1989 PLP 1193 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought; against the dismissal by the Federal Service Tribunal of petitioner's service appeal; which had arisen out of a dispute regarding inter se seniority between the petitioner and respondent No.3. The petitioner's case was that although he and the said respondent were appointed on the same day, he was placed senior by the appointing authority on account of higher "merit". The Tribunal has held that in reality no merits were determined by assigning marks to the candidates; and that in any case there being no law to support the fixation of seniority by so‑called "merit", the said respondent was rightly treated as senior on the grounds of senior in age in addition to his having joined service two days earlier than the petitioner. Accordingly the petitioner's appeal was dismissed. Learned counsel has vehemently contended that the Tribunal was wrong in its finding that no merit was assigned to the appointees. He has made reference to the appointment order where it appears that the appointing authority did assign the merit to the petitioner and respondent No.3 in the same order as claimed by the petitioner; but, he has not been able to refute the observation that the assignment of merit relied upon by him, was only ceremonious. There is the observation of the Tribunal that no proper merits were determined by following any formula nor any marks were assigned to the appointees indicating that the petitioner had attained a higher position on merits. Be that as it may, we asked the learned counsel; whether, in the N.‑W.F.P. any rule has been framed in pursuance of Section 8 of the N.‑W.F.P. Civil Servants Act, 1973, prescribing the mode of "merit" as the determining factor for seniority‑‑he answered in the negative. When further questioned as to whether the petitioner's claim vis- -vis determination of seniority on the basis of so‑called "merit" has the support of any statute or rule the learned counsel failed to rely upon any. Instead he contended that such a determination is not prohibited by any law. This amounts to arguing in a circle. The reliance by the Tribunal on the rule of seniority by age, if the date of appointment is taken to be the same also, is not shown to be prohibited by any law. On the other hand if the date of joining service is to be taken into consideration as determining factor which has additionally been relied upon by the Tribunal, the same is also not prohibited by law. If the Tribunal has passed an order which is in no way illegal nor has it been shown to be improper, the petitioner would obviously lose. That being so, this petition has no force and leave to appeal, accordingly, is refused. M.BA./A‑492/S Petition dismissed.