1. M. SALEEM CHAUDHRY (CHAIRMAN):--Initially Excise and Taxation com--prised two separate and distinct Departments and their incumbents were governed by separate service rules. The Sub- Inspectors and Inspectors of the former Department were governed by the Punjab Excise Subordinate Services Rules, 1952 and those of the latter by the Punjab Ex-Taxation Subordinate Services Rules, 1954. On the 13th of July 1964, the Governor of West Pakistan through a notification ordered that both the cadres of Excise/Taxation Departments Staff should be amalgamated and made interchangeable w. e. f. 1-12-1962 under the now designation of Excise and Taxation Inspectors and Sub-Inspectors. Resultantly in 1966 the West Pakistan Excise and Taxation Department Subordinate Service Rules were promulgated. It is, however, common case that despite the pro--mulgation of these rules the promotions to the rank of Inspectors were continued to be made separately on the Excise and Taxation side on the basis of their respective cadres as if no amalgamation had taken place. This state of affairs, it appears, led to certain appeals being filed before the Civil Services Appellate Tribunal where it was ruled that the 1966 Services Rules applicable to Inspectorate staff of the Excise as well as Taxation side and it was directed that a joint seniority list be framed of both these cadres. In the resultant, amalgamated final seniority list of Excise and Taxation Sub --Inspectors issued by the Secretary, Excise and Taxation on 29-11-1973, the appellant was shown senior to the respondents. While preparing the amalga--mated seniority list of Inspectors which was issued on 23/29-2-1972 showing the position as it stood on 1-2-1972 the dates of appointments as Inspectors in the abovesaid manner was made the basis of seniority without considering that them had been no determination for promotion inter se of the incum-- bents of Excise and Taxation Sub-Inspectors, with the result that the respondents (who were promoted in the Taxation cadre) were ranked senior to the appellant. The appellant was shown at serial No. 57 in this list. Respondent No. 2 Agha Umar Hayat was, however, shown at lower position at Serial No. 66. Agha Umar Hayat represented to respondent No. 1 on 24-6-1972 claiming fixation of his seniority amongst Inspectors on the basis of his seniority in the next lower grade of Sub- Inspectors, where he was shown senior to the respondents and a number of other incumbents. This representation was accepted and he was given pro forma promotion as Inspector w. e. f. 9-12-1966 being a date one day earlier than the promotion as Inspector of his next junior in the Sub- Inspectors List namely Ch. Muhammad Bashir, who had been promoted after the promulgation of the 1966 Service Rules. Thus respondent No. 2 Agha Umar Hayat was brought down from Serial No. 66 to a place at Serial No. 34 of the seniority list. It appears that the aforesaid order, jolted the appellant into action and he also submitted an appeal dated 29-5-1976 to the Director-General, Excise and Taxation Department claiming fixation of his position in the seniority list of Inspectors, Excise and Taxation issued on 23/29-2-1972 on the same grounds as were accepted in the case of Agha Umar Hayat respondent No. 12. He claimed a position "over and above the place of Agha Umar Hayat Serial No. 34 . . . . . . .". He endorsed a copy of the appeal to the Director, Excise and Taxation, Multan Division, Multan, the latter authority, vide memo--randum dated 10-1-1977 conveyed the rejection of the representation of the appellant "by the competent authority" through the Director, Excise and Taxation, Sargodha, under whom the appellant was serving at that time.
2. This has resulted in the present appeal filed before us on 11-2-1977. This appeal is attacked by Mr. Masud Ahmad Riaz, learned counsel for reason--dents Nos. 3, 5, 7, 8, 9, 10, 15 and 16 and Malik Allah Wasaya for respondent No. 13 and Mr. A. G. Humayun, Government Pleader for respondent No. 1 on multifarious grounds of technical nature as well as on merits. It is not necessary to recall all the grounds pleaded by the respondents except those which are conclusive in this case. In the first instance, it is pleaded that the position of respondents 3 to 18 as shown in the impugned seniority list of--' February 1972 was a manifestation of the promotion orders of these reason--dents issued at dates much earlier than the date of issuance of the seniority list and having failed to represent against those promotion orders at tide, relevant time appellant was estopped from challenging the consequent seniority list. It is also pointed out that the promotion orders of a number of reason-- dents are of dates prior to 1-7-1969 and thus not assailable before this Tribunal due to the limitation prescribed in proviso (o) to section 4 of the Punjab Service Tribunal Act, 1974. Alternately the appeal is attacked in the ground that the appellant failed to agitate against the impugned seniority list of February 1972 before the relevant forum i.e. Civil Services Appellate Tribunal and his acquiscence to the same by his conduct was an estoppel against his assailing the same seniority list before this Tribunal. His pre--liminary objections may be summed up below :-
(1) in the seniority list of Inspectors, Excise and Taxation issued on 23/29-2-1972, the appellant was placed at Serial No. 57 and all tree respondents were shown senior to the appellant but the appellant did not challenge this seniority list in the relevant forum i.e. Civil Services Appellate Tribunal at that time and. By acquiescence he is estopped from challenging the same list under a different shape of challenging the proforma promotion :-
(2) Having failed to challenge his position in the seniority list before the relevant forum, the repetition of the same position subsequently does not provide a fresh cause of action to the appellant. For this pro--position, reliance is placed on the rule laid down by this Tribunal in In re : Idrees Khalid 1976 PLC (C. S. T.) 15(2) ;
(3) The appeal is also time barred under section 4 of the Punjab Service Tribunal Act inasmuch as the appeal filed on 11-2-1977 was not filed within six months of the establishment of the appropriate Tribunal which period expired somewhere in June 1975.
(4) Sh. Arshad Hussain, as a direct recruit of 12/67 and placed senior to the appellant who was a necessary party and has not been impleaded as such so that the appeal is not properly constituted and needs to be struck down on that ground. For this proposition In re : Ibrahim PLD 1960 Lah. 1072 is relied upon.
3. Mr. A. G. Humayun, learned Government Pleader adopts the arguments of Mr. Masud Ahmad Riaz and makes further submissions that :-
(i) Respondents Nos. 2, 3, 6, 7, 9 to 16 and 17 promoted earlier than 1-7-1969 and the vested rights created before that date are not appeal--able before this Tribunal under proviso (o) to section 4 of the Punjab Service Tribunal Act, 1974 ;
(ii) The prayer embodies in the last but one para of the memorandum of appeal is for the grant of pro forma promotion w. e. f. 1-1-1965, which is not entertainable in this Tribunal in terms of the rule laid down by this Tribunal in Ahmad Khan Sial's case 1976 PLC (C. S. T.) 74 ;
(iii) The appellant has wrongly challenged this seniority list of 1972. This list is the manifestation of the promotion orders of the respondents as in the rank of Inspector issued on much earlier dates the appellant should have challenged the respective promotion orders at the relevant time which he did not do. Having acquiesced in the promotions of the respondents he was estopped from challenging the consequent seniority list.
(iv) The rejection of appeal for pro forma promotion amounted to deter--mination of fitness for promotion of the appellant hence the appeal was hit by proviso (b) to section 4 of the Punjab Services Tribunal Act, 1974. In this proposition reliance was placed on this Tribunal case cited as 1976 PLC (C. S. T. ) 74 ;
(v) No appeal to the authority next higher to the one issuing the seniority list was made. The seniority list was issued by the Directory-General and the appeal was also made to the same authority and thus the appeal was hit by proviso (a) to section 4 of the Punjab Service Tribunal Act, 1974. It was however conceded that at the relevant time the office of Secretary, Excise and Taxation and Director-General, were continued.
4. The learned counsel for the appellant attempted to meet this objection of the respondents by submitting that in actual fact while rejecting the appeal of the appellant by the impugned order of 10-1-1977, no determination of the appellant qua the respondent was made hence the objections on behalf of the respondents to that extent were misconceived and factually incorrect.
5. The learned counsel also insisted that he had come in appeal against the final order passed on 10- 1-1977. According to him the placing of Agha Umar Hayat at serial No. 34 provided him a fresh cause of action against which he agitated and resultantly his appeal was rejected by the competent authority on 18-1-1977, so that the present appeal filed on 11-2-1977 was in time.
6. Alternately, he also claimed revision of the entire seniority list on this principle accepted in the case of Agha Umar Hayat extending benefits of the war to these persons who had not appeared. For this assertion reliance was placed on case of In re: Qadir Bakhsh Javed (1974 SCMR 502).
7. Having heard the parties at length we are of the view that the appeal must fail on the point of limitation. Admittedly, the appellant by his own conduct allowed his right of appeal against the seniority list of 28/29-2-1972 to lapse. He neither agitated the matter before the Civil Service Appellate Tribunal within three months of the knowledge of the seniority list nor did he agitate the matter before the departmental authorities. He has thus no locus standi to challenge the seniority position depicted in the aforesaid seniority list and the ratio of the case of Idrees Khalid (1976 PLC (C. S. T.) 15(2)) is fully attracted to the facts of this case. We also find substance in the argument on behalf of the respondents that the seniority list was a manifestation of the position of respondents established by virtue of their earlier promotions and having acquiesced in these promotions the appellant was estopped from assailing the seniority list rejecting the same position.
8. Since the appeal fails on the above issue we do not feel ourselves called upon to other issues raised in the preliminary objection.