2000PLC(C (PLP)

IRSHAD HASAN KHAN, C.J.‑‑‑Through this common order, we propose to dispose of the above 28 petitions arising out of a consolidated judgment dated 31‑3‑1999 passed by the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeals Nos.785(R) to 793(R) of 1998.

2. Brief facts are that the private petitioners are serving as Assistants in the Naval Headquarters, Islamabad. Their case is that they were promoted as Upper Division Clerks during the year 1985 against the direct recruitment quota, but the Tribunal while determining the controversy relating to the seniority wrongly applied Rule 6 of the Civil Servants (Seniority) Rules, 1993 although the dispute to seniority related to the year 1985. From the pleadings of the private petitioners it appears that two years after the process of recruitment, a Draft Seniority Roll was issued on 18‑11‑1987, to which no one raised any objection. Another Draft Seniority Roll was issued on 11‑5‑1994. It is claimed that no one raised any objection against the said seniority list as well, except Hassan Jan, Assistant/respondent No.6, who made a departmental representation against the second ~Dr4ft Seniority Roll, which was rejected by the departmental authorities on ground of limitation. It is claimed that a third Draft Seniority Roll was issued on 12‑7‑1997 against which representation was made by Hassan Jan respondent No.6, which was rejected by the departmental authority. In consequence, he approached the Tribunal through an appeal on 24‑9‑1999, after delay of almost one year. Other promoted Assistants also filed appeals before the. Tribunal against the above Seniority Roll dated 12‑7‑1997.

3. The case of the promoted‑ Assistants before the Tribunal was that they were not assigned due place in the impugned Seniority Roll, inasmuch as, they were shown junior to the directly recruited Assistants in the same in violation of Rule 6 of the Civil Servants (Seniority) Rules, 1993, which inter alia provided: "Persons appointed by transfer in a particular calendar year shall, as a class, be senior to those appointed by promotion or by initial appointment to such posts in that year, and persons promoted to higher posts in a particular calendar year shall, as a class, be senior to those appointed by initial appointment to such posts in that year:"

4. The Tribunal after hearing the parties took the view that the competent authority should have assigned seniority to the promotes Assistants as against their counterparts directly recruited without regard to their respective dates of appointment but on the basis of year of promotion. The Tribunal was also of the view that as the seniority assigned to the private petitioners by the departmental authority was in violation of the law on the subject, therefore, no limitation would run against a void order. However having regard to the facts of the case; the Tribunal condoned the delay. Resultantly, the impugned Seniority Roll was set aside with the direction that all the appellants before the Tribunal would be shown senior to the private respondents therein (private petitioners herein) in a revised Seniority Roll to be framed by the competent Authority.

5. Before us the private petitioners inter alia contended that the Civil Servants (Seniority) Rules, 1993, were not retrospective in operation, therefore, the same could not be made applicable to the seniority of the private petitioners as determined in 1985. It was next contended that according to recruitment rules, ratio of fifty‑fifty was required to be maintained in promotion and direct recruitment quota which was not followed by the departmental Authority and the promotions were made in excess of 50% promotion quota by utilising the quota reserved for direct recruitment. It was further contended that respondent No.6 Hassan Jan was promoted against the quota reserved for direct recruitment. Finally, it was contended that the Tribunal erred in law in treating the appeal of respondent No.6 to be within limitation.

6. Mr. Mansoor Ahmad, learned Deputy Attorney‑General appearing on behalf of the Federation of Pakistan in the above petitions and also on behalf of the petitioners in Civil Petition No. 1152 of 1999, argued that the Tribunal wrongly relied on Rule 6 of the Civil Servants (Seniority) Rules, 1993, as the disputed seniority pertaining to the year 1985, could not be governed thereunder retrospectively. He further argued that the Tribunal failed to appreciate that the departmental appeal of respondent No.6 was barred by nearly twelve years. Relying on the principle pf locus poenitentiae, it was contended that the vested rights accrued to the promoted Assistants in service could not be denied after a lapse of twelve years:

7. Mr. Fazal Elahi Siddiqui, learned counsel for the respondents/caveators in Civil Petitions Nos. 1116, 1127, 1132 and 1152 of 1999, contended that the impugned order passed by the Tribunal was in accordance with law and did not suffer from any legal infirmity whatsoever to warrant interference.

8. In the case of Federation of Pakistan and others v. Muhammad Sharif Sabir and others (1999 SCMR 185) it was held that the Civil Servants (Seniority) Rules, 1993 are prospective in nature and would supersede all practices, instructions and office memoranda in the sphere of fixing seniority of civil servants. The following decisions highlight the principles for fixation of inter se seniority between the promoted and directly recruited civil servants: (i) Fasihuddin Siddiqui v. Government of Pakistan and others 1998 SCMR 637, (ii) Muhammad Yousif and others v. Abdul Rashid and others 1996 SCMR 1297, (iii) Muhammad Nawaz Khan, Assistant v. Muhammad Ijaz Rashid, Assistant and others PLD 1993 SC 10, (iv) Ghulam Muhammad v. Federation of Pakistan 1992 SCMR 957, (v) Manzoor Ullah v. Sabir Zameer Siddiqui 1991 SCMR 1127. The following cases may be referred with regard to the effect of failure to challenge the earlier seniority list: (i) Pervez ljaz Sheikh v. Secretary, Establishment Division and others 1994 SCMR 1523 and (ii) Nek Muhammad Ropaal v. Government of Punjab PLD 1990 SC

672. The following cases are instructive in resolving the controversy raised herein with regard to limitation: (i) Government of Sindh v. Khalik Ahmad 1994 SCMR 782, (ii) Malik Khaja Muhammad and others v. Marduman Babar Kohal and others 1987 SCMR 1543 and (iii) Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119.

9. Leave to appeal has already been granted in Civil Petitions Nos.1282 to 1285 of 1998 to examine somewhat identical questions relating to inter se seniority of the parties therein who were promoted from LDC to UDC in 1985 in the naval Headquarters, Islamabad. In above leave granting order reference was made to Rule 6 of the Civil Servants (Seniority) Rules, 1993, relied upon by the Tribunal in the judgment impugned before this Court. The leave was, however, granted in the following terms: "

3. Mr. Tanvir Bashir Ansari, the learned Deputy Attorney General, inter alia, submitted that the inter se seniority of the respondents remained the same in all the three seniority lists published in 1987, 1994 and 1997 and, therefore, objection, if any, to the seniority assigned to the respective respondents in the list should have been raised at the very initial stage when the first list was published in 1987. This having not been done the question of seniority amongst the respondents attained finality and the matter became past any' closed, accordingly, the representation of the respondent No. 1, their departmental appeals and the service appeals before the Tribunal were all not maintainable and were barred by time.

4. Mr. Fazal Elahi Siddiqui, the learned Advocate Supreme Court appearing for the respondent No.l in each of these petitions, supported the impugned judgment. His contention was that the seniority assigned to the respondent under the three lists was not sustainable being in conflict with the applicable rules and further that, in any case, on publication of each seniority list, fresh cause of action accrued to the said respondent to seek correction of the entries.

5. Leave is granted to examine the contentions raised by the counsel. "

10. Resultantly, leave is also granted in the above 28 petitions to examine the validity or otherwise of the impugned judgment. These appeals F shall be heard alongwith the connected appeals during the third week of June, 2000.

11. Meanwhile, status quo shall be observed. M.B A./M‑54/S Leave granted.