' JAVED IQBAL J.--- Pursuant to the order dated 4-6-2004 and 5-6-2004 and as a result of revised seniority list, the seniority position of Mrs. Aasia Gondal (respondent No,1) was changed and she was placed junior to Mrs. Rashida Asif (petitioner). Being aggrieved a departmental representation was made by Mrs. Aasia Gondal on 1-7-2004 which could not be decided in spite of two reminders which culminated into Appeal bearing No,43(R)(C.S.) of 2005 which has been accepted by the learned Federal Service Tribunal by means of judgment impugned which has been assailed by Mrs. Rashida Asif (petitioner).
2. Precisely stated the facts of the case are that petitioner was appointed as Information Assistant (B-11) along with six others but Mrs. Aasia Gondal could not be appointed. Mrs. Aasia Gondal was, however, appointed against leave vacancy for 66 days by means of order dated 14-9-1986. The seven posts of Information Assistant (B-11) were got sanctioned for a period of 6 months for the election publicity and subsequently the seven posts being temporary and got sanctioned for a particular object were abolished. The prominent features of the controversy is that petitioner continued as Information Assistant (B-11) against the different short term vacancies which remained available with the Information Department till 1990. It reveals from the scrutiny of record that on 20-1-1990 an advertisement was made against 13 vacant posts of Information Assistant (B- 11) against which Mrs. Rashida Asif (petitioner) and Mrs. Aasia Gondal (respondent-1) were selected vide order dated 6-10-1990 and Mrs. Aasia Gondal was shown at serial No,2 whereas Mrs. Rashida Asif was at serial No,8 in the merit list on the basis whereof a tentative seniority list of Information Assistant (B-11) was circulated on 7-2-1995 and Mrs. Aasia Gondal was shown against Serial No,8 while Mrs. Rashida Asif was at Serial No,14. The provisional seniority list was converted into final seniority list of the Information Assistant (B-11) and circulated by means of Officer Order dated 23- 11-1995. It is worth mentioning at this place that no objection whatsoever was filed by any of the Information Assistant against provisional and final seniority list including the petitioner.
3. Mr. Muhammad Shaheen, learned Advocate Supreme Court entered appearance on behalf of petitioner and contended strenuously that legal and factual aspects of the controversy have not been appreciated in its true perspective by the learned Federal Service Tribunal which resulted in serious miscarriage of justice. In order to substantiate the said contention it is contended that the appeal preferred on behalf of Mrs. Aasia Gondal (respondent No,1) being barred by time should have not been entertained by the learned Federal Service Tribunal as the time limit prescribed in the Statute cannot be condoned without any sufficient lawful justification which was lacking but escaped the notice of the learned Federal Service Tribunal. It is urged with vehemence that petitioner was appointed in 1995 and respondent No,1 was appointed in 1990, hence the question of her being senior does not arise as respondent No,1 could not qualify for the post of Information Assistant in the year 1985 and being a regular employee with effect from 11-2-1985 the petitioner by no stretch of imagination can be considered as junior to respondent No,1 Mr. Muhammad Shoaib Shaheen, learned Advocate Supreme Court contended that the petitioner had attained the status of a regular and permanent employee in view of the dictum laid down by this Court in case titled WAPDA v. Abbas Ali Malano 2004 PLC (C.S.) 1, Ikram Bari and 524 others v. National Bank of Pakistan through President and others 2005 SCMR 100. It is contended that ad hoc services can only be continued for a limited period and if it remains intact for an indefinite period, such appointments can be equated to that of regular appointment for all intended purposes, benefit whereof must be given to the petitioner whose service remained uninterrupted. It is argued that the judgment impugned is in consonance with the rules laid down in Office Memorandum No,3605.EG-II/49 dated 18-9-1949 as well as the provisions as enumerated in Fundamental Rule 9(30).
4. Qari Abdur Rasheed, learned Advocate Supreme Court entered appearance on behalf of Mrs. Aasia Gondal (respondent No,1) and controverted the view point as canvassed at bar by Mr. Muhammad Shoaib Shaheen, learned Advocate Supreme Court for the petitioner with the submission that no specific infirmity or illegality could be pointed out in the judgment impugned and in the absent of any substantial question of law of public importance which is sine qua non for grant of leave as per the provisions enumerated in Article 212(3) of the Constitution of Islamic Republic of Pakistan,,The question of grant of leave does not arise. Qari Abdur Rasheed, learned Advocate Supreme Court has supported the judgment impugned for the reason enumerated therein and argued that the seniority being a valuable right cannot be changed without any lawful.
Justification which at all was no available to the Competent Authority specially when no objection whatsoever was raised against the provisional and final seniority list by the petitioner wherein admittedly she was shown junior to Mrs. Aasia Gondal (respondent No,1).
5. We have carefully examined the respective contentions as agitated on behalf of parties and perused the judgment carefully. We have also examined the entire record made available. The controversy had got a chequered history, perusal whereof would reveals that 13 posts of Information Assistant (B-11) were advertised and Mrs. Aasia Gondal and Mrs. Rashida Asif were selected by means of order dated 640-1990 and placed at serial No,2 and Serial No,8 respectively in the merit list which was never challenged. The provisional seniority list was issued on 7-2-1995 wherein Mrs. Aasia Gondal was placed at serial No,4 while Mrs. Rashida Asif at Serial No,8. No objection worth the name was Made by the petitioner against the provisional seniority list which converted into the final seniority list by means of Office Order dated 23- 11-1995 which again went unchallenged by the petitioner. As mentioned hereinabove the provisional seniority list was converted into final seniority list on 23-11-1995 but neither objection was made nor any representation was filed by the petitioner. The question as to whether any representation was filed or otherwise, being a question of fact has been dilated upon by the learned Federal Service Tribunal determining that no such representation was ever filed. The Tribunal after having gone through the entire record observed that in particular context that the record does not satisfactorily depict if the respondent No,4 made any departmental representation against the said seniority list.
Although the appellant has placed on the record a copy of the representation dated 20-2-1995 followed by reminders dated 26-3-1995, 13-4-1995 and 3-5-1995 there is no corresponding proof that the same were communicated to the departmental appellate authority and if so in what manner". The representative of the Department, however, mentioned before the learned Federal Service ,Tribunal that Mrs. Rashida Asif had made one representation dated 31-11-2002 whereas the final seniority list was circulated by means of order dated 23-11-1995 hence it would not render any assistance to the case of petitioner.
6. We are not persuade to agree with the prime contention of Mr. Muhammad Shoaib Shaheen, learned Advocate Supreme Court on behalf of petitioner that she was a regular Information Assistant (B-11) since 1985 whereas respondent No,1 was appointed in the year 1990 and hence the question of her being senior does not arise for the reason that Mrs. Rashida Asif was never appointed on regular basis against any substantive vacancy of Information Assistant. It is worth mentioning that the posts of Information Assistant were created in 1985 on purely temporary basis and only for the election purposes and for a stipulated period of 6 months and subsequently abolished. There is no doubt that Mrs. Rashida Asif was allowed to perform her duties as Information Assistant 'cut against temporary vacancies and .She was never appointed or absorbed against any substantive vacancy of Information Assistant. There is no denying the fact that abolition of temporary posts meant for election purposes was never challenged. In our considered view the petitioner who had performed as Information Assistant (B-11) as stopgap arrangement against temporary vacancy cannot invoke the provisions as enumerated in Fundamental Rule 9(30) and Office Memorandum No,3605.EG-II/49 dated 19-9-1949. Mr. Muhammad Shoaib Shaheen, learned Advocate Supreme Court on behalf of petitioner was asked pointedly that if the posts of Information Assistant (B-11) were sanctioned in the year 1985 then how come that no seniority list whatsoever was prepared but no answer could be given and rightly so because no seniority list whatsoever was prepared as the temporary posts got sanctioned in the year 1985 for the purposes of election were abolished hence the question of preparation of any seniority list does not arise. As mentioned hereinabove in the provisional seniority list and final seniority admittedly the petitioner was shown as junior to that of Mrs. Aasia Gondal (respondent No,1) and that position was never objected or challenged. The petitioner got up from a deep slumber after so many years for the reasons best known to her. It is too late in the day to reverse the existing seniority position which was determined in 1995. It is not a discretion of the Competent Authority to change the seniority position assigned to a Government employee without and lawful justification. It is to be noted that "every officer in a graded service has a vested right to a proper place in the seniority list.
That is of the highest importance to the officer, as well as to the maintenance of proper discipline and order within the service and consequentially to the public interest which is deeply involved in the maintenance of a proper spirit of order and discipline within the service". Bashir Ahmad v.
Mahmud Ali Khan PLD 1960 SC 195. Seniority has been considered as a vested right which cannot be reversed without lawful justification and in case titled Bashir Ahmad (supra) the principle of the vested right of the seniority were determined as follows:-- "(1) Every officer in a graded service has a vested right to a proper place in the seniority list.
(2) This is of the highest importance to him, as well as to the maintenance of proper discipline and order within the service, and consequentially to the public interest which is deeply. Involved in the maintenance of a proper spirit of order and discipline within the service.
(3) Seniority rules are not of the same nature and quality as the great body of departmental rules applicable to the conduct of officers and other such matters relating to the service as a whole, which are capable of being altered by the Government. These rules are of the highest validity and have the quality of settling the important matter of seniority among officers of service."
7. We have also adverted to the question of limitation which has been addressed to properly by the learned Federal Service Tribunal in the judgment impugned, relevant portion whereof is reproduced herein below for ready reference:- "The objection raised by the learned counsel for the respondents that the appeal is barred by time and that there is no ground for condonation of delay has not impressed us. Admittedly the departmental appeal was filed on 1-7-2004. When the same remained un-actioned the appellant after submitting two reminders filed the present appeal on 11-1-2005. During the pendency of the appeal, a legal notice dated 5-4-2005 was issued to the respondents once again calling upon the departmental appellate authority to decide the departmental appeal as per law. In response to the said Legal Notice, the Deputy Director (Admn.), Press Information Department, Government of Pakistan, Islamabad vide letter dated 6-5-2005 intimated the appellant that her appeal was still under process in the Ministry of Information and Broadcasting and that it will be forwarded to the Establishment Division. It was also asserted that "it may be pertinent to mention here that justice will be done at all cost". No further action appears to have been taken by the department thereafter."
8. The Tribunal has rightly exercised its discretion in condoning the delay in view of the peculiar circumstances of the case as mentioned hereinabove. "It hardly needs any elucidation that sufficiency of cause for condonation of delay being question of fact is within the exclusive jurisdiction of learned Federal Service Tribunal and once the discretion concerning condonation of delay was exercised judiciously by the Service Tribunal it cannot be disturbed by this Court without any justification which is lacking in this case." In this regard we are fortified by the dictum laid in Syed Ali Hassan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086, Muhammad Azhar Khan v.
Service Tribunal, Islamabad 1976 SCMR 262, Water and Power Development Authority v. Abdur Rashid Dar 1990 SCMR 1513, Sher Bahadar v. Government N.-W.F.P. 1990 SCMR 1519 and Nazakat Ali v.
WAPDA 2004 SCMR 145.
9. We may mentioned here that no substantial question of law of public importance is involved and in absence whereof leave to appeal may not granted. In this regard we are fortified by the dictum laid down in the following cases:- ' Muhammad Iqbal v. Secretary to Government of Punjab 1986 SCMR 1, Karamat Hussain v. Province of the Punjab 1982 SCMR 897, Razia Sultana v. Government of Punjab 1981 SCMR 715, M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22, Irtiqa Rasool Hashmi v . WAPDA 1980 SCMR 722, Dilbar Hussain v. Province of Punjab 1980 SCMR 148, Yousaf Hussain Siddiqi v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1976 SCMR 268, Muhammad Azhar Khan v.
The Services Tribunal, Islamabad 1976 SCMR 262, M.A. Majid v. Government of Pakistan 1976 SCMR 311, Director Food v. Rashid Ahmad 1990 SCMR 1446, 1990 SCMR 560, Province of Punjab through A.I.G.P., Lahore v. Rao Abdul Jalil Khan 1989 SCMR 330, Satan v. Rani 1989 SCMR 1677, Government of Punjab v. Khalid Hussain Gill 1989 SCMR 748, Abdul Razaq v. Province of Punjab 1980 SCMR 876, Muhammad Yaqub Sheikh v. Government of the Punjab through Secretary, Local Government and Rural Development 1987 SCMR 1354 and Babar Gul v. Sohail Ahmad Sheikh 2002 SCMR 581."
10. No infirmity or illegality could be pointed out in the judgment impugned which being unexceptionable and well based does not warrant interference. The petition being devoid of merit is dismissed and leave refused.