1989 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN).‑‑All the three appeals are of identical nature. They have been heard together. They are being decided by this consolidated judgment.

2. Mian Ghulam Qadir, the appellant in Appeal No. 321(R) of 1985, is an Assistant Deputy Director‑General, Telegraph and Telephones. He entered the Telegraph and Telephones Department as Engineering Supervisor on 11‑3‑1950 He was promoted to the next higher grade as Assistant Engineer/ Divisional Officer Class‑II on 13‑8‑1954. In the year 1969, there was direct recruitment to a number of Junior Class‑I posts in the Telegraph Engineering Service. One of the batch mates of the appellant, namely Mr. Abdul Ahad Siddiqi, resisted the direct recruitment against the Class‑I Engineering Service, ignoring the prospective promotees, and he filed a civil suit in the Civil Court at Sargodha and obtained decree to the effect that the posts reserved for the departmental promotees should be filled in first before making direct recruitment for the posts allocated for direct recruitment. This decree was passed on 6‑11‑1972. It was appealed against by the Government in the District Court, Sargodha. The appeal was disposed of on 15‑1‑1983 as having abated by virtue of the enactment of the Service Tribunals Act, 1973. The Government did not prefer any appeal before this Tribunal and the judgment of the Civil Court in the case of Mr. Abdul Ahad Siddiqi attained finality. Mr. Siddiqi succeeded in getting his seniority fixed over and above the direct recruits of 1969. The appellant sought to derive advantage from the decree in favour of Mr. Abdul Ahad Siddiqi and made representation that he also should be placed senior to the direct recruits of 1969, who are respondents 4 to 11 in the appeals herein. His representation was turned down on the ground that the declaratory decree in favour of Mr. Abdul Ahad Siddiqi was in personam and these benefits could not be extended to him. Such decision was communicated to him by letter dated 22‑5‑1985 (Annexure‑I). He then preferred an appeal to the Secretary, Establishment Division. Awaiting decision on his appeal for the statutory period, he preferred this appeal on 14‑10‑1985.

3. Appellant Mr. S.A. Naqvi in Appeal No. 47(R) of 1986, a Divisional Engineer, Inspection (Phones), C.T.R., Lahore, also has agitated the same facts. He had entered the Department as Engineering Supervisor on 6‑3‑1950. He also claims relief of seniority on the basis of the Civil Court judgment in the case of Mr. Abdul Ahad Siddiqi. He filed the appeal in the office of the Tribunal at Lahore on 2‑11‑1985 after rejection of his representation, and it was registered there as Appeal No. 272(L) of 1985. It was transferred to the principal seat of the Tribunal at Islamabad by order dated 30‑9‑1986.

4. The third Appeal No. 57(R) of 1986 has been filed by Mr. Ali Haider, Assistant General Manager‑I, C.T.R., Lahore. It was filed at Lahore and was registered there as Appeal No. 273(L) of 1985 on 2‑11‑1985. It was transferred to the principal seat of the Tribunal at Islamabad by order dated 30‑9‑1986. The case of the appellant is similar to that of Mian Ghulam Qadir, the appellant in Appeal No. 321(R) of 1985. He bad entered the Telegraph and Telephones Department as Engineering Supervisor on 3‑3‑1950.

5. In all the three appeals, the prayer of each of the appellants, is that the department may be directed to place their names over and above the names of the private respondents 4 to 11 in the seniority list and process their case for promotion in B‑19 with effect from 10‑4‑1985 with all consequential benefits.

6. The learned counsel for the appellants has mainly based the appellants case on the case of Mr. Abdul Ahad Siddiqi who was placed above the respondents 4 to 11 in the seniority list on the basis of the decree of the Civil Court and urged that the appellants also should have been considered at par with Mr. Abdul Ahad Siddiqi for the purpose of seniority as well as promotion. He has placed reliance on the following cases:‑ (1) Malik Mushtaq Hussain v. Secretary, Ministry of Finance and another 1984 P L C (C.S.) 452. (2) Chairman, Pakistan Railways, Lahore v. Muhammad Latif and others 1984 S C M R 286. (3) Muhammad Bashir Shaikh v. Secretary to Government of Punjab, Communications and Works Department 1985 P L C (C.S.) 758, and (4) Islamic Republic of Pakistan through Secretary, Ministry of Defence v. Muhammad Zafar and others 1986 S C M R 898.

7. The learned counsel for the respondents 1 to 3 has resisted the appeal contending that the cause of action to the appellants, if any, accrued in 1969, the civil suit filed by Mr. Abdul Ahad Siddiqi in 1970 was decided on 6‑12‑1972, the appeal filed against the decision in the civil suit abated on 15‑1‑1983, whereas the appellants made representation for only promotion on 24‑4‑1985 and the claim lodged by the appellants was time‑barred. He has further contended that a seniority list was published and circulated in the year 1979 and the appellants did not make any representation against that seniority list. He has also contended that the departmental appeal was addressed to the Establishment Secretary, who is the appointing authority and it did not lie to him. ??????????

8. No doubt, the appellants are involved in laches, as pointed out by the, learned counsel for the respondents, but they have sought revival of their virtually abandoned cause on the basis of reopening of the case of their contemporary Mr. Abdul Ahad Siddiqi on the basis of decree of the Civil Court in his favour, as mentioned above. They have preferred this appeal on the refusal of the department to consider their case for promotion on the analogy of the case of Mr. Abdul Ahad Siddiqi informing them that they could not derive benefit of the declaratory decree in favour of Mr. Abdul Ahad Siddiqi. It has been held in several cases that benefit of the decision of the Tribunal or the Court in an identical case should not be refused to the co‑employee on the ground that he was not party to that decision. Reference may be made to the cases‑‑ (1) Malik Mushtaq Hussain v. Secretary, Ministry of Finance arid another 1984 P L C (C.S.) 452; (2) Chairman, Pakistan Railways, Lahore v. Muhammad Latif and others 1984 S C M R 286;and (3) Muhammad Bashir Shaikh v. Secretary to Government of Punjab, Communications and Works Department 1985 P L C (C.S.) 758, In the light of these authorities, the appellants did have a fresh cause of action on refusal by the department to consider their case at par with that of Mr. Abdul Ahad Siddiqi and in that case their representation and appeal does not seem to be time‑barred. As regards the question of promotion, there are departmental orders that where there is a prescribed quota in a cadre of service for promotees and direct recruits, the posts for promotions have to be filled in first and the posts allocated for direct recruitment are to be filled in later. Reference may be made to a case‑‑Islamic Republic of Pakistan through Secretary, Ministry of Defence v. Muhammad Zafar and others 1986 S C M R

898. Of course, the appellants have lost the chance of promotions in retrospectivity for their laches, but their case has to be considered by the department as had already been done in the case of Mr. Abdul Ahad Siddiqi.

9. For the reasons recorded above, the appeals are allowed to the extent that the department should consider appellants' cases on the analogy of the case of Mr. Abdul Ahad Siddiqi. AA./466/Sr. F? Appeals allowed.