' MIAN SAQIB NISAR, J.---The appellant was a Captain in Pakistan Army who with the permission of the G.H.Q. Appeared in Central Superior Services (CSS) examination and on passing thereof was appointed in the Postal Group of Civil Service, in Grade 17 in the year 1992. He continued to serve in the department and in 2003 approached the Chairman of the Pakistan Postal Services Management Board (PPSMB) requesting that he should be given the benefit qua his seniority for the period he rendered services in Pakistan Army. It seems that his claim was founded upon a decision of this Court reported as Capt. (Retd.) Abdul Qayyum v. Government of Punjab through Chief Secretary and 81 others 2003 PLC (C.S.) 1008. The Chairman through an order dated 24-6- 2003 accepted the appellant's request and granted him seniority in the Postal Group by counting his service period in the Army. The private respondents in the matter whose seniority was affected on account of the above, feeling aggrieved of the order filed a representation before Secretary, Ministry of Communication, Government of Pakistan (Respondent No,2), who accepted the same vide order dated 8-1-2004 and thus set aside the order of the Chairman (PPSMB) dated 24-6-2003.
The appellant obviously hurt by this order filed an appeal before the Federal Service Tribunal (FST) which has been dismissed by it though the impugned judgment dated 29-6-2007 hence, a petition for leave to appeal was initiated before this Court, in which leave was granted on 28-11-2007 in the following terms:- "After hearing the petitioner, we are inclined to grant leave to appeal in this petition to consider the questions firstly, as to whether the service rendered by the petitioner in Pakistan Army was not countable towards his service in the Postal Group in the light of law laid down by this Court in Hameed Akhtar Niazi v. Secretary Establishment Division, Government of Pakistan and another (1996 SCMR 1185) and secondly, notwithstanding the refixation of the seniority, the promotion once given to the petitioner in accordance with his entitlement under the law, could be withdrawn in the light of principle of locus poenitentiae".
2. It has been argued by the learned counsel for the appellant that the decision of the FST is underpinned on four main reasons. (i) Case of the appellant is not at par with that of Capt. (R)
Abdul Qayyum. (ii) Rather it is akin to the case of Mirza Irshad. (iii) For the Armed Forces inductees Rule 5 of Civil Servants (Seniority) Rules, 1993 is applicable. (iv) The Chairman of (PPSMB) was not the competent authority to grant the seniority.
' While making submissions on the last of the aforementioned reason (of FST) first, the learned counsel by referring to Section 4 of the Pakistan Postal Services Management Board Ordinance, 2002 read with schedules I and II thereto has argued that for all the functions mentioned therein (the Schedules) it is the Chairman who is the competent authority, and his empowerment includes the settling of the seniority issues of the employees of the postal service, thus the view otherwise set out by the FST in the impugned judgment is rested on misconception and misapplication of the relevant law; he has submitted that rather it is the Secretary Communication who was not vested with any jurisdiction to entertain the so-called appeal or representation of the private respondents against the order of the Chairman (PPSMB) and resultantly his order 8-1-2004 is without jurisdiction and lawful authority is thus void; it is also argued that the appellant has never claimed his seniority on the basis of Compulsorily Service (Armed Forces) Ordinance, 1971 with the effect, that such law has been misapplied to his matter, likewise is the position about the judgment of Irshad Mirza's case which was relied by the FST in dislodging the appellant; the learned counsel categorically and empathetically stated, that the case of the appellant is exclusively and entirely structured on the judgment of this Court rendered. Capt. (R) Abdul Qayyums's case, which is aptly and squarely applicable to the matter; explaining that the two cases are akin it is submitted that in an earlier round of litigation which reached the apex Court. Capt. (R) Abdul Qayyum was not found entitled to the relief of counting his service period while he was in the Army on the basis of Ordinance 1971 ibid but it is independent thereto, that in the second round the relief which the appellant is asking for, was given to him (Qayyum), therefore, the case of the appellant being strictly at par with the said case, he was entitled to the same relief which was correctly so provided to him by the Chairman (PPSMB). In general, he has argued that the FST has erred in law and also misconceived while differentiating the facts of the two noted cases; Mr. Mazhar Ali Ch. D.A.-G., in response to the above has placed on record his written submission, while Mr. Shoaib Shaheen learned counsel for the private respondents has submitted that an impression throughout has been given by the appellant if he was either an Engineer or a Doctor in the Pakistan Army, whereas this is not true, because he was an ordinary Captain; the appellant was inducted in the Postal service in year 1992 and never raised an issue of his seniority, though he always remained posted and notified of his placement in the seniority, it is only in the year 2003 when he already stood promoted to grade-18 a move was made seek enumeration of the Army service qua even when he was in grade-17. And unfortunately it was so retrospectively allowed to him by the Chairman; he has argued that the facts of Capt. (R)
Abdul Qayyum's case are peculiar thereto, having no similarity to the instant matter and therefore such decision cannot be considered a precedent for the present case; the judgment in the noted case is in personam rather in rem, therefore it has no application to the matter in hand; the appellant was governed by the Appointment/ Promotion Seniority Rules, 1973 under which, it was not permissible for him to jump the seniority queue, by reckoning the Army service as a part of his civil service in the postal department. Replying to the argument of the appellants counsel that the Secretary Communication lacked jurisdiction to pass the order dated 8-1-2004, it is unequivocally submitted that according to section 22 of the Civil Servants Act, 1974 he (the Secretary) being the higher authority a representation against the decision of the Chairman was competent before him for the redressal of the grievance of the respondents who were seriously and adversely effected by a patently, illegal and a mala fide order and thus the jurisdiction has been validly exercised while passing the order dated 8-1-2004.
3. Heard. It may be pertinent to mention here that the learned counsel for the appellants while making his submissions has neither drawn any support from the judgment of this Court (1996 SCMR 1185) mention in the LGO or pressed into service the principle of locus poetentiae. When specifically questioned he very candidly and frankly conceded that the case of the appellant is strictly founded upon that of Capt. (Retd.) Abdul Qayyum; and further that the appellant shall have no case to argue if it is otherwise; it is however repeatedly submitted that both the cases are alike; besides the jurisdiction of the Secretary to pass the impugned order has been vehemently attacked. Therefore in view of the above it is expedient to ascertain whether there is any factual or legal similarity about the two cases.
4. The facts of Mr. Qayyum's case are uncomplicated; he joined the Army Corps of Engineering under the Direct Short Service Commission (DSSC) for the project relating to the construction of Karakoram Highway; in the year 1971; GHQ had sought options from the members of the said service for regular commission or release from Army; Mr. Qayyum opted for the later, however, his release was declined due to extra ordinary situation in the country emerging on account of 1971 war, but ultimately he was relived in 1975, whereafter he joined as Assistant Engineer in Communication and Works Department, Government of Punjab. On the basis of Section 9-A of the Compulsory Service (Armed Forces) Ordinance, 1971 he sought the counting of his service period in the army towards the newly acquired job in civil department and thus the determination of his seniority accordingly; the Governor of Punjab while exercising his residual power under section 22 of the Punjab Civil Servant Act 1974 allowed Mr. Qayyum the benefit asked for and his seniority was accordingly augmented; he also got the promotion as an XEN; the employees of the said department who were affected due to the above, challenged the decision before the Punjab Service Tribunal, but only relating to the determination/fixation of the seniority and not about the promotion; the appeal by the tribunal was however dismissed, which order was assailed before this Court and the appeal was partly allowed vide judgment dated 2-10-1990 reported as Muhammad Iqbal Khokhar and 3 others v. The Government of The Punjab through the Secretary to Government of the Punjab Lahore and 2 others (PLD 1991 SC 35). The relevant portion of the judgment is reproduced as under:- "The appeal is, therefore, allowed. The judgment of the Service Tribunal is set aside and the service appeal filed by appellant is allowed partly to the extent that the order passed by the Governor conferring seniority on respondent No,2 by giving him benefit of service rendered from 21-10-1969 to 26-2-1975 in the Army is declared to be ultra vires section 22 of the Punjab Civil Servants Act and of no legal effect. As regards the rest of the exercise of relaxation of power, the appeal in respect of it is dismissed. The parties are left to bear their own costs."
' Accordingly the Secretary Communication gave effect to the above decision by withdrawing the first part of the order, whereby the seniority of Mr. Qayyum was brought up while his promotion was not touched. It may however to mentioned that Mr. Qayyum had sought the review of the above judgment of this Court and during the pendency thereof, the Secretary Communication and Works Department, revised his seniority as XEN; anyhow the review petition was dismissed vide judgment reported as Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and 4 others (PLD 1992 SC 184).
5. In the above circumstances, Mr. Qayyum commenced a fresh round of litigation as being aggrieved of the order of the Secretary dated 26-6-1991 through which his seniority as XEN was also revised; he filed a representation before the Punjab Government which was not decided within the statutory period, constraining him to unsuccessfully move to the Punjab Service Tribunal (PST) and thereafter assailed the decision before this Court whereupon the leave was granted to him. It may be pertinent to state that by the time section 9-A of the Ordinance 1971 was amended and after the word 'practitioner' the words "other essential persons" had been inserted. Furthermore the omission of the Engineers from the original category of section 9-A of Ordinance 1971 was subjected to challenge before the Federal Shariat Court which delivered the judgment, relevant extract whereof reproduced as under:- - "that the omission of the Engineers who are also compelled to serve the Armed Forces is a violation of the human rights of equality before law and equal protection of law which is proved by the Qur'an and Sunnah. After the word Medical Officer in section 9A words 'or an Engineer' shall be added."
' Pursuant to the judgment of the Federal Shariat Court, further amendment was made in the section in 1984 allowing the benefit of Army service in civilian department to essential persons like Engineers and others (this is specifically mentioned in paragraph No, 13 of the judgment reported as Capt. (Recd.) Abdul Qayyum v. Government of Punjab through Chief Secretary and 81 others 2003 PLC (C.S.) 1008. Thus, considering all these facts, the changes brought about in law, the apex Court in paragraph No,20 of the noted dictum held as below:--
20. The insertion of the words "other essential services" in section 9A by virtue of 1984 amendment in 1971 Ordinance is nothing but recognition of the principle of fairness that a person who joins a civilian department after release from the Army is entitled to the service benefit. No doubt, the Governor of Punjab' had conferred this benefit on the appellant in 1979 before the amendment made in 1984, but the powers of the Governor under section 22 of the Punjab Civil Servants Act fully justified the Governor to do so on the basis of principle of equity persons" will have retrospective operation. Although, in Wajahat Hussain's case supra, section 22 of the Punjab Civil Servants Act was involved, yet principle of retrospective operation of the rules and the residual powers of the Governor was recognized. It was argued that judgment in Iqbal Khokhar's case was a judgment as per incuriam and the retrospective applicability of the insertion 'the other essential persons' was not considered, therefore,' agreeing with the general observations made in the judgment reported as PLD 1997 SC 351, we are of the view that the appellant is entitled to have his seniority as Assistant Engineer with effect from 21-10-1969 as ordered by the Governor and further implemented by the Department vide Secretary C & W order dated 6-6-1989 by re-fixing his seniority as XEN at serial No,31-A of the seniority list dated 1-1-1988. (emphasis supplied)
' In the context of the peculiar facts of that case and also the ratio thereof, it is manifest from the aforesaid decision that the relief was granted to Mr. Qayyum on account of being part of the compulsory service and the case falling within the purview of the law cited above, as also by applying the rule of justice and fair play.
' And as has been noted that in paragraph No,20 reproduced above, it has been specifically mentioned that judgment in Iqbal Khokhar's case was per incuriam because the mandate and the import of the law "other essential persons" was not considered while deciding that case and therefore the apex Court agreed with the general observations made in case reported PLD 1997 SC
351. But examining the case of the appellants, it is conspicuously noted that the facts are vividly distinguishable, the appellant was only a Captain in the Pakistan Army having no nexus to the nature of the service as contemplated by section 9-A of the Ordinance, 1971 in its original or amended form; he joined the postal service through the competitive examination in the year 1991- 92 and never raised any question about his seniority on any account; all of sudden, he sought change of the seniority in 2003 which was allowed to him by the Chairman and that too with retrospective effect because by then he had been promoted in grade-18, whereas seniority was allowed since the time of induction in the postal service; there obviously is no similarity either in the facts or the ratio of the two cases which. (similarity) as accordingly conceded by the appellant's counsel is foundational and sine-qua-non to his case; resultantly the appellant could not have been allowed the seniority on any stretch of legal provisions, rules of justice, fairplay and/or equality thus notwithstanding that the Chairman (PPSMB) had the power to determine the seniority .Of the appellants or not, his order dated 24-6-2003 was patently illegal and unlawful.
6. Now attending to the question raised by the appellant's counsel that the Secretary Communication had no jurisdiction to pass order dated 8-1-2004, the answer is embedded in subsection 2 of section 22 of the Civil Servants Act 1973. It is an admitted legal position that Pakistan Postal Service Management Board is an attached department of the Communication Division of Government of Pakistan, the Secretary is the head of that division and according to the provisions ibid a civil servant aggrieved of any order contemplated by the section (22[2]) where no appeal or review is provided in law could validly maintain a representation before the authority next higher to that which had passed the order; irrespective the grade of the Chairman PPSMB and that of the Secretary Communication being equal, even if assumed for the moment to be so, under the rules of business the Secretary being the incharge of the concerned division for all intents and purposes was an authority higher then the Chairman and, therefore, competent to entertain and decide the representation of the private respondents therefore, the objection of the appellant's counsel cannot sustain and is hereby repelled.
' As this appeal is liable to be dismissed for the foregoing reasons thus we are not inclined to touch upon any other proposition raised by either side. This appeal accordingly has no merits and is hereby dismissed.