2000 SCMR 689 (PLP)

IRSHAD HASAN KHAN, J.

This petition for leave to appeal is directed against the judgment, dated 23-2-1998, passed by the Punjab Service Tribunal, Lahore (hereinafter referred to as the Tribunal) in Service Appeal No.772 of 1995.

2. Facts of the case as depicted in the impugned judgment, are that the petitioner was appointed as Temporary Assistant Engineer in Electrical and Mechanical Engineer cadre on 31-10-1963 while respondent No.3, Muhammad Amin Khan Mazhar was also appointed on the said date, though in different cadre i.e. Civil Engineering vide order, dated 30-1141963. It was further found that in the final seniority list issued on 12-12-1988, respondent No. 3 was shown at Serial No. 17 while the petitioner at Serial No.4. The date of birth of the petitioner in the seniority lists issued prior to final seniority list was shown as 6-7-1931 - while in the final seniority list it was shown as 13-8-1941. Respondent No.3 represented against the final seniority list on 28-12-1988. As no decision was taken on his representation, respondent No.3 made several representations but no response was given. He then approached the High Court by means of a writ petition for redress of his grievance whereupon the High Court directed the concerned department to decide his representation within 30 days. The departmental authority, however, dismissed his representation being barred by time as well as on merits on 22-8-1995. Being dissatisfied with the above order, respondent No.3 approached the Tribunal by filing an appeal under section 4 of the Punjab Service Tribunals Act, 1974 (hereinafter referred to as the Act), inter alia, seeking a declaration that he was senior to the petitioner as Temporary Assistant Engineer, Executive Engineer as well as Superintending Engineer. Seniority List as it stood on 1-1-1988 and final order, dated 22-8-1995, in so far as it related to respondent No.3, petitioner and other concerned respondents, were also sought to be quashed. Respondent No.3, inter alia, claimed his seniority over the petitioner, before the Tribunal, on the ground that he was older in age, therefore, entitled to retain his seniority in the rank of Executive Engineer over the petitioner herein though he was promoted as such on 9-4-1973 while the petitioner' was promoted on 13-12-1969. His next contention was that promotion of the petitioner herein was the outcome of incorrect information given in the seniority list. It was further contended that his representation, dated 27-12-1988 was not barred by time, in that, it was to be reckoned from the date of final seniority list issued on 12-12-1988.

3. Dr. A. Basit appearing on behalf of the petitioner, contended before the Tribunal that the appeal before it was hit by section 4(1)(c) of the Act, inasmuch as, no appeal lay to a Tribunal against an order or decision of departmental authority made at any time before the 1st July, 1969. His next contention was that in the Integrated Seniority List of Temporary Assistant Engineers, maintained by the department for promotion to the post of Executive Engineer and above place, the petitioner was shown at Serial No.86 while respondent No.3 herein at Serial No. 115 and their respective dates of appointment as Temporary Assistant Engineers were shown as 22-10-1963 and 8-2-1964 and that the said Integrated Seniority List had attained finality on the basis of the judgment of the former Civil Service Appellate Tribunal, Punjab, dated 3-9-1971, passed in Case No.811/304/70.

4. The Tribunal, after thorough scrutiny of the available material on record and hearing the arguments of the learned counsel for the parties, allowed the appeal by setting aside the order, dated 22-8-1995, impugned before it and declared respondent No.3 as senior to the petitioner herein as Temporary Assistant Engineer, Executive Engineer and Superintending Engineer with all consequential benefits vide the impugned judgment, dated 23-2-1998, operative portion whereof reads as under:-- "

13. We have heard the arguments on the above point raised by Dr. A. Basit and find no reason, to rely on the integrated seniority list appended with the written objections filed by respondent No.3 as no record has been produced to indicate if such an integrated seniority list was approved or issued by the competent authority to all concerned including the appellant. Respondent No.3 has relied on the aforementioned judgement of the former Civil Service (Appellate) Tribunal Punjab which itself held the aforementioned integrated seniority list as a tentative one and had issued the direction for drawing and preparing a final seniority list in accordance with the principles of integration. It has not been shown that the final integrated seniority list of Temporary Assistant Engineers was ever issued. The question of seniority of the appellant can, therefore, be resolved only with reference to the date of his appointment as given in the letter of appointment which is 31-10-1963 as also admitted by the department itself. We have already dealt with the point relating to the assigning of the date of 8-2-1964 to the appellant as well as the question of maintainability of the instant appeal after the final order was passed on his representation, in para. 12 of this judgment, and do not find any reason to accept the contentions of the learned counsel for respondent No.3 that the date of appointment of the appellant is any date other than 31-10-1963 or that the appeal is hit by the bar contained in section 4(1)(c) of the Punjab Service Tribunals Act, 1974. " "

14. The upshot of the above discussion is that the appellant being older in age would be senior to respondent No.3 as Temporary Assistant Engineer as the date of appointment in both the cases is the same i.e. 31-10-1963."

5. Dr. A. Basit, learned Advocate Supreme Court for the petitioner has argued that the departmental representation made by respondent No.3 against the seniority list was time-barred, inasmuch as, the seniority list was circulated in 1981 whereas the first departmental representation was made in 1988, which was decided by the departmental authority, pursuant to the decision passed in writ jurisdiction by the High Court in 1995. The precise submission was that the appeal had been filed before the Tribunal beyond 90 days even if the period is reckoned from 1988 seniority list. It was further argued that the seniority list of 1981 was not challenged by respondent No.3 and the second seniority list had also abated in 1995. The above contention is misconceived. Mr. Saleem Sehgal, learned counsel for the respondent/caveator was right in contending that the seniority list, dated 10-9-1981 was neither gazetted nor circulate

8. The seniority list A was circulated on 1st June, 1988. The respondent No.3 made a representation on 22nd August, 1988. Since he did not receive any response from the departmental authority, he filed a writ petition to the Lahore High Court whereupon a direction was issued to the Secretary, Communications and Works Department to dispose of the representation of respondent No .3 a within a period of 30 days which was finally rejected on 22-8-1995. Thereafter, respondent No.3 filed his appeal before the Tribunal which was rightly treated as within time.

6. It was next contended that the appeal of respondent No.3 was hit by section 4(1)(c) of the Act on the strength of the decision rendered by the Civil Service Appellate Tribunal, Punjab in the case of Sanaullah (supra). The above plea is not sustainable. Petitioner was not a party in the case of Sanaullah (supra). It was a judgment in personam and not a judgment in rem. Refer Muhammad Sohaf v. Government of N.-W.F.P. (1996 SCMR 218) and M.A. Rashid Rana v. Secretary Home, Government of Punjab (1996 SCMR 1145). In the first case, scope of judgment in rem and judgment in personam was considered. It was held in the second case that the judgments pronounced by Punjab Service Tribunal determining inter se that right of the parties which were before the Tribunal were judgments in personam and not judgments in rem. Such judgments of the Tribunal would not be binding on the persons who were not party to the proceedings before the Service Tribunal.

7. Dr. A. Basit further submitted that the seniority in Electrical and Mechanical cadre is reckoned from the date of appointment as compared to the seniority of civil engineering, which is to be .reckoned from the date of appointment in Class-II. He further submitted that 31st October, 1963 is the date of actual appointment of the petitioner whereas 8-2-1964 is the date of appointment of respondent No.3 in terms of the merger formula as contained in the letter, dated 22-6-1968. which has been reproduced in the impugned judgment, which reads as under:

"The principle of fixing joint seniority of E&M officers with the C&W cadre will be from the actual date of appointment of E&M officers to the grade equivalent to Calss-II and in the case of C&W officers from the actual date of appointment in class-II or temporary engineer or the date assigned in accordance with the Service Rules, whichever, is earlier." As to the above plea, the Tribunal has recorded a finding that the petitioner and respondent No. 3 were recruited on the same date i.e. 31-10-1963, one in the cadre of Civil Engineering while other in the cadre of electrical and mechanical engineering. Admittedly, both were employed temporarily. The West Pakistan Public Service Commission did not determine the seniority of the petitioner and respondent No.3 because they belonged to different cadres. Mr. Saleem Sehgal, learned counsel for the respondent No.3 rightly pointed out that the seniority was determined by the Communications and Works Department in accordance with the principle and criteria laid down in the circular letter, dated 22nd June, 1968. In year 1968, both the cadres were merged and respondent No.3 was rightly held to be entitled to be senior to the petitioner being older in age, in teens of Circular No.871-Integ 55/4471, dated 25th November, 1955 (pages 90-94 of the Paper Book), wherein in paragraph 14, it was laid down that: "For the purposes of integration, the seniority of all pre-unification officers will be determined with reference to .the date of continuous appointment, substantive or otherwise, to the grade as defined in paragraph 16 below. In case two officers are bracketed together, owing to their appointments taking effect from the same date, the older officer will be given seniority over the other".

8. It, therefore, appears that the impugned judgment of the Tribunal holding respondent No.3 senior to the petitioner in the seniority list, does not suffer from any legal infirmity.

9. Dr. A. Basit next relied upon judgment of this Court reported in Saleem Akhtar Bhalli v. Secretary to Government of the Punjab, Communications and Works Department, Lahore (1985 SCMR 950), to contend that where some persons are employed as Temporary Engineers and later dispersed in different regional cadre and where rule of seniority at the time of recruitment being age on date of appointment and within the same batch, such persons cannot compete against each other in matter of promotion. The precise submission is that the Tribunal has fallen inwan error in granting seniority to respondent No.3 in the next level as well i.e. Superintending Engineer and Chief Engineer while at best it could decide the seniority on the 1 vel of Executive Engineer alone. As to the above plea, Mr. Saleem Sehpal was right in contending that the judgment of Saleem Akhtar Bhalli (supra) is not applicable to the facts and circumstances of the present case, in that, the parties herein did not belong to the same cadre but to different cadres.

10. Dr. A. Basit finally submitted that the appeal of respondent No.3 was hit by section 4(1)(c) on the additional ground that the petitioner was appointed on the basis of merger formula prior to 1-7-1969. This point was not urged before the Tribunal, the same, therefore, cannot be permitted to be raised for the first time in these proceedings. Be that as it may, the controversy raised herein relates to an individual grievance of the petitioner. We are not satisfied that the case involved a substantial question of law of public importance warranting leave to appeal. We are, therefore, not inclined to interfere with the well-reasoned judgment of the Tribunal.

11. Resultantly, the petition is dismissed and leave declined. M.B.A./M-9/S Petition dismissed.