1994 PLP 415 (SCMR)

Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi PLD 1976 SC 258 rel. Abid Hassan Minto, Advocate instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 18th October, 1993. SHAFIUR RAHMAN, J.‑‑‑The petitioner, a civil servant, seeks leave to appeal under Article 212(3) of the Constitution against the judgment of the N: W.F.P. Service Tribunal dated 10‑11‑1992.

2. The petitioner belongs to the Communication and Works Department of the N.‑W.F.P. He was promoted as Executive Engineer on 17‑11‑1973 and as Superintending Engineer on 26‑2‑1981. The contesting respondent was brought on transfer in the cadre of Executive Engineer by the order of the Governor dated 7‑7‑1973. It was a conditional order which was followed by an order dated 1‑12‑1976 whereby operation of Rule 11(a) of the West Pakistan Services of Civil Engineers (B&R)(Class‑1) Rules, 1967 was relaxed so as to regularize the appointment of the respondent No.3 as Executive Engineer w.e.f. 7‑7‑1973. There was another relaxation on 10‑2‑1980 when the services of Respondent No.3 as Executive Engineer were regularized from 10‑7‑1973 and he was ordered to be placed at the bottom of both regular and officiating Executive Engineers of C & W Department as they stood on the date of his appointment. A Provisional Seniority List issued on 16‑10‑1990 in which the petitioner was shown as junior in the Grade of Superintending Engineers to the respondent No.3 though both were promoted to that Grade/post on the same date i.e. 26‑2‑1981. This was done presumably on account of their inter se seniority as Executive Engineers, the petitioner reckoning it from 17‑11‑1973 while the respondent No.3 from 10‑7‑1973. The petitioner filed a departmental appeal. On receiving no response from the Department, he approached the Service Tribunal for relief in the matter of seniority.

3. The Service Tribunal did not go into the merits of the claim relatable to the two orders of the Governor dated 1‑12‑1976 and 10‑2‑1980 but held the claim made by the petitioner barred on the following grounds:‑‑ "It is not only the case of limitation but of estoppel as well and while conceding that no appeal has been filed against the impugned order in the Tribunal, the appellant has lost his right to agitate his claim at this belated stage after lapse of more than 10 years. The Tribunal is also of the view that if a void order is implemented and if through void order, the incumbent in service achieves certain rights which are not challenged within time then any disturbance of this order at a subsequent belated stage would undermine the whole structure of the Government machinery as well as upset all the subsequent orders. Therefore, under the circumstances the Tribunal agrees with the contention of the learned counsel for the respondent and dismiss the appeal on the ground of limitation as it is miserably time- barred."

4. The learned counsel for the petitioner admitted that on both the occasions when these orders detrimental to his rights were passed on 1‑12‑1976 and 10‑2‑1980 he did file representations to the Government against it. He, however, did not pursue the matter further. Nevertheless, as these orders, according to the learned counsel, are totally void and unsupportable in law the seniority list could afford him yet another opportunity of bringing the matter to this Court. He was in time from the Provisional Seniority List as well as the Final Seniority List which came into force while his appeal before the Service Tribunal was pending.

5. On the legal plane the view that the Service Tribunal has taken finds approval of this Court on the basis of reasoning adopted in the Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi PLD 1976 SC 258 which was followed by a number of Review Petitions. Even on the assumption that those orders were not in .accordance with law, the petitioner had represented being aggrieved by them. The next step for him was to have brought in good time the matter before the Service Tribunal for their examination and validity. Having failed to do so, his challenge to the Seniority List is unsustainable because those orders, if allowed to remain intact, justify the seniority which has been allocated to him in the Provisional and Final Seniority Lists.

6. No question of law of public importance arises in the case. Leave to appeal is, therefore, refused. A.A./H‑178/S. Leave refused.