 observing that the question agitated by the appellant in his earlier writ petition whether he was an employee- of L.C.S. (PUGF) from 3-5-1979 or 15-7-1985 was determined in it and seniority list issued on 23-9-1990 was held to be proper. The said judgment was impugned before this Court through Civil Petition No.460 of 1996, wherein leave to appeal was granted by this Court on the following points:--

6. The question which require to be, determined are, whether the petitioner, by virtue of his initial appointment in BPS-16 on 3-5-1979, was to, be considered senior among L.C.S. (PUGF) Officers and secondly; whether after transfer and absorption or IRDP Officer in L.C.S. (PUGF), Officers holding post in BPS 16 prior in time would stand senior in the combined seniority list.

7. As the aforesaid questions and other related questions arising in this petition require consideration, leave is granted,"

3. We have heard the learned counsel for the parties and have gone through the record of the case. The appellant was appointed as Social Welfare Officer (B-16) in Municipal Corporation, Peshawar on 2-5-197e and as per clause (ii) of his appointment letter his services were to-be governed by the West Pakistan Local Council and Municipal Committee Service Rules, 1963. He was granted leave for 730 days vide order 10-7-1983 and on the expiry thereof he was posted as Taxation Officer (B-16) at Municipal Committee D.I. Khan. It may be mentioned here that there are two different categories of employees of Local Council, one is provided under section 46 of the N.-W.F.P. Local Government Ordinance, 1979 (hereinafter to be called the Ordinance) known as Provincial Unified Group of Functionaries (PUGF) and its functionaries are governed by the N.-W.F.P. Local 'Councils'(Provincial Unified Group! of Functionaries) Service Rules, 1981 and their appointing authority is the Provincial Government whereas the second category is provided by section 47 of the Ordinance and known as Servants of Local Councils who are governed under the N.-W.F.P. Local Council Servants Service. Rules, 1980 and their appointing authority is the Chairman of Local Council concerned. The appointees in the first category can be appointed in any Local Council in N.-W.F.P. where as the incumbents of only the second category are the employees of that Local Council in which they are appointed. Both the categories have their own separate cadres and their seniority lists are separately maintained. The appellant was appointed against the post of Social Welfare Officer created by the Provincial Government in Municipal Corporation Peshawar only, as such, he belonged to the second category, however, after his absorption in L.C.S. (PUGF) on 15-7-1985 his seniority was fixed and he was placed at S.No.14 of the Final Seniority List dated 7-1-1988 and thereafter, combined revised seniority list of employees of B-16 of L.C.S. (PUGF) Administrative Branch, was issued on 23-9-1990 which was drawn up in pursuance of the judgment of the High Court dated 3-7-19899 passed in Writ Petitions Nos.226 of 1988 and 57 of 1989 wherein the appellant was placed-at S.No.22. The appellant alongwith others challenged the said seniority list through Writ Petition No.27 of 1990 while Rab Nawaz and others impugned the same through Writ Petition No.58 of 1990 with the prayer to set aside the orders/notifications of the respondent made from time to time and mainly the seniority lists dated 31-5-1990 and 23-9-1990. He also sought declaration that the judgment passed in Writ Petitions Nos.226 of 1988 and 57 of 1989 was not effective qua him as he was not a party in the said writ petitions and that he was appointed in Grade-16 on 2-5-1979 but in the impugned seniority list was shown as absorbed on 15-7-1985 from the schedule of establishment of Municipal Corporation Peshawar in L.C.S. (PUGF), Which were dismissed with costs through a common judgment on 26-7-1992 observing that. the petitioners have no locus standi to challenge the seniority list prepared by the department in pursuance of the judgment of the High Court maintained by the Supreme Court. Respondent No.2 in compliance with the aforesaid judgment issued an order on 5-10-1992 whereby order dated 18-8-1991 and Notification No.AOI/LCB/Estt/6-34/90 dated 10-4-1991 were withdrawn which .were passed in the departmental appeal of the appellant and seniority as assigned to him vide seniority list dated 1-1-1992 was ordered to remain intact, against which he filed a review petition which was dismissed as withdrawn on 28-2-1994. The appellant thereafter, made departmental representations but without any success whereafter he once again approached the High Court through Constitution petition with the prayer to declare the order of respondent No.2 dated 5-10-1992 to be without lawful authority and of no legal -effect. The resume of the case shows that the appellant has been litigating since 1988 in futility and despite the fact that it was held by the learned Division Bench in his earlier Writ Petition No.27 of 1990 that "as for as the petitioner's grievance regarding seniority list prepared in pursuance of the judgment of the High Court is concerned, we find no substance in it", which was dismissed on 26-7-1992, respondent No.2 recalled the order and Notification dated 18-8-1991 vide order dated 5th October, 1992, against which he filed review petition before the High Court challenging the said order in para 6 thereof as under:-- "That all of a sudden the respondent No.2, has issued Notification No.AO1/LCB/Estt./10-3/92, dated 5-10-,1992-Copy Annex-D whereby the seniority position assigned to petitioner per Annex B and C has been withdrawn without any notice to the petitioner, purportedly in view of the judgment of the Hon'ble High Court in the above-mentioned two writ petitions. Hence the review petition". However, review petition was withdrawn and it was dismissed as such on 28-2-1994. In subsequent Writ Petition No.969 of 1994, the same order was impugned when was questioned in review petition which was dismissed as withdrawn. The learned Division Bench while dealing with the point involved in the writ petition as to whether appellant was to be assigned seniority from 3-5-1979, the date of, his appointment in the Municipal Corporation or from 15-7-1985, the date of his absorption in PUGF, observed as under:-- " .. But as stated above, real controversy is not the one that on the date of absorption or the transfer who ranked senior but is as to whether the petitioner was the employee of the L.C.S. (PUGF) since 3-5-1979 or. 15-7-1985 and when the petitioner agitated the said question before this Court in earlier Writ Petition No.27 of 1990 and the same was dismissed meaning thereby that his such prayer was not acceded to and the seniority list prepared on 31-5-1990 and 23-9-1990 were held to be correct and thus the order of respondent No. 1 dated 5th October, 1992 with regard to the withdrawal of the orders dated 10-8-1991, 18-8-1991 and 23-8-1992 pertaining to seniority of the petitioner and keeping intact the seniority list of 1-1-1992, require no interference by this Court. "

4. The question on which leave was granted stood resolved in earlier writ petition which has attained finality and thus it was past and closed chapter which could not be re-opened again in the latter litigation. The record shows that the appellant was initially appointed in the Municipal Corporation, Peshawar against the sole post of Social Welfare Officer B-16 which was not created in any other Local Council and was thus not Provincial Cadre Post. After the promulgation of N.-W.F.P. Local Council (Provincial Unified Group of Functionaries) Service Rules, 1981, Local Council Provincial Unified Group of Functionaries was constituted under the said Rules. According to the Final Seniority List of Employees of B-16 of L.C.S. (PUGF) Administrative Branch, issued on 7-1-1988, the appellant's seniority was determined on the basis of his absorption in L.C.S. (PUGF) from 15-7-1985 and not from the date of his initial appointment for the obvious reason that he was not holding Provincial cadre post. Regarding the transfer and absorption of IRDP Officers in the Local Council Service (PUGF), suffice would be to say that they were transferred and absorbed in L.C.S. (PUGF) prior to the absorption of the appellant in L.C.S. IPUGF) vide notification dated 13th June, 1984 whereas appellant was absorbed in L.C.S. (PUGF) on 15-7-1985 as per Final Seniority List of Employees of L.C.S. (PUGF) I which is correctly reflected in the Combined Revised Seniority List dated 23-9-1990 and the same has been held to have been prepared by the department in pursuance of the judgment of the Nigh Court and Supreme Court in earlier writ petition, hence, no exception can be taken thereto.

5. Consequently, this appeal being devoid of arty merit is dismissed with costs. S.A.K./M-920/S Appeal dismissed