1988 PLP (C (PLC(CS))

S.ABDUL JABBAR KHAN (CHAIRMAN).--M/s. Abdur Rehman and Arif Hussain, Zilladars, have filed these appeals a/s 4 of the Punjab Service Tribunals Act,1974, in which appellant Abdul Rehman has impleaded the Chief Engineer Irrigation, Faisalabad Zone, Faisalabad, Senior Most Staff Officer Irrigation, Faisalabad Zone, Faisalabad, M/s. Munir Ahmad Khan, Muhammad Aslam Shaheen, Saidur Rehman and Umar Hayat as respondents and appellant Arif Hussain has impleaded Chief Engineer Irrigation, Faisalabad Zone, Faisalabad, Senior Most Staff Officer, Irrigation, Faisalabad Zone, Faisalabad, and M/s. Munir Ahmad Khan, Muhammad Aslam Shaheen, Saidur Rehman, Umar Hayat and Abdur Rehman, as respondents. 2. By virtue of these appeals both the appellants have prayed that the impugned seniority list dated 6-7-1985 (Annex A/11) by which they have been relegated in their position of seniority and the order dated 4-11-1985 passed by the Chief Engineer Irrigation, Faisalabad Zone, Faisalabad (Respondent No.l) may be set aside and appellants be ordered to be placed senior to respondents Nos.3 to 6 in the said impugned seniority list. 3. As the point of law and facts involved in these appeals are identical in nature, therefore, we will dispose of these two appeals by our this single judgment. 4. Brief facts of the case are that the appellants were recruited as Canal Zilladars w.e.f. 11-11-1968. As many as 90 candidates were called for interview and among them only 10 qualified and one Muhammad Shafi Chatta was kept as reserve. At the time of recruitment, order of merit was prepared by the competent authority and the appellants Abdul Rehman and Arif Hussain were shown at serial Nos.l and 2 of the said list. The first tentative seniority list was issued vide office Order No.3962/141/79/AII/70, dated 15-3-1979, Annexure A/l. In the said seniority list the appellants were shown at serial Nos.34 and 35, whereas respondents were shown at serial Nos.36 to 39 of the said list. This list was accepted 'by the respondents as they did not file any representation or appeal before the competent authority despite the fact that the list was duly noted by them. This list was circulated to all concerned, and consequently finalized vide S.E. Headquarters No.14937/AII/80/141/70, dated 16-10-1980, and the position was shown the same as it was in the tentative seniority list dated 15-3-1979. The Respondents did not file any representation against the said final seniority list except Munir Ahmad and Muhammad Aslam Shaheen. These two appeals were filed by the respondent as these were hopelessly time-barred. This incident took place in the year 1983. However, a suo moto action was taken by Respondents Nos.l and 2 in the year 1985, by issuing a seniority list on 6-7-1985, which upset the earlier position of the appellants by showing the respondents senior to them. The appellants filed representations against the same but as no decision was taken, the appellants have come before this Tribunal through these appeals, after waiting for 90 plus 30 days. However, during the pendency of the appeals, ultimate decision was taken and the representations of the appellants stood rejected by the respondents and thereafter the appeals were duly amended. Hence these appeals. 5. We have heard the learned counsel for the appellants as well as learned District Attorney alongwith Mr. Masud Ahmad Riaz, learned counsel for the Respondents and have perused the record of these cases carefully with their assistance. 6. Learned counsel for the appellants has submitted that the record of the Department with regard to the seniority lists of 1979 and 1980, which were completed in 12 years time, clearly shows that the Department has accepted the order of merit so assigned to the appellants and reflected the same in the said seniority lists. He has vehemently argued that, if there was anything contrary, the contesting respondents would have certainly taken objection to the same and would have challenged the said seniority lists as incorrect and prepared under some misconception. It has been vehemently argued that the Department could not sleep over on any document, if in which position was reflected otherwise for long 17 years and would have certainly taken some timely action to bring to light those facts, if any. He has relied on the principle of locus poenitentatiai and has submitted that the Department was left with no locus poenitentiai to change the list in most arbitrary manner in which it has been changed and rights of the appellants, which stood vested in them, for the last 17 years, cannot be upset in ex parte manner by which these have been so upset. 7. On the other hand learned counsel for the respondents has relied on document Annexure 'A' now appended with the written statement of the Department, which according to him, would be the sheet anchor of these cases, as the same is also relied by the Department itself. By referring to Annexure 'A', it has been argued that although the names of Abdur Rehman and Arif Hussain appellants are at Nos.l and 2, yet there was a rider to this list that "Names are not as per merit. They should all be treated on the same footing on seniority." It has been vehemently argued by the learned counsel for the Respondents as well as by learned District Attorney that this document should be treated as sacrosanct and the fate of the case of the appellants be seen on the strength of this document irrespective of intervening seniority lists issued from time to time in favour of the appellants. 8. We have given our anxious thought to the arguments advanced by the parties and find that it would be not possible for this Tribunal to accept this document placed as Annexure 'A' with the parawise comments of the Respondents Nos.l and 2, as sacrosanct, particularly when the record of this Department indicates that for full 17 years they acted on some other document which was reflected in the seniority lists of said period, duly accepted by the contesting respondents. If the Department or contesting respondents would have comeforward with the proceedings of the Selection Committee/ Selection Board/ Selection Authority, to show how 90 candidates were examined and what were the result of the said examination and what was the order or merit so assigned to the appellants and justification for sleeping over full 17 years, if they were in possession of the said document, we might have examined this aspect of the case. During the course of the arguments, it came to light that except this solitary document, no other document was available on record to support the stand of the Department. What we find is that Annex. 'A' came to light on the one fine morning, while the same remained in hybernation for full 17 years or was lying in oblivion. They have failed to explain the delay of 17 years for taking action on this document, if they claim it to be authentic record of this case, and simply taking shelter behind one line, they when this defect came to the notice, constituted a committee to look into the aspect of this case and found that the respondents were senior to the appellants, although the very Department has been showing the appellants senior during all the period of 17 years. This argument is hardly convincing as we do not find the author of the same before us nor the Committee so constituted by the Department to throw light as to what was the authenticity of the list and the rider clause attached to it. Furthermore, nobody can be condemned without being heard and the golden principle of audi alteram partem is fully attracted to the case of the appellants, whose valuable rights of seniority so conferred upon them by the Respondent Department itself for 17 years, have been taken away, without even issuing a Show Cause Notice in their names, as to show cause, why their seniority of 17 years should not be disturbed. We also find that the first seniority list which was prepared in the year 1979-80,' was based on Rules of 1963, on the basic principle of merit assigned by the Selection Committee/ Selection Board, at the time of recruitment with regard to the direct recruits and there is hardly any mention of the age, which is now being made basis for this sudden change. This argument finds force on the strength of un-controverted fact that the contesting respondents failed to file any representation against the said seniority lists and accepted the appellants as their seniors for full 17 years, who would not be in a position to go back due to, their own act of acquiescence and the rules of Estopple would be fully applicable against them. If, as contended by the Department that the respondents belonged to the same batch of Zilladar, so initially recruited in 1968, then they were definitely knowing their position of seniority vis-a-vis the appellants and would not allow them to be treated their seniors for such a long period. Their silence speaks volume against them particularly when two of them did challenge but their appeals were turned down as hopelessly time-barred by the Department itself. Similarly in this manner the action of the Department, cannot be upheld as they are blowing hot and cold in the same breath. The appeals of two of the respondents having been rejected in 1983, by the Department itself, would clearly show that this was superious document on which no reliance can be placed, although it has been so resurrected to the advantage of the Contesting Respondents by the Respondent Government which itself declined to accept the prayer of their two colleagues when they so went before them. 9. In view of the detailed analysis of the facts of these cases as well as law so involved, we cannot permit the Department to change an established position, which remained undisputed between the contesting respondents for full 17 years, by over night decision placing reliance on a single sheet of paper, which is claimed to be pertaining to the year 1968, without the sanctity of its origin as the same has not been referred to the so-called author, if any. 10 The result is we accept these appeals, set aside the impugned seniority list dated 6-7-1985, and declare that the earlier seniority lists, which have attained finality and accepted without demur by the contesting respondents, would stand in the field. The appellants are declared senior to the contesting respondents. There will be no order as to costs. A.E. /86/Sr.P?????????????????????????????????????????????????????????????????????????????????????? Appeals accepted.