1981 PLP (C (PLC(CS))

3. We have heard the learned counsel for the appellant, learned counsel on behalf of the respondents and have perused the written statement filed by the respondents in this case with their assistance. To go deeper into the case we have further examined the record and various seniority lists and Annexures so placed on the file by the parties. The parawise comments so filed by the Department in support of its case have been fully examined.

4. The appellant has based his claim on the seniority list of 13‑12‑1974 which according to him would be sacrosanct for the purposes of further promotions and under no circumstances Government was authorised to revise the same as notified vide No. SO (Admn. vii) 7‑4/70 dated 28‑6‑1979. It has further been contended that the list of. 1974 would be the basis of all future seniority lists. The appellant has further claimed that he was appointed as District Health Officer on 1‑7‑1976 and his promotion was to take effect from the date the appellant was posted against a clear vacancy of District Health Officer/Medical Superintendent. According to the appellant this date would be 1‑7‑1976 and not 27‑4‑1978. He has made grievance that mere prolonged processing and late Notification of promotion would not deprive him from the right of his seniority.

5. On the other, hand respondent No. 1 i.e. the Government has submitted that the appeal is apparently time barred and is liable to be dismissed on this score. On merits it has been contended that the claim of the appellant is based on wrong premises for the reasons that the appellant was promoted on regular basis in N. P. S. 18 much later than the appointment and promotion of the respondents Nos. 2 to

13. The respondents Nos. 2 to 13 were promoted on regular basis in N. P. S. 18 earlier than the appellant, as the appellant was not possessing the requisite qualification. respondents from Nos. 14 to 18 belonged to Ex‑Malaria Eradication Pro gramme Department and they were integrated and merged in the General Cadre and as such on the' basis of continuous officiation in the grade they were senior to the appellant. With regard to the seniority list of 1974 it has been explained that the same stood withdrawn by the Government, therefore it‑ would be considered non‑existent. Khalid Saifullah Khan' respondent No. 2 and Dr. Sher Muhammad respondent No. 4 in their written statements have taken exception to the claim of the appellant on the following grounds. That the appellant is estopped to claim seniority against respondent No. 2 as he acquiesced to be his junior viz‑a‑viz him for a number of years. For this he has relied on the seniority lists published in the years 1965, 1970 and 1973. Respondent No. 2 has contested the appeal as hopelessly time- barred. Reliance has been placed for this on the case of Muhammad Idrees Khalid (P L J 1975 Tr. C. (Services) 70). It has been submitted that according to Punjab Civil Medical Service, Class 11 (Recruitment and Conditions of Service) Rules, 1943 as well as para. 17 of Rules of Seniority the date of confirmation and not his appoint ment. Respondent No. 2 has explained that that appointment of the appellant was temporary selection and was provisional and he had to undergo a further selection through Public Service Commission whenever a permanent post is advertised through the Commission. Respondent No. 2 has claimed that he was selected for appointment against the permanent post in Class II in 1961 and became member of the service having been appointed against a permanent post whereas the appellant was confirmed with effect from 1‑9‑1965. He has laid blame on door of the appellant for not coming forward in 1961 to appear before the Pakistan Public Service Commission for recruitment to the permanent post in Class II although he was present in the country. He has classified the appellant's appointment as that of ad hoc appointment, which would not confer any seniority upon him. With regard to the claim made in appeal by the appellant that he was appointed Medical Officer in N. P, S. 18 on 1‑10‑1974. It has been submitted that it was as a result of up gradation of 40 % posts of the Medical Officers. According to respondent No. 2 the appellant was not even qualified on 1‑10‑1974 to be inducted to Grade 18 because he did not possess prerequisite qualification of being a D. P. H. as required under rule 6 read with Appendix A Serial No. 4 of the West Pakistan Health Services (Class I) Rules, 1969.

6. We have given our anxious thoughts to all the contentions raised by the parties and the Respondent No. 1 in this case and we are of the considered opinion that the crucial point in this case would be whether the seniority list of 1974 which is the mainstay of appellant's case would be considered final or not. To resolve this issue we would refer to Punjab Civil Servants Act, 1974. Section 7, which deals with the matters pertaining to the seniority. Clause 3 of section 7 runs as under: ‑ "For proper administration of a service, cadre or grade, the appointing authority shall from time to time cause a seniority list of the members of such service, cadre or grade to be prepared." The above clause (3) of section 7 authorized the Government to revise the lists from time to time and thus the claim of the appellant that lists of 1974 in which he was shown senior had become sacrosanct, falls to the ground. The past history of this case would also show that the seniority lists were revised from time to time in this case from 1960 onward and the appellant failed to take any exception against the earlier list in which he was shown junior. He did come forward at a latter stage and made complaints before the Tribunal regarding the seniority lists after the year 1970 and the said list was also revised by the Department at the directions of the Service Tribunal. If the Government could not revise the lists under any manner as claimed by the appellant viz‑a‑viz his claim of seniority under 1974 list, we will not be doing justice to rule 7, clauses 3 if we accept his claim. Even now before us the claim of the appellant is that the list of 1978 should again be revised which claim itself would be in contradiction of his claim that the list of 1974 was not revisable.

7. With regard to the merits of the case we also find that the appellant was appointed against a temporary post in Class II somewhere in 1960. By virtue of this final appointment in Class II the Department would not be in a position to confer upon him any right of seniority as he did not become member of the Class II service. The Punjab Civil Medical Service, Class II (Recruitment and Conditions of Service) Rules, 1943 as well as para. 17 of the Integration Circle would be the hurdle in the way of the Department to confirm him in such seniority. It is further laid down in the rules that a person who was appointed against a temporary post is obliged to appear before the Punjab Public Service Commission before he is made permanent in that cadre. The latest service rules further provide that a person can only be promoted from Class II to Class I unless he has qualified D. P. H. and possess at least seven years' experience to his credit from the date of his graduation. In the case of the appellant we find that he could not qualify D. P. H. till 1976. However, a concession was given in 1971 to all Officers who were not D. P. H. but were due for promotion to N. P. S.

18. That officer who were due for promotion but had not obtained the Diploma in Public Health would be eligible to claim their seniority if they qualify the examination within a period of 3 years from the date of the issuance of the letter. We find that the appellant could not even avail of that concession and only obtained this qualification in 1976. The case of the appellant when judged on this premises also fails.

8. With regard to the objections on the point of limitation so raised by the Department as well as by respondent No. 2, it is sufficient to say that the case of Muhammad Idrees as relied upon by respondent No. 2 in P L J 1965 70 is not fully applicable to the case of the appellant and thus the case of appellant is not hit on the point of limitation by its impacts. When the list of 1974 was withdrawn during the pendency of the case before this Tribunal, the appellant could only come with his grievance before this Court when the same was reformulated and revised. This occurred only in 1979 when the impugned list was notified and the appellant made his representation to the Government against it. Therefore we are of the consid ered opinion that the appellant was before this Tribunal within time. In view of our above discussions on merits of this case, we do not find any merits in the appeal so filed before us by the appellant and dismiss the same as being without any force. Appeal dismissed.