1989 PLP (C (PLC(CS))

7. The question and mode of determining seniority has been dealt with by section 7 of the Punjab Civil Servants Act, 1974 and rule 8 of the Punjab Civil Servants Act (Appointment and Conditions of Service Rules, 1974. The relevant portion of the section 7 reads as under: ‑ Seniority: 7(1) . ............................. (2) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post: Provided that civil servants who are selected for promotion to a high post in one batch shall, on their promotion to the higher post, retain their inter se seniority as in the lower post." while clause b of Rule 8 reads as under:‑ "

8. The seniority inter se of persons appointed to posts in the same grad in a Functional Unit shall be determined: ‑ (1) (a) ......................................... (b) in the case of persons appointed otherwise, with reference to the dates of their continuous appointment in the grade; provided that if the date of continuous appointment in the case of two or more person, appointed to the grade is the same, the older if not junior to the younger in the next below grade, shall rank senior to the younger person. It is clear from section 7 read with Rule 8 that to claim seniority in a specific cadre one has to fulfil following qualifications: ‑ (i) Regular appointment to the post in that grade; (ii) Date of one's continuous appointment; and (iii) Age is the determining factor if the date of continuous appointment is the same subject to the further qualification that the older shall not be junior to the younger in the next below grade.

8. We have gone through the precedent cases relied on behalf of the parties. The learned counsel for the appellant in support of his appeal has relic; on the case of Abdul Oadir Hayee v. Secretary Establishment Division Rawalpindi and 24 others reported as 1982 P L C (C.S.)

200. In this cast appellant was deprived of seniority to higher post due to fault of Government, therefore, learned Federal Service Tribunal rectified the error after referring the judgment of Nasim Hassan Shah as his Lordship then was reported as P L D 1973 Lah.

42. The relevant portion of the judgment reads as under: ‑ "If a civil servant is deprived of serving on a higher post, for no fault c 0 his own, but that occurs due to the fault or mistake of the Government and subsequently it is found that the civil servant was, in fact, entitled to serve on the higher post, he would be entitled to salary of the higher post because he has been deprived of rendering service in the higher post for no fault of his own." This is not the case here. Therefore, the judgment of the Federal Service Tribunal is not relevant.

9. On the other hand the learned District Attorney has rightly referred to case of Khizar Haider Malik and others v. Muhammad Rafiq Malik and others reported its 1987 S C M R

78. It was held by the Hon'ble Supreme Court that until respondent No, 1 was promoted and appointed to the post, mere eligibility does not entitle him to seniority. The honourable Supreme Court in this view of the matter allowed the appeal. The contention of the appellant in the present appeal is the same as that of respondent No. 1 in the precedent case. Therefore, the learned District Attorney has rightly relied on this case to defend his argument.

10. Then comes the case of Government of Pakistan v. Muhammad Sadiq reported as 1985 S C M R

699. The learned District Attorney referred to the observation of their Lordships of the Supreme Court to the effect that question of suitability and fitness arises amongst eligible and not amongst ineligibles. The precedent case has no bearing on the matter in the hand.

11. Now finally coming to the case of Ch. Naimat Ullah v. Secretary to Government of the Punjab, Labour Department and two others reported as 1983 P L C (C.S.)

230. In this case the appellant claimed that he is senior to respondents Nos. 2 and 3, who had been promoted to the rank of Assistant Directors and then Deputy Directors vide notifications dated 7‑1‑1970 and 11‑6‑1973 respectively while the appellant was not found eligible and remained serving as Labour Officer. The appellant was promoted as Assistant Director and then Deputy Director on 19‑4‑1973 and 13‑5‑1976 after acquiring the prerequisite qualifications for the promotion. Once he was promoted as Deputy Director he claimed seniority over the respondents Nos. 2 and

3. The appeal was dismissed. The respondents took up the defence that since the respondents Nos. 2 and 3 were promoted as Assistant Directors on 7‑1‑1970 as against the appellant who was promoted in 1973, similarly respondents Nos. 2 and 3 were promoted to the rank of Deputy Directors on 11‑6‑1973 while appellant was so promoted on 13‑5‑1976, therefore, he had lost seniority. The Tribunal held that appellant was deprived of his seniority at the stages on promotion as Assistant Director and then as Deputy Director. In this view of the matter the appeal was dismissed. In the present case the appellant has yet not been promoted and is seeking seniority against respondents who had already earned regular promotion. The claim is clearly misconceived.

12. Extraordinary leave is dealt with by Rule 9 of the Punjab Leave Rules I issued by Punjab Finance Department's Notification dated 1981. Even according to this rule period of extraordinary leave cannot be excluded while computing the, length of service. The service will be deemed to be without break. Therefore, this provision also supports plea of the appellant but this point is besides the issue and irrelevant. The appellant being not to the cadre of Assistant Director cannot, claim seniority in that cadre.

13. The learned District Attorney has also raised two‑fold preliminary objection to the effect that the appeal is time‑barred and incompetent because respondents were promoted as Assistant Directors vide notifications dated 31‑3‑1985 and 28‑5‑1985 which orders were not assailed by the appellant in any forum. Therefore, he cannot impugne this order indirectly in the garb of seniority. The appeal against the said orders is clearly time‑barred. It is argued that the appeal is incompetent because seniority has been fixed on the basis of these orders, which the appellant did not care to impugn at the relevant time. On the other hand the learned counsel for the appellant has argued that the appellant is only claim in seniority and in this behalf he has referred to the prayer clause.

14. We have given our anxious considerations to the preliminary objection and reply thereto. We are of the considered view that appellant has failed to dispute the promotion orders of the respondents and with it, also, lost seniority in the next cadre and conversely speaking if this appeal is directed against the order of promotion then it is hopelessly time‑barred. The appellant while putting forward the plea that the period of 4 years, 2 months and 26 days has not been included in his service meant that he was also entitled to promotion as Assistant director. There is not only considerable delay. The respondents were promoted but the appellant had also accepted the older of the promotion of respondents by his conduct. It is too late in the day now to get the promotion orders set aside through collateral attack. The plea, which is not available directly cannot be allowed to be raised indirectly in a round‑about manner. This will not only set at I naught the law of limitation but will also be against the policy and spirit of law.

15. Now if we consider the appeal, as per argument of the learned counsel for the appellant, against seniority list alone then the same is rendered incompetent because the same cannot be interfered until the promotion orders in favour of the respondents are set aside?

16. The result is that we do not find any merit in this appeal. The same is, therefore, dismissed with costs. AA./232/Sr. P Appeal dismissed.